1404642 (Refugee)

[2015] AATA 3468

1404642 (Refugee) [2015] AATA 3468 (14 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404642

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Chris Thwaites

DATE:14 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 September 2015 at 10:36am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] February 2014.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the delegate’s decision record provided to the Tribunal by the applicant as well as the representative’s written submissions provided to the Department and the Tribunal. The Tribunal has also had regard to the county information referred to in the written submissions and the country information discussed with the applicant and his representative during the hearing.

4. The applicant’s protection visa application forms do not contain any reasons for claiming protection and refer to an accompanying statement. The statutory declaration accompanying the visa application forms was declared by the applicant [in] November 2012. In summary the applicant declares he was born in [Village 1], Puttalam in the Western Province of Sri Lanka in [year] and is a citizen of Sri Lanka. The applicant is afraid to return to Sri Lanka. Although he had an education he could only find work as a [occupation]. One morning in December 2008 he was stopped at a Sri Lankan Military checkpoint while walking to work. A military officer demanded to see his National Identity Card. The applicant explained he did not carry the card with him to work as it could be lost or destroyed while at [his work]. The applicant was handcuffed and taken, with another boy who was Singhalese and could not produce his identity card, to the [Village 1] army camp. The applicant was ordered to clean the toilets and his life was threatened. He was also ordered to pick up rubbish in the yard and he was told that because he did not have an ID card he would be punished. The applicant was struck over the head with a stick and a gun was pointed at him and he was told to stop talking or he would be shot. The applicant was put in a cell with bars and not allowed to go outside. The applicant is not sure how long he was in the cell but believes it was about six days. On the fourth day his mother and father came to the camp with an elder from their community and tried to secure his release. He was released later that day. As soon as he was released from the camp the applicant went to his grandmother’s house in [Town 2] where he continued to live until he left Sri Lanka. He fears for his safety and was terrified that he would be harassed by the military, afraid for seemingly trivial reasons such as not having his identity card. The following day three military officers visited his parent’s home and demanded information about the applicant’s whereabouts. The applicant’s mother refused to tell them where the applicant was and said she did not know. The officers were angry that the applicant had disappeared and told the applicant’s mother if he did not return they would find him and harm him. The applicant’s mother was afraid for his life and did not trust the officers would leave him alone and told his grandmother he must stay in [Town 2]. The applicant’s father is not mentally stable and is also an alcoholic and became extremely upset the applicant was taken by the military and questioned and the day after the applicant was released his father [harmed himself]. The applicant believes the event with the military had provoked this extreme reaction from his father. The applicant’s brother told the applicant that his father was taken to hospital and placed in an institution were he remains. The applicant remained at his grandmother’s house in [Town 2] until he fled Sri Lanka. He was afraid to venture outside to work as he was fearful the military may find him and would continue to harass him. He developed a strong fear of authority and did not enjoy the support of his immediate family as he could no longer live with them.

5. The applicant declares that as a Tamil he forms part of an ethnic minority who are subject to persecution by authorities due to the historical conflict between the Sri Lankan Government and Tamil extremist groups such as the Liberation Tigers of Tamil Eelam (LTTE). The applicant is afraid that he has been profiled by the authorities because of his ethnicity. The applicant’s grandmother is very ill and he does not believe she will live much longer. Without her he would have to return to his family home in [Village 1] and will face the military that captured and threatened him. The applicant has little work experience and cannot find employment to support himself. He also has learning difficulties which further reduce his employability and if he were to relocate in Sri Lanka he would become particularly vulnerable as he would be alone. Further, he is of small stature and does not believe he could ever defend himself physically. The applicant has extreme fears for his safety particularly now that he has sought asylum in a Western country.

6. The applicant fears he will be detained and interrogated and tortured and abused or killed if returned to Sri Lanka. He fears he will be harmed or mistreated by the Sri Lankan authorities, including the CID and other paramilitary organisations. The applicant believes he will be harmed or mistreated for reasons of his race Tamil, his imputed political opinion, and because he is perceived to be a member or former member of the LTTE because of his Tamil background. He also fears he will be harmed or mistreated for reasons of his membership of a particular social group, failed asylum seekers. Failed asylum seekers are treated as former LTTE members and detained and interrogated. The applicant fears the authorities, and that they will not protect him.

7. The applicant also provided a copy of his birth certificate and a copy of a Mental Hospital Diagnosis Card relating to his father, to the Department.

8. The applicant was interviewed by a delegate [in] February 2013. After the applicant’s interview the Department received a written submission dated 25 March 2013 from the applicant’s representative, commenting on some of the information put to the applicant during his interview with the delegate and making submissions and references to case law and country information reports relating to detainment by the Sri Lankan Army (SLA), the post detention period, failed Sri Lankan asylum seekers, and relocation. The submission noted the applicant’s father passed away [in] February 2013 and the applicant does not maintain a close relationship with his mother and has not enjoyed a stable upbringing. The submission states the applicant’s grandmother is quite aged and unable to provide support and the applicant’s brothers are quite young and are not in a position to provide support, therefore due to the applicant’s traumatic upbringing, he is without a familial support network.

9. [In] August 2013 a delegate of the Minister refused to grant the visa. [In] October 2013 the High Court of Australia quashed the decision and directed the Department to determine the applicant according to law.

10. [In] February 2014 a delegate interviewed the applicant and [later in] February 2014 she refused to grant the visa because she did not accept the applicant was living in hiding since 2008 or that he was of adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka. The delegate did not accept the claim raised during her interview with the applicant, that he feared harm from the people smugglers, was credible. The delegate was not satisfied the applicant has a well-founded fear of being persecuted for refugee convention reasons, or that there are 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 the applicant will suffer significant harm

11. The applicant applied to the Tribunal for review of that decision on 7 March 2014.

12. The Tribunal received a written submission from the representative dated 9 May 2014 outlining the applicant’s background and application history. The submission repeats much of the information contained in the applicant’s statutory declaration and provides detailed information in relation to the applicant receiving threatening telephone calls while in Australia relating to an outstanding amount owed to the people smuggler. The submission also makes submissions addressing the following issues: a well-founded fear of persecution on the basis of his race; membership of a particular social group; and if the applicant is entitled to complementary protection. The submission refers to a number of country information articles and reports.

13. The applicant appeared before the Tribunal on 18 February 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant’s representative also attended the hearing.

14. At the beginning of the hearing the applicant provided a number of letters to the Tribunal: a referral letter from [a doctor] dated 4 July 2014, an MRI Brain scan report from [Company 3] dated 11 August 2014, and a letter from [another doctor] dated 20 August 2014 stating the applicant suffers from severe short and long term memory, seeking approval for him to see a Neurologist as soon as possible.

15. On questioning, the applicant told the Tribunal he had trouble with his memory. The applicant told the Tribunal he can only think of his father’s death, and had trouble sleeping, and did a lot of loitering and walking around, and felt like someone was calling him, and was scared. The Tribunal discussed with the applicant and his representative whether the applicant was well enough to proceed with the hearing and the Tribunal agreed to adjourn the hearing in order to allow the applicant to seek further medical assistance and to provide a report to the Tribunal in relation to his medical conditions.

16. On 19 February 2015 the Tribunal wrote to the applicant requesting the applicant provide a report from a psychiatrist or psychologist if possible, addressing the following issues:

    ·     what is the diagnosis?

    ·     can the applicant understand the nature of the proceedings?

    ·     can the applicant give evidence under oath?

    ·     can the applicant give instructions to his or her adviser?

    ·     can the applicant present arguments in support of his or her claims?

    ·     can the applicant understand and answer the Tribunal’s questions?

    ·     if the answer to any of the above is no; then when will the applicant be able to do so (prognosis)?

17. On 26 February 2015 the representative wrote to the Tribunal confirming they had referred the applicant to [a welfare agency]. The representative stated she has been advised by the applicant’s general practitioner that a neurologist is the most appropriate person to respond to the Tribunal’s questions regarding the applicant’s capacity issues and the applicant had been referred to specialist neurologist [Neurologist A]. The representative’s letter enclosed a letter from [the welfare agency] dated 24 February 2015 confirming they had received and accepted the referral.

18. On 17 March 2015 the representative wrote to the Tribunal confirming the applicant attended an appointment with [Neurologist A] on 6 March 2015 and that the representative was trying to contact [Neurologist A] to see if she can provide answers to the Tribunal questions.

19. On 30 March 2015 the Tribunal received a letter from the representative enclosing a letter dated 14 March 2015 from [Neurologist A]. The enclosed letter from [Neurologist A] states her diagnosis of the applicant is moderate anxiety with depression: however possible associated epilepsy cannot be excluded. Hence further investigations are essential. [Neurologist A] states she cannot comment on the applicant’s understanding of the proceedings; he was able to answer most of her questions when examined on 6 March.

20. In her letter the representative states she has contacted [Neurologist A] and confirmed she advised the applicant to undergo an MRI and EEG test and that these examination have been booked for [a date in] April 2015. The representative’s states that [Neurologist A] has advised that if the tests confirm the applicant has epilepsy, she should be in a position to assist by answering the questions posed by the Tribunal regarding the applicant’s capacity to instruct and to give evidence at his hearing. If the test does not confirm this, [Neurologist A] will be referring the applicant to a neuropsychologist for further assessment.

21. On 13 May 2015 the Tribunal received a letter from the representative confirming she had spoken to [Neurologist A] who confirmed that while the applicant’s results from his EEG are “normal”, she cannot exclude epilepsy as a cause of his symptoms and cannot explain them. Accordingly she cannot definitively provide an answer to the Tribunal’s questions as to the applicant’s capacity and whether there is a neurological explanation for his presentation and difficulty in engaging with the Tribunal process. She confirmed she had referred the applicant to another specialist neurologist with a slightly different area of expertise to undertake further scans.

22. On 27 May 2015 the Tribunal received a letter from the representative advising the applicant will be undergoing a sleep deprived EEG and that the Tribunal will be updated once they have received the results of this scan and respond to the Tribunal’s questions as soon as practicable.

23. On 23 July 2015 the Tribunal received a letter from the representative enclosing the medical results of the applicant’s sleep deprived EEG and a Clinical Psychological Assessment Report completed by [the welfare agency]. The Tribunal notes the Sleep Deprived EEG Report concludes Normal EEG.

24. The letter from the representative notes the Psychological Assessment Report indicates the applicant’s symptoms are reflective of Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MJD) and recommends ongoing psychological treatment and supportive counselling. The representative notes various aspects of the report which would point to the applicant’s inability to sufficiently engage in a Tribunal hearing include:

    a.Behavioural observations of "heightened emotional distress, particularly worry and hyperarousal during disclosure of traumatic events and reported hallucinations";

    b.The Applicant requiring "constant grounding and reassurance that he is safe during disclosure of his traumatic experiences while also needing encouragement to proceed with his answers";

    c.Various statements regarding the Applicant's memory issues, including his "observable difficulties with recalling details of his traumatic experiences (particularly timeline) [indicating] cognitive and memory impairment often observed in clients presenting with clinical symptoms of PTSD";

    d.The observation that the Applicant "stated that often he is not present in reality, rather due to vivid flashbacks of his imprisonment, he dissociates";

    e.The Applicant attempting to avoid thinking and talking about his negative experiences due to his emotional distress, which is often triggered by various occurrences including "being in the presence of authority figures, hearing loud noises or being questioned";

    f.His "difficulties with concentration [being] observable;

    g.The "persistent nature of his worries and recollections of traumatic material and associated emotional distress [resulting in the Applicant] reporting experiencing difficulties with initiating and maintaining sleep";

    h.The above symptoms causing the Applicant "clinically significant distress and impairment in social, and cognitive, areas of functioning"; and

    i.The Applicant's experience of "helplessness and feeling trapped, as he cannot do anything to change his current situation and advocate effectively for himself" when the worry about his future is triggered.

25. The representative noted that the report indicated the applicant was clinically symptomatic of anxiety, depression, PTSD and MJD. The representative requested the Tribunal consider adjourning the scheduled hearing of 8 September 2015 for the applicant to suitably address his mental health issues and undergo the necessary treatment without the burden of an impending hearing.

26. On 3 August 2015 the Tribunal wrote to the representative in relation to the request to reschedule the hearing. The Tribunal advised it had taken into consideration the medical reports submitted and accepted that the Psychological Assessment Report indicates the applicant experiences symptoms associated with anxiety and depression and PTSD. The Tribunal noted the hearing of this matter was adjourned in February 2015 to allow the applicant to seek medical assistance and provide any medical evidence in relation to his medical conditions and capacity to give evidence. The Tribunal noted the reports submitted do not indicate the applicant is unable to attend and give evidence at a hearing and in these circumstances the Tribunal has decided not to grant the further adjournment request. The Tribunal advised it will take into consideration the symptoms and conditions noted in the medical reports and will seek to minimise any stress to the applicant during the hearing of his review.

27. The applicant appeared before the Tribunal on 8 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

28. At the beginning of the hearing the Tribunal spoke to the applicant about his current medical conditions, his current treatment and medications, as well as his understanding of the review process and the purpose of the hearing. On questioning the applicant told the Tribunal he now sees his GP regularly and also attends appointments at [the welfare agency]. He was unable to recall how often he sees his doctor but gave the Tribunal the impression it was on a regular basis. The applicant was also unable to recall what medications he was taking but told the Tribunal he took a tablet in the afternoons and at night and they were to help him recover completely. He told the Tribunal he has an appointment in late October for a scan of his head, back and leg. The applicant also provided a number of appointment receipts from [the welfare agency] indicating he has been attending counselling appointments a number of times a month since March 2015. As discussed below in more detail the Tribunal accepts the applicant suffers from a number of mental health conditions as well as memory loss. During the hearing the applicant told the Tribunal his father had [harmed himself] soon after the applicant was released from detention by the army, and had died soon after the applicant arrived in Australia. It became obvious to the Tribunal over the course of the hearing that the applicant’s thoughts were often interrupted and drawn to his concerns about this father’s death. The Tribunal adopted a number of procedural approaches outlined in the Tribunal’s Guidelines on Vulnerable Persons during the hearing in order to ease any anxiety and stress experienced by the applicant, and allow him to give evidence and participate in the hearing. The applicant confirmed a number of times during the hearing that he felt well enough to proceed. The Tribunal was satisfied the applicant understood the nature of the proceedings and the questions being asked and was able to give evidence and present arguments and speak to the issues arising in relation to the decision under review.

    FINDINGS AND REASONS

    Nationality

1. On the basis of the consistent evidence and information the applicant has provided to the Department and Tribunal about where he was born and his citizenship of Sri Lanka, as well as the copy of the applicant’s birth certificate provided to the Department, the Tribunal accepts that the applicant was born in [Village 1] in Sri Lanka in [year], and is of Tamil ethnicity, and is a citizen of Sri Lanka. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Sri Lanka. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Sri Lanka, the Tribunal also finds that Sri Lanka is the applicant’s country of reference for the purposes of s.36(2)(a).

   Credibility

2. During the hearing the Tribunal discussed with the applicant his background, family composition, education and work history in Sri Lanka, as well as his reasons for leaving Sri Lanka and his fears of returning. The applicant had difficulty remembering dates and years and events and required some prompting to confirm some aspects of his claims. The applicant had difficulty remembering his current home address and details of his doctor’s appointments and other aspects of his current circumstances. The Tribunal notes Departmental records indicate the applicant’s case manager noted that soon after the applicant arrived on Christmas Island, during an interview [in] July 2012, the applicant could not remember milestones and told the case manager he had trouble remembering. The case officer also noted that the interpreter told the case manager that the applicant was responding to questions asked but that his responses made no sense and that he was not in fact answering questions asked of him. Departmental records indicate the applicant was referred to Health Services for further assessment at that time.

3. The Tribunal accepts the applicant has consistently indicated he has memory problems throughout his contact with the Department, as well as displayed behaviours and symptoms consistent with those documented in the [welfare agency’s] report. On the evidence before it the Tribunal accepts the applicant suffers from memory loss as well as a number of mental health conditions including PTSD and depression and anxiety which adversely affect his ability to consistently recall details and events from his past. The Tribunal has taken this into account in assessing the applicant’s credibility and the reliability of his evidence.

   Does the applicant have a well-founded fear of persecution?

4. 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).

5. 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.

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

   Arrest by the army in 2008

7. When discussing why the applicant feared returning to Sri Lanka, the applicant told the Tribunal about an event in Sri Lanka when he was stopped with others on their way to work and asked for Identification Cards. The applicant told the Tribunal that he and a number of others who were unable to produce their ID cards were taken to a camp and tortured and beaten and forced to clean bathrooms and the garden and the applicant had a gun held to his head. The applicant’s oral evidence was generally similar to the information contained in his statutory declaration. The applicant was unable to recall when the event occurred and conceded it may have been in 2008 when prompted by the Tribunal. While the Tribunal notes there were some inconsistencies between the applicant’s oral evidence and his statutory declaration in relation to how long he was detained, the Tribunal notes the applicant has been consistent in his claims to have been arrested and detained and tortured and mistreated by the army since his Entry Interview with the Department soon after he arrived on Christmas Island. The Tribunal also notes the applicant’s claim is consistent with country information in relation to the tightened security measures in Sri Lanka at that time.

8. On the evidence before it the Tribunal accepts that the applicant was arrested and detained for a number of days by the Sri Lankan army in 2008, and that the applicant was beaten and mistreated by the army while he was detained.

   Ongoing adverse interest

9. During the hearing the applicant told the Tribunal that after he was released by the army he did not have any problems for some time and then his father told him people may be looking for him and advised the applicant to leave the family home in [Village 1] and hide at his grandmother’s house in [Town 2]. The applicant told the Tribunal his father [harmed himself] at this time. On question the applicant told the Tribunal the CID came to his family home asking for him a number of times while he was in hiding at [Town 2]. The applicant was unable to recall how many times the CID came looking for him and told the Tribunal that was the reasons why he was scared to return to Sri Lanka, because they may kill him with a knife. On questioning the applicant told the Tribunal he stayed at this grandmother’s home for a long period prior to returning to live in his family home.

10. During the hearing the Tribunal raised its concerns that the incident with the army had occurred a long time ago, in 2008, and that the applicant had returned to live at his family home in [Village 1] since that time. The Tribunal noted the applicant’s visa application form indicated the applicant was living in [Village 1] between 2008 and 2012, and the delegate’s decision record indicates the applicant told the delegate that he was living at his mother’s house in [Village 1] between 2008 and 2102 and visited [Town 2] every Friday, sometimes staying for the weekend, and commuted between [Village 1] and [Town 2] on a weekly basis and did not encounter any harm or trouble, and had not encountered any form of harm or harassment since being released from detention in 2008, nor had the authorities made any enquires about his whereabouts since that time. The Tribunal raised its concerns that given the detention by the army happened a long time ago, and the applicant had returned to live in his family home, that might indicate the authorities in Sri Lanka has no ongoing interest in the applicant. In response the applicant told the Tribunal that he was scared.

11. While the Tribunal accepts the applicant fears returning to Sri Lanka, and that the CID may have visited his family home a number of times soon after the applicant was released in 2008, and that the applicant hid at his grandmother’s home for some time after his release, the Tribunal also finds the applicant returned to live in his family home in [Village 1] and did not experience any further problems or incident with the army or authorities in Sri Lanka prior to leaving in May 2012. The Tribunal also finds the applicant travelled frequently between [Village 1] and [Town 2] without further incident. Therefore the Tribunal does not accept the applicant was of any ongoing interest to the army or Sri Lankan authorities at the time he left Sri Lanka in 2012.

    Harm from people smugglers

12. During the hearing the Tribunal discussed with the applicant a claim he raised in his interview with the delegate [in] February 2014. The Tribunal noted the delegate’s decision record indicates that during that interview the applicant stated he feared harm on return to Sri Lanka from the people smuggler due to a debt for his travel to Australia. In response the applicant told the Tribunal that the agent called the applicant on his telephone in Australia telling him if he did not pay back the money the CID will take him. He told the Tribunal he regularly gets calls threatening him that they will take his family and sister. The applicant told the Tribunal he had been told not to come back to Sri Lanka and if he did return and not pay he will be abducted in a white van. The applicant told the Tribunal he has managed to pay a little money from his Centrelink payments. On further questioning the applicant told the Tribunal a friend told him his mother sold a house to pay back money to the agent and she paid two lahks only. The applicant told the Tribunal that sometime after the applicant came to Australia his mother had been threatened that the family would be taken or abducted. The applicant was unable to be more specific about when this threat occurred. The applicant was unable to recall when he started to receive calls in Australia and assumes someone in Australia had given these people his telephone number.

13. The Tribunal raised its concern that the delegate’s decision record notes that during his Entry Interview the applicant had indicated his mother had paid the entire sum and that there was no amount outstanding. In response the applicant told the Tribunal he thinks it’s different and that they have given differently in each case. The Tribunal raised its concern that the applicant had not raised this claim in his visa application form or his statutory declaration and had not made the claim until his interview with the delegate in February 2014. In response the applicant told the Tribunal he did not mention this before because of his memory problem.

14. While the Tribunal accepts the applicant’s mental health conditions and memory problems contributed to his vague and sometimes confused oral evidence about this claim, the Tribunal does not accept that explains the inconsistency between his oral evidence and the information in the delegate’s decision record noting that the applicant had indicated in his Entry Interview that his mother had made the arrangements for the applicant’s departure from Sri Lanka through an agent and that she had paid the entire sum of seven lakh rupees to this person and that there was no amount outstanding. The Tribunal also notes the applicant had told the Tribunal his mother and brother continue to live in the family home in [Village 1]. The Tribunal concludes from this information that the applicant’s mother and brother have not moved their residence or gone into hiding to avoid the threats of abduction or harm from people smugglers. Given this, and the inconsistency between the applicant’s oral evidence and the information contained in the delegate’s decision record, the Tribunal is not satisfied the applicant or his family owe money to people smugglers, and the Tribunal is not satisfied the applicant and his family have been threatened with harm or abduction or that the CID will take them due to an outstanding debt to people smugglers.

    Race and Imputed political opinion

15. On questioning the applicant told the Tribunal that neither he nor any member of his family had any connection with the LTTE.

16. During the hearing the representative referred to country information, specifically the Tamil Guardian, that indicated the Sri Lanka Government is still concerned about the LTTE re-emerging, and that Tamils are still imputed with connections to the LTTE, especially those Tamils who have lived for a long period of time abroad. The representative submitted that in these circumstances it is plausible the applicant will face torture in detention if returned to Sri Lanka. The representative also referred to country information that indicates that torture and rape and sexual violence is still prevalent in Sri Lanka, even after the end of the war, and referred the Tribunal to country information and reports[1].

    [1]

17. As noted during the hearing, there is country information before the Tribunal that indicates the security situation has changed significantly in Sri Lanka since the end of the civil war in 2009 and that the situations for Tamils has improved. The Tribunal has had regard to the representative’s written submission and the country information reports referred to. The Tribunal has also taken into consideration the DFAT Country Report assessments and the DFAT Thematic Report[2]. The Tribunal has also noted the UNHCR Eligibility Guidelines[3] and the Upper Tribunal decision[4].

    [2] DFAT Country Report - Sri Lanka, (16 February 2015), DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014)

    [3] United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

    [4] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

18. The Tribunal accepts that the country information indicates that Tamils suffered at the hands of the authorities during the civil war which ended in 2009, and there continues to be a large military presence in the North and East of the country. The Tribunal also accepts there is evidence of continuing targeting of some Tamils since the end of the war. The Tribunal accepts that country information indicates Tamils with particular profiles continue to attract the adverse attention of the Sri Lankan army, CID and authorities and paramilitary groups. The DFAT Country Report has assessed that there are currently no official laws or policies that discriminate on the basis or ethnicity or language, there is only a low level of discrimination in the implementation of laws and policies. It indicates that since the civil war ended in May 2009 there has been considerable change in the security situation such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.

19. The Tribunal notes that the UNHCR Eligibility Guidelines state that: “In light of the improved human rights and security situation in Sri Lanka there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”. The DFAT Thematic and Country Reports, the UNHCR Eligibility Guidelines and the Upper Tribunal decision all discuss the changing political and security situation in Sri Lanka. The DFAT Country Report states the security situation in the North and East has greatly improved since the end of the military conflict.

20. While the Tribunal accepts the current Sri Lankan government has made public announcement that it will not allow the LTTE to re-emerge and maintains a large military presence in the North and East and checkpoints are re-established from time to time, the Tribunal notes the Upper Tribunal decision indicates that the Sri Lankan government’s objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan State. It indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants and everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. The government’s concern now is not with past membership or sympathy, but with whether a person is a destabilising threat in post conflict Sri Lanka. The Upper Tribunal decision identifies persons at real risk of persecution or serious harm to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism. The UNHCR Eligibility Guidelines outline certain “risk profiles” which generally refer to those who have a reasonable level of LTTE links.

21. The country information before the Tribunal also indicates that all returnees are routinely interviewed at the airport on arrival in Sri Lanka by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). These processes involve police and security clearances, including checks with the person's local police station, and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person’s name on immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person was of security interest or if there is evidence of involvement in people smuggling[5].

    [5] DFAT Country Report Sri Lanka 16 February 2015; Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); United Nations High Commission for Refugees Eligibility Guidelines, Sri Lanka 2012.

22. The Tribunal accepts there is a real chance the applicant will be interviewed and questioned at the airport if returned to Sri Lanka. Because of the applicant’s mental health conditions, anxiety and memory problems, the Tribunal accepts that there is a real chance that the applicant will be unable to answer many of the standard questions asked in the initial security screening interview and will be identified for further interrogation and questioning by the Sri Lankan security forces. The Tribunal accepts that because of the applicant’s Tamil ethnicity, his background, and his ongoing symptoms including intrusive thoughts and references to his detention by the army in 2008 and his father’s [self-harm] and eventual death, there is a real chance that the security forces will suspect or impute the applicant with links to the LTTE and detain him and question him further. 

23. The Tribunal accepts the DFAT County Report assessment and the country information reports referred to by the representative indicates that there have been credible reports of torture carried out by the Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of factors, including civilians detained in relation to suspected LTTE connections. The county information indicates and the Tribunal finds there is a real chance the applicant will be tortured upon his return to Sri Lankan due to suspected or imputed links with the LTTE.

24. The Tribunal finds there is a real chance the applicant will suffer persecution from the Sri Lankan security forces due to his suspected or imputed links with the LTTE, if returned to Sri Lanka now or in the foreseeable future.

25. For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.

26. While the Tribunal considers the applicant’s mental health conditions and corresponding behaviours may initially bring him to the specific attention of the security forces, the Tribunal is satisfied that a combination of the applicant’s race (Tamil), and imputed political opinion, is the essential and significant reasons for further questioning and persecution as required by paragraph 91R(1)(a) of the Act.

1. The Tribunal finds that the harm the applicant fears involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act as it involves significant physical harassment and ill-treatment of the applicant.

2. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

3. The issue of whether it would be reasonable to expect an applicant to relocate within their country only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide. The Tribunal finds the applicant fears persecution from a state authority, the security forces, and therefore state protection is not available. The Tribunal also finds the applicant fears persecution from a state authority, and therefore the feared persecution is not localised and relocation inside Sri Lanka is not an option in these circumstances. The Tribunal finds the applicant has a well-founded fear of persecution for a Convention reason throughout the entirety of Sri Lanka.

4. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Chris Thwaites
   Member  14 September 2015

   ATTACHMENT - RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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