1405696 (Refugee)

1405696 (Refugee) [2015] AATA 3466 (4 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1405696
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Andrew Mullin
DATE:4 September 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Statement made on 04 September 2015 at 1:04pm

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 claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012. The delegate refused to grant the visa [in] March 2014 and [in] March 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.
The Applicant was represented in relation to the review by his registered migration agent.
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.
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.
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’).
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.
CLAIMS AND EVIDENCE
The Tribunal has before it the Departmental and Tribunal files relating to the Applicant and the material referred to in the delegate’s decision, together with other material available to it from a range of sources.
The Applicant attended an entry interview in [Australia in] September 2012. Asked why he left Sri Lanka he said that because he had changed his name he had slight problems from the Tamil community. These were not major issues or threats but they did not like it. The other reason was the high price of fuel making the costs of fishing high. Additionally, boats from India would harass him when he went fishing. These were the reasons that he came to Australia. Asked if there had been any threat to harm him he said that one day some Tamil people tried to get him into a fight, asking why he had changed his name. Other than that there was nothing. As to what he believed would happen to him if he returned to Sri Lanka he said he would be in debt because he had borrowed money to come to Australia. He would also be jailed for three years ‘because we were illegal migrants.’ There was a problem when he went fishing because it is highly costly. People were not happy with his name change.
In his protection visa application and an accompanying statement the Applicant claims, in summary:
·He was born in Negombo, Gampaha, Western Province, Sri [Lanka]. His ethnicity is Tamil and he is a Christian. He lived at an address in [a] village, Negombo, from [year] to about [year] and at another address, in the same area, from then until July 2012. He received a total of [years] of formal education in Negombo, ending in [year], and had seasonal employment as a fisherman, in Negombo, [and other towns] from 2003 to July 2012. He is unmarried. His father died in 2007, his mother is living [overseas] and his [siblings] live in Negombo.
·His parents were ethnic Tamils but because they moved to Negombo when they married his entire education was in Sinhala. His parents sometimes spoke to each other in Tamil at home but they always spoke to their children in Sinhala.
·Although he was educated in Sinhala and had many Sinhalese school friends, he and his family were always treated differently by the surrounding community. This was particularly so when incidents of violence relating to Tamil separatism occurred.
·On many occasions he and members of his family were verbally abused on the streets by Sinhalese men who accused Tamils of being the cause of the death of many Sinhalese youths in the army and among civilians. On one occasion in 2003 he was abused and punched by a group of drunken Sinhalese. This caused him great anguish and frustration. He could not report the matter to the police as they turn a blind eye when Tamils lodge complaints.
·In his work as a fisherman from 2003 onwards he was treated differently on account of his ethnicity. He was only taken on when sufficient crew could not be found to man the boat. As a consequence of frequent abuse and discrimination he decided to go to [Europe] but this did not eventuate.
·He decided to change his family name [to] resemble an ethnic Sinhalese name and he provided public notice of the change.
·This change of name did not improve the way he was treated by Sinhalese but only made matters worse as many of them ridiculed him because of it, telling him he would always remain a Tamil. Further, there was an incident in [Town 1] when he was stabbed by a Tamil who referred to his name change. Some of his Sinhalese crew mates had told their Tamil friends about it.
·Following this incident he always remained on board the boat when he was staying on the east coast. He received various threats on his mobile telephone from anonymous callers who warned him not to return to [Town 1] or other parts of the east coast or his life would be in danger.
·In 2011 he worked ‘selectively’ while the threats and abuse continued. The situation became unbearable and he decided the only option was to flee the country.
The Applicant reiterated the basic elements of his claims at a protection visa interview [in] July 2013.
On the Departmental file are, relevantly, photocopies of:
·Biographical pages from a Sri Lankan passport issued [in] 2001 in the name of [Name 2].
·A Sri Lankan birth certificate with an English translation indicating that the Applicant’s birth name [was] changed in 2007 to [Name 3].
·A national identity card with an accompanying English translation, issued [in] July 2009 in [Name 3].
·A fisherman’s identity card issued [in] September 2010 in [Name 3] with an address in Negombo.
·An untranslated document said to be a school certificate.
A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
Tribunal hearing
The Applicant appeared before the Tribunal on 30 April and 16 July 2015 to give evidence and present arguments[1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The Applicant’s advisor was present at both sessions of the hearing.
[1] The hearing on 30 April 2015 had to be adjourned after a few minutes due to the non-appearance of the scheduled interpreter.
The Applicant’s evidence was, in summary:
·He confirmed that he was born and raised in his parents’ home in Negombo. This was in rented accommodation and the family moved two or three times before they bought land and built a house in [a village of] Negombo, in [year] . He lived there with his father and married [sibling] while his mother was working overseas. His father, who worked as a [occupation], died in 2007 and the house is currently occupied by his mother and [sibling]. He completed [school] and worked as a fisherman from 2003. Asked what employment he had between 1997 and 2003 he said he did nothing but simply stayed at home - after finishing school he had not thought of working and he had no problems as his food and other wants were provided. Asked what his parents thought about this arrangement he said they never forced him to get a job. It was only in 2003 that he decided to work as a fisherman and his problems began.
·He confirmed his claim that his parents were ethnic Tamils. Asked when it was that they moved to Negombo he said he had no idea. Asked again he said he had never been interested in asking them about this – as far as he remembered they were always there. He knew from his birth certificate that his father was not born in Negombo but maybe in [another town]. I suggested it seemed difficult to believe that he never once asked his parents where they came from or how long they had been in Negombo. He said he had never bothered to ask as he knew they were not from Negombo. Asked if he had never asked his grandparents about the origins of his family he said he had not thought of doing so as it was not so important for them.
·Asked whether he spoke to his grandparents in Tamil or Sinhala he said he spoke in Sinhala – they spoke both Tamil and Sinhala. His parents would speak to him in Sinhala but spoke to each other in Tamil. He confirmed his claim that he learned to speak, read and write Sinhala at school. There were English language classes at the time but no Tamil language classes. He confirmed that his surname when he was growing up was [Name 2].
·He confirmed his claims about an incident in 2003 in which he was accosted and punched in the street by some drunks. He agreed that everyone had known he was a Tamil, even though he spoke Sinhala and went to a Sinhalese school. I noted that his life up to this point included the years in which the country was gripped by a violent civil war between the army and the LTTE when, because the LTTE was almost exclusively Tamil, there were suspicions of Tamils, and sometimes conflicts between Sinhalese and Tamil civilians. Despite this, however, the only harm he ever suffered at the hands of Sinhalese up to the age of [early adulthood] was that on one occasion a drunk met him in the street and punched him. He said this was only one incident. He was very scared. Wherever he went people knew that he had changed his name from a Tamil to a Sinhalese one. He could not live because wherever he went he was subjected to harassment. Tamils rejected him for adopting a Sinhalese name and Sinhalese knew he was a Tamil. He was isolated and ostracised everywhere and subjected to attack by both sides.
·He confirmed that he had suffered no physical harm up to 2003 but went on to claim that this was because he spent almost all his time at home and did not go out. I noted that he had not been remaining at home but was attending school for [many] years. He agreed this was true but said that in Sri Lanka one is regarded as an adult after reaching the age of eighteen – all one’s problems begin then. He had not experienced any problems while he was at school – Tamil children living in Sinhalese areas do not experience such problems. I put to him that he was an adult [before] anything happened to him. He repeated that he attended school for [many] years and had no problems until the assault in 2003.
·I put to him it seemed difficult to believe his claim that he faced a problem in Negombo because of Sinhalese hatred of Tamils when this was never reflected toward him as a child or as a schoolboy up to the age of eighteen. He said it was only when he entered society that he realised there was a problem between Tamils and Sinhalese.
·I asked if he had experienced any harm in the four year period between the 2003 incident and the point where he changed his name in 2007. He said that because he had been attacked as a Tamil he left for [Europe]. He then agreed he had gone only as far as [a certain country] and that he was absent from Sri Lanka for no more than one or two months. Asked again he said he was not attacked but he had had the feeling that he was ostracised as a Tamil. There were checkpoints wherever he went and when he presented his identity document they realized he was a Tamil and looked at him with suspicion. He had a feeling of isolation during the whole four years. Reminded of his claim that he had had many Sinhalese school friends he said that when people grow up and go out into society they realize there is a problem of nationalism between two ‘nations’ (in context, ethnic communities) in Sri Lanka.
·Noting that he had been employed I put to him that it was hard to see how he had been isolated and ostracised. He said he did not receive much education and in Negombo the only job for a person like him was as a fisherman. Even when he wanted to work as a fisherman he was employed only temporarily, when there was a vacancy. I suggested that this is simply the nature of the fishing industry, an occupation which is often not very lucrative. He said some people are permanently employed but he and others were not, because of their ethnicity. Further, Tamil fishermen were thoroughly checked by the navy but this was not done for Sinhalese.
·Asked further about his employment he said he was employed casually when places became available on a few boats belonging to his village. Asked who owned the boats he said he did not like to reveal their names. The people who took the boats out were Sinhalese. I put to him that it seemed hard to see how his employment was discriminatory. He said he believed he was not given employment because of his Tamil ethnicity. He confirmed he meant that in his area no Tamils were given permanent places in fishing boats. I put to him my understanding was that Tamils own fishing boats all along the Western coast. He said this might be true but he was not wealthy enough to buy a boat. To the suggestion that other Tamils do own boats he denied this was the case in Negombo. I noted that information before the Tribunal indicates there are large numbers of Tamils living in Negombo and that they are heavily involved in the fishing industry as business people, both in the market and in fishing operations. He said these things might be true but he was unaware of them.
·I put to him that if it was the case that the Navy had discriminated against him and other Tamil fishermen in Negombo by checking their identity this might have been an annoyance but it had not stopped him fishing or earning a living. He repeated that he could not gain a permanent position in a boat because he was ostracised and isolated.
·I put to him that the problems he claimed to have suffered - being punched on one occasion by a drunken Sinhalese and suffering discrimination by not being given a permanent position in a boat, might not amount to serious harm. He said he had no freedom in Sri Lanka and was ostracised and isolated.
·Asked about the incident which he claimed occurred when he was fishing on the east coast he said he was assaulted by two drunken Tamils at a jetty in [Town 1]. They somehow knew that he was born Tamil but had changed his name to a Sinhalese one. They accused him of wanting to become Sinhalese and said that all their problems were due to people like him. They then hit him. Asked if they were blaming all the problems of the Tamil people on those who had changed their names in this way he said he meant they were angry with him for changing his name to escape the problems they were experiencing.
·Asked what the Tamils did to him he said they hit him in the [lower half of his body] with something like a bottle, causing an injury which required three stitches. Asked if he had ever been harmed by Tamils at any other time, either before or after this incident, he said he had not – this was because he was not living in a Tamil area. To the observation that many Tamils live in Negombo he said not many of them have changed to Sinhalese names. The Tamils in Negombo have no power under the Sinhalese while there are very powerful Tamils in [Town 1].
·I observed that aggressive behaviour by drunks in public is not unknown, either in Australia or in Sri Lanka; in his whole time in Sri Lanka he claimed to have encountered violence on just two occasions and these seemed more like random incidents rather than a pattern of violence. I suggested that encountering violence from drunks in public on two occasions would not, on the face of it, constitute harm of a kind which would engage Australia’s protection obligations. He said he accepted that attacks by drunks are normal. The major problem for him in Sri Lanka was the problem of two nationalities. After the attack on him in 2003 he was too scared to go out at night. He lived in fear. If he had any problem he would be helpless because he is a Tamil.
·He continued that he could not live in Sri Lanka because he was born a Tamil but changed his name to a Sinhalese one. Asked if he meant that Sinhalese would harm him for changing his name he said this was one of his problems. The other major problem was the national problem.
·I noted that information before the Tribunal, including from UNHCR and DFAT, indicates that, nearly six years after the end of the civil war, people are no longer at risk of harm simply because of their Tamil ethnicity. Further, the information indicates that Negombo has traditionally had a sizeable Tamil community which has been able to co-exist without any particular problem with the Sinhalese community there. I put to him that this information could lead to a conclusion that he would not be at risk of harm in Sri Lanka because of his Tamil ethnicity. He said this might be correct and the Tamil community in Negombo might not have problems. However his case was different. He had changed his name to a Sinhalese name, leading people to think he wished to become Sinhalese. If he went to Tamil areas to live they would not want to accept him as a Tamil because of his name change. Although the Tribunal was saying that he would not be harmed if he went there, he would live his whole life in isolation.
·To the observation that nobody would make him live in a Tamil area, and he could return to live in his home area of Negombo, he said Sinhalese people there would not want to accept him as Sinhalese. I noted, once more, that he had experienced just one incident of harm in Negombo. He said he could not live freely after this incident and remained in fear. I put to him I found it hard to believe that being punched once in the head would make him live in fear for the next nine years. He said he changed his name in 2007 because it was hard to live there. He wanted to live freely without the problems of nationality.
·Asked if he feared harm for having sought protection in Australia he said he had not experienced any problems with the police so far. Asked if he feared harm from the police or other authorities on return he said he did – his problem was that he had changed his name. If he were Sinhalese he would be able to show them his documents in Sinhala. I noted that he did have documents which showed that he had changed his name. He said this was true but his problem was that he had nowhere to live freely in society. He would be living in fear all the time.
·Asked again if he feared any kind of harm from the police or other government agencies he said he did – this was because he had left Sri Lanka illegally. He was afraid he would be taken into custody. There would be a problem when his mother and siblings came to visit him because they had Tamil names and he had a Sinhalese name. Asked why this would be a problem he said the police might think it suspicious that he had changed his name and might suspect he had belonged to the LTTE. I put to him that I found this hard to believe, given that he had been completely open about the name change, amending his birth certificate without attracting any suspicion. He said he was afraid of the police because they might ask why he had changed his name.
·Asked again about this issue at the advisor’s suggestion later in the hearing, he said he had never encountered any problem with the police before and did not know how they would react to him on return. Asked if he knew of any other Tamil who had adopted a Sinhalese name he said he did not. He agreed he had changed his birth certificate and national identity card to reflect his new name. I put to him that this had not created any problems for him over the next five years, and he had not been suspected of belonging to the LTTE. He confirmed he had experienced no problems from government agencies as he had changed his name according to law.
·I noted that the Tribunal has information indicating that if he were returned to Sri Lanka it would probably be discovered that he had left the country illegally. He would be arrested at the airport and taken to Negombo magistrates court for a bail hearing. Bail would be granted and, if convicted at a later court hearing, he would be fined an amount from Rs 5,000 to 50,000. If he returned on a weekend when a bail hearing might not be immediately available he would be held for a relatively brief period on remand in Negombo prison, in conditions which are reportedly crowded and unsanitary. I put to him the Tribunal might conclude that this treatment would not amount to serious or significant harm of a kind which would trigger Australia’s protection obligations to him. Further, the law covering the offence of illegal departure appears to be a law of general application, designed to regulate the country’s borders, which is enforced without discrimination. Invited to comment he said he accepted that these were normal procedures which applied to anyone who returned. He had not so far experienced problems with the police. He came to Australia because he could no longer live in Sri Lanka in peace and harmony.
·Asked again if he feared harm in Sri Lanka for having sought protection in Australia he said he did not fear such a problem. His problems were as he had already explained them.
·I noted that when he was asked in his entry interview, two months after arriving in Australia, why it was that he had left Sri Lanka his response was that he had slight problems from the Tamil community over changing his name. These were not major issues. There were no threats but the Tamils did not like it. On one occasion some Tamils had tried to get him into a fight for changing his name. The other reason he had left was that the cost of fuel was very high and boats from India were harassing him when he went fishing. In summary, he had not made any mention of suffering harm from Sinhalese or fearing harm from them, and had reported only minor problems from Tamils. He said he had mentioned the problems with fishing only as an example of the harm he would suffer if he started his own fishing business.
·Asked if there was anything he wished to add he said there was nowhere for him to live in society if he returned to Sri Lanka.

The advisor submitted that:
·There is a difference between approaching a civil authority to register one’s new name and, at a later time, being questioned in a law enforcement context about one’s actions where things that have happened in the past can be seen in a new perspective. In the same way, in an Australian setting, such a name change might be seen as significant for a person who had returned after leaving Australia unlawfully. These questions might be difficult for the Applicant to answer because, as a Tamil, he might not be believed.
·The Applicant’s problem is that he is caught between two communities and can no longer belong to either. This is a major problem because he is discriminated against on both sides. (The Applicant stated, at the advisor’s prompting, that he deeply regretted changing his name. Asked if he could change it back to his original name he said he did not know if it was possible to reverse it. Asked if he had ever thought of doing this he said he had not - he came to Australia to live freely. He had not made any enquiries of the Sri Lankan authorities or anyone else in Australia.
FINDINGS AND REASONS
On the basis of the copies of his passport, birth certificate, identity card and other documents submitted to the Department I accept that the Applicant is an ethnic Tamil citizen of Sri Lanka who was born in [Negombo]. I also accept that in 2007 he formally changed his name from [Name 2 to Name 3], and that he was known by this name up to the time he left Sri Lanka in July 2012.
The Applicant claims to fear harm in Sri Lanka because of his Tamil ethnicity (exacerbated by his change of name) an imputed political opinion in favour of the LTTE and the fact that he left Sri Lanka illegally and sought asylum in Australia.
Credibility issues
I have strong doubts over the credibility of the Applicant’s account of his experiences in Sri Lanka, for the following reasons:
·There are obvious and significant inconsistencies between the information he provided in his entry interview and the claims he has subsequently advanced. In the entry interview he made no mention of having been physically harmed at any point in Sri Lanka. He said he had only slight problems from the Tamil community and the only incident involving threat or harm was that on one occasion some Tamils tried to involve him in a fight because they did not like the fact that he had changed his name. He said another reason for leaving Sri Lanka was that fuel costs made it expensive to go fishing and he was harassed by Indian fishing boats. He made no mention of having been attacked and stabbed in the [lower half of his body] in [Town 1] or being punched by Sinhalese in Negombo in 2003, incidents which could reasonably be seen as dramatic and memorable ones for him had they actually occurred. Nor did he make any mention of having suffered verbal abuse on the streets from Sinhalese men on many occasions or of receiving various threats on his mobile telephone. When these inconsistencies were drawn to his attention for comment he offered no cogent explanation.
·His evidence at the hearing was vague and unenlightening on the question of the harm he had suffered in Sri Lanka. He showed a marked tendency to change the subject when he was asked about specific incidents and his responses were at times confused and implausible. When pressed on these issues he frequently retreated into generalised statements - including that he had been ostracised and isolated, that he was discriminated against and that he was unable to live in freedom – which bore little relevance to the actual question. At other times he made assertions – such as his claim that no Tamils along the eastern coast of Sri Lanka own fishing boats – which he then appeared to withdraw when challenged.
·At the hearing he was given multiple opportunities to explain all the harm he had suffered in Sri Lanka but he made no reference to having received verbal abuse from Sinhalese men in the streets in Negombo or of receiving threatening calls on his mobile telephone. Nor did he refer at any point to a fear of harm arising over a debt he had incurred in coming to Australia. He made a generalised reference to having faced harassment wherever he went because Tamils did not like the fact that he had taken on a Sinhalese name and Sinhalese did not accept him as one of theirs.
·It is difficult to understand why he would have a fear of physical harm which was so strong as to force him to flee Sri Lanka in 2012, [when], even by his own account, during his whole life he had suffered no more than minor injuries in two public encounters with drunks. When he was asked at the hearing how it was that he had managed to avoid physical harm of any kind up to the alleged incident when he was punched in Negombo in 2003 he claimed that he had stayed inside his home, for fear, and had not ventured out. When it was put to him that this was untrue since he had attended school up to 1997 he then suggested – in my view most implausibly - that it is only after becoming an adult at the age of eighteen that one becomes exposed to harm. I note in this regard that he was [a young adult] at the time of the alleged incident in 2003 and that he continued to live in the family home in Negombo, between travels to [Town 1] for fishing, up to the time he left for Australia in 2012. I find implausible his claim that he was able to avoid harm by staying indoors at night or, when he was in [Town 1], by remaining at sea most of the time.
Taking these considerations together I am not satisfied that the Applicant has provided a credible account of his experiences in Sri Lanka. I am not satisfied that he or members of his family were exposed to frequent abuse from Sinhalese men on the streets of Negombo or that he was assaulted by a group of drunken Sinhalese men there in 2003. Nor am I satisfied that he was subsequently attacked by drunken Tamils in [Town 1]. I accept that he did not have a permanent position in a fishing boat and was instead taken on when there was a shortage of hands but I am not satisfied that this prevented him from earning a living or that it reflected any element of discrimination on the grounds of his Tamil race, his political opinion, the fact that he had changed his name or any other factor. He claims that his identity papers were scrutinized more closely than were those of Sinhalese but there is nothing in his account to suggest that he was prevented from earning a living as a fisherman, that his movements were restricted or that he suffered any kind of harm from the authorities at any point.
Harm because of change of name
The Applicant claims that he would be at risk of harm in Sri Lanka, from both the Sinhalese and Tamil communities, because he changed his name to a Sinhalese name in 2007. He claims the Sinhalese will not accept him and the Tamils dislike him for trying to be a Sinhalese.
As noted, I am not satisfied as to the credibility of the Applicant’s claim that he was assaulted by Tamils in [Town 1] over the issue of his change of name, or that he received threatening telephone messages after such an incident. I am not satisfied there is anything in the information before the Tribunal to indicate that he was harmed for this reason at any time from 2007 to his departure in 2012, by Tamils or by Sinhalese. I note his claims at the hearing that he was ‘isolated and ostracised’ and could not live in freedom but in the absence of any explanation as to how this occurred I am not satisfied that the claim is credible.
The Applicant suggested at the hearing that he might come under suspicion on return to Sri Lanka because, when questioned on arrival, it would be realised he had changed his name to one which was Sinhalese. He also suggested that suspicions would arise if, while he was in custody on charges of having left the county illegally, his mother and siblings came to visit him, given that they have Tamil names and he has a Sinhalese name. As put to him, however, when he changed his name in 2007 he did so formally and openly, amending his birth certificate and his national identity card in the process. Given this, I am not satisfied that the fact of his having taken on a Sinhalese name would in fact be seen as suspicious or that it would put him at risk of harm. I accept the advisor’s observation that the context of his being questioned on return to Sri Lanka would be different from that in which he previously registered his new name but I am not satisfied this indicates his name change would bring him under suspicion of LTTE involvement, even when it was considered together with the fact that he left the country unlawfully and sought asylum in Australia. I note that if he were to be questioned about this matter he would be able to supply the amended identity documents which he has provided to the Department, in order to demonstrate that there was nothing secretive or irregular about the process.
I am not satisfied that the Applicant would be at risk of harm on return to Sri Lanka for the reason that he took on a Sinhalese name in the past.
Tamil race or ethnicity
There is a considerable volume of country information available to the Tribunal relevant to the Applicant’s claim to fear harm in Sri Lanka on the Convention ground of his Tamil race or ethnicity. This includes the material cited in the delegate’s decision record together with DFAT reporting; the UNHCR ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka;’ and reports by the United States State Department, the United Kingdom Border Agency, the Immigration and Refugee Board of Canada, Amnesty International and Human Rights Watch) and the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
I accept there is sufficient in the available information to indicate that, at least up until the end of the civil war in May 2009, Sri Lankan citizens who were Tamils were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. The information indicates that this risk was not constant throughout the country, with those living in the LTTE-dominated Northern and Eastern provinces more likely to be targeted, but that overall it was sufficient for the purposes of assessing protection claims to find that an applicant was in need of protection simply on the grounds that he or she was ethnically Tamil.
However, I consider the information also indicates that, over six years after the defeat of the LTTE and the end of the fighting, the security situation in Sri Lanka has stabilized and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity are substantially reduced. This view is adopted in the 2012 version of the UNHCR ‘Eligibility Guidelines’ which does not refer to a presumption of eligibility for protection for Sri Lankans simply on the grounds that they are Tamils, whether or not they originate from the north of the country. The document cautions that a merits-based assessment based on individual circumstances is still necessary, that Tamil ethnicity can increase the vulnerability of persons within other ‘risk profiles’ whose protection claims warrant particularly close attention and that the ‘risk profiles’ should not be seen as exhaustive. The document lists these risk profiles as:
persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.
….
Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. Whereas persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. Other human rights issues, such as sexual and gender-based violence and violations of housing, land and property rights, also disproportionately affect members of ethnic minorities. In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.
This assessment is supported by DFAT in its recent reporting (DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam, and DFAT Country Report – Sri Lanka) and is also consistent with the findings of the United Kingdom Upper Chamber and the United Kingdom Home Office Country Information and Guidance report ‘Sri Lanka: Tamil Separatism’ of 28 August 2014.
I am not satisfied the weight of this country information indicates that those Sri Lankans who are ethnically Tamil now face a real chance of serious harm simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the North or East of the country put them at greater risk of such harm.
In the particular case of the Applicant he does not claim that he had any form of contact with the LTTE while he was in Sri Lanka or that he was ever supportive of the movement. His home is in Negombo in the Western Province, an area located far from the fighting during the civil war. He lived with his family, attended school, gained employment, was issued with a passport and used it on one occasion to leave and return to Sri Lanka, apparently without difficulty. There is nothing to indicate that he ever came to the adverse attention of the authorities or that he ever suffered harm from them. As noted, I am not satisfied that his name change in 2007 would serve to cast suspicion on him as an LTTE supporter.
I accept that the country information indicates there has been a history of discrimination against Sri Lanka’s Tamil minority, particularly in access to education and public sector employment, since the country gained its independence in 1948, in part as a reaction to a perceived favouritism toward Tamils by the British colonial administration. This contributed to a sense of grievance which contributed to Tamil demands for a homeland in the North and East, the rise of Tamil militancy and the LTTE and the long civil war.[2] I also note, however, that DFAT’s country information report indicates successive Sri Lankan governments have made efforts to address these ethnic and linguistic tensions through constitutional, legal and policy changes. The country’s official laws and policies do not discriminate against Tamils on the basis of their race, including in relation to education, public sector employment or access to housing, and the government does not sanction discrimination in their implementation. DFAT notes that Tamils can sometimes have difficulty communicating with the police, military and other Government authorities but assesses that this does not reflect official discrimination but reflects a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of previous discriminatory language policies.[3]
[2] DFAT, Country Information Report – Sri Lanka, 3 October 2014.
[3] Ibid.
While DFAT reporting does indicate that Tamils continue to face some degree of societal discrimination I am not satisfied this can reasonably be seen as rising to the level of serious or significant harm. Nor am I satisfied, on the information available to the Tribunal, that Tamils are subjected to serious or significant harm through being denied political, economic, religious or other rights. In the particular case of the Applicant I accept that his employment as a fisherman may not have been very lucrative, particularly given the problems of high fuel prices and harassment by Indian fishermen which he has described. Nevertheless, he has been able to earn a living in this way and I am not satisfied that the problems he has experienced can reasonably be seen either as amounting to serious harm or discriminatory in their nature.
Taking these considerations together I am not satisfied there is a real chance the Applicant would suffer serious harm on return to Sri Lanka because of his Tamil ethnicity.
Political opinion
As noted, the Applicant suggested at the hearing it was possible that he would be seen as supporting the LTTE because of his Tamil ethnicity, his change of name and the fact that he left the country illegally and sought asylum in Australia.
For the reasons explained above I am not satisfied there is a real chance that that the Applicant would suffer serious harm in Sri Lanka because of his ethnicity or his name change. Nor am I satisfied that these factors would lead the authorities or anyone else in Sri Lanka to impute to him a pro-LTTE political opinion.
I accept that if the Applicant were to be returned to Sri Lanka it would most likely be known to the authorities that he had unsuccessfully sought protection in Australia. However, as further discussed below, having considered the information on the treatment of returnees to Sri Lanka cited in the delegate’s decision record together with reporting by DFAT[4] I am not satisfied it supports a conclusion that returning Tamils are in fact suspected of supporting or having links with the LTTE simply because they have sought asylum in Australia or because they have been living in Australia for an extended period. I am not satisfied that the Applicant would be imputed with a pro-LTTE political opinion for this reason. As also noted below, I accept that on return to Sri Lanka he would probably be arrested and charged with leaving the country unlawfully but I am not satisfied this would incline the authorities to see him as a supporter of the LTTE or a person whose political opinion favoured the movement.
[4] In particular: CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012; CX304258 of 27 February 2013; DFAT report 1479 of 4 March 2013; DFAT Country Report, Sri Lanka, 3 October 2014; and DFAT Country Report, Sri Lanka, 16 February 2015.
I am not satisfied the information before the Tribunal indicates that the Applicant would suffer harm of any kind on return to Sri Lanka because of a political opinion, real or imputed.
Harm as returned asylum seeker
Although at the hearing the Applicant appeared to indicate that he did not fear harm on return to Sri Lanka for having sought asylum in Australia I have nevertheless considered this possibility. I accept that a Convention nexus for this feared harm could lie in his membership of a particular social group able to be characterized as ‘failed asylum seekers returned to Sri Lanka.’ I am prepared to accept that such an entity can be said to exist in Sri Lanka as a particular social group, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution, which distinguish it from society at large. I also accept that, if the Applicant’s protection claims should ultimately be unsuccessful, leading to his involuntary return, he could be said to be a member of this entity, a fact which would most likely be apparent to the authorities by the circumstances of his arrival.
There is considerable information available to the Tribunal on this subject, including the material cited in the delegate’s decision record, the United Kingdom Upper Chamber decision in GJ and Others and DFAT reporting. I accept the information indicates that in relatively recent times some of those who have returned to Sri Lanka from the United Kingdom and elsewhere in Europe claim to have experienced torture and other abuses at the hands of the authorities. I note, however, that these cases have overwhelmingly involved persons who have either had some form of actual connection with the LTTE or are strongly suspected of such linkages, or who are criminal suspects. Many of the complaints are from persons who returned to Sri Lanka voluntarily. Other reports involve those who have been charged with various offences relating to people smuggling, who were returned to Sri Lanka without having claimed protection or who were intercepted by the Sri Lankan navy or other authorities before they could leave the country. The claimed mistreatment which they involve is thus not directly relevant to the risks for unsuccessful asylum seekers who are involuntarily returned from Australia and whom the authorities have no particular reason for suspecting of criminal or LTTE links. I am not satisfied this material demonstrates that the simple fact of having applied for protection in Australia exposes returnees to harm.

I also note that in considering this issue, in the context of appeals against the planned forced return of a group of a group of Tamils from Britain, the United Kingdom Upper Chamber concluded the Sri Lankan authorities are aware that many Sri Lankan Tamils travel abroad as economic migrants and that everyone who had lived in LTTE-controlled areas had some level of involvement with the LTTE during the civil war. The Upper Chamber considered that the government’s focus is now on identifying Tamil activists in the diaspora working for Tamil separatism and the destabilisation of the unitary Sri Lanka state. It aims to prevent the resurgence of the LTTE, or any similar organization, and the revival of the civil war.
Against this background the Upper Chamber identified the categories of persons currently at real risk of persecution or serious harm on return to Sri Lanka as:
(a)Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka; (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
DFAT reporting indicates it is only those returnees who are suspected of LTTE involvement or criminal activity, including people smuggling, who are at risk of harm, and that there has been no substantiation of claims that returnees from Australia without such links have been targeted.[5] Regarding procedures for those returned to Sri Lanka DFAT’s ‘Country Report: Sri Lanka’, of 16 February 2015 states:
Upon arrival in Sri Lanka involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
[5] DFAT 2013 Country Information Report Sri Lanka, 31 July.
On the subject of the experiences of returnees from Australia the DFAT report also notes that:
Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.
On the basis of this information I find that standardised procedures apply to all returnees, regardless of their ethnicity, that they are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID) and that police and security clearances, including checks with the person’s local police station, may take some hours. If checking reveals outstanding arrest warrants for prior criminal offences, or if there are alerts in immigration watch-lists, returnees may be subject to further questioning. Additional questioning would also be involved if the person were of security interest or if there were evidence of involvement in people smuggling.
I accept the Applicant would be subjected to such processes on return. I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason. As I am not satisfied that he has ever been under genuine suspicion of having links with the LTTE, or that there is any reason to believe he would now fall under such suspicion or would be suspected of having committed any crime, I am not satisfied he would be arrested, detained or subjected to harm for this reason. Nor am I satisfied that he falls within any other identified category of persons who might be at risk of persecutory harm on return for other reasons. I am not satisfied that the fact of his being questioned at the airport, even for an extended period, could in itself reasonably be characterized as harm, or that he would be subjected to any other form of mistreatment there. While the information suggests he might be visited by the CID or police on return to Negombo to check on his arrival, and that he might be placed under some degree of monitoring I am not satisfied that in his particular circumstances he would be subjected to any more serious forms of attention and I do not accept that such visits or monitoring in themselves could reasonably be described as harm.
In reaching these conclusions I have also taken into account a 2013 Sydney Morning Herald report by Ben Doherty[6] regarding returnees from Australia who were said to been harassed following their release from the airport and their return to their homes in Batticaloa. The six persons interviewed claimed they were campaign workers for the opposition Tamil National Alliance (TNA) and that they and other TNA activists were threatened by paramilitary groups allied to the government after the governing United People’s Freedom Alliance lost control of the Eastern Provincial Council. I also note there has been considerable media reporting on the case of three Sinhalese men reported to have been abused by the CID after return from Australia.[7] These include two brothers, Sumith and Indika Mendis who arrived in Christmas Island in 2009 as crew members of a people smuggling boat and were later returned to Sri Lanka. They claimed they were detained and tortured after their return. They were arrested again in August 2010, together with Lasantha Wijeratne, on charges of people smuggling in connection with a further journey to Australia and claimed they had again been subjected to severe torture while in detention. Having considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind in Sri Lanka and has never been involved in people smuggling ventures.
[6]‘I don’t sleep at night for fear I will disappear,’ Ben Doherty, Sydney Morning Herald, 21 March 2013, See, for example, ‘Torture, rape and ill-treatment suffered by Sri Lankans who return home;’ Human Rights Law Centre, ‘Re-examine claimed safety of refugee returnees, AI appeals to Australia,’ TamilNet, 3 September 2010, ‘Failed asylum seekers allegedly beaten’ Lateline, ABC, 21 April 2011.
Taking this information together I am not satisfied the Applicant would face a real chance of serious harm at the hands of the authorities on return to Sri Lanka, either at the airport or after his return to his home, because he had sought protection in Australia or, alternatively expressed, because of his membership of the particular social group consisting of ‘failed asylum seekers returned to Sri Lanka.’
Unlawful departure
On a related issue I have considered whether the fact that the Applicant left Sri Lanka unlawfully in 2012 could be said to put him at risk of serious harm, either in itself or because it would exacerbate any risk he might face for having sought protection in Australia. I accept that a Convention ground for this harm could be found in his membership of the particular social group which might be identified as ‘illegal departees.’
The information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing. Bail is routinely given on the accused’s own recognizance although a family member may also be 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, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports[8] as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act, including those returned from Australia, have been subjected to torture or other forms of deliberate mistreatment.
[8] ‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, >
Although the Act provides for penalties of both imprisonment and fines on conviction for illegal departure, the information before the Tribunal indicates that magistrates and judges have discretion in imposing penalties, and that in practice those who have breached the terms of the Act in the method of their departure are only fined. DFAT reports that it was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was only a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent against joining boat ventures in the future. According to DFAT fines eventually imposed on returnees by the courts for illegal departure range from Rs 5,000 to 50,000 (about AUD 45 to 450 at current exchange rates)[9] DFAT reported that it had not received, and was unaware of, allegations of mistreatment of returnees in general at the airport or in remand.
[9] DFAT 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October; DFAT 2012, SRI LANKA: CIS Request Sri Lanka: Questions arising from recent applications, Country Information Report No.12/67, 29 November; CISNET CX299951; DFAT 2013, MRT/RRT Information Request: LKA41452; DFAT Report 1478, 28 February; DFAT Country Report: Sri Lanka, 3 October 2014 (repeated in Country Report: Sri Lanka of 16 February 2015.
I accept that UNHCR and DFAT do not monitor individual court processes or follow up on what happens to persons charged under the legislation. I also accept that the absence of reporting of mistreatment does not, in itself, demonstrate that it has not occurred. However given the extensive media interest in this issue and the fact that well over one thousand Sri Lanka citizens have been returned from Australia over the last three or four years I consider it is significant that no evidence has emerged of any other penalties or forms of punishment having been inflicted on them for this offence.
Having considered the relevant country information before the Tribunal I am satisfied that the Act, regulating the movement of people across Sri Lanka’s borders, is a law of general application which is appropriate and adapted to meet a legitimate national interest. I am also satisfied that the sections of the Act which provide penalties for the offence of leaving Sri Lanka other than through an official port, and which may involve suspects being arrested and possibly held in remand awaiting a bail hearing then later fined, are not selectively enforced or enforced in an arbitrary or discriminatory way on the basis of a Convention reason, but are instead applied to all Sri Lankans regardless of their race or other personal circumstances. I consider that the Applicant would be treated in the same way as others, notwithstanding the fact that he adopted a Sinhalese name in 2007.
On the basis of all the information before the Tribunal concerning the enforcement of the Act and the treatment of returnees, both on arrival and subsequently, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than extended questioning at the airport, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment. I am not satisfied that this treatment could reasonably be seen as amounting to serious harm or that it would reflect anything more than the non-discriminatory enforcement of a law of general application.
Summary - refugee claims
On the basis of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that the Applicant would face serious harm on return to Sri Lanka from the Tamil or Sinhalese communities in his town of Negombo, the authorities or anyone else, for the Convention reasons of his political opinion, his Tamil race or his membership of a particular social group. He does not claim to fear serious harm for any other Convention-related reason and no other reason is apparent on the face of the information before the Tribunal.
I am 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, and I am not satisfied that he is a refugee.
Complementary protection
As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because of his political opinion, his Tamil race or his membership of a particular social group. I am not satisfied that he is at any risk of harm because he adopted a Sinhalese name. Nor, having considered the information available to the Tribunal, am I satisfied he would be at real risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons.
I accept that the Applicant would likely face arrest on charges relating to his unlawful departure from Sri Lanka, under a law of general application, and that he would be fined if found guilty. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself.[10] Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
[10] Sri Lanka’s ‘Household Income and Expenditure’ statistics for 2012-13 (the most recent available) indicate that mean per capita income in 2012/13 was Rs 11,819 per month and that the average monthly income, for income earners, was Rs 25,963. Even for the poorest 40% of the population, nationwide, average monthly household income was Rs 15,760. On this basis I do not consider the fines which are imposed for the offence of leaving the country unlawfully, even at the upper level of the range (Rs 50,000) could reasonably be described as disproportionate or that those convicted of such an offence would be unable to pay the fines off within a reasonable period.
Further, I am not satisfied on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in these circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A). I have had regard to the relevant PAM 3 refugee and humanitarian - complementary protection guidelines, including those dealing with prison conditions, and I accept that there can be circumstances in which even a brief period of imprisonment may meet the definition of degrading treatment or punishment. However, having considered both the applicant’s circumstances and the nature of what would most likely be a short period in detention on remand in Negombo I am not satisfied this would involve a real risk of significant harm to him. Nor am I satisfied on the information before the Tribunal that he would suffer any more serious form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.

I am also not satisfied, on the information before the Tribunal, that the Applicant would suffer any harsher form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.
The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.
Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.
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
The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.
Andrew Mullin

Member

[2015] AATA 3466

4 September 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice