1404089 (Refugee)

[2016] AATA 4418

1404089 (Refugee) [2016] AATA 4418 (8 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404089

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Roslyn Smidt

DATE:8 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 September 2016 at 9:27am

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 is a citizen of Sri Lanka, arrived in Australia [in] August 2012. He applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] February 2014.

3. The applicant appeared before the Tribunal on 17 February 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.

   THE RELEVANT LAW

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

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

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

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

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

9. 'Significant harm' is exhaustively defined in s.36(2A) as being arbitrarily deprived of life facing the death penalty, being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

10. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background and overview of claims

11. The applicant is a [age] single man of Sri Lankan nationality, Tamil ethnicity and Hindu religion from [a] village in [town], Northern Province of Sri Lanka. He completed his education in [year] and later worked as a fisherman and [other employment].

12. The applicant’s mother is deceased. His father and [siblings] remain in Sri Lanka. He has [Sibling 1] who departed Sri Lanka illegally and is currently in [country].

13. The applicant claims that he faces a real chance of experiencing serious or significant harm if he returns to Sri Lanka because of his race (Tamil ethnicity), political opinion (pro-LTTE/anti-government political opinions which he holds or which are likely to be imputed to him because of his ethnicity, his relationship to his [Sibling 1] and father who were both associated with the LTTE, his place of origin ([town]), his illegal departure, his extended stay in Australia as an asylum seeker and his [Sibling 1]’s illegal departure from Sri Lanka and because of his membership of a range of particular social groups comprising various of these factors.

    Findings of fact

14. The applicant has consistently claimed, and I accept, that he is of Tamil ethnicity, that he lived in areas under Tamil control for a number of years prior to 2009, that his [Sibling 1] was a forcibly recruited to the LTTE in 2006, that his father was abducted and ill-treated by the LTTE twice between 2006 and 2009, that he spent time in an IDP camp between 2009 and 2010 and that he resided in [country] for about a year from February 2010. I also accept that his [Sibling 1] was held in a rehabilitation camp until 2011 and departed Sri Lanka illegally in 2012.

15. The applicant also claims that he was harassed and threatened on a number of occasions after his release from the IDP camp because he was suspected of involvement with the LTTE and that members of his family continued to be harassed after his departure from Sri Lanka because of their association with him. For the reasons set out below, I do not accept any of these claims.

    The applicant’s experiences in 2009 and early 2010

16. According to the applicant’s evidence at the hearing, he and his family resided in [an] IDP Camp in [town] from 2009 to until January 2010.  While in the camp he was questioned about his links to the LTTE and told them that his [Sibling 1] was in the LTTE.  He was released without reporting conditions or other requirements and he was able to return to normal life. 

17. I find the fact that the applicant was not detained or sent to a rehabilitation camp, but released from the IDP camp with his family in early 2010, despite the fact that his [Sibling 1] was in the LTTE, a strong indication that he was not suspected of involvement in the group at that time.

18. The applicant has consistently claimed, and I accept, that he spent about a month in his village with his family before travelling to [country] in February 2010 with the intention of travelling on to Australia. However, he has given differing accounts of his experiences during the month that he lived in his village and his reasons for leaving Sri Lanka. 

19. In a written submission dated [December] 2012 he said that local civil officials had visited his home two or three times and asked him about his [Sibling1 ] during this period.  He told them that he did not know, but they did not believe him.  He observed other young boys going missing which made him fearful so he escaped to [country] with the intention of travelling on to Australia.  When asked about this period during his interview with the delegate [in] December 2013 he said that a neighbour had been taken away by masked men and his father told him to be careful, so he went into hiding and then left for [country], but said nothing about being questioned by anyone. 

20. During the hearing on 17 February 2016 the applicant told me that he left Sri Lanka because the authorities wanted to arrest him. He said that people wearing masks had come to his home and spoken to his father.  They accused him of being in the LTTE.  He said that after that some boys who had been in the camp with him and who also had brothers in the LTTE were arrested, so he left for [country].  I pointed out that he had previously stated that the men who came to the house had spoken to him and asked where his [Sibling 1] was.  The applicant said he had been questioned in the IDP about these things, but not after he returned home.  He confirmed that the officials had questioned his father about him (the applicant), not his [Sibling 1]. I  noted that he had been questioned in the IDP camp and released which suggested that he was not suspected of being in the LTTE at that time and asked why he thought they had been concerned about him after he returned home. He said that he did not know.

21. On 24 March 2016 the Tribunal wrote to the applicant to invite him to comment on these discrepancies. In response his representative said that both the applicant and his father had been questioned after his release from the IDP camp and submitted that I had misunderstood his written submission. He submitted that the applicant’s statement “The civil authorities came to my home two or three times and asked me about my [Sibling 1]” should not be taken to mean that he had two or three encounters with the authorities as it did not specifically state this.  He also correctly pointed out that I had misunderstood the applicant’s evidence during his interview with the delegate as he had not repeated the claim that he questioned by officials in early 2010.  The information in the letter was based on my understanding of the delegate’s written statement of reasons. However, when I reviewed the recording of that interview it became clear that this was not correct.

22. I acknowledge that it not uncommon for honest applicants to give differing accounts of past events. I also acknowledge that the applicant’s youth and background and the stressful nature of providing information in formal setting could have contributed to some of the confusion in his evidence. However, I do not accept that he would have been confused about whether he himself had been questioned by officials about his [Sibling 1] or his father had been questioned about him.  I believe that the applicant gave inconsistent evidence regarding these events because his claims are not true. 

23. In reaching this conclusion I have noted the applicant’s representative’s submission that both the applicant and his father were questioned after he was released from the IDP. However, this is at odds with the evidence he provided at the hearing when he clearly stated that his father had been questioned, but he had not.

24. I also note that the applicant left Sri Lanka by air using a passport which contained his name and photograph without experiencing problems at the airport, which I consider a strong indication that he was not of interest to the Sri Lankan authorities at this time. At the hearing he claimed that he had obtained fraudulent passport. I do not accept this. In the first place, there is no credible evidence which suggests he would have been unable to obtain a genuine passport at that time. Secondly, it is not plausible that he would have obtained a fraudulent passport in his own name if he was of interest to the authorities and wished to avoid problems.  In any event, even if he decided to obtain a false passport for some reason, this does not alter my finding neither he nor his father were questioned by local officials.

25. When the applicant travelled to [country] in early 2010 Sri Lanka’s it was only six or seven months after the end of Sri Lanka’s brutal civil war. He had spent some six or seven months in an IDP camp where he was questioned about his links to the LTTE.  The north of Sri Lanka was heavily militarized and former LTTE members continued to be detained.  In these circumstances I accept that the applicant travelled to [country] because he was fearful of the future. However, I do not accept that he or his father were questioned by local officials or by masked men or that anyone accused him of belonging to the LTTE in early 2010.

    Events of 2011-2012

26. The applicant states that he was unable to travel to Australia in 2010 so he remained in [country] for about a year and returned to Sri Lanka after his father told him it was safe to do so.  He returned to [country] by air using the same passport he had used to depart and again experienced no problems at the airport, a strong indication that he was not of interest to the Sri Lanka authorities at that time.

27. The applicant has (more or less) consistently claimed that he worked as a fisherman for about 3 or 4 months after which he began to face problems and went into hiding.  However, he has provided inconsistent evidence regarding the problems he faced between the time that he claims he went into hiding [in about August or September 2011] and his departure for Australia [in] July 2012 and I do not accept that he has provided an accurate account of his experiences during this period.

28. In his  [December] 2012  statement the applicant said that after his return to Sri Lanka Tamil people in the area who were under suspicion began to be taken by masked men, which made him fearful so he stopped working as a fisherman and began to move between his house, his [Sibling 2]’s house and the nearby jungle.  After he went into hiding masked men went to his father’s house and asked if the applicant had ever worked for the LTTE.  His father denied this, but he was not believed.  Following this, men in plain clothes went to his father’s house three or four times and told his father that he (the applicant) should report to their office.  The last visit was about four or five days before the applicant left Sri Lanka.

29. During his interview with the delegate the applicant was reminded of his claim that masked men had begun to detain people some time after he returned from India. The applicant said that masked men had taken away a neighbour, but they had not come to his home. The delegate reminded him that he had previously stated that masked men had come to his father’s house while he was living with [Sibling 2].  His response to this was confused. He first stated that masked men had visited his father three or four months after he left Sri Lanka, but later said he had been in [name] (the village where his [Sibling 2] lives) when they came.

30. At the hearing the applicant confirmed that he had returned from [country] in May 2011 and then worked as a fisherman for about 3 or 4 months and again claimed that he went into hiding at his [Sibling 2]’s house and in the nearby jungle after this. He also worked casually at a [workplace].  When asked why he had gone into hiding he said he said he had been questioned  by the CID at a camp who told him that they believed that he was involved in the LTTE because his [Sibling 1] was a member and because so many Tamils were recruited in the final stages of the war. They threatened to detain him but he was released after 30 minutes.  After that he went home and then to his [Sibling 2]’s house. I observed that it seemed strange that he would be taken for questioning so long after he had been cleared of LTTE involvement and released from the IDP camp and it also seemed strange that he would have been released after only 30 minutes if the CID genuinely believed that he was involved with the LTTE. The applicant said that he did not understand why these things had happened. I also observed that it appeared likely that officials could have found him at his [Sibling 2]’s house if they seriously suspected him of involvement with the LTTE and wanted to detain him.  He said that he had lived in the forest behind his [Sibling 2]’s house and only gone to the house for meals. Nobody came to his [Sibling 2]’s house to look for him during the time he was hiding nearby. 

31. The applicant said that officials had gone to his father’s house looking for him once after he went to his [Sibling 2]’s house.  His father told them that he had gone away and they never returned. When asked if anyone had enquired about him following this, the applicant said that his [Sibling 1] was questioned about him when [Sibling 1] reported to the police, but nobody had gone to his father’s house again until after he left for Australia. (See also below).

32. The Tribunal’s 24 March 2016 letter pointed out that the applicant appeared to have given differing accounts of why he had gone into hiding in 2011 and the number of times people went to his father’s house to inquire about him while he was in hiding.  In response the applicant’s representative said that the applicant had been confused during the interview with the delegate and had understood that he was being questioned about two different incidents and that there was no inconsistency in his evidence regarding the number of times people had come to his father’s house as the  information in his written statement referred to the total number of times plainclothes officers came to his father’s house including visits which occurred after he  left the country and he was never asked the total number of times his father had been visited by plainclothes police during the hearing.

33. It is certainly true that the applicant’s evidence during both his interview with the delegate and the hearing was sometimes confused and I accept that this may sometimes have occurred because he misunderstood questions he was asked. However, this does not explain why he initially claimed that he had gone into hiding in 2011 because he was fearful of masked men but stated at the hearing that he had gone into hiding after being detained by the CID and accused of belonging to the LTTE.  While these claims are not mutually exclusive, I do not accept that the applicant would have failed to mention that he had been detained by the CID and accused of belonging to the LTTE prior to the hearing if this had occurred.  And if fear of abduction or detention by masked men in 2011 was a major reason for his decision to go into hiding at his [Sibling 2]’s house in 2011, I believe that he would have repeated this claim during the hearing.  I believe these inconsistencies occurred because the applicant has not given truthful evidence. I do not accept that he was questioned by the CID in 2011 and accused of being an LTTE member or that he went into hiding in 2011 because he feared that he would be abducted by masked men or for any other reason. I find that he concocted these claims to support his application for protection.

34. I also reject the applicant’s claim that people came to his father’s house in 2011 or 2012 looking for him. As noted above, he has given inconsistent evidence regarding these visits. The [December] 2012 submission states that men with masked faces visited his father at least once and plain clothed men a further three or four times, the final visit being four or five days before he left Sri Lanka which is clearly at odds with his evidence during the hearing when he said that his father had been visited only once while he remained in Sri Lanka. In these circumstances and in light of my findings regarding the credibility of the claim that he was in hiding, I do not accept that anyone came looking for him in 2011 or 2012. In reaching this conclusion I have considered the applicant’s representative’s submissions. However, as noted above, the applicant’s written statement clearly states that masked men or officials went to his father’s house to some four or five times before he left the country and while he clearly stated at the hearing that they had only visited once during that time.

1. It is plausible that the applicant and other members of his family were questioned about their activities or whereabouts by police or other authorities in 2011 or 2012. As noted in the country information set out above, the north of Sri Lanka was tightly controlled by the military who closely monitored the local population during that time. However, there is no credible evidence before me which suggests that the local authorities or anyone else suspected the applicant of prior or current involvement with the LTTE. 

2. After considering all of the relevant evidence, I do not accept that Sri Lanka authorities or anyone else detained or threatened the applicant or that he was accused or suspected of involvement with the LTTE between the time he returned to Sri Lanka from [country] in May 2011 and his departure for Australia [in] July 2012 or that he was in hiding at any time prior to his departure.

   The applicant’s [Sibling 1]

3. As noted above, I accept that the applicant’s [Sibling 1] was an LTTE member and that [Sibling 1] was released from a rehabilitation camp in 2011.  I also accept that the applicant’s [Sibling 1] left Sri Lanka illegally and travelled to [another country] in about October 2014, as stated in the applicant’s submission [in] February 2016.  However, for the reasons set out below, I do not accept that the applicant has provided an entirely accurate or honest account of his [Sibling 1]’s experiences between [release] from detention and  [departure] from Sri Lanka.

4. In his [December] 2012 statement the applicant said that his [Sibling 1] was released from detention about one or two months after  [returned] to Sri Lanka in May 2011.  During his interview with the delegate he said that his [Sibling 1] had been released from detention before he returned from [country]. He repeated this claim during the hearing.  When asked to comment on this inconsistency in the Tribunal’s letter of 24 March 2016 he responded through his adviser that his [Sibling 1] had been released while he was still in [country] and said that the information in the written statement was a mistake. However, at the same time he provided a copy of a document from the Sri Lankan Ministry of [name] dated [July] 2011 which states that his [Sibling 1] was released from detention [in] July 2011. It is clear from this that either the document is not genuine or the applicant’s [Sibling 1] was not released from detention until some 2 months after his return [country], as claimed in his initial statement.  While the date on which the applicant’s [Sibling 1] was released from detention has no bearing on his case, it is clear that he had not provided honest or accurate information regarding this matter which does not reflect well on his credibility.

5. In his December 2012 statement the applicant said that his father told him that the authorities had taken his [Sibling 1]’s fingerprints and identification papers. He told the delegate during the December 2013 interview that his [Sibling 1] was living in a village in [town] not far from his home.  He said that the authorities had taken his [Sibling 1]’s documents and [had] to report to regularly to the local camp, but  [had] not suffered any other harm since  [release] from detention.[1]

   [1] As pointed out by the applicant’s representative and confirmed when I reviewed the recording of the delegate’s interview, the applicant did not tell the delegate that his [Sibling 1]’s documents were taken while he was still in Sri Lanka as suggested in the Tribunal’s 24 March 2016 letter.

6. At the hearing the applicant stated that his [Sibling 1] had not experienced any problems between the time [was] released from detention on 2011 and his own departure from Australia in July 2012, although he later indicated that his [Sibling 1]’s problems had begun shortly before that time.  When asked about his [Sibling 1]’s problems during the hearing he said that his [Sibling 1]’s documents were taken and  [was] required to report to the police after he (the applicant) left Sri Lanka and he believed this was done because it was feared his [Sibling 1] would also leave the Sri Lanka. When asked if his [Sibling 1] had experienced any other problems, he said that whenever his [Sibling 1] went to sign with the authorities [Sibling 1] was questioned about the applicant.  I observed that it appeared that he was claiming that his [Sibling 1]’s documents were taken because the authorities were interested in him (the applicant), not because of anything his [Sibling 1] had done. The applicant said that this was correct.  When asked why his [Sibling 1] had left Sri Lanka in 2014, the applicant said that he had not spoken to his [Sibling 1] since he left Sri Lanka, but his father had told him that his [Sibling 1] was being harassed by the police who were questioning [Sibling 1] about the applicant. 

7. I find the claims that the applicant’s [Sibling 1]’s documents were confiscated because of this association with the applicant and that his [Sibling 1] was repeatedly questioned and harassed by the authorities because of  [association] with the applicant after the applicant left Sri Lanka to be implausible. There is no credible evidence before me which suggests that the applicant was of interest to the authorities prior to his departure from Sri Lanka and I do not accept that his [Sibling 1] was harassed for some two years following his departure from Sri Lanka in such a threatening and intrusive manner that [Sibling 1] decided to leave Sri Lanka.  In these circumstances, and in light of the other issues regarding the applicant’s credibility set out above and below, I do not accept that his [Sibling 1]’s identity papers were confiscated because of [association] with the applicant or that the applicant’s [Sibling 1] was repeatedly questioned about the applicant and harassed because of  [association] with the applicant until his departure from Sri Lanka in 2014.

8. I also note that the applicant gave differing accounts of when his [Sibling 1]’s documents were taken during the hearing.  He first said that the authorities had taken his [Sibling 1]’s documents after he (the applicant) left Sri Lanka, but later claimed that this occurred while he was still in hiding inside Sri Lanka.  When I noted that the latter claim was at odds with his earlier evidence, he repeated that his [Sibling 1]’s documents had been taken when he (the applicant) was in hiding shortly before he left Sri Lanka.

9. The applicant was asked to comment on this discrepancy in the Tribunal letter of 24 March 2015.  His representative noted that the applicant had stated five times that his [Sibling 1]’s documents had been taken after the applicant left Sri Lanka and submitted that his statement to the contrary was the result of confusion.

10. It is certainly true that the applicant stated more than once during the hearing that his [Sibling 1]’s documents were taken after he left Sri Lanka. However, he later changed his evidence and when I pointed out the apparent contradiction, maintained that his [Sibling 1]’s documents were taken while he was still in Sri Lanka.  I find this inconsistency a further indication that the applicant has not provided honest or accurate evidence regarding the alleged confiscation of his [Sibling 1]’s documents.

    Post departure events

11. As discussed above, the applicant claims that his [Sibling 1] was repeatedly harassed and questioned about him after he left Sri Lanka, but I do not accept this claim.

12. The applicant has also claimed that his father was questioned about him sometime between his departure from Sri Lanka July 2012 and his [Sibling 1]’s departure in October 2014. However, his evidence regarding this was vague and confused. In the written statement dated [December] 2012 he said that his father had been asked where he was and threatened with detention, although not detained.  He told the delegate during the [December] 2013 interview that his [Sibling 2] had told him that his father had told [Sibling 2] that the authorities had come to look for him after he left, but he was not sure how often this occurred. During the hearing the applicant again said that the CID had gone to his father’s house on one occasion to look for him after he left Sri Lanka.  He said that his father had told these people that the applicant had gone to Australia and they were not in contact.  

13. It is plausible that the local authorities questioned the applicant’s father about his whereabouts when he suddenly disappeared in July 2012. As noted in the country information section above, the area was under the control of the military and movements were being monitored. However, there is no credible evidence before me which suggests that their interest was linked to suspicion that he was involved in LTTE or any other unacceptable activities or that the authorities had a serious or continuing interest in him after he left Sri Lanka.

14. In his statement dated [February] 2016 the applicant said that his father had told him that following his [Sibling 1]’s departure from Sri Lanka in 2014 the CID had gone to his house and then to his [Sibling 2]’s house and detained his [relative] for two days and beaten him and [injured him] because he helped the applicant’s [Sibling 1] to escape.   He said that he was fearful that the fact that his [Sibling 1] had left Sri Lanka illegally meant that he (the applicant) would be at greater risk of harm if he returned because the authorities would believe that they were in contact.

15. The applicant repeated this claim at the hearing, but added that his [relative] had been asked why he had hidden the applicant and his [Sibling 1] and why he had helped them to leave the country.  He said that his [relative] had not had anything to do with arranging his travel to Australia and he did not know how the police became aware that he and his [Sibling 1] had hidden at their [Sibling 2]’s house. He said that he was fearful because he and his [Sibling 1] had left the country illegally and they would question him about this if he returned and he feared he would be beaten like his [relative].

16. As discussed above, I do not accept that the applicant was in hiding at any time in 2011 or 2012 or that he was of adverse interest to the authorities for any reason when he left Sri Lanka in 2012. It follows that I do not accept that the applicant’s [relative] was detained and beaten in 2014 partly because the authorities had discovered that he and his [Sibling 2] had hidden the applicant in 2011/2012. 

17. In light of my overall finding regarding the applicant’s credibility I also reject the claim that his father, [relative] and [Relative 2] were questioned in 2014 and that his [relative] was detained or beaten following his [Sibling 1]’s departure from Sri Lanka in 2014 because of their association with the applicant.  I believe that this is another example of the applicant concocting claims to support his application for protection in Australia.

    Country information

18. Unless otherwise stated the following overview is based on information contained in DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October 2014  and  DFAT Country Information Report  Sri Lanka  18 December 2015

    The situation in the northern Sri Lanka

19. Serious civil conflict between the Sri Lankan government and the LTTE began in the 1980s and continued until May 2009, broken only by an internationally-brokered ceasefire from 2002 until 2006. At the peak of its power in 2004 the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka.

20. During the civil war it was not uncommon for Tamils, particularly young men from the north and east to be detained by security forces and questioned about their possible involvement in or support for the LTTE. There were also numerous reports of abductions, disappearances and extra-judicial killings by the LTTE and paramilitary groups.

21. The end of the war in 2009 saw the comprehensive defeat of the LTTE. Most observers agree that serious human rights abuses were committed in the final days of the war. Most surviving LTTE combatants surrendered or were captured. Former LTTE members and associates, including non-combatants, were detained in rehabilitation camps. Some were prosecuted through the courts and imprisoned. Most have now been “rehabilitated” and released. Following released they were required to live at a particular address and continued to be monitored.

22. Many civilians who lived in areas under LTTE control before 2009 spent time in internally displaced people’s camps after the end of the war. While in the IDP camps they were screened for LTTE involvement.  IDP camps have now been closed and most displaced people have returned to their home areas.

23. Areas which had previously been under LTTE remained under strict military control following the end of the war. Tamils were required to register and the population was subjected to monitoring, for example by the use of checkpoints. It was common for Tamils to be questioned about their activities. Suspected members and associates of the LTTE continued to be detained sometimes abused by security forces. Some were abducted by members of paramilitary groups. According to 2013 UNHCR survey cited in the DFAT 2014 report, 71% of former IDPs in the north and east reported being visited by the military or the CID after returning to their homes.

24. Despite the problems, the security situation improved and human rights abuses in Sri Lanka lessened following the end of the civil war. According to UNHCR guidelines issued in 2012, the mere fact that a person is a Tamil from the north or east including places formerly under LTTE control no longer placed them at risk of persecution. The DFAT 2004 report makes a similar assessment.

25. DFAT and Human Watch both note that election of President Maithripala Sirisena who replaced President Mahinda Rajapaksa in January 2015 was a significant turning point for Sri Lanka. According to Human Rights Watch 2016 World Report on Sri Lanka, his election and the August 2015 election of Ranil Wickremesinghe to the position of Prime Minister brought “momentous changes after nearly a decade of increasingly autocratic rule”, including the speedy abolition of surveillance and censorship of media and civil society groups, introduction of constitutional reforms to restrict executive powers, and steps to restore the independence of the judiciary. The HRW report noted that, in contrast to the combative approach of the Rajapaksa government, the new government initiated a new, more open dialogue with the international community, including human rights organizations.

26. The 2015 DFAT report notes similar improvements since January 2015, including an end to forced registration of Tamils, a decrease in the harassment of Tamils, a more active approach to promoting human rights and reconciliation than its predecessor, a reduction in the level of military presence in the north and east and the release of some individuals held under the Prevention of Terrorism Act 1979 (PTA).

27. Despite these improvements, there continues to be a relatively strong military presence in the north and east of Sri Lanka and many problems remain. Human rights abuses such as torture continue to be a problem, including in some cases involving former LTTE members and a number of observers have noted that the some promised reforms have not been implemented or fully implemented.

    Tamils at risk of harm in Sri Lanka today

28. According to UNHCR and DFAT, Tamils including those from areas formerly under LTTE control in the north and East are not generally at risk of serious harm in Sri Lanka today merely because of their ethnicity or place of origin.

29. According to their December 2012 Guidelines, UNHCR are of the view that, depending on their individual circumstances,Tamils who might still be at risk of serious harm include former LTTE members, LTTE combatants, LTTE members who actively supported the military work of the group, people involved in fundraising and propaganda activities and close family members of these people.

30. In 2014 DFAT assessed that the groups of Tamils most at risk of detention in Sri Lanka included a small number of former LTTE military or political leaders who remain at large, people who are suspected of serious criminal or terrorist acts during the conflict and anyone suspected of involvement in an attempt to resurrect the LTTE. They also advised that other former LTTE members who have not completed rehabilitation were likely to be detained and placed in rehabilitation camps, but unlikely to face prosecution. While noting that there had been unverified reports of the arrest family members of LTTE members, DFAT was of the view that while close family members of LTTE members who are wanted by the authorities were likely to be monitored, they were not likely to be detained. 

31. DFAT assess that while there is a moderate level of societal discrimination between different ethnic groups in Sri Lanka, there is no official government discrimination against Tamils in Sri Lanka today. They note that a number of Tamil political parties operate in Sri Lanka, the largest being the Tamil National Alliance.

    Failed asylum seekers

32. According to the 2015 DFAT report there are at least one million Sri Lankan Tamils living outside Sri Lanka.  Some hold citizenship or some form of residency in the countries in which they have settled. Many return to Sri Lanka to visit family members, for holidays and for business. The 2014 DFAT report notes that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the UK, the US, Canada and Europe and there have been relatively few allegations of ill-treatment or torture and assess that the risk of torture or mistreatment for the majority of returnees is low, even in cases where the returnee departed illegally and is almost certain to be briefly detained on return to Sri Lanka.

33. According to the 2013 UK Upper Tribunal guidance decision on post war returnees[2] cited with approval by the applicant’s representative his submission dated  [February] 2016, four groups faced a real risk of persecution on return to Sri Lanka at that time, individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or 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; some journalists; some individuals who have given evidence to the Lessons Learned and Reconciliation Commission and people on “watch” and “stop” lists. The Upper Tribunal also found that past history would be relevant only to the extent that it is perceived by as indicating a present risk and noted that the Sri Lankan authorities used sophisticated intelligence gathering methods in order to identify and target people of interest both inside Sri Lanka and in the diaspora.

    [2] Upper Tribunal (Immigration and Asylum Chamber) GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

34. In November 2015 the Sirisena government removed a number of organisations including the Australian Tamil Congress from a list of terrorist groups[3]. According to foreign minister, Mangala Samaraweera, the ban was lifted as part of President Sirisena’s reconciliation plan. He said that former President Rajapaksa, had banned the ATC and similar groups to build up the hysteria about the LTTE regrouping and added that most of the groups designated terrorists had merely been vocal proponents of Tamil rights and there was hardly any tangible evidence to link them to the LTTE.[4] The government announcement that the groups had been removed from the terrorist groups states that members of these groups have no reason to fear persecution from the government of Sri Lanka.[5].

    Illegal departure

    [3] Department of Immigration and Border Protection: Issues Paper: Sri Lanka Treatment of Failed Asylum Seekers and Returnees December 2015 pp 7-8

    [4] 2015, Sri Lanka plans to lift 'terrorist' ban on Tamil groups abroad, including Australian Tamil Congress, Abc News, 19 March ka-plans-to-lift-terrorist-ban-on-tamil-groups/6331024

    [5] The Gazette of the Democratic Socialist Republic of Sri Lanka Extraordinary, Part I: Section (I) – General, Government Notifications, The United Nations ACT, No. 45 OF 1968 

1. According to DFAT people who leave Sri Lanka illegally have committed an offence under Sri Lanka’s Immigrants and Emigrants Act (I&E Act).  The I&E Act applies equally to all Sri Lankans and returnees are treated according to standard procedures regardless of their ethnicity or religion.

2. Returnees are routinely interviewed on arrival at the airport by the Immigration and Emigration Department, the State Intelligence Service and the airport CID in order to obtain police and security clearances which may take several hours.  Unless the individual is of interest to police or on a ‘watch’ or ‘stop’ list they are then taken to court as soon as possible to apply for bail. Most are released on the on their own recognisance but in some cases a family member may be required to provide surety. If the returnee arrives on a weekend or a public holiday they may be held on remand at Negombo prison until a bail hearing can be arranged.

3. Penalties for this offence include fines and custodial sentences. DFAT assesses that ordinary passengers who depart illegally 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. However, fines are issued to passengers as a means of deterring further illegal departures.  While the law provides for fines of up to 200,000 rupees (about AUD 2,000) and custodial sentences. In most cases fines are relatively small for ordinary passengers and can be paid in instalments. DFAT have been advised that no ordinary passengers have been given a custodial sentence, although this cannot be verified.

   CONSIDERATION OF THE APPLICANT’S CLAIMS FOR PROTECTION UNDER S.36(2)A (REFUGEE STATUS)

4. As noted above the applicant claims to have a well-founded fear of persecution for reasons of race, political opinion and his membership of a number of particular social groups. For the reasons set out below I do not accept that he faces a real chance of being persecuted for any of these reasons if he returns to Sri Lanka within the reasonably foreseeable future.

   Tamil ethnicity and place of origin

5. At the hearing I advised the applicant that it was not my understanding that Tamils in general or Tamils from the north in particular were at risk of harm in Sri Lanka today merely because of their ethnicity or place of origin.  He maintained that people who had lived in areas formerly under LTTE control were still at risk of harm in Sri Lanka.

6. As noted above, UNHCR and DFAT advise that Tamils from the north of Sri Lanka are not generally at risk of serious harm in Sri Lanka today merely because of their ethnicity and/or their place of origin. Furthermore, no credible evidence has been provided which suggests that the applicant suffered serious harm between the end of the civil war and his departure from Sri Lanka merely because he is a Tamil man from northern Sri Lanka.  In these circumstances I do not accept that there is a real chance that the applicant will suffer serious harm if he returns to Sri Lanka merely because of his ethnicity or his place of origin or because he will be imputed to hold pro-LTTE or anti-government or any other political opinions because of his ethnicity and/or his place of origin.

7. In reaching this conclusion I have considered the documentary evidence provided by the applicant regarding the situation of Tamils in northern Sri Lanka. However, while this evidence confirms that there continue to be problems in the north of the country and some Tamils have faced problems or suffered serious harm for a range of reasons since 2009, it does not contain any evidence which causes me to alter my view that Tamils in general and the applicant in particular do not face a real chance of suffering serious harm in Sri Lanka today merely because they are Tamils or Tamils from the north or young Tamil men from the north.

8. I have also noted the applicant’s claim that he had difficulty getting a card from the army so that he could go fishing and his representative’s suggestion in the submission dated  [April] 2016 that this was linked to his ethnicity. When I asked the applicant about his problems obtaining this card during the hearing he did not claim that he was denied a card because of his ethnicity, but said that he had stopped going fishing when he went into hiding. In any event, while I am aware of evidence that Tamil fishermen sometimes faced problems pursuing their occupation during the civil war, no evidence has been provided which suggests that this continued to be a significant problem for the applicant or other Tamils following the end of the war. Furthermore, denial of a fishing pass or license in circumstances where this does not involve denial of a more general right to work or earn a livelihood does not in my view constitute serious harm. According to the applicant he was able to find other work after he stopped fishing and, as noted above, according to DFAT advice, which I accept, Tamils do not face official discrimination in Sri Lanka and face only a low level of social discrimination.

   Relationship a former LTTE member and former LTTE detainee

9. As noted above, I accept that the applicant’s [Sibling 1] was an LTTE member between 2006 and 2009. While the exact nature of his involvement remains unclear, [relatively] brief membership of the group and the fact that [deserted] twice indicate that [Sibling 1] was not a senior or committed member of the group.  After considering all the relevant evidence, while I accept that as someone who departed Sri Lanka illegally, the applicant will be questioned on return and his relationship to his [Sibling 1] may come to light, I do not accept that there is a real chance that the applicant will be suspected of LTTE membership or sympathy or that he will face serious harm if he returns to Sri Lanka within the reasonably foreseeable future because his [Sibling 1] is a former LTTE member.

10. In reaching this conclusion I have considered the applicant’s representative’s submission that, as the brother of a former LTTE member,  the applicant meets the profile of people UNHCR considers to be at risk of harm in Sri Lanka. However, in my view the UNHCR guidelines do not state that anyone who has a close family member in the LTTE is at risk of serious harm and thus entitled to protection. They state that certain categories of people related to LTTE members may need international refugee protection, depending on the specifics of their case.

11. Furthermore, the UNHCR guidelines were issued in 2012, some four years ago and there have been a number of changes in Sri Lanka since that time.  I have given greater weight to more recent expert opinion, in particular the advice to the 2013 Upper Tribunal set out above. As noted, based on expert advice the Tribunal concluded that the government of Sri Lanka was primarily interested in those suspected of involvement in current attempts to resurrect the LTTE or currently involved in separatist activities and have well developed intelligence gathering mechanisms to identify such people.

12. I also note DFAT’s 2014 advice that family members of LTTE members who are still wanted by the authorities may be of interest to the authorities, but are more likely to be monitored than detained. 

13. In the applicant’s case, his [Sibling 1] was an unwilling member of the LTTE who deserted twice during the 3 years [belonged] to the group. There is no suggestion that the applicant’s [Sibling 1] had any continuing interest in or involvement with the LTTE after he was released from detention in 2011 nor is there any credible evidence before me which suggests that he faced problems with the Sri Lankan authorities following his release from detention or that the applicant faced any problems because of his association with his [Sibling 1] prior to his departure from Sri Lanka.  While I acknowledge that there has been an element of arbitrariness in the Sri Lankan authority’s treatment of former LTTE members, the applicant’s [Sibling 1] clearly does not fit the profile of former members of the LTTE who are likely to be of continuing interest to the authorities today and I do not accept that there is a real chance that the applicant will be imputed with pro-LTTE or anti-government or any other political opinions because of his association with his [Sibling 1].

14. I also considered the 2014 Groundviews article regarding problems faced by family members of LTTE members cited by the applicant’s representative. The article was written by someone called Arthur. There is no indication of who Arthur is or how he obtained and checked the information in the article and very little evidence to substantiate his assertion there “there is an alarming trend” of detaining family members of LTTE suspects but provides little to substantiate this claim.   I have given little weight to this article.

15. I have considered the reports from Freedom from Torture (FFT). FFT is a highly respected organisation which provides support to survivors of torture in the UK.  The reports referred to by the applicant’s representative are based on information taken from reports which the organisation prepared to support asylum claims by clients of the organisation. While not disputing the veracity of these individual reports, the reports give no indication of how many of the already small sample of cases surveyed involved people with family links to LTTE members or the profile of the LTTE members involved. When examining the FFT’s evidence in 2013, the UK Upper Tribunal also noted that the failure to provide information on the factual matrices or personal background of those surveyed made it difficult to rely on the reports as evidence of more general practices in Sri Lanka. I also note that FFT’s view that even limited involvement or links to the LTTE continues to place Tamils at risk of harm in Sri Lanka is at odds with evidence from DFAT and others as set out above. I prefer the evidence from DFAT and others set out in the country information section above.  

16. I have noted that the applicant’s [Sibling 1] departed Sri Lanka illegally after the applicant. However, in the absence of any credible evidence that the authorities had any adverse interest in the applicant’s [Sibling 1] prior to his departure from Sri Lanka, I do accept that this illegal departure in 2014 will have any impact on the applicant’s treatment on return to Sri Lanka.

17. Finally, I have considered the submission that the fact that the applicant’s father was detained by the LTTE prior to the end of the civil war also places him at risk of being suspected of involvement with the LTTE. However, there is no credible evidence before me which suggests that the applicant’s father has been accused of involvement with the LTTE since the end of the civil war. I do not accept that there is a real chance that the applicant will be suspected or accused of involvement in the LTTE because his father was abducted by the group at some time between 2006 and 2009. I do not accept that there is a real chance that the applicant will be imputed with pro-LTTE or anti-government or any other political opinions because of his association with his father.

    Residence in Australia/failed asylum seeker

18. It has been submitted that the applicant will be imputed with anti-government or pro-LTTE political opinions because he been in Australia for an extended period during which he applied for protection. It has been further submitted that the presence of a large number of Tamils some of whom have been active in pro-LTTE activities in the past and continue to support the LTTE ideology means that Tamil failed asylum seekers returning from Australia are likely to be suspected of pro-LTTE activities or views.

19. During the hearing I advised the applicant that it was my understanding that the authorities in Sri Lanka were aware that people who applied for asylum in Australia did so for a range of reasons including economic ones and that the mere fact that someone applied for refugee status in Australia did not place them at risk of harm in Sri Lanka. The applicant said that he had faced problems before he left and his problems would be worse if he returned.

20. As pointed out by DFAT about one million Sri Lankan Tamils live abroad and many visit their homeland. Furthermore, thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the UK, the US, Canada and Europe and there have been relatively few allegations of ill-treatment or torture of these returnees. Expert evidence provided to the UK Upper Tribunal indicated that by 2014 Sri Lankan authorities were targeting Tamils who were actively involved in or suspected of involvement in pro-LTTE or pro-separatist activities outside Sri Lanka and had well-developed intelligence gathering techniques for identifying such people. Information on changes since the 2015 election of the current government including the delisting of diaspora groups previously included on terrorism lists indicate that Tamils returning to Sri Lanka are even less likely to face problems today than during the time the Rajapaksa was in power.

21. I accept that the applicant’s illegal departure means that the Sri Lankan authorities will assume that he applied for protection in Australia and that the authorities will be aware that he resided here for four years. However, he has had no involvement in pro-LTTE or pro-separatist activities in Sri Lanka or Australia and in light of the evidence set out above, I do not accept that he faces a real chance of serious harm within the reasonably foreseeable future if he returns to Sri Lanka because he will be suspected of holding pro-LTTE or involvement in other anti-government views or activities or any other reasons because he has resided in Australia for several years and applied for protection during that time.

22. In reaching this conclusion I have considered the evidence and submissions provided by the applicant’s representative. Some of the reports cited by the applicant’s representative date from 2013 or earlier and in my view are of limited current value. Others  such as the FFT reports and the Bar Human Rights Committee of England and Wales (BHRC) and The International Truth & Justice Project, Sri Lanka report, An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014 provide useful information on general human rights situation in Sri Lanka, but rely heavily on reports from a relatively small number of cases of asylum seekers outside Sri Lanka when assessing the risk to returns and give little information on the background of the individuals included limiting the usefulness of their overall findings. I prefer the advice from DFAT which I understand to be based on a broader view of the situation drawn from multiple sources on the ground in Sri Lanka. 

    Illegal departure

23. It has been submitted that the applicant is at risk of serious harm possibly including torture because he departed Sri Lanka illegally. It has also been submitted that his illegal departure will result in him being imputed with anti-government views.

24. At the hearing I advised the applicant that it was my understanding that Sri Lankans who left the country illegally would probably be charged with an offence under Sri Lanka’s I& and fined, but would not face serious harm on return. The applicant said that people from normal area would not face problems and he would not face problems immediately. However people from the LTTE areas would face problems. This was the reason he had to leave and the people who caused those problems were still there so he would face problems if he returned.

25. I accept that that if returned to Sri Lanka the applicant would be briefly detained, charged and fined with the offence of illegal departure. However, I do not accept that he will be imputed with anti-government political opinions because of his illegal departure or that he will be treated in a discriminatory manner when in detention or when penalties are determined because of his Tamil ethnicity or for any other reason in the Convention.  Nor do I accept that the imposition of a fine for this offence constitutes serious harm or that the applicant faces a real chance of suffering any other serious harm in Sri Lanka because of his illegal departure.

26. In reaching this conclusion I have considered the applicant’s representatives submission that according to the US Department of State it is unlikely that returnees would appear before a magistrate the same day as suggested by DFAT. However, the US report clearly refers to people arrested in any circumstances, not specifically to returnees who departed illegally. It is clear that DFAT have investigated this issue thoroughly and I accept that in most cases returnees appear in court within 24 hours.

27. I have also noted the comment by a police spokesman in the ABC report of 7 July 2014 cited by the applicant’s representatives. According to the report the spokesman said that people who had departed illegally would be charged under the I&E Act and the sentence for such offences was two years of rigorous imprisonment and a fine and that the organisers of the trip were likely to face a five years jail term. It appears that the spokesman was stating the range of penalties provided by the law. As noted above DFAT advise, and I accept, that in most cases ordinary passengers face no more than a fine.

    Fisherman

28. I have also considered the applicant’s representative’s submission [in] April 2016 that the applicant is at risk of serious harm in Sri Lanka because he is a fisherman. No evidence has been provided in support of this claim. As noted above, I am aware that Tamil fisherman faced some problems during the civil war. However, I am unaware of any evidence which suggests that fishermen in general or Tamil fishermen in particular are risk of serious harm in Sri Lanka today because of their occupation. I do not accept that the applicant faces a real chance of persecution on return to Sri Lanka because he worked as a fisherman in the past or might work as a fisherman in the future.

    Particular social groups

29. It has also been submitted that the applicant is at risk of persecution in Sri Lanka because of his membership of a number of different particular social groups. All of these particular social groups relate to some combination of his ethnicity, his place of origin, his relationship to his [Sibling 1] and father, his illegal departure, his presence in Australia and his application for protection. These issues have all been considered above. I have also considered them cumulatively. However, I am not satisfied that the applicant faces a real chance of suffering serious harm for any of these reasons singly or cumulatively and thus I am do not accept that he faces a real chance of persecution in Sri Lanka for any of the particular social groups suggested by his representative.

    Findings in relation to s.36(2)a

30. After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there is a real chance that he will suffer serious harm amounting to persecution in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka and therefore I do not accept that he has a well-founded fear of persecution for a Convention reason.  I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)a.

    CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(aa) (COMPLEMENTARY PROTECTION )

31. The applicant’s application for complementary protection relies on the same claims as those put forward in his refugee application. As set out above, I found a number of these claims to be lacking in credibility. The remaining claims are assessed below.

100.   As discussed above, I accept that the applicant is a young Tamil man from the north of Sri Lanka who sometimes worked as a fisherman, that he spent time in an IDP camp, that his [Sibling 1] is a former LTTE member who has also left the country illegally and that his father was detained for a time by the LTTE, but I do not accept that there is a real chance that the applicant will experience serious harm on return to Sri Lanka for any of these reasons. As also discussed above I am not satisfied that there is a real chance he would be persecuted on return to Sri Lanka because he sought asylum in Australia. For the same reasons, I am not satisfied that there is a real risk that he will face significant harm on return to Sri Lanka for any of these reasons.

101.   As also set out above, I accept that the applicant will mostly likely be questioned on arrival, charged with an offence under the I & E Act, fined according to the provisions of the law and the nature of his offence, then released within 24 hours. I do not accept that being detained and questioned after departing the country in contravention of Sri Lankan law or being fined in accordance with those laws constitutes significant harm as envisaged by the Act. 

102.   I am also aware of evidence (which I accept) that prisons in Sri Lanka are often overcrowded and unsanitary and considered whether these substandard conditions would result in the applicant experiencing significant harm on return to Sri Lanka. As noted above, most people charged with offences relating to illegal departure are not imprisoned but released within 24 hours. However, those who arrive on a weekend or public holiday may be remanded briefly in prison and a small number may be held for longer periods. 

103.    In considering this issue I have had regard to the relevant PAM 3 Refugee and Humanitarian Guidelines, including those which deal with prison conditions. However, while I accept that there may be circumstances in which the conditions of imprisonment of a detainee or prisoner may constitute degrading cruel or inhuman treatment which has been intentionally inflicted or degrading treatment or punishment relating to an act or omission that causes or is intended to cause extreme humiliation, after considering the applicant’s circumstances, I am not satisfied that there is a real risk that he would be subjected to such harm during the brief period of detention he may face on return to Sri Lanka. Furthermore, in the unlikely event that the applicant is remanded in an overcrowded and unsanitary prison, I am unaware of any evidence which indicates that the pain and suffering related to these conditions is intentionally inflicted rather than a consequence of negligence or lack of resources. 

104.   After considering all the relevant evidence, I am not satisfied 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 the applicant will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand or in any other circumstances.

Findings in relation to s.36(2)(aa)

105.   After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm

CONCLUDING PARAGRAPHS

106.   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).

107.   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).

108.   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

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

Roslyn Smidt
Member