1403553 (Refugee)

[2015] AATA 3238

1403553 (Refugee) [2015] AATA 3238 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1403553

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Giles Short

DATE:29 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2015 at 3:17pm

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. [The applicant] is a citizen of Sri Lanka.  He has said that he is a Tamil from [his home town] on the west coast of Sri Lanka, north of Colombo.  He has said that he had a shop selling [products] in [his home town] and that he and other Tamil shopkeepers were targeted by Sinhalese people demanding money.  He has also referred more generally to discrimination against Tamils and he has said that he suffers from [medical conditions].  His representatives have submitted that failed asylum-seekers who are involuntarily returned to Sri Lanka are at risk of significant harm and that those convicted of unlawful departure can anticipate at least one year in prison.  They have submitted that the harm inflicted on prisoners in Sri Lanka amounts to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment for the purposes of the complementary protection criterion.

2. [The applicant’s] application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by  the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   [The applicant’s] claims

3. [The applicant] is aged in his [age].  He has said that he completed seven years of primary school and that he then worked on his family’s land growing vegetables until he went to [another country] in 1989 to work [for] two years.  He has said that after he returned to Sri Lanka in 1990 he began selling [products] in a market in [his home town].  He has said that after he got married in 1997 he started working in a [shop] owned by someone else named [company name].  He has said that he worked there for two years and after that he established his own shop although he only got a licence in 2009.  He produced to the Department a document in relation to the registration of the business name in 2010.

4. [The applicant] has said that his monthly income from the business was more than one or one and a half lakhs (100,000 or 150,000) rupees and that he had [employees].  When he was interviewed by the primary decision-maker in July 2013 he said that his wife and his wife’s father were running the shop and all [of his] employees were still working at the shop but at the hearing before me in January 2015 he said that around the beginning of 2014 the business had been sold to a [different] owner for 25 or 26 lakhs (2,500,000 or 2,600,000) rupees of which 11 lakhs (1,100,000) had so far been given.  At the hearing before me he said that he had paid the people smuggler three lakhs (300,000) Sri Lankan rupees and that this had been his own money: he had not had to borrow any of it.  He said that after he had come here the people smuggler had demanded a further seven lakhs (700,000) rupees which his wife had raised by selling jewellery and borrowing money from a bank.

5. In the statutory declaration accompanying his application for a protection visa [the applicant] said that about 40 per cent of the population in [his home town] was Sinhalese but at the hearing before me he said that the Sinhalese were in the majority and the Tamils were only 10 per cent.  In his statutory declaration he said that the Sinhalese and the authorities did not respect the rights of Tamils, that the situation had deteriorated in recent years, particularly since the end of the war with the LTTE (the Liberation Tigers of Tamil Eelam), that a big navy base had been established in his area and that the Tamil population was monitored by the navy, the police and the CID.  He said that over the past years but particularly in the current year the navy, the police and the Sinhalese people had been coming to his shop asking for money, that they had also taken merchandise and had refused to pay for it and that he had been assaulted and [had been injured] when he had tried to prevent this from happening.  He said that his health had suffered as a result and he suffered from [medical conditions].

6. [The applicant] said that other Tamil shopkeepers were targeted in the same way.  He said that the police and the navy and the Sinhalese people were trying to put pressure on them so that they would have to close their shops and the Sinhalese could take over their shops.  He said that all his life he had seen the authorities mistreating Tamils.  He said that the government allowed the navy, the army, the police and paramilitary groups to kill, kidnap, mistreat and discriminate against Tamils.  Along with his application [the applicant] produced various documents relating to his identity and his business as well as medical records confirming that he was suffering from [a medical condition] and a statement from his wife asking that he not be sent back to Sri Lanka because he would face inhuman and degrading treatment there.

7. When he was interviewed by the primary decision-maker [the applicant] said that ever since he had started the store they had stolen money from him.  He said that they came and took [products] by force and that on one occasion they had taken 15 [items].  He said that in the year since he had left Sri Lanka Sinhalese people had come to the shop and had taken money or [products] on four or five occasions and that during [an event] in May they had asked for money to buy five sacks of rice.  He said that he believed that these people were associated with the police because when the shop owners made an entry at the police station these people would come back and beat them.

8. At the hearing before me [the applicant] said that from the time he had started the business he had had problems with people beating him and asking him for money.  He said that this dated back to when he had returned to Sri Lanka from [overseas] and he had begun selling [products] for a living.  He said that they had come and asked for money and the customers had gone out running.  He said that they would come and ask for things and they would beat him if he did not give them these things.  He said that it had been the same when he had been working for [company name]: every 15 days five to six people would come.  He said that on one occasion, three years before he had come to Australia, they had attacked him in his shop and one of his teeth had been broken.  He said that they had also broken the fittings in the shop.  He said that just before he had come to Australia they had come and hit him again then he said that they had continuously attacked him and that he had been affected mentally.

9. After I put to [the applicant] that his evidence suggested that he had had a very successful business and that he had been making a good living in [his home town] he agreed that he had been doing well and he said that these problems had happened due to jealousy.  He said that in 2012 he had been beaten and he had spent three days in hospital.  After I asked him why he had never mentioned this previously he said that he had thought of finishing it in short.  He also said that three months before he had left Sri Lanka he had been attacked at a roundabout.  He said that he had been riding a motorcycle and a man riding on another motorcycle had kicked him.  He said that this incident has happened after the police had called a meeting of the shop owners in [the street] where his shop was located to discuss stealing from the shops or shoplifting.  He said that an IP - a senior police officer - had come to this meeting and that the incident at the roundabout had taken place after this.  He said that he thought that they had not wanted him to make a report to the police.  He said that the Tamil shop owners had given the names of people to the police but the police had not supported them.

10. In a submission dated 2 February 2015 [the applicant’s] representatives submitted that any inconsistencies in his evidence were minor and did not themselves support adverse findings relating to the credibility of his claims.  They referred to the effects of trauma on memory and also to difficulties recalling dates but they did not seek to relate this to [the applicant’s] evidence.  They submitted that there was evidence that failed asylum-seekers who were involuntarily returned to Sri Lanka were at risk of significant harm.  They submitted in this context that the influx of asylum-seekers from Australia had stimulated criticism of the Sri Lankan authorities in the Australian media and they referred to a claim by an organisation called Tamils Against Genocide that returning from a country that had criticised the Sri Lankan Government was a risk factor.  They also referred to internal repression of dissent in Sri Lanka and they submitted that it would be disingenuous to conclude that [the applicant] would not attract adverse attention as a critic of the government’s human rights record when ‘the obvious generator of Australian criticism is the combined consequence of individuals like him relating the adverse circumstances they encounter in Sri Lanka’.

11. With regard to the penalties for unlawful departure [the applicant’s] representatives submitted that those convicted of unlawful departure could anticipate at least one year in prison.  They referred to allegations of the use of torture in Sri Lanka and they also referred to allegations about arbitrary detention, abductions and enforced disappearances in Sri Lanka although they did not explain how they saw this as relevant to the penalties for illegal departure.  They submitted that the harm inflicted on prisoners in Sri Lanka amounted to torture or to cruel or inhuman treatment or punishment for the purposes of the complementary protection criterion.  They quoted from two decisions of the Tribunal (differently constituted), [file number] (14 February 2013) and [file number] (26 November 2013), the former relating to prison conditions while the latter referred to an applicant with a specific profile of familial links to the LTTE.  They did not explain why they considered this latter decision was relevant to [the applicant’s] circumstances.

12. [The applicant’s] representatives argued that if he was not a refugee then he came within the complementary protection criterion.  In this regard they submitted that he would face a real risk of degrading treatment or punishment, referring once again to prison conditions.  They submitted that the Sri Lankan authorities were either deliberately creating conditions faced by detainees or were deliberately failing to improve such conditions.  Finally they submitted that [the applicant] was fearful that the Sri Lankan authorities would detain him indefinitely if he returned to Sri Lanka but once again they referred to no evidence to suggest that there was a real chance or a real risk that this would occur.

13. On 16 February 2015 the Australian Department of Foreign Affairs and Trade published a new Country Report in relation to Sri Lanka.  Because the Tribunal is require to take account of such assessments prepared expressly for protection status determination purposes the Tribunal sent [the applicant] a copy of this report and invited him to comment on it.  In a submission dated 16 March 2015 [the applicant’s] representatives said that they would not provide any further comments in relation to the new Country Report and that they relied on the submissions which they had previously provided.

    Consideration of [the applicant’s] claims

14. As I put to [the applicant], I consider that his evidence suggests that he had a very successful business in Sri Lanka.  He has said that he was earning one or one and a half lakhs (100,000 or 150,000) rupees every month and that at the time when he left Sri Lanka he had three lakhs (300,000) rupees in savings.  [The applicant] said by way of response that he had evidence that he had had five current accounts in five banks.  As I put to him, he is saying that he was not able to live in Sri Lanka but his evidence suggests that he was living there very comfortably.  [The applicant] said that they did not let him live there but I consider that his evidence indicates the contrary.  As referred to above, [the applicant] has said that his business continued running after he left Sri Lanka until it was sold around the beginning of 2014 for 25 or 26 lakhs (2,500,000 or 2,600,000) rupees of which 11 lakhs (1,100,000) had been paid at the time of the hearing in January 2015.

15. Having regard to the fact that [the applicant] was apparently running a successful business in Sri Lanka I do not accept that he was being continuously attacked as he said at the hearing before me nor that, as he claimed in the statutory declaration accompanying his application for a protection visa, the navy, the police and Sinhalese people were coming to his shop asking for money.  I accept that, as [the applicant] has said, one of his teeth has been broken, but not that this was caused in an attack on him in his shop in which some fittings in the shop were also broken or that one or more of the five Convention reasons was the essential and significant reason for his suffering a broken tooth.  I do not accept that, as he said for the first time at the hearing before me, he was beaten and spent three days in hospital in 2012 nor that three months before he left Sri Lanka he was attacked at a roundabout because people did not want him to report what was happening to the police nor that just before he left Sri Lanka they came and hit him again.

16. When I asked [the applicant] why he had not mentioned previously that he claimed that he had spent three days in hospital he said that he had thought of finishing it in short. As referred to above, his representatives referred in their post-hearing submission to the effects of trauma on memory but I do not accept that this explains [the applicant’s] failure to mention until the hearing before me what would have been significant incidents if his evidence were accepted. While I accept that he and other shop owners had problems with people stealing from their shops or with shoplifting, I do not accept that, as he has claimed, the Tamil shop owners were specifically targeted, nor that any problems he had as a shop owner arising from people stealing from his shop or shoplifting were so serious or so detrimental in their effect as to amount to persecution involving serious harm as required by paragraph 91R(1)(b) of the Migration Act 1958.  I do not accept that there is a real chance that he will be persecuted for reasons of his membership of the particular social groups of shop owners or specifically Tamil shop owners if he returns to Sri Lanka now or in the reasonably foreseeable future.

17. As I put to [the applicant], the Australian Department of Foreign Affairs and Trade assesses that there are no official laws or policies in Sri Lanka that discriminate on the basis of race or language, including in relation to matters such as education, employment and access to housing, and that there is only a low level of discrimination in the implementation of laws and policies. As  I likewise put to him, the Department assesses that there is no law or Government policy which hinders access to state protection on the basis of religion or race and it has said that it is not aware of any cases over the last few years where people have been denied access to legal remedies based on race or religion.[1]

    [1] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 3.5, 5.2 and 5.12; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 3.5, 5.2 and 5.12.

18. [The applicant] said that there was a lot of information about religion in Sri Lanka.  He said that you could not be identified as a religious person: you could not go out of a temple with religious identification like a pottu.  After I asked him if he was claiming that he had not been able to worship at the [temple] he said that you could go to the temple and worship inside the temple but when you went out with the pottu and vesti they would pass comments stating, ‘You are a Tamil.’  As I indicated to him, I accept that by attending the temple he would be able to be identified as a Tamil and a Hindu but, as I put to him, the advice of the Australian Department of Foreign Affairs and Trade suggests that he would not face discrimination on this basis.  [The applicant] said that this was what was happening in Sri Lanka.  He said that when they had sacrificed goats in the temple a [Minister] had brought the police and had created a lot of problems in the festival.  He said that the Minister had told people that he would not allow the Tamils to do this.

19. I am aware that there has been controversy over the issue of animal sacrifices at the [temple] but this issue raises complex questions involving the intersection of religious freedom and concerns about animal cruelty.[2]  I consider that, as [the applicant] himself said, he will be free to worship at the temple if he returns to Sri Lanka and I do not accept that the inability to carry out animal sacrifices at the temple amounts to such an unreasonable restriction on religious freedom as to amount to persecution for the purposes of the Refugees Convention.  As I indicated to [the applicant], I accept that he will be identifiable as a Tamil and a Hindu but, having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that he will be discriminated against on this basis in such a way or to such an extent as to amount to persecution for the purposes of the Refugees Convention.

    [2] ‘Hindu temple cancels animal sacrifice’, UCAN News, 3 September 2012, CX305765; Centre for Policy Alternatives, Attacks on Places of Religious Worship in Post-War Sri Lanka, 1 March 2013, CIS25159, pages 89-90.

20. As I indicated to [the applicant], I accept that he will be returning to Sri Lanka as a failed asylum-seeker.  As I put to him, returnees who do not return voluntarily are interviewed at the airport by various Sri Lankan Government departments.  Officers of the Australian Department of Immigration try to meet all the flights with people returning from Australia.  As I put to him, the Australian Department of Foreign Affairs and Trade assesses that returnees are treated in the same way regardless of their race or their religion and it assesses that returnees are not subject to mistreatment during their processing at the airport.[3]

    [3] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 5.24-5.26; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 5.24-5.26.

21. In their post-hearing submission [the applicant’s] representatives submitted that there was evidence that failed asylum-seekers who were involuntarily returned to Sri Lanka were at risk of significant harm.  They submitted in this context that the influx of asylum-seekers from Australia had stimulated criticism of the Sri Lankan authorities in the Australian media and they referred to a claim by Tamils Against Genocide that returning from a country that had criticised the Sri Lankan Government was a risk factor.  They also referred to internal repression of dissent in Sri Lanka and they submitted that it would be disingenuous to conclude that [the applicant] would not attract adverse attention as a critic of the government’s human rights record when ‘the obvious generator of Australian criticism is the combined consequence of individuals like him relating the adverse circumstances they encounter in Sri Lanka’.

1. I accept that, as referred to by [the applicant’s] representatives, there is evidence that some returnees to Sri Lanka, including some failed asylum-seekers, have been detained and tortured but the relevant reports do not suggest that the individuals in question were detained or tortured because they were failed asylum-seekers or because they had sought asylum abroad nor do they suggest that, as claimed by Tamils Against Genocide, failed asylum-seekers returned to Sri Lanka from countries like Australia are at greater risk than failed asylum-seekers returned from other countries where there has been less public criticism of the Sri Lankan authorities.  I do not accept on the evidence before me that there is a real chance that [the applicant] will attract adverse attention as a critic of the government’s human rights record because he will be returning from Australia, as his representatives have submitted.  I accept the assessment of the Australian Department of Foreign Affairs and Trade that returnees are treated in the same way regardless of their race or religion and that returnees are not subject to mistreatment during their processing at the airport.[4]  I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted in this context because he is a Tamil, because he will be returning to Sri Lanka as a failed asylum-seeker from Australia, or because of any political opinion which he may be perceived as holding because he has applied for asylum in Australia.

   [4] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 5.24-5.26; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 5.24-5.26.

2. As I indicated to [the applicant], I also accept that he will be charged under the Immigrants and Emigrants Act of Sri Lanka with offences relating to his illegal departure.  As I put to him, the Australian Department of Foreign Affairs and Trade has advised that in most cases people suspected of having departed Sri Lanka illegally have been arrested by the police at the international airport in Colombo.  They have been transported to the Magistrates Court in Negombo at the first available opportunity and in most cases they have been granted bail immediately by the magistrate.  As I put to him, the Department has said that as of March 2014 no returnee who was just a passenger on a people smuggling venture had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued.[5]  As I put to [the applicant], the information available to me suggests that he will only be held at the Negombo Prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday.[6]  As I put to him, the Australian Department of Foreign Affairs and Trade has advised that allegations of mistreatment of returnees have not been substantiated and that it is not aware of allegations of mistreatment of returnees while on remand.[7]

   [5] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 5.27-5.28; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 5.27-5.28.

   [6] DFAT Country Report - Sri Lanka, 3 October 2014, paragraph 5.27; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraph 5.27; see also ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

   [7] DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951, R.2; DFAT, ‘Sri Lanka: RRT Country Information Request LKA41955 - Treatment of returned failed asylum seekers’, 28 March 2013, CX305410.

3. As referred to above, in their post-hearing submission [the applicant’s] representatives submitted that those convicted of unlawful departure could anticipate at least one year in prison.  Elsewhere they submitted that [the applicant] was fearful that the Sri Lankan authorities would detain him indefinitely if he returned to Sri Lanka but they referred to no evidence to suggest that there was a real chance that this would occur.  The amendments made to the Immigrants and Emigrants Act of Sri Lanka in 2006 removed a legislative requirement for a minimum sentence of imprisonment for a conviction under paragraph 45(1)(b) of the Act and they removed paragraph 45(6)(a) of the Act, thus restoring the judicial discretion under section 303 of the Code of Criminal Procedure to suspend any sentence of imprisonment on a conviction under paragraph 45(1)(b).[8]  I do not accept, therefore, that a mandatory minimum sentence of imprisonment applies for illegal departure as submitted by [the applicant’s] representatives.  I accept the advice of the Australian Department of Foreign Affairs and Trade that as of March 2014 no returnee who was just a passenger on a people smuggling venture had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued.  Having regard to the assessment of the Australian Department of Foreign Affairs and Trade that returnees are treated in the same way regardless of their race or religion and to the Department’s advice that allegations of mistreatment of returnees have not been substantiated and that the Department is not aware of allegations of the mistreatment of returnees while on remand,[9] I do not accept that there is a real chance that [the applicant] will be singled out or treated differently, for one or more of the five Convention reasons, from any other returnee who has breached the laws of Sri Lanka in relation to illegal departure. I do not accept that, as required by paragraph 91R(1)(a) of the Migration Act, one or more of the five Convention reasons will be the essential and significant reason for his spending a brief period in gaol on remand or his being fined for his illegal departure if he returns to Sri Lanka. As I put to him, I consider that these consequences will be the result of the non-discriminatory enforcement of a law which applies generally in Sri Lanka.

   [8] See the Immigrants and Emigrants (Amendment) Act, No. 31 of 2006, available at These amendments do not appear to have been incorporated in the version of the Immigrants and Emigrants Act which is available online, referred to in footnote 10 to [the applicant]’s representatives’ submission.  I am indebted to former Member Charlie Powles for this reference.

   [9] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 5.24-5.26; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 5.24-5.26; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951, R.2; DFAT, ‘Sri Lanka: RRT Country Information Request LKA41955 - Treatment of returned failed asylum seekers’, 28 March 2013, CX305410.

4. [The applicant] said that if he returned to his home in [his home town] he would have problems.  He said that these problems might not be from the police but from the people.  He said that if he went there he could not live as long as he was a Tamil.  He said that if he had been able to live in Sri Lanka he would not have needed to come here.  For the reasons given above I do not accept that there is a real chance that he will have problems with people because he is a Tamil.  So far as the Sri Lankan authorities are concerned, as I put to him, a tribunal similar to this one in the UK found in a decision in July 2013 that the approach of the Sri Lankan authorities was based on sophisticated intelligence both as to activities in Sri Lanka and activities outside Sri Lanka.[10]  As I put to [the applicant], he does not claim to have been involved in any activities either in Sri Lanka or outside Sri Lanka which would have attracted the attention of the Sri Lankan Government.  He does not come within the categories of people identified by the tribunal in the UK as being at real risk of persecution or serious harm on return to Sri Lanka nor does he come within the categories of people identified by UNHCR as being in need of protection.[11]

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

   [11] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

5. I accept that, as [the applicant’s] representatives noted in their post-hearing submission, the profiles outlined in the UNHCR Eligibility Guidelines are not exhaustive.  However, for the reasons given above, I do not accept on the evidence before me that there is a real chance that [the applicant] will be killed, kidnapped, mistreated, discriminated against or otherwise persecuted for reasons of his race (Tamil), his religion (Hindu), any political opinion imputed to him because he will be returning to Sri Lanka as a failed asylum-seeker from Australia or his membership of the particular social groups of shop owners or specifically Tamil shop owners if he returns to Sri Lanka now or in the reasonably foreseeable future.  I have considered the totality of [the applicant’s] circumstances as a Tamil from [his home town] who is a shop owner, who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker.  However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.

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

6. Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he is a shop owner or specifically a Tamil shop owner.  I have found above that he was apparently running a successful business in Sri Lanka and I have rejected his evidence that he was attacked at his shop or that, as he claimed in the statutory declaration accompanying his application for a protection visa, the navy, the police and Sinhalese people were coming to his shop asking for money.  I have accepted that [the applicant] has a broken tooth but not that this was caused in an attack on him in his shop.  I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer this form of harm once again.  Having regard to the assessment of the Australian Department of Foreign Affairs and Trade that there is only a low level of discrimination in the implementation of laws and policies in Sri Lanka, that there is no law or Government policy which hinders access to state protection on the basis of religion or race and that it is not aware of any cases over the last few years where people have been denied access to legal remedies based on race or religion,[12] I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he is identifiable as a Tamil or a Hindu.

   [12] DFAT Country Report - Sri Lanka, 3 October 2014, paragraphs 3.5, 5.2 and 5.12; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraphs 3.5, 5.2 and 5.12.

7. Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he will be returning to Sri Lanka from Australia as a failed asylum-seeker.  Having regard to my findings of fact above I do not accept that, as submitted by his representatives, he can anticipate at least one year in prison because he departed Sri Lanka illegally nor do I accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will be detained indefinitely.  I accept the advice of the Australian Department of Foreign Affairs and Trade that as of March 2014 no returnee who was just a passenger on a people smuggling venture had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued.[13]  Having regard to the evidence referred to in paragraph 23 above and to what I have found to be his circumstances, I consider that there is only a remote chance that [the applicant] will have to spend any longer than a fortnight in gaol on remand.  Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 23 above that allegations of mistreatment of returnees have not been substantiated and that it is not aware of allegations of mistreatment of returnees while on remand, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm or specifically that he will experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period which he may spend in gaol on remand.

   [13] DFAT Country Report - Sri Lanka, 3 October 2014, paragraph 5.28; see now DFAT Country Report - Sri Lanka, 16 February 2015, paragraph 5.28.

8. I accept that prison conditions in Sri Lanka are poor but I do not accept that spending up to a fortnight in gaol on remand amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia. For the reasons given in the previous paragraph I do not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight. Even taking into account the evidence regarding conditions in prisons in Sri Lanka, I do not accept that spending a brief period in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined in subsection 5(1) of the Migration Act. I also consider it relevant that the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and that the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

9. I consider it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[14] In their post-hearing submissions [the applicant’s] representatives submitted that the Sri Lankan authorities were either deliberately creating conditions faced by detainees or were deliberately failing to improve such conditions. I have taken into account the fact that the ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. I do not consider that it is appropriate on the evidence before me to draw this inference in the circumstances of the present case. I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act, nor do I accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. I do not accept, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons during any period which he may spend in gaol on remand.

   [14] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

10. As I indicated to [the applicant], I accept that he has [medical conditions] but, as I put to him, there is nothing in the evidence before me to suggest that the Government of Sri Lanka has limited treatment for people with these health problems on an arbitrary basis.  [The applicant] said that they would definitely not treat him but, as I put to him, he has said that he was receiving treatment in Sri Lanka.  He said that he had obtained treatment from a private hospital, not from the government hospital.  Having regard to my findings of fact above, however, in particular with regard to the absence of discrimination in the provision of government services, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life by being denied appropriate medical treatment.

11. [The applicant] said that Sri Lanka was not like Australia. He said that here he had had [other medical conditions] and he had received proper treatment but in Sri Lanka they would not care. However the test in this context is not whether the standard of health care in Sri Lanka is the same as that in Australia but rather where 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. As I put to him, the definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. As I put to him, I do not accept on the evidence before me that there is the requisite intention to inflict pain and suffering or to cause extreme humiliation to people with the sorts of health problems which [the applicant] has. I do not accept, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined because he is suffering from [medical conditions].

12. I have considered the totality of [the applicant’s] circumstances as a Tamil from [his home town] who is a shop owner, who left Sri Lanka illegally, who will be returning to Sri Lanka from Australia as a failed asylum-seeker and who suffers from [medical conditions]. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

    CONCLUSIONS

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

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

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

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

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

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

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

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

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

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

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

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

   Refugee criterion

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

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

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

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

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

   (b)significant physical harassment of the person;

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

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

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

    Ministerial direction

13. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

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

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

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

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

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