1404998 (Refugee)

[2015] AATA 3987

1404998 (Refugee) [2015] AATA 3987 (20 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1404998

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Susan Pinto

DATE:20 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 October 2015 at 11:52am

CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – Particular social group – illegal maritime arrival – victim of assault – family of United National Party member – fear of harm by villagers – personal vendetta – involved with personal dispute – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZTKF v MIBP [2014] FCCA 282
SZSPE v MIBP [2013] FCCA 1989

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. The applicant is a citizen of Sri Lanka. He is aged in his early [age]. He is of Singhalese ethnicity and is from Negombo in the Western province of Sri Lanka. He arrived in Australia as an undocumented Illegal Maritime Arrival on 11 August 2012. He was transferred to [a] Detention Centre, but later released into the community on a Bridging visa.

2. The applicant applied to the Department of Immigration for the Protection visa on 20 March 2013. The applicant claimed that he feared harm in Sri Lanka due to an assault on his brother in law which may have been related to his brother in law’s involvement with a political party, the United National Party (UNP). The applicant also claimed that his wife suffered a stillbirth following an assault in 2004. At the Tribunal hearing, the applicant also claimed that he was associated with an assault against a villager which occurred in [City 1, Australia] several months ago, and the villagers and family of the victim will harm him upon his return to Sri Lanka.

3. The delegate of the Minister for Immigration refused to grant the visa on 10 March 2014. The delegate did not accept the applicant’s claims and found that he would not be harmed upon his return to Sri Lanka.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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration are whether the applicant has a well founded fear of persecution for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason it must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

5. The applicant attended an Entry Interview on 10 October 2012. The applicant stated that he left Sri Lanka because someone had assaulted his brother in law in February 2009 and he also made a complaint about a boat yard in front of his home. The applicant made the complaint in 2004 and some people came and beat him. His wife who was pregnant with their son fell to the floor and he later died at birth.

   Application to the Department

6. When lodging the application to the Department, the applicant stated that he was born in Negombo in the Western province of Sri Lanka. He indicated that he speaks, reads and writes Singhalese and he speaks and reads Tamil and speaks [the language of Country 3]. The applicant stated that he was married [in] September 2003. He stated that he had [a number of] years of education in Sri Lanka. The applicant indicated that his wife and [children] reside in Sri Lanka. His children were born in [years]. The applicant also had a son, born in 2004, who is deceased. The applicant’s parents and [sisters] reside in Sri Lanka.

7. The applicant stated on the application form that he previously applied for protection in [Country 1] in 2001 and in [Country 2] in June 2012. He states that he was given a Temporary Protection visa for [Country 1], but it is no longer valid. The applicant stated that he travelled to Australia with his brother in [law]. He also stated that between April 2001 and July 2003 he lived in [Country 1]; between October 2006 and October 2009 he lived in [Country 3]; and between December 2009 and April 2011 he lived in [Country 3]. However, he stated elsewhere on the application form that he lived in [Country 3] until May 2012. This issue was clarified during the Department interview (see below).

8. In a Statement of Claims, dated 13 March 2013, the applicant stated that he is Catholic and of Singhalese ethnicity. The applicant states that he fears returning to Sri Lanka. He first left Sri Lanka in 2001. He went to seek employment in [Country 1] as he had just married and he was struggling to support himself and his wife in Sri Lanka. The applicant went to [Country 1] by boat and was taken to a detention centre. He stayed there for three days and was subsequently given a piece of paper saying he was a refugee and he was allowed to stay for six months. He was then taken to a local train station and sent on his way. He was required to report to the local police station after six months to renew his permit. He found work in [a location] but in 2003 he was told he permit could not be renewed, but he could follow up in [the city] if he wanted to re-apply. He did not go to [the city], but approached his employer instead and told him he wanted to stay permanently. His employer agreed to sponsor him, but he said he had to return to Sri Lanka first. The applicant obtained a passport and returned to Sri Lanka. He was told that he could return to [Country 1] after a couple of months, but later realised that this was not true.

9. The applicant states that [close] to his house in Negombo was a [building] yard. This [work] yard gave them “a lot of grieve”. There was a lot of noise and dirt coming from the yard and he was worried about his wife’s health as she was pregnant and some of the people in their village got together and wrote a petition against these people. The people are very wealth and are able to bribe the council members. Nothing came of the petition which made the applicant very angry. When his wife was almost nine months pregnant, one night after dinner some persons knocked on the door. When he answered the door four unknown people forced their way in and started beating him. The applicant’s wife started screaming and collapsed on the floor. The applicant’s wife’s mother in law took his wife to the hospital immediately, but there were complications and their son died. The applicant believes this incident was connected with the issues with the [work] yard. After that time, he gave up on the petition and left them alone for fear that they may hurt his family further. The applicant was “very disillusioned with Sri Lanka”. He was very angry that the petition did not go anywhere because the council was corrupt. The problems with the baby caused him to want to leave the country. About six months later he was trying to return to [Country 1] but was caught by the Sri Lankan authorities boarding the boat. He was arrested and charged and the case continued until 2006, but was then dismissed. Whilst his case continued he was not allowed to leave the country but in October 2006 he had the opportunity to go to [Country 3] for work. He stayed in [Country 3] for three years and returned in October 2009.

10. Six months prior to his return to Sri Lanka, his wife called him and told him that his brother in law had been attacked. He said he could not return because he had only six months left on his visa. When he returned to Sri Lanka he did not return to the house [in the vicinity of] the [work] yard and he spent a lot of time with his wife and family. He found out that his brother in law was politically active and supported a party’s campaign. This must have been the cause for the attack and because he spent a lot of time with him this must have alerted his attackers about the applicant.

11. The applicant returned to [Country 3] and was granted another three year visa. A few weeks later, his wife rang him and told him that the people who had attacked her brother had asked for him as well. When the applicant left Sri Lanka he found out that his brother in law had also left Sri Lanka and gone to Australia for fear of being attacked. The applicant was very worried about this, and basically was in hiding all the time and too terrified to go out. The applicant did not want to stay in Sri Lanka because he was constantly scared. He had completed a [course] and applied for a job on a boat leaving for the [Country 2]. He needed to enter the [Country 2] and applied for [a] visa. He was told that the processing times were very long. He decided that he could no longer wait for an outcome because he did not feel safe. The applicant then decided to come to Australia instead.

12. The applicant does not believe he could safely relocate to another area in Sri Lanka. The applicant also believes that the Sri Lankan authorities cannot protect him because they are corrupt and will take bribes.

13. The applicant attended an interview with the delegate on 6 December 2013. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the summary set out in the delegate’s decision record is accurate.

    Application for review

14. When lodging the application to the Department, the applicant provided a copy of the delegate’s decision record.

15. Following the lodgement of the application, the applicant’s representative provided a submission to the Tribunal. The applicant also provided a statutory declaration in which he stated the following:

    ·     The people who were after my brother in law, I believe they were after him because my brother in law assaulted someone then in retribution the victim’s friends attacked my brother in law.

    ·     I did not know what party my brother in law worked for.

    ·     My brother in law reported the incident to the police or the authorities.

    ·     Contrary to the delegate’s findings I believe the government are still after me because my family home was near my brother-in law’s house.

    ·     I did not move to Colombo nor can I move to Colombo if I return because people will find out.

    ·     The police will not protect me if I return to Sri Lanka because one needs to have political connections or be wealthy and well known to receive protection. I therefore cannot be protected.

    ·     I did not tell the Department I was in hiding for 18 months.

    ·     I maintain I will be harmed due to my brother in law’s political activities.

    ·     I travelled to [Country 1] and [Country 3] for economic reasons.

    ·     I did not encounter any direct problems from the authorities or any other groups when I returned to Sri Lanka between October 2009 and December 2009, however I feared for my safety and lived at my parents place.

16. The representative submits that the applicant fears serious harm on the basis of his political opinion due to his brother in law’s involvement with the UNP. It is submitted that this is supported by country information by the United States Department of State which reported that on 1 October 2014 a UNP event was firebombed and pelted with stones. A further article from 2014 refers to supporters of the ruling United People’s Freedom Alliance (UPFA) allegedly attacking attendees of an opposition political rally staged by the UNP. An article which refers to UNP parliamentarians inspecting a tour of the International Airport and a Port “came under attack by a group of persons” was also provided. The representative submits that the applicant has a well founded fear of persecution due to his brother in law’s involvement with the UNP.

17. The applicant appeared before the Tribunal on 19 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Singhalese and English languages. The applicant was represented in relation to the review by his registered migration agent.

    ASSESSEMENT OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for a Convention reason if he returns to Sri Lanka?

18. The Tribunal firstly finds that the applicant is a citizen of Sri Lanka and no other country. The Tribunal accepts that any right the applicant had to enter and reside in either [Country 1] or [Country 3] has ceased. The Tribunal has, therefore, considered the applicant’s claims against Sri Lanka as his country of nationality. The applicant has claimed that he has a well founded fear of being persecuted in Sri Lanka. In considering this issue, the Tribunal has had regard to the applicant’s written claims and oral evidence to both the Department and the Tribunal. The Tribunal has also had regard to the submissions and independent evidence provided by the representative, as well as that cited by the delegate in the decision record. The Tribunal has also had regard to the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade.

19. Having considered all of the evidence, the Tribunal does not accept that the applicant left Sri Lanka for the reasons he claimed, or that he genuinely has any fear of harm in Sri Lanka for these reasons. The applicant has not lived in Sri Lanka for any length of time since 2001 and the Tribunal considers that his claims to be fearful of harm due to his brother in law’s possible involvement in a political party or due to an assault sustained by his brother in law from unknown persons to be vague and unpersuasive. The Tribunal also does not accept that the applicant genuinely fears harm in relation to an assault his brother in law was involved in whilst in Australia, a claim raised for the first time during the Tribunal hearing. The Tribunal accepts that the applicant went to both [Country 1] and [Country 3] for economic reasons. The Tribunal is drawn to the conclusion that the applicant has travelled to Australia for the same reason. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

20. At the Department interview, the applicant confirmed that he lived in [Country 3] for six years prior to his arrival in Australia, although he returned to Sri Lanka for brief visits to see his family. The applicant also confirmed, after some discussion of the issue, that some of the information on the application form is incorrect and he resided in [Country 3] until May 2012 and he returned to Sri Lanka at that time and left again on a boat in July 2012. The applicant told the Department that one of his brothers in law came to Australia by boat earlier and the other came with him. The applicant confirmed during the Department interview that he had not been politically active and he does not know much about his brother in law’s involvement in politics, although he knows he was connected with the UNP.  When asked at the Department interview why anyone would be interested in him given the lengthy period that he has been away from Sri Lanka, the applicant stated that people were looking for him and in 2004 he had a fight and his wife lost their child.

21. During the Tribunal hearing, the applicant confirmed that he lived in [Country 3] for most of the six years before his departure by boat for Australia. He confirmed that he returned to Sri Lanka in about April/May 2012 and that the date of 2011 on the application form is a mistake. The applicant confirmed that he was only in Sri Lanka for about six weeks prior to his arrival in Australia in 2012. The applicant came to Australia with his brother in law [and] his other brother in [law], had left Sri Lanka about a month earlier. The applicant did not know his brother in law [was] going to to Australia and when he boarded the boat in Sri Lanka he saw him. The applicant no longer has much contact with his brothers in law. The applicant stated that it was his [second brother in law] who was assaulted in 2009. The applicant returned to Sri Lanka about six months after the assault. Whilst he was in Sri Lanka he did not stay with his wife and instead stayed with his mother or his sisters because he heard that people were looking for him. When asked who it was who was looking for him, the applicant stated that he did not know and they did not approach him directly because he was not living with his wife. The Tribunal commented that if anyone had been interested in harming him they would have been able to do so given that he was living with his mother or sisters. The applicant confirmed that he does not know who assaulted his brother in law. He stated that he cannot say who it was because he was in [Country 3]. He also does not know who it was who came looking for him, but he believes it was due to the attack on his brother in law. The applicant confirmed that he was not at any time directly approached by these people.

22. When asked again why these people would be interested in him, the applicant stated that he went overseas previously due to his poor economic situation, but he had returned to Sri Lanka and had hoped to start a business. However, he could not do so because of the people who were looking for him. The applicant was scared and decided to leave Sri Lanka and made an application to [Country 2], but the application was taking a long time so when he heard a boat was leaving for Australia he decided to come to Australia instead. When asked whether his brother in law was assaulted again after 2009, the applicant stated that he was living in [Country 3] so he did not hear anything about it. When asked whether he had spoken to his brother in law about this, he stated that he was living in Sri Lanka but he does not know whether they harmed him again.

23. As indicated above, the representative has submitted that the applicant’s brother in law was involved with the UNP and the applicant will be sought for this reason. This submission was made during the Department interview, in the written submission to the Tribunal and also in submissions to the Tribunal following the applicant’s oral evidence at which time the representative referred to the evidence in relation to UNP activists being harmed in Sri Lanka. When the Tribunal again asked the applicant about his brother in law’s involvement with the UNP, the applicant stated that he does not know about it and he does not know whether his brother in law was attacked because of his involvement with the UNP.

24. The Tribunal has first considered the applicant’s claims in relation to his fear of harm due to his brother in law’s attack in 2009.The Tribunal is prepared to accept that the applicant’s brother in law was attacked in 2009. The Tribunal does not accept that this attack had any connection to or ramifications for the applicant, who was in [Country 3] at that time and essentially in [Country 3] until mid 2012. The Tribunal considers that the applicant’s evidence, as set out above, is problematic for a number of reasons. This includes that his evidence as to why anyone would have any interest in him in relation to this attack is extremely vague and he has little or no knowledge of a number of issues which are integral to the application he has made for Australia’s protection. First, although the applicant initially claimed in his statement that he found out his brother in law was involved in the attack and “this must have been the cause for the attack” and “must have alerted his attackers” about the applicant, he has since claimed, despite submissions by the representative to the contrary, that he does not know about his brother in law’s political involvement and he does not know the reason for the attack. Thus, as indicated above, the applicant told the Tribunal that he does not know who attacked his brother in law, who was looking for him or his brother in law, where his brother in law was living in Sri Lanka after the attack, whether the attack was due to his brother in law’s involvement with a political party, or whether his brother in law was attacked again in Sri Lanka following the earlier attack. Whilst the Tribunal is prepared to accept that he may not know all the details relating to an attack which occurred whilst he was in Sri Lanka, as stated above, the applicant has left Sri Lanka and claims to have sought asylum in Australia due to this issue. The applicant travelled to Australia with one brother in law and the other brother in law, the subject of the attack, was already in Australia. The Tribunal considers it not credible that the applicant would have such limited knowledge about his brother in law’s attack and to have discussed with him whether it was due to his political invovlment or whether it was for another reason, or to have discussed the possible identity of the persons and any actions his brother in law took to avoid harm after the attack in 2009. Additionally, the applicant claimed in his statutory declaration that his brother in law had assaulted someone and the assault was retaliation for the assault, but he denied the claim when asked about it during the hearing. Although the statutory declaration is not signed, the applicant’s representative confirmed it was read back to the applicant and was prepared through an interpreter. The Tribunal considers that the applicant’s vague and unpersuasive evidence in relation to the issues surrounding the circumstances of the assault are indicative of the fact that even if it did occur that it has had no ramifications for the applicant and he is relying on an assault in 2009 in an attempt to manufacture claims for protection several years later.

1. The Tribunal also does not accept that if anyone had been interested in the applicant when he returned to Sri Lanka for three months in 2009 that they would have been unable to find him and harm him had they wished to do so. The Tribunal considers that if the applicant was at his mother’s home or even the home of other relatives he could have been found easily. Furthermore, the Tribunal considers it likely that the applicant’s claims relating to his brother in law’s possible involvement with the UNP, which as stated above he has very limited knowledge, have been manufactured. However, even accepting his brother in law had some involvement with the UNP, the Tribunal does not accept that the applciant genuinely fears harm for this reason.  The Tribunal does not accept that anyone would have any interest in the applicant due to any involvement his brother in law may have had with the UNP. As stated above, the applicant has not lived in Sri Lanka for an extensive period of time and his own evidence is that he has had no involvement in politics. The evidence cited by the delegate, and indeed provided by the representative, refers mainly to attacks on UNP politicians, although one report refers to an attack on UNP supporters. The Tribunal does not accept that it is credible that any persons have any interest in the applicant due to any political involvement his brother in law had with the UNP, even if his brother in law was attacked for that reason.

2. The Tribunal is not satisfied, therefore, that the applicant was ever sought by persons in Sri Lanka as a result of an assault against his brother in law which may or may not have been connected with his brother in law’s political involvement. Nor does the Tribunal accept that the applicant was in hiding at any time in Sri Lanka. The Tribunal is also not satisfied that the applicant had any adverse political profile in Sri Lanka, either actual or imputed, or that there is a real chance that he will suffer serious harm upon his return to Sri Lanka for reasons of his actual or imputed political involvement.

3. The Tribunal has also considered the applicant’s claims regarding the incident with the [work] yard in 2004 which resulted in his wife suffering a stillbirth of their son. The Tribunal accepts that this incident occurred and it would have been distressing for the applicant and his wife. The Tribunal accepts that the applicant took no further action after 2004 in relation to this incident or that his evidence indicates that he was sought by anyone in relation to this incident. The Tribunal does not accept that the applicant has any continuing interest in agitating in relation to this issue which occurred some 11 years ago. The Tribunal is not satisfied that the applicant genuinely fears harm in relation to this issue or that there is a real chance that the applicant will suffer serious harm due to the incident in 2004 upon his return to Sri Lanka.

4. The Tribunal has also considered the applicant’s claims, raised during the Tribunal hearing, that he also fears harm in relation to an incident in [City 1, Australia] where his brother in law had a fight with someone and the person was admitted to hospital. The applicant stated that the person whom [his second brother in law] had a fight with is called [Mr A] and he is from the same area of Sri Lanka and travelled to Australia by boat from Sri Lanka. The applicant told the Tribunal that he took [Mr A] to hospital and gave a statement to the police about his brother in law’s involvement in the incident. His brother in law was jailed for six months in relation to the incident and [Mr A] was quite seriously injured and has had surgery on his skull. The applicant fears harm in relation to this incident because [Mr A’s] family and the community may think he was involved. When asked how this is connected to the incident which occurred in 2009, the applicant stated that it has no connection but when [Mr A] is drunk he tries to attack him and says that he was responsible for getting [his second brother in law] out of jail. When asked when the assault occurred, the applicant stated that it was over a year ago. When asked why it was not included in the statutory declaration or the submission provided in September 2015, the applicant stated that he told the representative.

5. The Tribunal is prepared to accept that the applicant’s brother in law had a fight with a person in Australia who is from the applicant’s village. The Tribunal does not accept, given that it was the applicant who took [Mr A] to hospital and assisted the police with their inquiries, and it was his brother in law who was convicted and received a custodial sentence, that he will be harmed in Sri Lanka as a result of this incident. The Tribunal again considers that the applicant’s claims in relation to this incident are vague and unpersuasive and indicative of the fact he has no genuine fear of harm from villagers or [Mr A’s] family. The Tribunal considers it evident that the applicant is attempting to rely on this incident to establish further claims for protection in Australia. The Tribunal is not satisfied, having considered the evidence in relation to this incident, that there is a real chance that the applicant will suffer serious harm upon his return to Sri Lanka as a result of an assault by the applicant’s brother in law on [Mr A] in Australia. The Tribunal does not accept the applicant’s claims at the hearing that he is planning to leave [City 1, Australia] for [another State] because of his fear of [Mr A].

6. Having considered the applicant’s claims, the Tribunal is drawn to the conclusion that the applicant has manufactured his claims to fear harm in Sri Lanka. The Tribunal accepts that the applicant went to [Country 1] and Sri Lanka for economic reasons. The Tribunal also accepts that the applicant made an application for a visa of some kind for [Country 2] whilst he was in Colombo in mid 2012. The Tribunal does not accept he did so because he feared harm in Sri Lanka. As discussed with the applicant during the hearing, he has not lived in Sri Lanka for a considerable period of time and has demonstrated a desire to maintain employment outside of Sri Lanka. The Tribunal considers that the applications to both [Country 2] and Australia are motivated by a desire to continue to seek employment in a Western country where he can obtain a significantly greater income than in Sri Lanka. The Tribunal also considers his imminent move to [another State] is motivated by that desire and has no connection to any assault against [Mr A] by his brother in law. The Tribunal does not accept that the applicant had planned to establish a business in Sri Lanka and did not do so due to the reasons he claimed. The Tribunal considers he did not do so because it was not his intention and it was instead his intention to leave Sri Lanka and seek employment in a Western country and it was for that reason that he travelled by boat to Australia.

   The applicant’s return to Sri Lanka

7. The Tribunal has not accepted that the applicant had any adverse poltiical profile or that he had been sought because of his brother in law’s assault in 2009 or any possible involvement his brother in law had with the UNP. The Tribunal has not accepted these claims and has not accepted that the applicant will be harmed in relation to the incident in 2004 or as a result of a fight his brother in law had with a person named [Mr A] in Australia. However, the evidence which the Tribunal accepts establishes that the applicant left Sri Lanka illegally by boat and came to Australia to seek asylum. Whilst no submissions or claims have been made in relation to these issues, and the applicant indicated he had no comments when the issues were discussed with him during the hearing, the Tribunal considers that they are relevant and arise on the facts before it. The Tribunal has, therefore, considered whether the applicant’s illegal departure from Sri Lanka and application for asylum in Australia will result in him being harmed upon his return.

8. The Tribunal firstly notes that the information before the Tribunal, including from the Department of Foreign Affairs and Trade (DFAT), the Upper Tribunal and UNHCR indicates that standardised procedures apply to all cases relating to illegal departure, regardless of a person’s ethnicity or the circumstances in which they left the country. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of immigration laws are arrested at the airport, brought before a court and charged under the Immigrants and Emigrants Act (the I&E Act). Under s.45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit such as a seaport or airport. The information indicates that returnees are routinely interviewed at the airport on arrival 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 were evidence of involvement in people smuggling. Persons suspected of illegal departure are taken to a court to apply for bail. Bail is routinely given on the person’s recognisance, although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available. The evidence before the Tribunal also indicates that the penalties imposed on returnees by the courts for illegal departure may take the form of fines or a custodial sentence.

9. The Tribunal accepts on the basis of the above that the applicant will be questioned at the airport and bailed upon a hearing with a magistrate. The Tribunal also accepts that there is a possibility he will be held for a limited period in remand whilst waiting bail, but DFAT has reported that returnees are transported by police to the Magistrates Court in Negombo at the “first available opportunity” and it is only if a magistrate is not available because of a weekend or a public holiday that those persons who are charged are taken to the nearby Negombo prison.[1] The Tribunal accepts that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance. However, the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. The Tribunal is also not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.[2] DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.[3] The evidence indicates, therefore, that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is considered to be an organiser of people smuggling.[4] The Tribunal does not accept there is any evidence that the applicant will be suspected of people smuggling or there is any evidence of outstanding criminal matters or that he would be on a watch list.

   [1] DFAT, Sri Lanka: Country Report, 16 February 2015.

   [2] DFAT, Sri Lanka: Country Report, 16 February 2015.

   [3] DFAT Sri Lanka: Country Report, 16 February 2015.

   [4] DFAT Sri Lanka: RRT Country Information Request – LKA40999, 19 October 2012, CX29741; DFAT Country Information Report NO.12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31 July 2013, paragraphs 3.73, 3.75, 3.77, 3.79.

10. The Tribunal accepts that the applicant has previously been charged for illegal departure, but the applicant’s own evidence was that the case was dismissed and he has not claimed, and there is no evidence to indicate, that he will be subject to additional fines or a custodial sentence due to this issue. The Tribunal also does not accept that there is any evidence, as indicated above, that the applicant has any adverse political profile. The evidence before the Tribunal indicates that Tamils who have an actual or imputed adverse political profile due to actual or suspected links with the Liberation Tigers of Tamil Eelam (LTTE) may face interrogation and detention at the airport or upon return to their villages. Given that the applicant is from the majority Singhalese ethnic group and is from the Western province of Sri Lanka, an area which was not occupied by the LTTE during the civil war, the Tribunal is not satisfied that there is any evidence that the applicant has any adverse political profile which will result in him being harmed upon his return to Sri Lanka. The evidence from the Upper Tribunal also indicates that the authorities are well aware that many persons from Sri Lanka have left the country and sought asylum overseas, and the Tribunal is not satisfied that there is any evidence that he will suffer harm for this reason.[5]

    [5] 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).

11. The Tribunal considers, therefore, that the independent evidence indicates that the applicant will not be subject to a custodial sentence and the prospect of him being detained for a prolonged period of time as a penalty for illegal departure is remote. The Tribunal accepts that there is some evidence of a magistrate levying a fine of 50,000 rupees. However, according to DFAT, the fines levied by the Magistrates Court in Colombo are typically about 5,000 rupees (around AUD 40).[6] The applicant has not claimed that he will be unable to pay a fine, and the Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. Further, the Tribunal considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine. The evidence indicates that this situation applies to all persons, regardless of whether they are Tamil, Sinhalese or otherwise. The Tribunal considers that factors in relation to returnees apply to anyone who has left illegally. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal considers that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non discriminatory basis under a law of general application.

    [6] DFAT 2014, Country Report Sri Lanka, 3 October at 5.28 to 5.29. DFAT reports, however, that one magistrate in Negombo typically levied fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.

12. The Tribunal is not satisfied, when the applicant’s claims and circumstances are considered both individually and cumulatively, there is a real chance that on return to Sri Lanka he would suffer serious harm amounting to persecution for the Convention reasons. The applicant is Catholic, but he has not made any claims to fear harm on the basis of his religion and the Tribunal is not satisfied that there is a real chance he will suffer serious harm for this reason.  Nor is the Tribunal satisfied that the applicant will suffer serious harm for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.

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

13. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The representative has submitted that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will be subjected to torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment or that he will be arbitrarily deprived of his life.

14. As indicated above, the Tribunal has not accepted that the applicant had any particular profile at the time he left Sri Lanka or that there is a real chance that he will be harmed as a result of his brother in law’s assault, or his brother in law’s possible political involvement, the assault in 2004 which resulted in his wife losing their baby, or as a result of the assault in which his brother in law was involved in Australia. However, the Tribunal has accepted that the applicant will be subject to the provisions of the Immigrants and Emigrants Act. The Tribunal has, therefore, accepted that it is likely that he would face questioning at the airport, but is not satisfied that there is any evidence indicating that he would face additional interrogation or questioning because of any criminal charges, adverse political profile or his previous attempt to depart Sri Lanka illegally. The Tribunal accepts that he will be arrested on charges of illegal departure, that there is a possibility he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal has also accepted there is some possibility that the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary. The Tribunal has not accepted that the weight of the evidence indicates that returnees are being harmed if remanded for a brief period.

15. In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the five ‘limbs’ of the definition of ‘significant harm’ in s.36(2A). These require that there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act requires that the pain or suffering be ‘intentionally inflicted’ on a person. Similarly, ‘degrading treatment or punishment’ is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of ‘torture’ also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.

16. The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

1. The Tribunal has accepted that there is a possibility that the applicant may have to spend a brief period of time in a prison or remand. When considering whether this 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 having regard to the applicant’s circumstances. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’.[7] The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

   [7] See SZTKF v MIBP [2014] FCCA 282, 4 December 2014, in which Manousaridis J found that the intentionally placing the applicant, a Tamil citizen in remand whilst awaiting sentence did not establish that the harm was intentional such that it was significant harm. In an earlier decision, the Federal Circuit Court found that mere negligence without more, was not capable of amounting to intentional infliction of pain or suffering – see SZSPE v MIBP [2013] FCCA 1989.

2. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will be subject to an abduction, death or any other form of significant harm following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka.

3. The applicant has not claimed that he will be unable to pay the fine and the Tribunal is also not satisfied that the scale of the fine, which is the most likely penalty, amounts to significant harm. Nor is the Tribunal satisfied that the applicant would be exposed to significant harm for any other reason.

4. The Tribunal finds, therefore, 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 would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

   CONCLUSIONS

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

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

7. 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

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

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

9. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

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

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

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

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

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

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

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

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

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

   Refugee criterion

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

11. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

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

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

    (b)significant physical harassment of the person;

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

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

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

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

    Complementary protection criterion

13. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

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