1404979 (Refugee)

1404979 (Refugee) [2015] AATA 3960 (18 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1404979
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Rachel Homan
DATE:18 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 18 December 2015 at 4:12pm

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

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).
The applicant, who the Tribunal accepts is a citizen of Sri Lanka, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] February 2014.
The applicant appeared before the Tribunal on 13 November 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.
The issues in this review are whether the applicant has a well-founded fear of persecution in Sri Lanka for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The DFAT Country Information Report for Sri Lanka, dated 18 December 2015, and the DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam, dated 3 October 2014, are relevant in the present case.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application
According to information provided with visa application, the applicant is a [age]-year-old male born in [his birth town] in North Western Sri Lanka. The applicant identified as belonging to the Tamil ethnic group and Hindu religion.
The applicant stated that he had never been married or in a de facto relationship. He provided details for his parents and a [sibling] still residing in Sri Lanka. The applicant stated that between [year] and [year] he resided in [his home village], Puttalam, North Western Sri Lanka. Between [year] and [year], the applicant resided in [Country 1] for employment. The applicant returned to [his home village] in [year] and remained there until June 2012, when he left Sri Lanka by [boat].
The applicant declared that he completed a secondary education up until [a certain grade]. Between [year] and [year], the applicant worked for his father as a fisherman. Between [year] and [year] he worked as a [different occupation] in [Country 1]. The applicant returned to fishing between [year] and June 2012.
The applicant’s claims for protection were set out in a statutory declaration made [in] January 2013 with the assistance of a Tamil interpreter. According to his statutory declaration, the applicant’s family was often targeted and persecuted because his [relative] was a member of the Liberation Tigers of Tamil Eelam (LTTE). The Army and other government officials would often come to their home and interrogate the applicant’s father and take him to their military camps where they would beat him in order to find out more information about the applicant’s [relative]. The applicant was never taken him when he was young and when he was older he would run away and hide when the Army visited his home. The applicant grew up as [a] child and was concerned that he would be targeted by the Army for investigation. For this reason, his family arranged for him to travel to [Country 1]. The applicant’s [relative] now resides in [another country] and the Sri Lankan government is aware of this. However, the applicant’s family will always be a target for the government because of his [relative’s] ties with the LTTE.
The applicant stated that in around 2009, Tamil people from his village began to be abducted by people in white vans. They believed that the Army was carrying out the abductions. Twenty people had already been abducted. Recently, a young boy was abducted and his kidney removed and his body thrown out. The applicant did not know why people were being abducted but assumed that the Army believed they belonged to the LTTE. None of those abducted had been seen again except for the boy whose body was found. Many years ago, during the conflict, some arms were confiscated from the applicant’s village. Since then, his village had been targeted by the Army and government groups.
Since 2011, the Sri Lankan Army had harassed and tortured the people in his village by introducing “grease men”. These men would go from house-to-house jumping on the roofs, removing tiles from the roofs and going into homes. If women were at home, they were raped and harassed. One elderly lady in the applicant’s village was killed by the grease men. The grease men had sharp knives attached to their fingers so that if anyone tried to hold them they could easily attack them. When the villagers tried to capture them they fled to the Army base where they were protected. On one occasion they caught a grease man but immediately the police came and took him away. The grease men only target the Muslim and Tamil areas and do not harm Sinhalese people.
In February 2012, the applicant travelled to Colombo to see one of his friends. Whilst returning home, the applicant caught a bus that stopped at a nearby Sinhalese village as there were no buses to the applicant’s own village. People from the village began accusing the applicant being a terrorist. They spoke in Sinhalese and the applicant did not understand most of what they were saying. They began chasing the applicant and he ran into a nearby forest. The villagers have killed many Tamils before because they accuse Tamils of being terrorists.
In March 2012, the applicant went to the movies with some of his friends. On his way home from the cinema, some Army men in a white van began to chase them. The applicant’s friends began running in all directions as they feared they would be captured, tortured and killed. The applicant made it into the bushes and his friends also managed to escape by running into the forest.
The applicant claimed generally that as a fisherman in Sri Lanka he was required to gain passes from the Army and Navy before going out to sea. The applicant’s fishing times were restricted and he was unable to go out at night, which is the most productive time for catching fish. The applicant was afraid to go out at night because he feared being caught and beaten by the Army and Navy. The applicant claimed that it was difficult to find employment as a Tamil and he was heavily discriminated against in Sri Lanka. Life as a Tamil is very difficult and Tamils are persecuted by the government and discriminated against by local Sinhalese people. Tamils have no security and the Army randomly comes to their village to abduct young men. The applicant feared a similar fate awaited him in Sri Lanka.
The applicant also claimed that, if forced to return to Sri Lanka as a failed asylum seeker, he feared being harmed or mistreated by the government. The government would be suspicious of his links to the LTTE and the applicant feared being persecuted or killed.
Submitted with his visa application, were the applicant’s identification card, a birth certificate, a copy of the applicant’s Sri Lankan passport, issued in [2003], certificates relating to the applicant’s education and two other untranslated birth certificates.
A record of an entry interview conducted [in] August 2012, appears on the Department’s file. According to that record, the applicant claimed to have left Sri Lanka because it was unsafe at night and white vans were abducting people. The applicant claimed that he was not allowed to go fishing at night and complained about having to get a pass to go to sea. In his home area there are only Tamils and an Army camp. They want to suppress the Tamils and the Sinhalese want to encroach. There was a protest in the applicant’s town when a [construction] was built. The authorities’ objective is to settle Sinhalese in the applicant’s town and get rid of the Tamils. The applicant also claimed to fear men covered in grease who were harassing Tamils. The applicant is recorded as having stated that his [relative] was involved in a movement called “PLOT” but was no longer in Sri Lanka and had gone to [another country] because of his fear.
Departmental interview
The applicant was interviewed by a departmental officer [in] January 2014, and the Tribunal has listened to a recording of that interview.
At the interview, the applicant provided evidence about his personal details which was consistent with his visa application. The applicant confirmed that his father was employed as a fisherman and was able to support his family on his income. The applicant stated that he had also worked as a fisherman before departing Sri Lanka. The applicant also stated that he had also worked as [an employee] at a [business] at night.
The applicant was asked about his [relative]. The applicant initially stated that the group his [relative] had been associated with was the LTTE. When put to him that at the arrival interview, the applicant was recorded to have said his [relative] was involved with a movement called “PLOT”, the applicant agreed that it was PLOTE. The applicant was unable to provide any description of PLOTE stating that his mother had kept him away from these people, which was why he had been sent to [Country 1].
The applicant was asked what he knew about his [relative’s] involvement with PLOTE. The applicant stated that in the old times he went for fights with PLOTE against the Sinhalese. The applicant stated that his [relative] left for [another country] in [year].
The applicant gave evidence that the police always came asking for his [relative]. The applicant’s father was taken and beaten. The applicant stated that the police came on many occasions asking about his [relative’s] whereabouts. The applicant estimated that his father had been beaten three or four times. The last time the applicant’s father was beaten was in October 2009. The applicant gave evidence that he was never questioned because when his mother saw people coming she would tell him to run away.
The officer noted that the applicant had not mentioned any difficulties because of his [relative] at the entry interview. The applicant responded that he had told his lawyer about this issue and had only been asked about his own problems at the entry interview. The applicant denied having any involvement with the LTTE but stated that he had done some work for a politician in 2012. The applicant could not recall the political party the politician was affiliated with but recalled that it’s symbol was a betel leaf[1]. The applicant did not express any concern for his safety arising from that work.
[1] The betel leaf is the symbol of the United People’s Freedom Alliance led by President Maithripala Sirisena.
The applicant was asked about his fear of being abducted. The applicant stated that he had gone to see a movie in Colombo with three or four friends in March 2012. On the way home to his village, at about midnight, as they were passing through a Sinhalese village, a few drunk people beat the applicant and his friends. The applicant stated that he had travelled to and from Colombo by van. The officer asked the applicant how he was attacked if he was travelling inside a van. The applicant responded that the group of drunk people were blocking the road and stopped the van from passing. The applicant and his friends fought back but couldn’t handle it so ran away to the main road. The applicant stated that around the same time a lot of people were being abducted by white vans.
The applicant was asked whether he had any problems with a white van. The applicant said he was chased by a white van once. One night in around April 2012, at around 10 PM, the applicant was coming back from fishing with two other people, when they were chased by a white van. The white van stopped and two people got out wearing masks. The applicant and his friends started running and hid in the trees. Afterwards, the applicant’s mother was really scared and told him to go away. The applicant said he did not report the matter to the police because they did not help Tamils.

The applicant was asked why he had not mentioned the white van incident at his entry interview. The applicant indicated that he thought it had mentioned a problem with white vans. The officer noted that the applicant had expressed the problem in general terms but had not mentioned that anything specifically had happened to him. The applicant responded that he was told that the entry interview was just a short interview and that he would have a further opportunity to make claims later on.
It was also put to the applicant that his evidence at the interview was also inconsistent with his statutory declaration. The applicant was unable to explain the inconsistencies.
The officer also asked the applicant about his fear of grease men. The applicant stated that everyone had problems with the grease men and that they would jump from house-to-house. The applicant stated that he personally did not have any direct contact with any grease men but they would come to his village at night. In February 2012, the villagers chased a grease man to the Army camp where he was protected. It was put to the applicant that the country information available to the interviewer indicated that grease men targeted women and there had been no reports of sightings of grease men since 2011. The applicant responded that the information was wrong and that he could provide information from the Internet to confirm this. There were so many problems in the Puttalam District. The officer also noted that there were no reports of any grease man activity in [his home village]. The applicant responded that he did not know how to prove his claim.
The applicant told the officer that he was afraid something would happen to him if he goes back to Sri Lanka. He had already had many problems with the Sinhalese people and was scared they would harm him again. If he complained to the police they would not protect him. The applicant’s village is next to a Sinhalese village and he feared being harmed because he was a Tamil.
The applicant was asked why he wouldn’t move to Colombo if he was concerned about his safety in his home area. The officer noted that the information indicated that Colombo had a significant Tamil population. The applicant said he could not go to Colombo because all of his family is in [his home village] and someone had to look after his parents. The officer noted that the applicant had already spent significant periods of time away from his parents in [Country 1] and Australia.
Following the interview, the applicant’s representative made additional written submissions addressing a number of matters arising at the interview including, the applicant’s [relative’s] involvement with the LTTE; inconsistent evidence; and country information about attacks by grease men.
With regard to the applicant’s [relative’s] involvement in the LTTE, it was submitted that the applicant does not have direct information about his [relative’s] role. The applicant was advised by his mother that his [relative] was part of an organisation that opposed the government but he was not aware of the particular organisation. It is understood by his family that the organisation was the LTTE.
With regard to the applicant’s ostensibly inconsistent evidence, it was conceded that the attack in February 2012 by people in a white van was not noted in the applicant’s written statement. The applicant had, however, confirmed that the incident occurred but forgot to mention during his interview with lawyer.
With regard to the attacks by grease men, the applicant confirmed that on most occasions, the grease men would target women however they would also target men, especially when they tried to protect the women. Although there have been no recent sightings, the nature of the situation in Sri Lanka is that they could appear at any time and cause significant harm to Tamil people.
It was submitted that the applicant feared harm in Sri Lanka due to his Tamil ethnicity and his imputed anti-government and pro-LTTE political opinion, by virtue of his ethnicity, illegal departure from Sri Lanka and application for asylum in Australia. The submission contained extracts from general country information about the situation in Sri Lanka and in particular the situation for Tamils and forced returnees. It was submitted that upon return to Sri Lanka, the applicant faced significant harm in police custody, particularly at the interrogation and detention stages.
Review application
At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record and no other written evidence. On 19 June 2014, the Tribunal received a written submission from the applicant’s representative annexing a statutory declaration made by the applicant on the same date declaring that the submission had been read or explained to him and accurately and completely presented his claims.
The written submission added to the applicant’s previous claims in several regards. In relation to the occasion on which the applicant and some other villagers were able to capture a grease man, it was submitted that the grease man threatened the villagers that if they did not let him go, the next day they would be harmed. The applicant and villagers became scared and let the grease man go. Soon after, the local police came and took the grease man away.
The submission referred to 3 separate incidents involving the applicant. The first, in February 2012, occurred when the applicant was travelling to Colombo to see his [friend]. The applicant returned home late at night and was required to catch a bust that stopped at a nearby Sinhalese [village]. From there, the applicant could walk to [his home village]. When he arrived at [the Sinhalese village], the local villagers began accusing the applicant of being a terrorist. The applicant managed to escape into a nearby forest from where the applicant found his way back to the road and called a friend who picked him up.
In March 2012, the applicant was returning to [his home village] from Colombo after seeing a movie with friends. Near [the Sinhalese village], the van the applicant and his friends were travelling in was stopped by a group of armed men in a white van who were blocking the road. The applicant suspected that they were from the Sri Lankan Army. The armed men told the applicant and his friends to get out of the van, asked whether they were Tamils, and tried to attack them. The applicant and his friends ran away in different directions. The applicant hid in the nearby forest all night before returning to [his home village] the next day.
In April 2012, the applicant was returning to [his home village] after fishing in a nearby river. He and a friend were walking along a road when a white van approached them. Two men wearing masks started to get out of the van. The applicant sensed they were in danger and he and his friends immediately ran away. They hid behind a tree for about an hour and a half before returning home. After this incident, the applicant was scared to sleep at night and would stay in various friends’ and relatives’ houses.
The submission referred to various items of country information in support of the applicant’s claims, some of which was referred to in the written submission presented to the Department.
Tribunal hearing
At the Tribunal hearing, the applicant confirmed that he was of Tamil ethnicity and that his parents and [sibling] continued to reside in [his home village].
The Tribunal asked the applicant about his reasons for departing Sri Lanka. The applicant identified some problems associated with his [relative’s] involvement with the LTTE, a “grease man” problem and a “white van” problem.
With regard to his [relative’s] connections with the LTTE, the applicant told the Tribunal that he came to know about his [relative’s] activities through his mother. The applicant claimed that the police used to come very often to make enquiries because they suspected that he had links with the LTTE himself. The applicant told the Tribunal that he was never questioned personally but the police came and asked his mother about him. The applicant told the Tribunal that this last occurred in 2009 but after he came to Australia it happened very often again. The police suspected that the applicant may have joined the movement when he left Sri Lanka.
The Tribunal noted that according to the applicant’s evidence no-one had approached the applicant or anyone in his family about their involvement with the LTTE between 2009 and 2012. The applicant responded that the police station was very close to the applicant’s home and they were monitoring his family during this period. The Tribunal asked the applicant why he thought the police had started questioning his family again in 2012. The applicant told the Tribunal that the police didn’t know the applicant had come to Australia but suspected he had gone to join the LTTE movement. The Tribunal asked the applicant why they would hold that suspicion. The applicant speculated that it was because of his age. The Tribunal noted that the LTTE was effectively wiped out at the end of the conflict[2] and indicated that it was having some difficulty understanding why there would be renewed interest in the applicant in 2012. The applicant denied that the LTTE was wiped out and claimed that the authorities were concerned that the LTTE would be re-established.
[2] See, for example, DFAT Country Information Report, Sri Lanka, 18 December 2015 at 3.34
The Tribunal asked the applicant how many times the police had visited his family since he had arrived in Australia. The applicant told the Tribunal that it had occurred 5 to 6 times with the first visit taking place 10 days after the applicant’s arrival in Australia. The applicant was unsure when the last visit had taken place. The Tribunal noted that since arriving in Australia, the applicant had several opportunities to tell the department his claims, including at his arrival interview, in his statutory declaration and at the protection visa interview but he had never made any mention of any visits to his family after his departure. The applicant responded that he thought he had disclosed this. The Tribunal put to the applicant that this was a very relevant piece of information in the context of his claims and his failure to mention it earlier cast some doubt upon whether the information was true. The applicant responded that he did not know what to say to make the Tribunal believe him.
The Tribunal asked the applicant about the problems his father experienced as a result of his [relative’s] involvement with the LTTE. The applicant told the Tribunal that in 2009 his father and his other [relatives] were detained, interrogated and beaten. The applicant stated that his father had not experienced any difficulties since 2009. He had developed [a medical] condition and after that, they left him alone.
The Tribunal noted that the applicant’s evidence was that his [relative] had left Sri Lanka in [year] and his father had not been approached since 2009. The applicant had not ever been personally questioned about his own links to the LTTE despite having lived in the same location his whole life apart from a brief period in [Country 1]. The Tribunal put to the applicant that there would have been ample opportunity for the authorities to approach the applicant directly and question him had they genuinely been concerned about his connections to the LTTE. The applicant responded that whenever the police came his mother would tell the applicant to run away so, in effect, he was in hiding.
The Tribunal asked the applicant about his experiences with grease men. The applicant told the Tribunal that in 2011 the grease men came to his village and killed an elderly lady. The applicant said there were many incidents but on one occasion they captured a grease man. They were told if they didn’t release him they would be killed. The applicant stated that on many occasions over a period of one month this was happening in his own area and later it was happening in other areas. The grease men would run over the roofs of their houses which meant they could not sleep until two or three in the morning. The applicant confirmed that there had been no problems with grease men in his village since 2011. When the Tribunal asked the applicant whether he thought he would have any problems with grease men now should he return to Sri Lanka, the applicant said he could not be certain and did not know when they would come again. The applicant told the Tribunal that apart from the elderly lady who was killed no one was physically harmed but the grease men’s intention was to frighten the villagers and damage their roofs. They had to stay awake to protect the female members of their households.
The Tribunal asked the applicant about the incidents where he was harmed or threatened in 2012.
The applicant told Tribunal that in the second month of 2012, he was returning home after visiting his [friend] in Colombo at about 10PM. The applicant got off a bus in [the Sinhalese village] when he was followed by a group of about 10 to 15 Sinhalese people. They were talking in Sinhalese and the applicant did not understand what they were saying. The men chased him and wanted to beat him so the applicant ran into a forest where he hid and called a friend to collect him.
The applicant also told the Tribunal that in the third month of 2012, he returned home after watching a movie in Colombo. The van that he was travelling in was stopped by a group of men who beat them and destroyed the van. The applicant told the Tribunal that the men were Sinhalese. The Tribunal asked the applicant whether there was anything in their appearance which suggested to the applicant that they were connected with the Sri Lankan Army or any other government authority. The applicant stated that the men looked very physically fit and so it appeared they were with the Army. The Tribunal asked whether the men were in uniform or carrying any weapons. The applicant responded that they had some weapons but it was night time so he couldn’t see. The Tribunal asked what weapons he could see. The applicant responded that it seemed that they were carrying a big gun or a pole in their hand with which they tried to beat the applicant and his friends.
In the fourth month of 2012, the applicant and his friend were returning home from fishing when a white van chased them. The applicant and his friend ran into a forest where they stayed for a while before returning home. When the applicant returned home he told his mother what had happened and she told him to go and stay at his neighbour’s house. The applicant stated that he had stayed at various people’s houses for 2 to 3 weeks.
The Tribunal asked the applicant why he felt unable to stay in his own home. The applicant responded that the white vans were targeting youngsters and were operated by the Army to make sure the movement did not return. The Tribunal put to the applicant that each of the incidents he had described suggested that the applicant was targeted because of his Tamil ethnicity but were otherwise random or opportunistic attacks. It did not seem that anyone was specifically looking for the applicant. Rather the applicant was simply in the wrong place at the wrong time. The applicant responded that his mother was very worried about him because of his [relative’s] connection with the LTTE. The Tribunal noted by this time no one had approached the applicant or his family about his [relative] for around three years. The applicant agreed but stated that his mother was still worried that they were interested in the applicant’s LTTE background.
The Tribunal also put to the applicant that it was unable to find any record of the applicant mentioning to the Department that he had been forced to go into hiding before coming to Australia. The applicant responded that he thought he had mentioned the matter to his lawyer. The Tribunal agreed that the matter had been raised in his representative’s written submission to the Tribunal in 2014 but not earlier. The applicant responded that he thought he had told everything to his lawyer.
The Tribunal put to the applicant that his evidence about the 2012 incidents had changed over time. The Tribunal noted that the applicant’s January 2013 statutory declaration described only two incidents – one in February 2012 where he was attacked after getting off a bus in a Sinhalese village; and one in March 2012, when he was approached by Army men in a white van after returning from the movies in Colombo. The statutory declaration made no reference to an attack in April 2012 when the applicant was returning from fishing.
The Tribunal further noted that during the applicant’s protection visa interview he had failed to mention the incident in February 2012 when he was attacked by villagers getting off a bus. In relation to the March 2012 incident after returning home from the movies, the applicant had stated that his van was stopped by a group of drunk men blocking the road (not armed men in a white van). At the interview, the applicant mentioned to the first time the April 2012 incident when he and his friend were chased by white van.
The applicant’s representative’s written submissions to the Tribunal referred to the same three incidents that the applicant had described during the Tribunal hearing, except that the March 2012 incident was again described as an attack by men in a white van. The applicant had not mentioned the involvement of any white van in the March 2012 incident at the Tribunal hearing. Apart from saying that the men looked fit, the applicant had given evidence that there were no other outward signs that the men were associated with the Sri Lankan Army.
The Tribunal put to the applicant that because his evidence in relation to the three incidents had changed over time the Tribunal had some concern that his evidence had not been completely truthful. The applicant responded that he sometimes forgot things and he had been living a happy and peaceful life in Australia which made it hard to remember the things he had experienced in Sri Lanka.
The Tribunal asked the applicant about his problems as a fisherman in Sri Lanka, noting that in his arrival interview he had mentioned having to obtain passes and being restricted in terms of the times he was permitted to go fishing. The applicant told the Tribunal that he had no ongoing concerns about working as a fisherman.
The Tribunal also noted that the applicant had previously mentioned some problems associated with Sinhalese people encroaching upon his village and a protest following the erection of a [construction]. The applicant indicated that he had no ongoing concerns about this issue and said that the [construction] had been dismantled now.
The Tribunal asked the applicant about his fears about returning to Sri Lanka now. The applicant told the Tribunal that he had no problems but his mother was concerned about his safety. The Tribunal noted that the criteria for the visa required the Tribunal to be satisfied that there was a real chance or risk of him suffering serious or significant harm and that it was not sufficient that his mother was worried about his safety. The applicant told the Tribunal that white van abductions continued to take place and the applicant did not know what could happen. The Tribunal sought to confirm that the applicant was saying that he still held fears his safety as a result of his Tamil ethnicity. The applicant agreed.
The Tribunal asked the applicant whether he thought he may experience any difficulties as a result of his illegal departure from Sri Lanka and his asylum application in Australia. The applicant responded that he would be checked and arrested. The applicant told the Tribunal that he had read many news articles about returnees who had been detained in gaol and beaten or harmed for having suspected links with the LTTE.
The Tribunal discussed with the applicant some general country information before it which was not supportive of his protection claims.

The Tribunal noted that the applicant had given evidence that there had been no grease men attacks in his village since 2011 but he was uncertain as to whether similar attacks could occur in the future. The Tribunal noted that it had found no reports in the country information of any grease men attacks in [his home village]. There were reports of grease men activity in 2011 in the village of Puttalam about [distance] north of the applicant’s village but no more recent reports. The Tribunal commented that this information cast some doubt over the applicant’s claims about grease men attacks in his own village and did not suggest that there was a real chance of future attacks.
With regard to the situation generally for Tamils in Sri Lanka, the Tribunal noted advice from the United Nations High Commissioner for Refugees that being of Tamil ethnicity no longer created a presumption of eligibility for protection as a refugee. UNHCR had identified certain groups in need of protection including persons suspected of having certain links with the LTTE. The Tribunal noted that it had already raised some concerns with the applicant about his evidence regarding his own connections with the LTTE and the UNHCR advice did not suggest that there was a real chance of harm to the applicant for reasons of his ethnicity alone. The Tribunal further noted that the Department of Foreign Affairs and Trade had also given advice that there were no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka. DFAT had assessed that there was a low level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. This suggested that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. The Tribunal noted that this information suggested that the situation for Tamils in Sri Lanka had improved since the end of the conflict and there may no longer be a real chance of serious or significant harm arising solely from the applicant’s Tamil ethnicity. The applicant indicated that he had no comments or response to the information.
The Tribunal also discussed with the applicant country information about the situation for asylum seekers returning to Sri Lanka from Australia. The information indicated that involuntary returnees are processed at the airport by various law enforcement agencies for several hours. Returnees are generally treated in the same way during this process regardless of their ethnicity or religion and are not generally subject to mistreatment. Returnees who had departed Sri Lanka illegally were typically charged under the Immigration and Emigration Act and taken before a magistrate within 24 hours unless they arrived on a weekend or public holiday in which case they were taken to Negombo Prison until a magistrate was available. Those persons charged with having departed Sri Lanka illegally were generally granted bail without the requirement for a bond or security although they were usually required to have a family member to act as guarantor and collect them from court. The Tribunal noted that the applicant’s parents resided in Sri Lanka and there was no information suggesting that they could not assist the applicant in this regard. Upon conviction, no returnee had been given a sentence of imprisonment, rather they had been charged fines ranging between 5,000 and 50,000 rupees.
The applicant responded that the situation for returnees in relation to whom the authorities had no suspicions was different to those suspected of having LTTE connections. The Tribunal enquired whether the applicant thought he would be a person who would be suspected of having LTTE links. The applicant said he would be suspected because they had already come to his home asking his mother about his LTTE links.
The Tribunal also noted that DFAT had acknowledged that there had been allegations of torture or mistreatment of returned asylum seekers but the allegations had not been verified and the number of allegations was small in the context of the thousands of asylum seekers who had returned to Sri Lanka since 2009. Overall, DFAT assessed the risk of torture or mistreatment for the great majority of returnees to be low except for those suspected of committing serious crimes, including people smuggling or terrorism offences. The applicant responded that he would be suspected of being a terrorist.
The Tribunal noted that some of the applicant’s claims had related to difficulties he had experienced as a Tamil person with people of Sinhalese ethnicity residing near his home village. The Tribunal noted that as a consequence it had to consider whether it would be reasonable for the applicant to relocate to Colombo or some other part of Sri Lanka where he would not face that risk. The applicant responded that he could go to Colombo but he would have other kinds of problems there including having to find accommodation and work. The Tribunal noted that it had to consider whether those kinds of difficulties would make it a reasonable for him to go to Colombo. The information before the Tribunal indicated that Colombo is highly ethnically integrated with roughly equal populations of Sinhalese, Tamils and Muslims. The Tribunal noted that the applicant’s evidence had suggested that he had visited spent time in Colombo on previous occasions including to go to the movies and the applicant had spent time working abroad in [Country 1] and Australia. In those circumstances, it was not immediately obvious why it would be unreasonable for the applicant to relocate to Colombo. The applicant responded that he had no relatives in Colombo and did not think it would be safe. There would not be anyone to assist or protect him if something happened.
The Tribunal noted that the applicant had not expressed any particular concerns arising from his work as a fisherman during the hearing but put to him general information indicating that many of the restrictions that were imposed upon fishermen in the past had been lifted. There did not appear to be any recent reports of a Tamil fishermen being attacked at sea or being mistreated upon being found to have engaged in illegal fishing activities. The applicant indicated that he had no comment or response to the information.
Post hearing correspondence
Following the Tribunal hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment or respond in writing to information discussed at the Tribunal hearing. The applicant’s representatives responded in writing on 3 December 2015.
In the written submission, the applicant’s representatives confirmed that the applicant was attacked on three occasions in 2012. The applicant conceded that he had forgotten to inform the Department at the protection visa interview of the February 2012 incident as he was nervous during the interview.
In relation to the March 2012 incident, the applicant had described the men as “drunk” as in his mind he assumed they were Army men as Army men often drank. The applicant only presumed the men were from the Army but was not certain as they did not wear uniform. It was submitted that the applicant had not mentioned the white van as he was trying to recall the men’s physical appearance and was cautious of providing too many details as the incident happened in the night and he was running.
In relation to the April 2012 incident, it was submitted that the applicant did not provide details of this incident in his January 2013 statutory declaration as there was limited time available to him. The applicant apologised for any inconsistencies and claimed that the inconsistencies occurred due to his poor memory, nervousness at interviews and with professionals and the visa application process being intimidating to him generally. The submission referred to observations made by the Federal Magistrates Court in 2007 on the assessment of credibility in refugee cases. It was further submitted that the Tribunal should be mindful that the applicant has been interviewed on several occasions, utilising various interpreters and has provided several written statements. Such a process by its very nature is likely to cause unintentional errors which do not pertain to the applicant’s credibility.
In relation to the visits from authorities after leaving Sri Lanka, it was claimed that the applicant had not known about these visits up until sometime after his protection visa interview. The applicant claimed that his mother had not informed him of the visits as she did not want to cause him any more distress or worry. The applicant had not believed the information is critical to his claims and therefore did not inform his representative or the Department.
Findings
The Tribunal accepts that the applicant is a Tamil fisherman from [his home village] who departed Sri Lanka illegally by boat in 2012.
Although the applicant’s evidence in relation to his [relative’s] LTTE or PLOTE connections was vague and lacking in detail, the Tribunal is prepared to accept that the applicant has [a relative] who was involved in a Tamil separatist movement or militia during the time of the civil conflict. The Tribunal also accepts the applicant’s own evidence that his [relative] departed Sri Lanka in [year] and presently resides in [another country]. The Tribunal is prepared to accept that the applicant’s family, particularly his father and other [relatives] may have been interrogated and mistreated by the Sri Lankan security forces as a consequence of their relationship to the applicant’s [relative] during the course of the civil conflict or shortly thereafter. The Tribunal also accepts the applicant’s own evidence that his father has not been approached in relation to his [relative’s] LTTE connections since 2009 and the applicant has never personally been questioned or interrogated in relation to the matter.
The Tribunal notes that the applicant has claimed that members of the Sri Lankan security forces came and asked his mother about him, although at the time he departed Sri Lanka, the last time this had occurred was in 2009. The Tribunal is not satisfied that this claim is true. The Tribunal finds that if the Sri Lankan security forces were genuinely concerned about the applicant’s own LTTE connections, there was ample opportunity for them to detain and question him. The Tribunal is not satisfied that the applicant’s claim that he was able to avoid being questioned because his mother told him to run away every time the police came is plausible, given that the applicant remained living in the same location from [year] until June 2012 and the authorities had successfully detained and questioned his father and other [relatives].
The Tribunal is also not satisfied that the applicant’s other evidence in relation to his past experiences in Sri Lanka is credible. As discussed with the applicant at hearing, his evidence in relation to the three attacks he claims to have been subjected to in 2012 has changed over time.
In the applicant’s January 2013 statutory declaration, he described two incidents of harm in 2012 – one in February 2012, where he was attacked after getting off a bus in a Sinhalese village; and one in March 2012, when he was approached by Army men in a white van whilst returning home from the movies in Colombo.
During the protection visa interview, the applicant made no mention of the incident in February 2012 when he was attacked by Sinhalese villagers after getting off a bus. In relation to the March 2012 incident whilst returning home from the movies, the applicant stated that the van he was travelling in was stopped by a group of drunk men who were blocking the road (not Army men in a white van). At the same interview, the applicant mentioned for the first time that in April 2012, he and a friend were attacked by two men wearing masks who had chased them in a white van. The applicant did not, at this interview, or at any other point, tell the Department that he had gone into hiding after this incident.
The applicant’s representative’s written submissions to the Tribunal in June 2014 referred to the March 2012 incident as an attack by armed men in a white van.
At the Tribunal hearing, the applicant stated that the March 2012 attack involved a group of men who appeared physically fit but showed no other outward signs of being connected with the Sri Lankan Army. The applicant made no mention of any white van.

100. The Tribunal has carefully considered the explanations for these inconsistencies provided by the applicant at the Tribunal hearing and in his response to the Tribunal’s section 424A letter. The Tribunal is cognisant of the general difficulties faced by asylum applicants in presenting their claims and has made allowances for the passage of time, nerves and the repetition of information in different forums, under different time constraints and using different interpreters. The Tribunal finds, however, that there are fundamental differences in the way the applicant has described his past experiences of harm which are not, in the Tribunal’s view, adequately accounted for by the matters referred to above. The Tribunal remains unsatisfied that any of the three incidents the applicant claims to have experienced in 2012 in fact occurred.
101. Having regard to the general credibility concerns outlined above and his failure to raise this claim prior to the Tribunal hearing, the Tribunal is also not satisfied that the applicant’s family have been visited by Sri Lankan security forces on five or six occasions since the applicant’s departure from Sri Lanka. Nor is the Tribunal satisfied that the Sri Lankan security forces suspect that the applicant may have joined the LTTE movement when he left Sri Lanka. Despite the submissions made in response to the Tribunal’s s.424A letter, the Tribunal notes that the applicant did not suggest that he only became aware of the visits after his protection visa interview, when the matter was discussed at hearing.
102. The Tribunal has been unable to find any corroboration of the applicant’s claim to have had difficulties with grease men in his village in 2011 in the general country information. As put to the applicant, the Tribunal was able to find references to grease men attacks in neighbouring villages around the same time. Whilst the Tribunal is not satisfied that the applicant’s evidence in relation to this issue has been truthful, the Tribunal is prepared to give the applicant the benefit of the doubt and has proceeded on the basis that such attacks did occur. Even accepting that this type of attack did occur in the applicant’s village in 2011, including on one occasion where the villagers caught a grease man but were told that if they did not release him they would be killed, the applicant’s own evidence was that there had been no further attacks since 2011. The Tribunal has been unable to find any reference in the country information to grease men activity since 2011. The country information indicates that the general security situation in Sri Lanka has significantly improved in recent years and the Tribunal is not satisfied that there is a real chance of the applicant being subjected to a grease man or similar attack in the reasonably foreseeable future.
103. The Tribunal accepts as credible, the general country information discussed at hearing from UNHCR, that being of Tamil ethnicity no longer creates a presumption of eligibility for protection as a refugee[3]. UNHCR has identified certain groups in need of protection including persons suspected of having certain links with the LTTE. For the reasons given above, the Tribunal is not satisfied that the applicant has in the past or would now be imputed with a pro-LTTE opinion or that he falls within any of the other profiles identified by UNHCR as being at risk. The Tribunal accepts DFAT’s general advice that there are no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka. DFAT have assessed that there is a low level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. This suggests that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. The Tribunal is not satisfied that there is a real chance or risk of serious or significant harm arising solely from the applicant’s Tamil ethnicity, now or in the reasonably foreseeable future.
[3] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015]
104. Although the applicant previously described difficulties seek he experienced as a fisherman in Sri Lanka, and Sinhalese people encroaching upon his village land and building [constructions], the applicant indicated that he had no ongoing concerns in relation to these issues at the Tribunal hearing.
105. The Tribunal accepts as credible the information from DFAT in December 2015[4], that upon return to Sri Lanka, returnees are processed by various law enforcement agencies at the airport, which typically takes several hours while they check the person’s identity and the existence of criminal or terrorist backgrounds. Returnees are not subject to mistreatment during this period of processing at the airport. Returnees who left Sri Lanka illegally are arrested by the police for breach of Sri Lanka’s immigration laws, have their fingerprints taken, are photographed and then transported to the Magistrates Court at the first available opportunity. Those arrested can remain in police custody at the CID airport office for up to 24 hours. Should a magistrate not be available because of a weekend or public holiday, those charged are held at a nearby prison. The country information before the Tribunal indicates that prison conditions in Sri Lanka do not meet international standards because of overcrowding and poor sanitary conditions[5].
[4] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.27 – 5.36
[5] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.13
106. The Tribunal finds on the country information that the applicant is likely to be questioned at the airport, charged with an offence of having departed illegally under the Immigration and Emigration Act and then either fined on the spot and released or granted bail on personal surety immediately by a magistrate or required to have a family member act as guarantor.
107. The country information indicates that fines may be paid by instalment and, if bailed, there are rarely any conditions[6]. The Department of Foreign Affairs and Trade assesses that, ordinarily, passengers on boats are viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act. DFAT have also been advised that no returnee from Australia who has been charged under the Immigration and Emigration Act with departing illegally has been given a custodial sentence. Fine amounts vary on a case to case basis. The applicant has not claimed that he will be unable to pay the fine likely to be imposed, nor is the Tribunal satisfied that the scale of the fine amounts to serious or significant harm.
[6] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.33
108. The Tribunal accepts that there is a low, albeit real, chance that the applicant may spend a brief period in remand until a magistrate is available in conditions which may be cramped, uncomfortable and unsanitary. The evidence indicates that this situation applies to all persons who have left Sri Lanka illegally, regardless of their background. The Tribunal is not satisfied on the evidence in this case that during a brief period in remand there is a real risk or chance that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

109. The Tribunal is not satisfied on the information before it that there is a real chance or risk applicant will be singled out or treated any differently upon return to Sri Lanka either in the course of processing at the airport, while in remand, in sentencing or upon return to his home area because he is a young Tamil male, has departed Sri Lanka illegally and sought asylum in Australia or because of any other personal attribute, including his [relative’s] LTTE or PLOTE links. The Tribunal is not satisfied that the Sri Lankan security forces have had any interest in the applicant’s family as a consequence of his [relative’s] connections since 2009 and is not satisfied that they have any interest in the applicant for this reason. The Tribunal is supported in making these findings by the country information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are interested in identifying those with material links to the LTTE[7] or who pose a present destabilising threat[8]. The Tribunal is not satisfied on the material before it that there is a real chance or risk that the applicant would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally.
[7] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015]
[8] United Kingdom Home Office, Country information and guidance report: Tamil separatism, Sri Lanka, August 2014
110. The Tribunal is not satisfied that being subjected to the process described above upon return to Sri Lanka, including any brief period in remand or any penalty imposed upon the applicant as a consequence of his breach of Sri Lanka’s immigration laws would involve systematic and discriminatory conduct as required by s.91R(1)(c). Rather, the evidence suggests that such treatment would be the consequence of the non-discriminatory enforcement of a law of general application, which is appropriate and adapted to achieving a legitimate state objective. As such, the Tribunal is not satisfied that the applicant would be subjected to treatment upon return to Sri Lanka amounting to “persecution” for the purposes of s.36(2)(a).
111. In considering whether such treatment involves “significant harm” for the purposes of s.36(2)(aa), the Tribunal has specifically considered whether such treatment amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal has had regard to the PAM3: Refugee and Humanitarian Complementary Protection Guidelines which state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. The Tribunal does not accept that such an inference can be drawn in the applicant’s circumstances. The Tribunal is not satisfied that any pain or suffering caused by severe overcrowding and poor and insanitary conditions would be intentionally inflicted on the applicant as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that severe overcrowding and poor conditions would be intended to cause extreme humiliation as required by the definition of 'degrading treatment or punishment'. The Tribunal is not satisfied that any element in the process the applicant is likely to face upon return involves “significant harm” as defined.
112. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a).
113. The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
114. 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
115. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Homan
Member

[2015] AATA 3960

18 December 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction