1405841 (Refugee)

[2015] AATA 3750

1405841 (Refugee) [2015] AATA 3750 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405841

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Suhad Kamand

DATE:25 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2015 at 9:51am

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, a Sinhalese national of Sri Lanka, left Sri Lanka unlawfully by boat in May 2012. That boat was intercepted by the Australian Navy and the applicant was taken to [location] and later the Australian mainland. He was interviewed as part of his initial entry [in] August 2012 and ultimately lodged the Protection visa application the subject of this review [in] November 2012. The delegate refused to grant the visa [in] March 2014 and the applicant sought this Tribunal’s review of that decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

2. Relevant law has been included at Appendix 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The applicant has been consistent in his claims regarding his name, nationality, ethnicity and date of birth and has provided identity documents including a copy of a birth certificate as evidence.[1] The Tribunal accepts that his name and date of birth are as he has stated and that he is a Sinhalese national of Sri Lanka. He was born in [year].

4. His express claims and those arising on the evidence are that he faces harm in Sri Lanka for reason of his political profile and involvement in support of the Sri Lankan Freedom Party (SLFP). Specifically, he claims to fear harm from persons linked to the United National Party (UNP) who have harmed him in the past. It is also submitted by his representative that he fears serious and/or significant harm for departing Sri Lanka illegally and for seeking asylum in Australia.

   Delegate’s decision

5. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was provided to the Tribunal by the applicant’s representative.

   Issues before the Tribunal

6. The Tribunal must assess whether: it is satisfied of the credibility and truth of relevant aspects of the applicant’s claims and evidence; on the evidence before it, it is satisfied that the applicant faces a well-founded fear, based on a real chance, of persecution involving serious harm for a Convention reason, if he returns to Sri Lanka. If the Tribunal is not satisfied that he is owed Australia’s protection under the Refugees Convention, it must then consider whether he is owed complementary protection. That involves an assessment of whether there are substantial grounds for believing that he faces a real risk of significant harm in Sri Lanka for any of the reasons claimed or arising on the evidence.

7. The Tribunal’s assessment is informed by a range of sources including: the Department’s file relating to the applicant which includes the record of his entry interview conducted through a Sinhalese interpreter [in] August 2012; the audio recording of his Department interview held [in] August 2014, conducted through a Sinhalese interpreter, which the Tribunal has listened to; a copy of his Protection visa application form and documents provided in support of that application, including his statutory declaration sworn [in] November 2012 (2012 Declaration), the review application and information provided in support of the review application. The Tribunal’s assessment is also informed by its detailed exploration of the applicant’s claims when he appeared in person before it, via video link from [a city, in] November 2015. During that appearance he communicated with the assistance of a Sinhalese interpreter. His representative was present before the Tribunal in Sydney. When asked at the commencement of that appearance whether the applicant has any concerns relating to his capacity to communicate his claims and evidence to the Tribunal, he responded in the negative. His representative also made no reference to any capacity issue during the hearing, although reference was made to the applicant having received little formal education in Sri Lanka, which the Tribunal accepts and has taken into account in conducting the review and considering the applicant’s evidence. An audio recording of the applicant’s Tribunal hearing is available. The Tribunal has had regard to the above as well as to other material available to it from a range of sources, referred to, where relevant, in its considerations below.

   Assessment of the applicant’s claimed circumstances – credibility

8. The Tribunal has, as detailed below, significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. Notwithstanding those concerns, the Tribunal accepts that the applicant was born in [village], Puttalum District, Sri Lanka; owns a home there where his wife and child currently reside; has [siblings] who also live in [village]; worked as a fisherman in Sri Lanka, as do his [siblings], spending significant amounts of time at sea; borrowed around 10 Lakhs from his [sibling] to travel to Australia by boat in 2012; lived for a period of around 20 years in his wife’s village of [Village 1]; was detained in [country] for around a month in around 2009 for fishing illegally in [their] waters and was returned to Sri Lanka by intervention of the Sri Lankan Embassy. The Tribunal accepted the applicant’s evidence that he “was not charged or convicted of any offences”[2] in respect of that incident. It is not claimed, nor does it arise on the evidence, that the applicant faces any harm in Sri Lanka in connection with that incident in the reasonably foreseeable future.

   Past profile and harm

9. In support of his claims to fear harm in Sri Lanka in the reasonably foreseeable future the applicant claims to have had past adverse experiences there which have heightened his risk profile and/or informed his fear of living in Sri Lanka.

10. Specifically, he refers to having been physically attacked on two occasions in Sri Lanka, suffering significant injury to his leg, for reason of his political involvement and affiliations with the SLFP, in particular, a candidate named [Mr A]. He claims that he was attacked by members of the UNP, identifying his attackers as including persons named [Mr B], [Mr C] and [Mr D]. He claims that these attacks took place in his wife’s family town in [Village 1] for reason of his actual involvement in campaigning for [Mr A] the SLFP.

11. The applicant’s evidence regarding these incidents, his political involvement and his circumstances in Sri Lanka more generally impresses the Tribunal as problematic and lacking in credibility in multiple respects, detailed below. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on his reliability as a truthful witness that the Tribunal cannot be and is not satisfied that central aspects of the applicant’s circumstances in Sri Lanka are as he has claimed.  

12. Firstly, while claiming that he “volunteered significant periods of time assisting with the administrative aspects of campaigning for an SLFP member named [Mr A]”[3], during at least two election campaigns, he appeared uncertain as to what elections he assisted with. For instance, in his 2012 Declaration he claims that, in 2004, he assisted with “Sri Lankan Parliamentary Elections" and in 2009 with Presidential elections, while during his appearance before the Tribunal he said he helped, in 2004, with Provincial Council Elections. When asked to elaborate on the type of assistance he provided during election campaigns he told the Tribunal that he helped put up posters and attended meetings. When asked if he had any specific role at the meetings he said he did not, but he helped with “everything”. When asked for examples of the help he gave he said he could not give any and repeated that he did “almost everything”, he put up posters and attended meetings. While bearing in mind the applicant’s limited formal education, his demonstrated inability to elaborate on the nature of the assistance he provided during the “significant amounts of times” he claims to have contributed to at least two election campaigns, while not determinative, casts some doubt on the truth of the applicant’s claims that he assisted in any political campaigns.

13. Further, the applicant claims that he was physically attacked in around 2004 in connection with his support for the SLFP during the 2004 election campaign. That attack was so violent that his leg “was cut and wounded” and “I was unable to walk for approximately 8 months” because of those injuries.[4] Notwithstanding this, he did not report the incident to anyone, not even [Mr A], who he claims he knew personally, and continued to live at the same address near where his attackers lived for at least 4 more years. He also continued to support the SLFP and again, in around 2009, campaigned for [Mr A] of the SLFP in relation to the 2009 Presidential Elections. However, he demonstrated having no political involvement or interest beyond his claimed assistance during these election campaigns, and told the Tribunal that he feels political involvement is useless and he does not want to be involved in politics and just wants to live peacefully in Australia. When asked whether he has been following what has been happening in Sri Lankan politics since coming to Australia, and whether he is aware of significant political developments which have taken place in Sri Lanka this year, he responded “not really”, and that he used to watch the news and came to know some things, like that the UNP is in power.

14. Compounding the above concerns, while claiming in his 2012 Declaration that the release of Sareth Fonseka in 2012 was the trigger for his decision to leave Sri Lanka in May 2012[5], he was unable to tell the Tribunal of any recent developments relevant to Fonseka[6]. While the Tribunal is mindful that the applicant has received limited formal education, the Tribunal finds the applicant’s lack of demonstrated interest in political developments in Sri Lanka which are directly relevant to his claimed past mistreatment and fears of future harm in Sri Lanka  to cast doubt on the truth of his claimed: past mistreatment; fears of future harm; and his past political involvement with the SLFP, in particular his claim that he  “volunteered significant amounts of time” campaigning for the SLFP, putting his safety at risk to do so after being threatened and beaten for that involvement on a prior occasion.  

15. The above concerns are compounded further by the applicant’s evidence regarding the trigger for his decision to depart Sri Lanka in May 2012, some 2 years after the last incident in which he claims he was physically attacked. When the Tribunal asked the applicant what happened in 2012 which made him feel he needed to leave Sri Lanka, and whether there was any specific trigger for that decision, he offered variously that: there were some troubles at that time and he heard there was a boat; he felt afraid to go from his home to [town] for work as he had to pass [Village 1], where he was attacked in 2004 and 2010; nothing happened in 2012 which made him scared; in 2012 he received phone threats to the effect that he would be killed, cut and/or harmed if he returns to [Village 1]. The Tribunal asked if he heard of any politically significant events in or around May 2012 which made him feel unsafe in Sri Lanka. He said he had not. The Tribunal noted that, in his 2012 Declaration he refers to a significant political event which made him feel unsafe in Sri Lanka and asked if he could recall what that was. He said he could not, offering only that, because of his activities he was scared.  He made no mention of Fonseka’s release in May 2012 informing his decision to depart Sri Lanka. The Tribunal discussed with the applicant it’s concern that, in his 2012 Declaration he expressly states that “In or around May 2012, Sareth Fonseka was released. After hearing about this, I feared that I would be harmed by [Mr B] and his UNP associates as they had promised. I immediately made arrangements depart (sic) Sri Lanka”[7]. As put to the applicant, his inability to identify this, in his oral evidence to the Tribunal, as part of the trigger for his decision to leave Sri Lanka in May 2012, casts doubt on the truth of his claimed fears of harm linked to Fonseka’s release, and his claimed fears of harm more generally. These concerns are compounded by the applicant’s inability to explain why Fonseka’s release would result in harm to himself, particularly given that the current President, Sirisena, who won the presidency in 2015 as the head of the SLFP, has restored Fonseka’s honours and status. The Tribunal notes the applicant’s evidence that he is not educated and he does not fear Fonseka, but the men who beat him previously. However, this does not overcome the Tribunal’s concerns that the applicant did not identify Fonseka’s release at all in his oral evidence to the Tribunal regarding the immediate reasons informing his decision to leave Sri Lanka in May 2012, casting doubt on the truth and credibility of this claim and the applicant’s evidence more generally.

16. While giving evidence to the Tribunal regarding his reasons for leaving Sri Lanka in May 2012, he also told the Tribunal that his wife and child were beaten by supporters of the UNP because of the applicant’s profile as an SLFP supporter. He said that they were beaten in around June or July 2012, after he had left Sri Lanka, and that he found out about that incident by phone, in around August 2012, while he was in immigration detention in [Australia]. The Tribunal notes that his 2012 Declaration, which details his circumstances in Sri Lanka and his reasons for seeking Australia’s protection, was sworn the following month, in November 2012, and prepared with the assistance of a lawyer. It also contains a declaration by the lawyer to the effect that he has witnessed and believes the NAATI accredited interpreter used, to have faithfully interpreted the contents of the declaration from English to Sinhalese to the applicant. Yet there is no mention in the 2012 Declaration of the claimed beating of the applicant’s wife and child which he told the Tribunal he heard about only a few weeks prior to making the 2012 Declaration. In response to this concern the applicant offered only that he “forgot” to mention it. However, given that the same declaration refers to other claimed beatings from as early as 2004, the Tribunal does not consider that response convincing. The Tribunal also finds the applicant’s oral evidence that his wife and child were beaten after he left Sri Lanka for Australia to conflict with the oral evidence he provided to the Tribunal earlier to the effect that he has been in frequent contact with his wife and siblings in Sri Lanka since coming to Australia and they have all been “happy” and “fine” since coming to Australia. The Tribunal has also considered the applicant’s representative’s oral submission to the Tribunal that the applicant has, in his 2012 Declaration, mentioned that, since coming to Australia his wife has told him that several UNP members have come to his home to look for him which, it was submitted, is largely consistent with his oral evidence that his wife and child were beaten in June/July 2012. The Tribunal does not accept that submission. The applicant’s 2012 Declaration makes express reference to other instances of physical violence/beatings, but in respect of his wife claims only that “they laughed at my wife and told her times have changed now that Mr Fonseka is back”[8]. The Tribunal does not accept that the applicant’s wife or child have been beaten as claimed and considers the applicant’s evidence on this matter to cast significant doubt on his credibility as a truthful witness.

17. The above credibility concerns are compounded further by the significant inconsistencies in the applicant’s evidence regarding the most recent claimed beating he suffered at the hands of UNP supporters. During his Tribunal appearance he was asked to detail how that incident unfolded. His evidence was to the following effect. He had attended the funeral of a relative of his wife in [Village 1]. He travelled back home from the funeral by car. The car could not take him all the way home because the road was muddy and the car could not pass. He voluntarily alighted from the car and decided to walk across the paddy field to his home. When he got out of the car he was alone and felt that it was safe to get out and walk across the paddy field. While walking across the paddy field he was attacked by [Mr C] and [Mr D], the two men who had attacked him years earlier. They hit his knee and broke it. While he had seen [Mr C] and [Mr D] when he got out of the car, they were standing some distance away at the local bus stop.

18. As discussed with the applicant, that account differs in significant respects from that set out in his 2012 Declaration, prepared with the assistance of his lawyer and an accredited interpreter. Specifically, in that declaration he claims that: he left the funeral in [Mr A]’s car; as the car approached an intersection they saw [Mr B]’s car was blocking the road; the applicant’s car was forced to stop and a group of UNP men began attacking the occupants of the applicant’s car; the attackers “forced us out of the vehicle” and began beating them”.  On one account he voluntarily got out of the vehicle which had stopped because the road was too muddy to pass, and was attacked while walking across the paddy field by assailants who were on foot. On the other account he was forced out his vehicle, together with others, by assailants who were in a car which was blocking the road and would not let them pass. As put to the applicant, the accounts are so different it seems they cannot both be true. His response was that he made a mistake when telling his story to the Tribunal and the account in his 2012 declaration is the true story. He said he “forgot” to tell the Tribunal the true story. However, as put to the applicant, he provided a completely different story to the Tribunal, raising significant concerns that his claims of being attacked in Sri Lanka and his evidence more generally, is not truthful.  

19. Regarding his claimed forgetfulness, as put to the applicant, the Tribunal finds it difficult accept that that explains the irregularities in his evidence regarding the above claimed incident or the balance of the credibility concerns detailed in the Tribunal’s reasoning. The Tribunal notes that the applicant was able to give accurate details of information such as the days, months and years he departed Sri Lanka, entered Australia and stayed in detention. He provided, in his Protection visa application form, details of the dates of birth of his family members and the dates within which he resided at numerous past addresses. His “forgetfulness” was only raised in connection with inconsistencies and irregularities in the evidence he has given regarding his claimed past harm in Sri Lanka. On the totality of the evidence before it, the Tribunal is not satisfied that the applicant’s claimed “forgetfulness” explains or overcomes the concerns detailed above.

1. The Tribunal has considered the supporting documentation provided by the applicant, including a letter on the letterhead of [name]. That letter, handwritten in English, refers to the applicant living at the “above address”, however that address is not specified in the letter; refers to the applicant having “devoted his life for politics in United People Alliance” and refers to the opposition trying to “full stop to his life” and “strike down the subject”[9]. As put to the applicant, the Australian Department of Foreign Affairs reports that document fraud is prevalent in Sri Lanka[10]. A handwritten document such as that provided would not be difficult to produce. Further, the photocopy provided appears to have one page superimposed on another, with the effect that the intended recipient details are partly obscured. While the Tribunal makes no definitive finding on the veracity of the document provided, the Tribunal does not consider it persuasive, in the context of the totality of the evidence advanced and the cumulative credibility concerns detailed above, in supporting the applicant’s claims to have been involved in activities in support of the SLFP or to have any profile linked with the SLFP or any politician in Sri Lanka.

2. The Tribunal is mindful that the applicant’s oral evidence to the Tribunal regarding the circumstances of the first time he was physically attacked in Sri Lanka, were largely consistent with his written account. However, the consistency of that evidence does not overcome the significant, cumulative concerns which demonstrate to the Tribunal a willingness on the part of the applicant to give evidence which is not truthful. In this context, the Tribunal cannot be satisfied that the applicant was attacked at any time as he has claimed or for the reasons he has claimed.

3. Based on the totality of the evidence before it, including the significant and cumulative concerns detailed above, the Tribunal is not satisfied that the applicant’s evidence is reliable or truthful in respect of central aspects of his claimed circumstances in Sri Lanka. In particular, the Tribunal is not satisfied that the applicant had any actual involvement in campaigning for the SLFP or [Mr A], or that he has or had any actual or imputed links to the SLFP or [Mr A]. Nor is the Tribunal satisfied that the applicant or his wife or child have ever been threatened or physically harmed in connection with any actual or imputed links with the SLFP/[Mr A] or opposed to the UNP. The Tribunal is not satisfied that the applicant was threatened or harmed in connection with Sareth Fonseka’s detention or release, or that the applicant has any current or intended political opinions which he has any desire to express should he return to Sri Lanka. The Tribunal is not satisfied that the applicant had, has or will have, in the reasonably foreseeable future, any actual or imputed profile linked to [Mr A], the SLFP or any other political movement/party, or any actual or imputed political opinion opposed to the SLFP. Nor is the Tribunal satisfied that the applicant has been or will be the target of harm by particular supporters of the SLFP identified by him as [Mr B], [Mr C] and [Mr D].

4. Based on all the evidence before it, the Tribunal is not satisfied that the applicant had any profile in Sri Lanka at the time he left there for Australia in May 2012 giving rise to serious harm as contemplated by section 91R(1)(b) or 91R(2) of the Act, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in Sri Lanka in the reasonably foreseeable future.

   Profile in the reasonably foreseeable future

5. While the Tribunal is not satisfied, as reasoned above, that the applicant had any adverse profile at the time he left Sri Lanka for Australia which gives rise to a real chance of serious and/or significant harm there in the reasonably foreseeable future, the Tribunal must consider his risks of harm in Sri Lanka cumulatively with what it accepts of the balance of the applicant’s characteristics and circumstances. Relevant to that assessment is the following.

   Failed asylum seeker

6. Despite the applicant expressly telling the Tribunal he has no fears of harm in Sri Lanka in connection with potentially returning there as a failed asylum seeker, and that he only fears harm in connection with his claimed pre-existing political profile, it has been submitted in writing by the applicant’s representative that there is a vast body of country information which indicates that failed asylum seekers are mistreated at the hands of the Sri Lankan authorities upon return to Sri Lanka. It therefore arises as a claim which the Tribunal must consider that the applicant faces a real chance of serious and/or significant harm in Sri Lanka should he return as a failed asylum seeker.

7. The applicant’s representative, in written submissions dated in June 2014, referred to a range of independent sources raising concerns as to what may await a person who returns to Sri Lanka as a failed asylum seeker. The sources cited in those submissions refer largely to Tamil returnees. While still relevant despite the applicant being Sinhalese and despite the passage of over a year since those submissions were made, those submissions and sources form only part of the body of evidence relevant to the Tribunal’s assessment of what may await a returnee in the applicant’s circumstances.

8. Also relevant is the following. The most recent DFAT Country Report for Sri Lanka, dated February 2015, states that:

   “  DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.

   However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment ….. Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.  It is too early to make an assessment as to whether this will change under the Sirisena government.

9. Those comments are largely consistent with other, earlier sources. For instance, the Immigration and Refugee Board of Canada (IRBC) cited information jointly provided by various human rights organisations and lawyers to the effect that: Sri Lankan immigration authorities are alerted about the impending arrival of failed returned asylum seekers; such people are also identifiable by the fact that they travel on temporary travel documents; these individuals are taken out of immigration queues and subjected to special questioning by the Police and members of the Terrorist Investigation Department [TID] and are almost always detained, sometimes for a few hours, and sometimes for months, until security clearance is obtained.[11] However, additional information from the Canadian High Commission in August 2011 noted that:

   [t]here have been only four cases of persons having been detained upon arrival of which the Canadian High Commission is aware. Each of these cases involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity. Persons of all ethnic backgrounds are returned either under escort or voluntarily to Sri Lanka daily, and the screening and admission process for all these persons remains the same.[12]

10. The Tribunal is mindful that a number of human rights groups including Amnesty International, Human Rights Watch (HRW) and Freedom From Torture[13] have provided alternative information regarding the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers, suggesting that they are at risk of serious or significant harm on their return for reason of having sought asylum abroad[14]. Relevant to this is an October 2012 report by the UK Home Office which contests the findings of these reports, noting particular concerns to the effect that: the allegations in the HRW report were anonymous and provided insufficient evidence; the Immigration and Asylum Chamber, Upper Tribunal noted that the details of the Freedom from Torture, Amnesty International and HRW allegations “leaves much to be desired” and “raise even more unanswered questions about their own efficacy”; upon receipt of further information from HRW, the UK Home Office concluded that “only two of the 13 individuals alleged that they suffered mistreatment following return from the UK and in one of these cases, the alleged mistreatment did not occur until six months after return when the individual was stopped at a checkpoint”; in response to a series of Amnesty International reports claiming that failed Sri Lankan asylum seekers faced harm upon return, the Upper Tribunal concluded that “they lacked substance”; the report noted an April 2012 UNHCR press release which stated that they “had assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012”;  an earlier UNHCR press release noted that “UNHCR carries out regular monitoring in these areas and seeks to ensure that returnees receive mine risk education and are included in the food ration lists and become considered as beneficiaries to the many government, UN and other projects taking place to re-establish the lives of Sri Lankans in the North and East of the country”.[15] The concerns of the UK Border Policy Bulletin of October 2012 are also referred to in the more recent report of the IRBC dated 12 February 2013.[16]

11. While the Tribunal notes the absence of systematic monitoring by the UNHCR of involuntary returnees to Sri Lanka and acknowledges that this places limits on transparency and accountability, that this can be said to support the existence of a real chance of serious and/or significant harm in Sri Lanka or that such harm is inflicted for a particular reason impresses the Tribunal as highly speculative.

12. The Tribunal also notes the UK Home Office observations (see paragraph 30 above) that two of thirteen reported returnees “alleged” that they suffered mistreatment, however the evidence before it is unclear as to the veracity of testing of such allegations as well as the reason or reasons for any mistreatment suffered in the alleged cases, making such alleged cases of little assistance in assessing the risk of harm faced by a returned Sinhalese failed asylum seeker in the applicant’s circumstances. On balance, based on the totality of the evidence before it, the Tribunal is not satisfied that the evidence reveals a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum, either singularly or cumulatively with what is accepted of the balance of his circumstances, in Sri Lanka in the reasonably foreseeable future. While the Tribunal accepts that the applicant is likely to be known, on his return to Sri Lanka, to have sought asylum in Australia, and to go through a process which will bring him into contact with the Sri Lankan authorities, the Tribunal is not satisfied, on the evidence before it, that being a returned Sinhalese failed asylum seeker, singularly or in combination with what is accepted of the balance of the applicant’s personal and family profile, would give rise to differential treatment for a Convention reason, or that the process he faces on returning to Sri Lanka as a failed Sinhalese asylum seeker involves, amounts to, reveals or gives rise to a real chance of persecution involving serious harm as contemplated by the relevant law, either at the airport in Sri Lanka or on the applicant’s return to his home, or at any point in the reasonably foreseeable future in Sri Lanka.

    Illegal Departure

13. Despite the applicant expressly telling the Tribunal he has no fears of harm in Sri Lanka in connection with having departed Sri Lanka without a passport and by boat, and that he only fears harm in connection with his claimed pre-existing political profile, it has been submitted in writing by the applicant’s representative that “there is a real chance [the applicant] will face harm on the basis of being an illegal departee” from Sri Lanka; and the fine payable under the Immigration and Emigration Act  of Sri Lanka, for such offences, is onerous on the applicant and could take him several years to pay off. Independent sources dated in 2011-2013 are referred to by the applicant’s representative in support.

14. Relevant to these claims, the DFAT Country Report, Sri Lanka, February 2015 reported expressly on the treatment of returnees to Sri Lanka, including those who departed illegally (see Appendix 2).That information is largely consistent with reporting from other governments[17] as well as independent news sources[18], and indicates, in summary, that under standardised procedures which apply to all cases, regardless of a person’s ethnicity or the circumstances in which they left the country, returnees 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).  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 in immigration watch-lists, they 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. There is no suggestion of such a profile arising in the applicant’s case.

15. Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail.  Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. As discussed with the applicant during his Tribunal appearance, he has multiple family members who assisted him to raise 10 Lakhs to travel illegally to Australia and he has given no evidence that his family would not be able to provide surety, if required. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available.  Conditions in remand have been described in media reports[19] as being overcrowded, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment.  The penalties eventually imposed on returnees by the courts for illegal departure have involved fines ranging up to Rs 100,000, but most typically are reported as being in the order of 5000 to 50,000 rupees. Based on the applicant’s evidence regarding his [siblings] employment in Sri Lanka, and [one sibling]’s ability to assist the applicant to raise 10 Lakhs for his travels to Australia in 2012, the Tribunal is not satisfied that the applicant would be unable to pay such a fine or that the imposition of such a fine rises to the level or serious or significant harm as contemplated by the relevant law.

16. Having considered the information before it, the Tribunal is also not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

    Conclusions regarding the Refugees Convention

17. Based on all the evidence before it, including the applicant’s claimed past circumstances and what is accepted of his current personal and family circumstances and profile in Sri Lanka, and of his circumstances in the reasonably foreseeable future, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

    Complementary Protection

18. It is submitted that, if the applicant is not found to be a refugee, he is eligible for complementary protection. The written submissions made by his representative excerpt an array of general country information including in respect of: reports of torture and abuse in Sri Lanka generally; the treatment of failed asylum seekers and returnees; and Sri Lanka’s laws regarding illegal departure and prevention of terrorism.

19. Relevant to the Tribunal’s assessment of the applicant’s eligibility for complementary protection, in addition to the independent sources referred to under the headings “Failed Asylum Seeker” and “Illegal Departure” above, is the Department’s PAM 3 Refugee and Humanitarian – Complementary Protection Guidelines.

20. The Tribunal has carefully considered the independent sources and information referred to under “Failed Asylum Seeker”, including the concerns cited regarding the reliability and detail of reports of harm faced by returnees to Sri Lanka including failed asylum seekers, and the limited insight such reports provide regarding what awaits a person in the applicant’s circumstances. The Tribunal has considered this together with the independent sources referred to under “Illegal Departure” above. Based on that information and what is accepted of the applicant’s circumstances, the Tribunal accepts that the applicant will, on his return to Sri Lanka, be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (by boat and without a passport) and who has sought asylum in Australia, and that he will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities. The Tribunal is not satisfied that he has any adverse profile which will be revealed throughout or in connection with that process. The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates the applicant will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal considers that the prospect of the applicant being detained for a prolonged period of time to be remote. Further, the Tribunal notes that, despite the large numbers of reported involuntary returnees to Sri Lanka, including Sinhalese males from Australia and including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including 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 section 36(2A) of the Act.

1. On the evidence before it, the Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. Even taking into account the evidence regarding conditions in prisons in Sri Lanka, the Tribunal does not accept that spending a brief period in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined in subsection 5(1) of the Migration Act. Also relevant is that the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

2. The Tribunal considers it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[2]  The Tribunal is mindful of the guidance offered by ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ which states 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 consider that it is appropriate on the evidence before it to draw this inference in the circumstances of the present case. 

3. Based on the above and the totality of the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment faced by returned failed asylum seekers, including those who are Sinhalese males who have departed Sri Lanka illegally, gives rise to a real risk of significant harm as contemplated by section 36(2A) of the Act. Specifically, the Tribunal is not satisfied on the information before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of: being arbitrarily deprived of his life; the death penalty being carried out on him; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment for any reason claimed or arising on the evidence, including cumulatively.

   CONCLUSIONS

4. 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).

5. 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).

6. 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

7. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

   Suhad Kamand
   Member

   
   

   APPENDIX 1

   RELEVANT LAW

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

   Refugee criterion

9. 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).

10. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

22. 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.

    Appendix 2

    Australian Department of Foreign Affairs And Trade Country Report, Sri Lanka, February 2015

    “Treatment of Returnees

    5.22  Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to  Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 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. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).

    5.23  Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.

    Exit and Entry Procedures

    5.24        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.

    5.25         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.

    5.26         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.

    Offences under the Immigrants and Emigrants Act

    5.27         Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.

    5.28         DFAT 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 just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

    5.29       DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim

    
    

[1] ID documents are at folios 3-8 of department file [number deleted].

[2] Protection visa application form, folios 78-79 of CLF [number].

[3] 2012 declaration, paragraph 6

[4] 2012 Declaration, paragraphs 8-9

[5] Ibid, paragraph 19

[6] South Asia Terrorism Portal, "Sri Lanka Timeline - Year 2015", , 19 October 2015 reported that, in January 2015 “Former Army Commander of Sri Lanka Sarath Fonseka has been fully pardoned by the President Maithripala Sirisena. The former Army general who led the decisive war against the LTTE to end the terrorism in Sri Lanka was stripped off of his ranks and rights by the previous Government. President's Media Division said that "Fonseka has been acquitted of all charges filed against him under the previous Government and has been granted complete amnesty by President Maithripala Sirisena."It also said that the President” and in March 2015, the Sirisena Government conferred the country's highest military rank of Field Marshal to former Army Commander General Sarath Fonseka,

[7] 2012 Declaration, paragraph 19

[8] 2012 Declaration, paragraph 22

[9] Folio 49, [File number].

[10] DFAT Country Report, Sri Lanka, February 2015

[11] ibid

[12] Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August

[13] Of particular note, see Amnesty International 2011, Sri Lanka: Briefing to Committee against Torture, October, p.9 < Accessed 18 September 2012 , Human Rights Watch 2012, Sri Lanka: UK: Halt Deportations of Tamils to Sri Lanka, 25 February < Accessed 10 August 2012; [13] Human Rights Watch 2012, United Kingdom: Document containing cases of Sri Lankan deportees allegedly tortured on return, 15 September < Accessed 17 September 2012; Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 < Accessed 17 September 2012

[14] According to Tamils Against Genocide, “failed asylum seekers are at risk of persecution upon return simply by virtue of the fact that they sought asylum abroad and also because of imputed political opinion regarding involvement with or sympathy for the LTTE” The group’s May 2012 report on the treatment of failed asylum seekers cited reports from Human Rights Watch, the UK Home Office, Amnesty International, as well as media and other reporting, purportedly providing evidence that “failed asylum seekers are at a heightened risk of torture and arbitrary detention immediately upon return simply on the basis of their status as failed asylum seekers”: Tamils Against Genocide 2012, Treatment of Failed Asylum Seekers: An Overview of the Persecution Faced by Failed Asylum Seekers Returning to Sri Lanka, TamilNet, May <

[15] UK Home Office 2012, Country Policy Bulletin – Sri Lanka, October, pp1-8  

[16] [16] Immigration and Refugee Board of Canada, Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; information on specific asylum cases, including the Tamil asylum-seeker boat that stopped in Togo, the return of Sri Lankan asylum seekers from Australia in 2012, and any cases of voluntary repatriation (August 2011-January 2013), 12 February 2013, LKA104245.E, available at: 9 May 2013]

[17] Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August < Accessed 18 November 2011. A Canadian High Commission official stated that the High Commission was aware of “only four cases” of persons being detained upon arrival. The official indicated that these cases “involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity” (ibid). An article from the Sunday Leader, published on 26 June 2011, included the transcript of an interview with Chris Dix, South Asia Regional Director of the UK Border Agency. This interview took place in the immediate aftermath of 26 failed asylum seekers from Sri Lanka being returned from the United Kingdom. In response to a question regarding the monitoring that was conducted by British authorities of persons deported to Sri Lanka, Dix expressed the view that there was no evidence of safety issues on return for deportees: Rutnam, E 2011, ‘UK satisfied with Lankan deportation’, The Sunday Leader, 26 June < Accessed 18 November 2011

[18] See, for example, ‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.