1405895 (Refugee)

[2015] AATA 3189

1405895 (Refugee) [2015] AATA 3189 (21 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405895

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Josephine Kelly

DATE:21 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2015 at 10:57am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] March 2014. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. The applicant appeared before the Tribunal on 3 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   SUMMARY OF THE LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues in this case

10. The issues in this case are:

    ·Whether the applicant’s claims about what happened to him in Sri Lanka are credible and

    ·Whether he has claims for protection because he has left Sri Lanka illegally and sought asylum in Australia.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

12. The applicant claims to be a citizen and national of Sri Lanka without a right to citizenship or a right to reside in any other country. He was born on [date in] Negombo in the Western Province of Sri Lanka. 

13. He arrived by [boat] without a visa [in] August 2012.

    The applicant’s claims for protection

14. The applicant made the following claims for protection in his visa application.

15. He is a Sinhalese who has a Catholic father and a Tamil mother.  They speak Tamil at home but he cannot read or write Tamil. He attended a Sinhalese school and speaks, reads and writes Sinhalese.  He considers himself to be Catholic Tamil by religion and ethnicity because Tamil is his primary language.

16. He lived on [a location near] Negombo.  He was a fisherman.

17. His parents and [siblings] were living in Negombo at the time he applied for protection.

18. He requested a Tamil interpreter for an interview.

19. The applicant claimed that he had one address from [birth until] July [2012]. Sri Lanka. When he was a child and also as a fisherman he used to stay at various fishing shanties at various places on the western coast of Sri Lanka.

20. The applicant claimed to have had [number] years of education ending in [year] when he was in Year [grade].

21. The applicant claimed that from August 2008 until August 2010 he worked [various occupations] at [a workplace] in Negombo, earning Rs.20,000 per annum. He claimed that from December 2009 until July 2012 he was self-employed seasonally as a fisherman earning about Rs.150,000 per annum.

22. The applicant claims to fear for his life if he returns to Sri Lanka because of a pattern of persecution because he was Tamil.

23. His problems began in about 2010. He lived with his family [near] Negombo where they used to make their living as fisherman.

24. There were Sinhalese people who live there who could speak Tamil. One of them asked his father for a lot of money. His father refused and gave a loan to a friend.  At the time they were staying in a [hut] on the beach. They used to build one seasonally when fishing was on. Two or three days later the hut was burned and the home was destroyed, and his father suspected the man who was resentful because of the loan refusal.

25. The applicant’s father complained to the police who said that there was no evidence and so they closed the case. His father suspected that they did not do anything because the person or people who burned down their home would have bribed them.

26. That was the beginning of a pattern of persecution that kept getting worse. About two or three days after the house was burned the people who burned it, about 10 or 12 people, came and told his father that if he complained to higher authorities, they would kill him. Because they were scared they did not complain to higher authorities.

27. After that when they went fishing Sinhalese people came in their boats, yelling abuse at them, and threatening to ram them with their boats and force them into an area where the waves would overturn their boat. That happened twice.

28. On that day when they returned home, they had to check in their fishing passes to the Navy guard. One of them, a higher officer told them that if they complained to higher authorities about the house being burned and about the threats to ram their boat, they would come and abduct them.

29. They found out that other Tamils were also having problems. It was common for the Sinhalese to do that sort of thing and so they called a meeting at the fishing co-op in that area.  They said that they did not have racial discrimination there so why should Sinhalese be doing that to Tamils? One of the Sinhalese said because the Tamil people there supported the LTTE. The applicant and his colleagues denied that saying they did not want to destroy their country. At the end of the meeting, [two office bearers], who were Sinhalese, told them not to complain to the police because of would not be good for the co-op.

30. Their livelihood was [in that area] which means they could not make a living there and they could not go anywhere else. The prejudice against Tamils is everywhere, even at school he was constantly being hit and abused.

31. They confronted the people who did that, and they hit his father with an [an object]. Once again they were quarrelling.  They went to the police who hit him that time.

32. [In that location] even if you kill a person and bribe police you can be safe.

33. Because he was mostly in contact with Tamil people, he faced threats and abuse from Sinhalese young people who said they will kill him and “stuff like that”. They said that they knew people who are “high in the police” and it was nothing for them to kill because nothing will happen to them. The applicant and his friends did not go to police to complain.

34. That happened when he was young and used to spend time with Tamil people. He was scared to have contact with Tamil people and his parents were scared he would get killed. They threatened his mother and father and so he was worried about that. Because of the threats, his mother sent him to Negombo which was far away from [that location].

35. From Negombo he went to his [relative]’s house in [District 1]. One day when he was there, army officers came to check his ID card, and told him to go out of that area. He was scared that they might have been sent by the people back [home].

36. Because of all these problems, one day his mother told him that there was a chance to go to Australia otherwise someone would kill him.

37. Even after he came here, when he called his mother she told him those native people asked his friend where he was.

38. [In] February 2012 he joined a demonstration in [Town 2] against rising fuel prices. When he tried to escape his hand accidentally hit another Navy person who showed with a raised finger that he knew it was the applicant and warned him he would get him back. The applicant escaped from that incident. That was about five minutes before they killed someone in the demonstration.

39. That was when he decided to flee Sri Lanka because he was afraid that something would happen to him. In Sri Lanka sometimes they come and abduct people and kill them.

40. He is afraid of being persecuted if he returns to Sri Lanka because of the same threats, abuse and constantly being stopped from earning a living.

41. The authorities cannot or will not protect him if he goes back because they have not protected him to date. Both the police and Navy are employed by the government and so he cannot expect anything.

42. He cannot relocate to any other area in his country because he does not know other people in other parts of the country, and has no relatives in Colombo.

    Documents provided in support of the visa application

43. When the applicant launched his visa application, he claimed that he had already provided a copy of his mother’s national ID card and a copy of his national ID card. He stated that he was still awaiting, from Sri Lanka, a medical report about the injury to his father.  Later a copy of his birth certificate and his National ID card were received.

44. The applicant provided a psychiatric report dated [in] July 2013 in relation to his mother. It refers to an assessment and treatment [in] January 2011 in Colombo.

45. He provided a medical report dated [in] July 2013 from a Negombo medical clinic that states that the applicant’s father was admitted to the clinic [in] December 2010 for injuries [due] to an assault. Subsequently he was treated for depression with psychotherapy management for three months from [December] 2010.

46. On 23 September 2013 the applicant’s representative provided residential details for him:  [address deleted], Negombo, from birth until round 2003; [address], Negombo from 2003 until February 2012; February to July 2012 [address], [town name]; July 2012 two days, his [relative]’s house near [location], and then for four to five days [address] in Negombo.

    Entry interview

47. The entry interview was held [in] August 2012. The applicant provided the following different or additional information during that interview.

48. He lived at [an address] from [birth] to 2005 and from June to July 2012.  From 2005 to 2010 he lived at [an address], Negombo. 

49. From 2010 until 2012 he was working as a fisherman in [District 1] where his accommodation was provided.  He was working in a family business owned by a [relative] who owned the fishing boat. In the same period in between the fishing job In [District 1], he was working as a [occupation] at [a workplace] in Negombo.

50. At the time of the entry interview his father was working as a fisherman in [District 1]. His mother and [sibling] born in [year] were living in [District 1]. [Another sibling] who was born in [year] was living in Negombo.

51. His religion was Christian (NFD).

52. He attended [a] Shool in Negombo from 1998 until 2008.

53. He claimed he left Sri Lanka because he was bullied at school by Sinhalese because he was Tamil. He claimed he was the only Tamil student in the School. A Sinhalese boy spread the story in his neighbourhood that he only moves with Tamils. That is why he left Negombo and went to [District 1].  He is treated as a Tamil when he goes to church and returns home he gets bashed about three or four times a week. He told his mother who told him to go and live with his father in [District 1] and did not report to police. He was checked by CID when he was in [District 1] which is a normal routine check. The applicant denied being a member of any social or religious group or as having any political involvement.

54. The applicant’s mother made the arrangements for him to travel to Australia [in] July 2012. He was in [District 1] and she called him and asked him to go to Negombo. [In] July 2012 11 PM he left by bus for Negombo where he arrived at 7 AM the next day. On that day his mother packed his bag and gave it to him. Two men, he did not know whether they were Tamil or Sinhalese because they can speak both languages, came and took him on a 30 minute drive to a house. At 3 AM he was picked up and taken to the beach where there were a lot of people. They were given lunch packs and told it on small boats six at a time and reached the big boat. He travelled for about [number] days and reached [a place] where they stayed one night. They were transferred to [location]. There were about [number] people on the boat. They picked up [other] people in the middle of the ocean. Their boat was broken and they were waiting for another boat.  Another boat took [number] people and his boat took [other] people.

    The departmental interview

55. The departmental interview was held [in] September 2013. The delegate asked about the applicant’s Tamil ethnicity.  He was not satisfied that the applicant was Tamil. He considered that the loan matter was a personal matter in 2010 and no harm had been suffered by the applicant’s father. He did not accept that the family or the applicant was at risk as a consequence.

56. In relation to the [Town 2] protest, the delegate commented that it was unclear why the applicant should attend one [many] kilometres from his home when there were protests in Negombo. It was not made in his entry interview. He initially claimed it was [in] March 2012 but at interview said it was [in] February 2012.  The person was shot during the protest [in] February 2012. In his application he claimed he was touched by the navy but during his interview he claimed it was the army. The delegate did not accept that after such an inconsequential encounter in a town [many] kilometres from his town, the army would have visited his home three times looking for him.

57. After the natural justice break, the applicant claimed that in order to protect him after the men burned the hut, his mother had sex with them. 

58. The delegate gave the psychiatrist’s report no weight. He did not find the applicant to be credible.

    Consideration and findings

59. The applicant told the Tribunal that he finished school in [year] or [year].  He worked with his father six months a year, from January to May or June, fishing [at the location] and for the other six months or so he worked at a [workplace] in Negombo.  He did that for a year or one and half years after he finished school.  While he was at school he used to work at the [workplace] during the weekends and during school holidays he went to [the location] to fish.

60. The Tribunal finds on the applicant’s evidence and by reference to Google Maps that the [location] is called [name], a different transliteration from that in his application.  It lies to the north of [Town 3] which is near [a different area], not [near] Negombo as claimed in the visa application.  He described how there are markets [at the location], the fish is taken by boats that have freezers to [Town 3] and then by refrigerated lorry to Colombo.  [Town 3] is [number] hours by road from Negombo.

61. The Tribunal found the applicant’s evidence about what happened to him in Sri Lanka not credible for the following reasons.

62. When the Tribunal asked the applicant about his claims for protection, he talked about an incident [at the fishing location] when his father was beaten, he was beaten with an iron rod, and his mother was verbally abused. Their house was burned down.

63. He claimed that the house was constructed of wood and a thatched roof and was permanent and everything was lost, including documents.  He claimed that his parents are still living there but they sent him alone to Negombo. He did not remember the month he was sent.  He claimed that that happened in 2012 but later said it was in 2011.  When questioned about the difference in his evidence, the applicant said that he could not remember.  He had one thing after another. In his application he claimed it occurred in 2010.  The claim that the house was permanent was inconsistent with his claim in his application that the hut that was burned down was built seasonally.

64. He told the Tribunal that immediately before he got on the boat for Australia he was fishing [at the location] and had a problem and came here.  When asked how long before coming to Australia he had the problem, he said he had the problem when he was small as well and later on in 2010 it became serious.  The problem was that his father’s side was not supporting him because he had married a Tamil and there was beating and those types of things.  He had other problems as well. When asked about his siblings, he told the Tribunal that his parents have [children].

65. When the Tribunal asked him why the mixed marriage problem became more serious in 2010, the applicant said that his father told him that was trouble even when he was growing up.  They could not live there so they were living separately.  It became worse later on.  He cannot remember what happened in his youth. It is painful.  He could not remember when his parents were living separately. When the Tribunal reminded him that he had said that they were both living [at the location] when he left and currently, the applicant said yes.  When the Tribunal asked when they had lived separately, he said because his father’s relatives gave them trouble they separated to make sure the trouble did not come to “us”.  He gave no explanation why he had not made this claim before, just saying he did not mention much before.

66. Later at the hearing when the applicant was talking about his work at the [workplace] in Negombo, he said that he had a problem at Negombo and went back to [the fishing location].  He did not remember when he last went fishing before coming to Australia.  He worked in the [workplace] in 2012 but could not remember the month.   He could not say whether it was months, weeks or years. It was a bit hard. He went back to [the location] because his father’s relatives caused him a problem. Whenever they saw him going to work they would say something.  He could not go out without them saying something. 

1. When asked the reason he left Sri Lanka, the applicant repeated that he could not work in Negombo because of his father’s relatives who said something when they saw him and he cannot go to [the fishing location] because he will be threatened and cannot go to the police station.  Something will happen to him.  He repeated that he last worked fishing [at the location] before coming to Australia. 

2. He had earlier told the Tribunal that he lived in his father’s family’s house in Negombo with his [relative]’s [children] when he worked at the [workplace].  There were [several] of his father’s siblings living close by.  The house belonged to his [grandmother] who is dead and all his father’s relatives stay there.  When the Tribunal put to him that living with his relatives in that area was inconsistent with claiming to have to leave his job and return to [the fishing location] because of those people, the applicant said that he had to stay there.  There was no other option but to stay there. When the Tribunal commented that there was no reason for his father’s family to become antagonistic, he did not respond.

3. The Tribunal does not accept that the applicant’s claim about mistreatment by his father’s relatives is credible. He raised it for the first time before the Tribunal. His parents have [children] ranging in [age]. He claimed that there were no problems in Negombo or [at the fishing location] with marriage between Tamils and Sinhalese.  His parents were living together [at the location] when he left and at the time of the hearing.  He has given no reason why concerns about his parent’s inter-ethnic marriage should have become serious in 2010. He was quite unable to say when his parents had lived separately.  That he was living in a house belonging to his [relatives] in an area where many of them lived while he was working at the [workplace] is inconsistent with the claimed antipathy which caused him to leave his [job] in 2012.  He claimed that he had worked at the [workplace] for five and a half years in total, including at weekends when he was school.  His [sibling] is living with [the] [grandmother] in Negombo while going to school.  Based on his evidence, he lived with her also when he went to school. 

4. When asked about his other problems, the applicant talked about his father refusing to loan money to one person and giving it to another in 2012 and so the problem started.  Later when the Tribunal checked with the applicant that the loan was the source of his problem [at the fishing location], he repeated his claims about the beating.  He said that they did not report the beating but did report the burning down of the house.  He said that his father suspected the police were bribed to close down the case. He claimed that his father was told to go to the society and report it.  A meeting was conducted with people [at the location].  At the end of the meeting, they took them aside and told them nothing is going to happen.  If they went to the police there would be more trouble.  A couple of days later they went fishing and their boat was attacked. The person his father had refused the loan came close and told them not to take any further steps or there would be trouble and they would smash the boat.

5. When they got to shore, the navy told them to not to say anything about the burned house. They went to the navy, the police and the co-op society and no one protected them.  They lived in fear.  They targeted the applicant because his parents are not educated and they suspected it was because of the applicant that they had gone to the police.

6. Towards the end of the hearing, the Tribunal commented that there was nothing in particular to cause him to get on the boat to Australia.  It had heard his claim to have been targeted because of the loan matter but his father and mother were living [at the location] without problems. He said that they are having problems and do not know what to do. It is the only way his father can earn money.  He has no other skills.  People are coming and asking about him. They did not know that he is here. 

7. The applicant then said that there was one thing that he did not want to disclose.  If he goes back he will have a problem.  To save him from problems, his mother is having an affair with the person who attacked them. He does not know if that will resume or continue if he goes back.  It is the only way she can save his life.  His father does not know.  If the applicant returns he does not know what will happen. If he goes back, he will have to live with his parents [at the fishing location]. He had mentioned a similar claim during the departmental interview.

8. The Tribunal does not accept his account of the loan and consequential attack, burning of their house, reports to the police, navy or society [at the fishing location] or attack on their boat or his mother’s having an affair or having sex with the attacker or attackers.  The Tribunal finds that his parents have continued to live [at the location] since 2010 or 2011 or 2012, whenever the claimed attack first happened, about which the applicant made inconsistent claims.  That they continue to live [at the location] is inconsistent with there being a real chance that they will suffer serious harm or a real risk that they will suffer significant harm from the attacker or attackers or could not seek protection from the police. The Tribunal also finds it implausible that the applicant would be targeted because of his father’s failing to give someone a loan, rather than his father’s being targeted. That his father was able to give a loan to someone, indicates that he was a man of some means and worth targeting.   

9. Further the applicant told the Tribunal that when he was fishing with his father, they used one of his [relative]’s boats that had an outboard motor, but recently he had heard that his father had got his own boat. His [relative] lives in [District 1].  [The relative] owned two or three boats.  [The relative] had given his father the responsibility of one boat.  That is father was able to get his own boat is inconsistent with his having problems [at the location].  To the contrary, he was apparently prospering.

10. In making those findings, the Tribunal has taken into account the medical report about his father’s [injury] due to an assault around [December] 2010.   When the Tribunal asked the applicant if he wished to comment about the document, he had no comment. The report is from a Negombo clinic and states that the father’s address is [address], Negombo.  The applicant said that his father is mostly [at the fishing location] and rarely comes to Negombo. He said that [Town 3] is about [number of] hours by motor vehicle from Negombo.  The [fishing location] is a further [number of] hours by a big boat or [a number of] minutes by a small boat from [Town 3].  Given that [Town 2] is much closer to [the fishing location] and [Town 3], the Tribunal finds it implausible that the applicant’s father would travel all the way from [the location] to Negombo for treatment of an apparently serious injury. Both [Town 2] and Negombo have a District General Hospital according to the Sri Lankan Ministry of Health and Indigenous Medicine.[1]  Although the document supports a finding that the applicant’s father suffered an [injury], the Tribunal does not accept that it relates to any of the claims the applicant made in relation to incidents [at the fishing location].  The applicant did claim in his visa application that they confronted the people who did “that”, and they hit his father with an [object]. Once again they were quarrelling.  They went to the police who hit him that time.  However, what “that” was is not apparent from the context of the claim.  It is an example of a general deficiency in the applicant’s claims.  They do not make a coherent whole.

    [1] [Source deleted].

11. The Tribunal also asked the applicant about the psychiatric report relating to his mother, after commenting on the poor English, which was incomprehensible in the third paragraph, the poor spelling, “Madicine’ for “Medicine”, particularly noting that the doctor was apparently claiming to have two qualifications from the UK.   The applicant said that he does not know about that document. “They” just sent it to him.  For the reasons the Tribunal referred to, it does not accept it is a genuine report and gives it no weight.

12. When the Tribunal asked if he had any other problems, the applicant said that a person was shot dead in [Town 2] in March 2012.  He went to [Town 2]. The navy and army were beating “our people”.  He saw an army person beat one of “our people” and he went to rescue that person.  His hand touched the army person who abused him and asked him to leave. He knew he was in the army because he was wearing the national dress.  He was about to leave when a person was shot.  He thinks it was a Sinhalese fisherman.  He repeated that that occurred in the third month of 2012.

13. When the Tribunal asked the applicant why he was in [Town 2], he said first that [a relative] lived there.  Then he said that the fishermen’s society which decides price of fish was reducing the price and everyone was going there. Since his father is a fisherman he has to go there.  [Information deleted].

14. The Tribunal does not accept that the applicant was in [Town 2] during the protests by fisherman.  He told the Tribunal that he attended the protest in the third month of 2012, that is, in March.  Country information shows that that incident occurred [in] February 2012.[2]  In his application he had claimed that he had attended on [another date in] February 2012.  Neither of his versions is consistent with the country information.  Further, his evidence about why he was there [meandered] before giving a plausible response.  His evidence does not support a claim that the army person had shown any further interest in him after pointing at him and telling him to go.

    [2] [Source deleted].

15. The Tribunal pointed out to the applicant that he had not mentioned the claim in his application that he had gone to his [relative]’s house in [District 1], which is in the north-west of Sri Lanka. He said that the Tribunal had not asked him and that is why he did not say.  The Tribunal does not accept that explanation.  The Tribunal asked him several times and in several different ways what had happened to him in Sri Lanka and why he left to come to Australia.   

16. The Tribunal asked the applicant about his saying at the entry interview that he was fishing in [District 1] from 2010 until 2012 when he came to Australia.  He said that he went to [District 1] but did not fish because the navy did not allow him to.  He said that he went from [District 1] to Negombo and then to [Town 2] where he had the problem, and then to Negombo and then to Australia.

17. The Tribunal put to the applicant his statement during the entry interview that he had been fishing at [District 1] from 2010 to 2012 pursuant to s 424AA saying that it was relevant because it was inconsistent with his claim to have been fishing at [the location] and working in Negombo and would be the reason or part of the reason for affirming the decision to refuse his protection visa.  He said that he wished to comment but did not want further time to comment or respond.

18. He said that [District 1] was close to [the location].  As far as he remembers he said he was fishing at [the location]. He said that it takes about [a certain time] by sea to travel from [the location] to [District 1].  The Tribunal pointed out that his visa application stated that [the location] was off Negombo.  That claim was inconsistent with his evidence at the hearing that is near [Town 3], which the Tribunal accepts is true. 

19. According to a Google map, [the fishing location] is two or three times further from [District 1] than it is from [Town 3].[3]  The Tribunal does not accept that it is only [a certain time] by sea, given the applicant’s evidence about the time it takes to travel between [the location] and [Town 3].  

    [Source deleted].[3]

20. When asked about his ethnicity, the applicant said that he did not know.  He used to identify as Tamil.  He does not know much about it.  When asked about his father’s ethnicity, the applicant said his father speaks Sinhala and Tamil and mostly Tamil at home.  His father is Sinhala and his mother is Tamil.  He claimed that mixed marriages were common and not a problem in Negombo and [at the fishing location]. There is a mixture of Tamils and Sinhala [at the location] and they speak both languages.  If you speak Tamil you are Tamil and if you speak Sinhala, you are Sinhalese.

21. During the applicant’s evidence about the [Town 2] protest, the interpreter raised an ambiguity in an answer the applicant gave about when he was leaving.  The word could mean a bomb or a shot. During the exchange, the Tribunal asked the applicant if he was speaking Sinhala and Tamil at the same time.  He said that it is because he is not fluent and speaks mostly to Sinhalese people but he is not fluent in Sinhala.

22. When the Tribunal said that it was not credible that he was educated for [number] years in a Sinhalese school but could not speak Sinhala fluently, the applicant claimed that after he finished his schooling in 2010 he was mostly living with Tamil people and after coming to Australia he was living with Sinhalese people.   He denied choosing a Tamil interpreter to improve his chances of being granted protection in Australia. 

23. The Tribunal finds the applicant’s claim not to speak Sinhala fluently is inconsistent with his father being Sinhalese, that he attended a Sinhalese school for [number] years and has been living with Sinhalese in Australia.  It finds that he requested a Tamil interpreter to strengthen his claims for protection and does not accept his denial of that proposition.  His vague evidence about his ethnicity is unpersuasive.

24. For the above reasons, the Tribunal found the applicant’s evidence about what happened to him in Sri Lanka not credible.

25. Given his paternity, education, that he is living with Sinhalese in Australia and not Tamils and his vague evidence about his ethnicity, the Tribunal does not accept that he identifies as Tamil or is identified as Tamil.  He said you are Sinhala if you speak Sinhalese and Tamil if you speak Tamil.   The Tribunal accepts that he speaks Tamil and Sinhala but finds he is more fluent in Sinhala.  While his mother may be Tamil, the Tribunal does not accept that affects his identification as Sinhala or his being so identified.  It does not accept that he has suffered any harm in the past, including when he was small, because of his actual or imputed Tamil ethnicity or that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm because of his actual or imputed Tamil ethnicity if he returns to Sri Lanka.

26. The Tribunal does not accept that he was harmed because he associated with Tamils or that people have asked about him since he left Sri Lanka or that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm for either or both of those reasons if he returns to Sri Lanka.

27. The applicant did not make any claim about leaving Sri Lanka illegally.  Because the Department of Foreign Affairs and Trade Country Report about Sri Lanka dated 16 February 2015 (the Country Report) includes information about that matter, the Tribunal raised it with the applicant and his representative.

28. At the end of the hearing, the Tribunal permitted the applicant to provide further material by 17 July 2015.  A submission was received on 14 July 2015.

29. The submission addressed credibility, the applicant’s claimed Tamil ethnicity, the loan claim including failing to get protection from police and the fishing society, as well as clams relating to leaving Sri Lanka illegally.  The Tribunal addresses the latter claims below. In relation to the claims dealt with above, the Tribunal has taken into account the submissions, but they did not satisfactorily answer the concerns the Tribunal had. 

30. The Tribunal does not accept that there is a real risk that the applicant will suffer serious harm or a real risk that he will suffer significant harm because he has left Sri Lanka illegally and will be processed at the airport and subjected to a fine, a short period of detention or imprisonment until released by a magistrate on a personal recognisance and with a guarantee from a family member as set out in out in the Country Report at [5.22] to [5.29]. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of the conditions of detention or imprisonment for a short period of time.

31. In making those findings the Tribunal has taken into account the applicant’s claims about his Tamil ethnicity, but for the reasons given above, the Tribunal does not accept that he identifies as Tamil or will be identified as, or be imputed to be, Tamil, on his return. The Tribunal therefore does not accept that he will attract adverse attention due to being a member of a particular social group of Tamil failed asylum seeker returnees who departed Sri Lanka illegally. Further, the Tribunal finds that the Sri Lankan law about illegal departure from Sri Lanka is a law of general application and is not discriminatory in its intent or in its application.

32. In making those findings, the Tribunal prefers the information and assessments made in the Country Report to other country information provided, including in the submission received after the hearing because it is recent and provides analytical assessments on the available information.  In addition to the information and assessments at paragraph [5.22] to [5.29] of that report, the Tribunal has taken into account the information about deaths in custody at paragraphs [4.11] to [4.12], torture and mistreatment of returnees at paragraphs [4.16] to [4.21] and about detention at paragraphs [4.22] to [4.24].  It has also taken into account the detailed submissions and country information in the submission about detention and mistreatment, torture, prison conditions and the chance or risk of harm on return to his place of origin.  Country information from 2011, 2012 and 2013 is more proximate to the civil war.  More recent information is more persuasive.  Further the Tribunal is considering the particular circumstances of the applicant.  Information about claims by Tamil prisoners of harassment in Anuradhapura prison, or reports of family members of suspects being arrested and Tamils suspected of attempting to revive the LTTE is of little or no relevance to the assessment of the applicant’s circumstances.      

33. The Tribunal does not accept that the applicant will be suspected of having committed a people smuggling offence.  The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm for that reason.

100.   The applicant’s father continues to fish at [the fishing location] and has recently acquired his own boat, according to the applicant.  The Tribunal does not accept that the applicant will be unable to fish with his father or work at the [workplace] as he has in the past because it does not accept his claims to the contrary for the reasons given above. The Tribunal does not accept that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant because he will be prevented from fishing by Sinhalese or by the navy or by the person to whom his father refused to give the loan or by anyone else or because he will not be able to make a living, or because his father’s family in Negombo will ill-treat him, if he returns to Sri Lanka.

101.   For the reasons given above, taken into account the applicant’s claims singly or cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka.

102.   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).

103.   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).

104.   For the reasons given above, does not accept that the applicant’s evidence about what has happened to him in Sri Lanka is credible and does not accept that there is a real risk that the will suffer significant harm because he left Sri Lanka illegally and will return as a failed asylum seeker.  Taking into account the applicant’s claims singly or cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm

105.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

106.   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

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

Josephine Kelly
Member