1406144 (Refugee)

[2015] AATA 3154

1406144 (Refugee) [2015] AATA 3154 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406144

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:James Jolliffe

DATE:9 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 09 July 2015 at 2:50pm

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] November 2012 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on  24 March 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.

   Relevant 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:

8. 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.

9. 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’).

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

    CLAIMS AND EVIDENCE

11. The Tribunal has before it the Departmental and Tribunal files as well as information from a range of sources

12. The issues in this case are that the applicant claims to fear harm on the basis of his Tamil ethnic extraction and a perceived  imputed political opinion of being pro-LTTE .

13. For the following reasons, the Tribunal has concluded that the decision under review should should be remitted for reconsideration.

14. In his protection visa application the applicant claimed that he was born on [date]. This appears to be an error and the applicant claims in his statement in support of his protection visa application that he was born on[another date]. The applicant also providede a birth certificate to the Department which indicates a date of birth of [a third date]. The Tribunal was , after the Tribunal hearing, provided with a further birth certificate for the applicant showing a date of birth of  [the second date].

15. The applicant claimed that he was born [in] Sri Lanka. He claims he is a Tamil and a Christian . The applicant claimed he married [in] 1998 and that he only holds Sri Lankan citizenship. He claimed to have lived in India between [August] 2006 and [October] 2007. The applicant claimed that he was a fisherman in terms of his occupation in Sri Lanka before he came to Australia. The applicant claimed that he applied for refugee status in India [in] October 2008 and he claimed to be registered as a refugee in India. The applicant claimed that his wife and [children] continue to reside in Sri Lanka. The applicant claimed to have arrived [in Australia in] July 2012. The applicant claimed to have a mother and father and[siblings]. He claimed one [sibling] is deceased and that one of the other [siblings] is living in Australia.

16. The applicant provided a statement in support of his protection visa application. That statement was dated 19 November 2012.

17. In that statement the applicant claimed that he was born on [the second date] in [Trincomalee], eastern province of Sri Lanka. He claimed to fear harm if returned to Sri Lanka. The applicant claimed that he left Sri Lanka and went to India with his wife and [children] and brother of [August] 2006. He claimed he sought refuge with the UNHCR in Tamil Nadu in India. He claimed that he had gone to India because his life was in danger and that friends and neighbours in the area were being persecuted and some were killed. He claimed that it was mainly Tamil people who were the victims. He claimed that in November 2003 the LTTE had kidnapped and arrested him and that was because he had been involved in an altercation with the LTTE in relation to his brother. He claimed that he was detained by the LTTE for 18 months and was never charged and that during this time he claimed “I was tortured many times and treated in a degrading way”. He claimed after his release he and his family and his brother had gone to India. He claimed he returned to Sri Lanka in October 2007 because he thought the LTTE had left his area in Sri Lanka.

18. The applicant claimed in February 2008 he was arrested by the army and detained without charge until [August] 2010. He thinks that he was detained because the army believed that he was connected to the LTTE. He claimed that he was taken before courts during this period but was not charged and he claimed that while he was detained he was also tortured. The applicant claimed during this period that the brother who travelled to India with the applicant and his family was murdered. The applicant claimed not to know who killed his brother and he found out about his brother’s death from his father who had visited the applicant in jail. The applicant claimed that his father had told him that his brother’s body showed evidence “of torture”. The applicant claimed no one was charged with his brother’s murder

19. The applicant claimed after he was released he returned to fishing. He claimed that one night while he was fishing his wife had been visited by some men who were asking about the applicant and that on the second occasion 10 or 15 days later some other men had come to the home asking about the applicant. The applicant claimed on the second occasion the men had worn scarves over their faces and that there were about five or six people. The applicant claimed after the second occasion he reported the incidents to the police and that he relocated to Jaffna where he stayed for about a month. He said that his father introduced him to a person who made the arrangements for him to come to Australia.

20. The applicant claimed that if he returned to Sri Lanka he “would face a real chance of persecution and probably death”. He claims to fear harm on the basis of having been previously detained by the LTTE and the Sri Lankan army. He claims to fear harm on the basis of his Tamil ethnic extraction and on the basis that he could be perceived to have an imputed political opinion of being pro-LTTE. He claimed to fear harm from the Sri Lankan army and from the CID and he fears that he would be killed and that he would also be persecuted ,imprisoned and tortured. The applicant claimed that he could not relocate elsewhere within Sri Lanka and he also claimed Sri Lanka authorities would not protect him.

21. The applicant participated in an entry interview [in] September 2012. The applicant claimed to have completed [a certain] grade in terms of his education. He claimed that he worked in [an industry] between 1996 and 1999 and has had worked as a [occupation] on other occasions as well as a fisherman. He claimed his mother had died in 2001 and that one of his brothers had been killed [in] April 2009. He claimed one of his brothers was living in Australia. He claimed to have been accepted as a refugee in India when he had lived there between August 2006 and October 2007.

22. In the entry interview document the applicant claimed that he had come to Australia because his life was threatened and his brother had been murdered in Sri Lanka. He claimed that “two other people came to look after me and murder me” while he had been fishing. He claimed not to know who these people were but that they had come looking for him [in] April 2012 and again [on another date in] April 2012. He claimed that these were the people who had murdered his brother and he thought they might murder him as well. In the entry interview document he claimed that he had been arrested [in] November 2003 and that he had registered with the International Committee of the Red Cross when he had been arrested. The document also includes a claim by the applicant that he had been arrested by the LTTE. He claimed his brother had been arrested and the applicant had urged the LTTE to release him and there had been an altercation. He claimed about 15 or 20 days later the LTTE arrested him and that he was released in the fifth month of 2005 and that he had been held for about one and a half years (18 Months). In the entry interview document the applicant claimed that he was released by the LTTE  after the Tsunami. He claimed that while he had been detained he had been tortured and cut and “smacked with big poles”.

23. The applicant claimed that the next time that he was arrested was after he had returned from India and he was arrested [in] March 2008 by the Sri Lankan CID. He claims he was arrested then because he had previously been arrested by the LTTE and he was suspected of being part of the LTTE. He claimed he was released [in] August 2010. He claimed he was taken before a court every  three months and that he was also hit with poles while he was detained. He claimed that he had been tortured and was threatened with being killed and that he had registered with the International committee of the Red Cross. He claimed after his release that the police would come to his home and check on his whereabouts and sometimes he would be questioned when he was out on the road.

24. The applicant was interviewed by a Department delegate [in] May 2013. The delegate declined to grant the applicant a protection visa. The delegate was also not satisfied that the applicant was entitled to complementary protection under the Migration Act. A copy of the delegate’s record of decision was provided to the Tribunal with the application for a review.

25. The applicant’s representative provided written submissions to the Tribunal prior to the hearing. In summary those submissions referred to additional information provided by the applicant in relation to his claims. That information was that his wife had reported the applicant missing to the police when he had been kidnapped in November 2003 and that he had not been released until after the December 2004 tsunami and he was released in May 2005 and went to India in August 2006. The submissions also indicate that after the applicant’s arrest in March 2008 he had been visited by the International Committee of the Red Cross and a document setting out the dates when he had been visited was attached to the submissions.. The submissions refer to the delegate’s findings regarding the applicant’s credibility and referred to the applicant’s key claims to fear harm. The submissions in summary refer to the applicant’s claims about having been kidnapped and detained by the LTTE for a period of 15 months and refer to the delegate’s credibility concerns about the applicant’s claims in relation to that incident as well as referring to the applicant’s claims to have obtained refugee status in India. The submissions seek to address the delegate’s concerns. The submissions also refer to the claims by the applicant that he was arrested in March 2008 by the CID for suspected LTTE involvement and also seek to address a number of findings by the delegate in relation to that incident and claim. The submissions, as indicated, also provided a copy of an International Committee of the Red Cross document which was said to support the applicant’s claim of imprisonment from March 2008 until [August]  2010. The submissions also referred to a reference by the delegate to a document (see page 11 delegate’s record of decision) that the applicant had provided the Department with a document to show that he had been arrested by the police. However the delegate believed that document related to the applicant’s brother. The submissions state that the delegate had made an error in relation to that issue and that the prison document provided to the Department related to the applicant and had been provided by the applicant’s brother to support a claim that the brother had made about the applicant being imprisoned.

26. The submissions also refer to the applicant’s claims that people came to his home looking for him in Sri Lanka and also to his claim that the applicant is fearful that should he return to Sri Lanka he will come to the notice of authorities and in particular the CID. The submissions suggest that the applicant is both a credible person and that he has a well founded fear of persecution for the purposes of the Refugee convention and is also entitled to protection on the basis of the complementary protection provisions in the Migration Act.

    TRIBUNAL HEARING

27. The applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments. His representative attended the hearing by telephone. The applicant produced his Migration Act identification card, together with an identity card relating to his time in a refugee camp in India. He also provided the Tribunal with a copy of a document which was mainly in a foreign language, but did have a number of English language statements and in particular the words” acknowledgement of complaint” and this was said to be a copy of a complaint document lodged by the applicant’s wife in November 2003 which relates to the applicant’s claim that his wife had reported him missing to the police when he said he had been kidnapped by the LTTE.

28. The applicant confirmed his name and confirmed his date of birth and confirmed other personal details. The Tribunal asked to be provided with a birth certificate in support of the applicant’s claims about his date of birth and as indicated a certificate was provided to the Tribunal after the hearing. As indicated elsewhere in these reasons there had been a degree of confusion about the applicant’s date of birth. The applicant confirmed that he was claiming protection on the basis of his Tamil ethnic extraction as well as claiming to fear harm if he returned to Sri Lanka because he could be perceived to have an imputed political opinion of being pro-LTTE. He also claimed to fear harm on the basis that he had left Sri Lanka illegally and unlawfully and could be perceived to be pro LTTE on that basis. He claimed to fear harm if he returned to Sri Lanka from the CID and paramilitary groups who were formerly associated with the LTTE. He claimed he feared that he would be arrested and harmed by the CID if he returned to Sri Lanka. He told the Tribunal he had not been a member or supporter of the LTTE and nor had any members of his family. He told the Tribunal that he remains in regular contact with his family in Sri Lanka and that one of his brothers is also in Australia. He claimed he did not have a Sri Lankan passport.

29. The Tribunal asked the applicant about his claims that he had been kidnapped by the LTTE in November 2003. He told the Tribunal that the LTTE had tried to abduct his brother and that he had intervened. He said his brother was about [age] at the time of this incident. The applicant said he had used a knife handle to hit an LTTE person on the head. He said he had gone into hiding after that and hid for about one or two weeks but in November 2003 the LTTE had found him. He conceded to the Tribunal that he had continued to work when he said he was in hiding. He said he had gone back to live with his family after being in hiding but had then been abducted by the LTTE. He claimed that he was blindfolded and his hands tied and that he was taken to a boat and taken to Vanni. He said he was put in an LTTE camp and he was chained up by his legs. He told the Tribunal that he was detained for about one and a half years by the LTTE. The Tribunal found aspects of the applicant’s evidence about the details of what he said occurred to him to be very vague. He told the Tribunal that he was allowed to shower once a week and that most of the time he claimed he sat in detention and prayed. He claimed that on the third day of his detention two people had come and questioned him and that this was about six or eight weeks after the initial incident where he had assaulted an LTTE member. He claimed he was told that he was being punished for assaulting an LTTE cadre. He was asked about his claim in his statement that he had been tortured while he was in detention. He claimed that he was beaten and he told the Tribunal that he was made to kneel on bottle caps and that he was bashed and that his questioners had used their hands and their legs to beat him and that this had gone on between 15 to 20 minutes and that he then fainted and he was put back in the room where he had been detained initially and where he was chained up. He claimed that he was only beaten once. He was asked about his claim in his statement that he was tortured many times. The Tribunal asked him about the claim in the entry interview document that he had been hit with poles. He told the Tribunal that he had been hit with poles after the Tribunal had raised this issue. He said he had only been beaten once but he felt that he had been bullied sometimes when he was being given food and also by some comments that were made by those detaining him. He said that was what he was referring to when he said he had been tortured many times in his statement. He said he was otherwise kept in the room and chained and that there was usually one other person in the room who was detained as well. He claimed that was how he was kept up until about a month before he was released when he was taken to a field and made to do some work . The Tribunal found the applicant’s evidence about the 18 months he was detained to lack any real detail about what he claimed happened to him for most of that time. It seemed to the Tribunal that the applicant was claiming that he spent most of the 18 months chained in a room and he prayed but that he really did little else. He subsequently told the Tribunal later in the hearing that because he had been kept chained on his leg most of the time that he believed that constituted mistreatment. He told the Tribunal that his wife had lodged a complaint with the police when he had disappeared. The document provided to the Tribunal referred to elsewhere in these reasons was a copy of his wife’s complaint ( basically not mainly in the English language but with some parts in English sufficient to identify core aspects ) about the applicant’s disappearance in November 2003. He said he had been held in Vanni which was between [distance] and [distance] km away from his home.

1. He told the Tribunal that he had not complained to the police after he was released in May 2005 because that had been a condition of his release by the LTTE. He subsequently told the Tribunal later in the hearing that he did not need medical assistance after he was released. He told the Tribunal that the LTTE had doctors visit the detainees and that he had been given a saline drip after he had fainted when he had been beaten. He said after he was released he went back to his village. He claimed he had been given a pass and Rs.500 and put on a bus and sent home and told not to complain to the police about his detention. He claimed that the LTTE had come to his home a few days after he was released and told him not to complain to the police.

2. He told the Tribunal that he had gone to India on around the [date] or [date] of August 2006 and that he and his family had gone to India because the war had started again in Sri Lanka and they were afraid. He provided the Tribunal with his refugee camp identity card issued by the government of Tamil Nadu. He claimed that he was accepted in India as a refugee. He claimed he and his family returned from India because they thought it was safe to return to Sri Lanka, and he said they returned [in] October 2007. He said he returned to fishing after he returned to Sri Lanka. The applicant’s representative had referred to the applicant’s claim that he was a refugee in India in the written submissions that were provided to the Tribunal under cover of an email dated 17 March 2015 and which have been referred to earlier in these reasons.

3. He claimed that he had been arrested by [in] March 2008 while he was on his way to the market but he was not sure if it had been the army or the police who had detained him. He said he was taken to an army camp about 4 to 5 km away.  He said he was detained from March 2008 to August 2010. He told the Tribunal that he had been mistreated by the CID when he was detained. He said his hands had been tied and that he had been hung by his hands and that he was punched and beaten and that sometimes included a beating with a plastic pipe. He said he was being questioned about where he had been and being an LTTE supporter. He assumed that the questions about where he had been related to his wife having reported him missing in November 2003. He claimed that the beatings went on for about a month and that after six weeks he was taken to court and after three months of detention he was again taken to court. He claimed he was not charged with any offences but claimed that he was being detained under the Prevention of Terrorism Act. He told the Tribunal that a judicial officer had referred to the Prevention of Terrorism Act when the applicant had asked the judicial officer why he was before the court. He claimed that the CID told the court that they wanted more time to conduct an investigation of the applicant. He claimed that he was taken to court around 60 times but never charged during his period of detention. He told the Tribunal that the only document that he was able to provide was the International committee of the Red Cross document which has been referred to earlier in these reasons. He claimed that he had been mistreated and beaten for about 30 days of the first 90 days that he had been detained. He claimed after the first three months that he was placed in a prison, and he said after that he was not physically harmed but claimed that he was still ill treated and he received verbal abuse and what he described as “scolding” comments by the gaolers. The Tribunal notes that the delegate had referred to a document in relation to the applicant’s arrest, which had apparently been provided by the applicant’s brother to the Department (see page 11 of the delegates record of decision)when the brother had been interviewed by the Department. The applicant’s representative referred to that issue in the submissions provided under cover of an email dated 17 March 2015.

4. The applicant told the Tribunal that he had obtained a copy of the Red Cross document from the Red Cross in [Australia] and that he received it about a year ago. The applicant named the staff at the Red Cross in [Australia] that he said he had dealt with in relation to obtaining the certificate. He referred to staff named [name] and [name] as being involved in obtaining the document. The  document had not been provided to the Department delegate. The Tribunal asked the applicant about obtaining the original certificate from the Red Cross.

5. The Tribunal asked the applicant a number of questions about the Red Cross certificate and noted that the certificate referred to the applicant having been detained in prison between February 1996 and July 1996 and also having been detained between July 1997 and August 1997. The applicant told the Tribunal that he had been detained on both occasions on suspicion of being associated with the LTTE. He claimed that a court had released him on both occasions. The Tribunal noted that the applicant had not referred in his statement in support of his protection visa application to having been detained on those occasions. He said he had not raised those earlier arrests because he said he had no evidence to support that claim. The Tribunal told the applicant that it was concerned about the credibility of the applicant’s claim in relation to that issue and the explanation that he had provided as to why he had not referred to those earlier arrests and detention in his statement. The Tribunal also noted that the Red Cross certificate referred to the applicant having been held in police stations and in prisons and including a military prison, but that he had not been in a rehabilitation centre or Camp and raised its concerns as to the reason why the applicant was in prison. The applicant confirmed that he had been held in prison (or police stations), but not in a rehabilitation camp (where many former LTTE members were held after the end of the war in May 2009).

6. The Tribunal asked the applicant about his claims in his statement that his brother had been murdered while the applicant was imprisoned. He claimed his brother went missing in April 2009. He told the Tribunal that he suspected the karuna group which had broken away from the LTTE had killed his brother. The Tribunal asked the applicant if he had had difficulties with the Karuna group and he claimed that the LTTE person he had hit at the time of the incident in November 2003 had joined that group. He said he did not know why his brother was killed.

7. He said after he was released he had returned to fishing. He said he had not had any problems in 2011 other than claiming that the CID occasionally questioned him. He described this as casual questioning on occasions. He claimed he had problems after April 2012 and also claimed that around that time that a person in his village was killed. He claimed in around April 2012 that his wife had been visited by 6 or 7 men who had come to his home and asked about the applicant and that he claimed about 10 days later men had come and knocked down the front door at his home and asked about him. He said that the men’s faces had been partially covered. He said he went to the police and complained and that the police had given him contact phone numbers. He said after this he decided to go to Jaffna and he stayed at[a relative]’s home. He said he did not know why the men were looking for him and that he had been out fishing in the night when the men had come to his home. He said he did not register with authorities when he had gone to Jaffna and he had stayed there are about a month. He told the Tribunal that after he came to Australia in July 2012, that in August, some men had come and spoken to his wife and his father and a priest about the applicant. The Tribunal noted that the delegate had said that the applicant had not referred to any enquiries being made in Sri Lanka since he had departed Sri Lanka to come to Australia (see page 12 delegates record of decision) and that the applicant’s claim to the Tribunal about this aspect was different to what he had told the delegate. He told the Tribunal that there had been no other times that men had been looking for him at his home in Sri Lanka apart from August 2012.

8. The applicant also claimed that his brother who was now in Australia had problems when the applicant was in jail but did not provide any details.

9. The applicant was asked if there were any further claims or issues that he wished to raise with the Tribunal in relation to his protection Visa application. He said he had nothing further to raise with Tribunal.

10. The Tribunal asked the applicant why he could not relocate elsewhere in Sri Lanka if he feared harm in his home area, if he returned. He said that he would have to register in any new place and he would also have to find work and that there would be issues with the authorities and that he was not sure who was looking for him in Sri Lanka, and he also said that he left illegally to come to Australia and did not believe that he could relocate.

11. The Tribunal raised why the applicant, if he feared harm, could not seek state protection. He said he did not believe that he would be able to get state protection but the Tribunal noted that he had reported the incident in 2012 involving the men who he claimed had come to his home and damaged the door and asked his wife about the applicant. He told the Tribunal that the police had not taken any action in relation to his report. He said that he had decided to come to Australia because his father said boats were going to Australia. He confirmed to the Tribunal that he had left Sri Lanka illegally and unlawfully. He also told the Tribunal that he was not claiming to fear harm in Sri Lanka on the basis of his Christian religion.

12. The Tribunal raised with the applicant country information in relation to 2 DFAT reports relating to Sri Lanka relevant to the applicant’s claims. The Tribunal referred to the DFAT Country Report for Sri Lanka dated February 2015. The Tribunal noted that the report indicated that the security situation in Sri Lanka had greatly improved since the end of the war, but that the report also noted that there were reports that some Tamil militant groups were still active and that included engaging in criminal activities, but it was difficult to verify those reports. The Tribunal noted that report also referred to the historical discrimination faced by Tamils and in particular in relation to education and employment, but also noted that successive Sri Lankan governments had made some efforts to address tensions. The Tribunal also noted that many Tamils particularly in the North and East had expressed a fear of monitoring and harassment and arrest but that the cessation of the forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The Tribunal noted that the report indicated that the Sri Lankan Constitution guarantees freedom of religion and that the Department assessment was there was little official discrimination on the basis of religion and that most practitioners are able to practice their faith unmolested. The Tribunal also noted that the Department assessed that the number of incidents of extrajudicial killings, disappearances and kidnappings for ransom had fallen considerably since the end of the conflict but that were credible reports of torture carried out by security forces and they included reports in relation to people suspected of LTTE connections and that the Department was aware of a small number of allegations of torture or mistreatment raised by asylum seekers. The Department assessment was that the risk of torture or mistreatment for the great majority of returnees was low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment is greater for those suspected of committing serious crimes and that is on the basis that they face greater exposure to authorities and that includes risks arising because of extended periods of pre-trial detention. The Tribunal notes that the report indicates that prison conditions in Sri Lanka are poor and do not meet international standards. The report indicates there is no law or public policy which hinders access to state protection on the basis of religion or ethnic extraction and that the Constitution allows citizens the freedom of movement and internal relocation in Sri Lanka, but that there may be practical difficulties such as absence of family connections or a lack of financial resources which hinders internal relocation. The report also notes that relocation is not a viable alternative for people who fear harm from the state itself or elements associated with the state.

13. The Country report refers to the exit and entry procedures for involuntary returnees and the processing arrangements for returnees. Those arrangements, include returnees being processed by  Department of immigration and emigration officers, the state intelligence service and the airport CID. The processing of returnees may take several hours as people are checked against databases, but that the Department assessment is that returnees are treated according to standard procedures regardless of ethnic extraction or religion and that detainees are not subject to mistreatment during their processing at the airport. The report also refers to those returnees who are suspected of having left Sri Lanka illegally and refers to the fact that those individuals are likely to be detained, questioned and arrested and charged with offences of having left illegally under the Immigrants and Emigrants Act. The report indicates that for those people who are arrested and detained that they will be taken before a magistrate to determine issues such as bail and if a magistrate is not available they may spend up to several days in jail pending a bail decision. The report also refers to the Department, having been informed by Sri Lankan authorities that no person who was just a passenger on a people smuggling venture has received a custodial sentence, but fines have been imposed and that those fines range typically between 5000 and Rs.50,000. The report also indicates that in most cases returnees had been granted bail on personal reconnaissance with the requirement for a family member to act as a guarantor and the returnees would have to wait until a family member was available to come to court to collect them. The Tribunal indicated that it was open to the Tribunal to find that the enforcement of the Immigrants and Emigrants Act was the non-discriminatory enforcement of law of general application  in Sri Lanka. The Tribunal also referred to the DFAT thematic report dated October 2014 in relation to people who were perceived to have links to the LTTE. That report refers to the UNHCR December 2012 eligibility guidelines for people at risk in Sri Lanka. Those guidelines do not nominate Tamil people as being at risk per se on the basis of their ethnic extraction but do nominate people at risk as including those who are perceived to have real or perceived links to the LTTE.

14. The applicant was asked if he would like to comment or respond to that country information. The Tribunal had some difficulty in understanding the applicant’s response but the applicant essentially indicated that he believed that within 15 or 20 days after he returned to Sri Lanka, that the CID or people associated with the CID would be looking for him and that was because of his previous assault on an LTTE member and he referred to a claim that  person had joined the Karuna group. He claimed that person might come looking for him. He claimed that person was also associated with the CID. He told the Tribunal that he feared harm from the army or the CID because he could be perceived to have LTTE connections. He claimed that a person who had been in jail with him had left Sri Lanka legally and gone to [another country] and when he had returned he had been jailed on suspicion of being connected to the LTTE.

15. The Tribunal raised concerns that it had with the applicant about his claims and the credibility of his claims. The Tribunal raised its concerns about some aspects of the applicant’s evidence and his claims where had he had been vague in providing information and  details to the Tribunal. This included when he claimed he had been arrested in 2008 and he was unsure whether it was the army or the police who had arrested him. He claimed to the Tribunal that it was the army CID who had arrested him. The Tribunal referred to the applicant’s statement that he had been tortured many times when he had been detained by the LTTE and then told the Tribunal that he had only been physically harmed on one occasion and the Tribunal indicated that it believed that the applicant had exaggerated his claims in relation to that issue. The applicant responded by referring to being chained while he was detained and he believed that constituted mistreatment. The Tribunal noted that he had not required medical assistance after being released by the LTTE and the applicant responded by telling the Tribunal that the LTTE had arranged for doctors to visit him and other detainees and that he had been placed on a saline drip after he had fainted after being beaten by the LTTE. The Tribunal indicated that it had concerns about the credibility of the applicant’s claim that he had been detained by the LTTE as his evidence lacked detail about what had happened to him in the 18 months. The Tribunal raised its concern that the applicant had not told Department officers about the earlier arrests that had been referred to in the Red Cross document. He responded by indicating that he had been told that he needed supporting evidence if he was raising any claims and that was the reason why he had not referred initially to those other arrests and his detention. The Tribunal also indicated it had some concerns about the applicant’s claim that he had been given refugee status in India. The Tribunal notes the written submissions that have been provided on the applicant’s behalf in relation to that aspect. The Tribunal also noted that the applicant had said that he did not complain to the police after his detention by the LTTE because he had been told not to by the LTTE. He told the Tribunal that even though there had been a change in government in Sri Lanka and that the outside world might have a more positive perception about developments in Sri Lanka he claimed that the military still has control and that the military could use the LTTE connection to harm him and that they would use any excuse to harm him. That claim appears to be based on the applicant’s claim to fear harm from the army and the CID because of his perceived connection to the LTTE. The Tribunal found it difficult to get clarification from the applicant as to the basis about his claim to fear harm from the army and the CID other than he claimed he was perceived to have an LTTE connection. The applicant referred to his fears of harm from the army and CID in his statement.

16. The Tribunal allowed until 7 April 2015 for the applicant to provide any further comments or submissions to the Tribunal. The Tribunal referred to the applicant’s birth certificate and to obtaining the original of the Red Cross document as being documents to be provided. The Tribunal subsequently received a further birth certificate but did not receive anything further about the Red Cross document. The applicant’s representative indicated in an e mail dated 11 May 2015 that she had tried on several occasions to get the applicant to provide an original of the Red Cross document but he had not provided any further document. No further document in relation to that issue has been received by the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicant is a Sri Lankan citizen and that his identity is as he claims it to be. The Tribunal accepts on the basis of the available information that the applicant does not have a right to enter or reside temporarily or permanently in any other country other than Sri Lanka. The Tribunal accepts that Sri Lanka is the applicant’s country of nationality for convention purposes.

1. The Tribunal has considered the applicant’s claims to have a well founded fear of persecution if he returns to Sri Lanka on the basis that he fears harm because of his Tamil ethnic extraction and because he is perceived to have an imputed or real political opinion of being pro-LTTE. The Tribunal notes that the applicant also claims to fear harm if he returned to Sri Lanka on the basis that he would be a failed asylum seeker who left Sri Lanka illegally and sought asylum in a Western country, and on that basis could also be perceived to have an imputed political opinion of being pro-LTTE.

2. The Tribunal has referred to difficulties that it had in obtaining details from the applicant about particular incidents. The Tribunal has referred elsewhere in these reasons to instances where it had concerns in relation to the applicant’s claims and his evidence in support of those claims. The Tribunal has referred to its concerns about occasions when it found the applicant’s evidence to be vague in relation to some aspects of his claims. The Tribunal found it necessary to question the applicant in significant detail about incidents in an effort to clarify relevant issues relating to his claims.

3. The Tribunal has considered the applicant’s claims that he was detained by the LTTE in November 2003 and that he was held for about 18 months before he was released in May 2005. The evidence surrounding this claim has been referred to elsewhere in these reasons. The applicant claimed that he had been detained because he had been involved in an altercation with an LTTE cadre that also involved his brother. He claimed he injured the LTTE cadre during the altercation and that as a result he went into hiding briefly and was then effectively kidnapped and punished because of that incident and that involved some initial physical mistreatment and then detention for approximately 18 months. He claimed that he was chained by his leg during most of that time. The applicant’s evidence about what happened to him apart from the evidence about the initial beating was in the Tribunal’s view very vague, and he provided the Tribunal with no real detail about what had happened to him during that 18 month period, other than he was kept chained by his leg in a room and that he spent a lot of time praying. At one level the applicant’s claims about this incident appear to lack credibility. It is difficult to accept that the LTTE would have kept the applicant for about 18 months and not have made him do some forced labour for instance for that organisation or that he was detained for that period as punishment because he injured a cadre. He said he was only made to do work for about a month before he was released in 2005. The Tribunal notes that during the period when the applicant claimed that he was detained a ceasefire was in force in Sri Lanka (see DFAT Country Report for Sri Lanka dated February 2015). The applicant gave evidence about the beating he received and about issues such as being chained by the leg and seeing LTTE doctors and having a saline solution after he fainted. He gave evidence about his release and the instructions not to complain to the police. He engaged with the Tribunal about its concerns about the credibility of this claim by referring to the chaining as mistreatment and being visited by LTTE doctors when he was in detention. The Tribunal has considered his claims and its assessment of his credibility. The Tribunal has had regard to the applicant’s wider claims and its assessment of his overall credibility in relation to his claims in considering this particular issue.

4. The Tribunal overall and, with some reservations about particular issues, accepts that the applicant is a credible witness. The Tribunal believes that in relation to core aspects of his claims that the applicant has been credible when providing evidence to the Tribunal and in responding to the Tribunal’s questions and concerns.

5. The Tribunal is prepared to accept the applicant’s claim that he was detained for about 18 months by the LTTE from November 2003 to his release in May 2005. The Tribunal found that the applicant’s evidence in relation to some aspects surrounding his altercation with the LTTE and his subsequent detention to be vague and lacking in the detail that might have been expected but also found that he provided sufficient detail about what he said happened to him in relation to certain aspects of that detention to be credible. He told the Tribunal that he had essentially been only assaulted once when he was detained and did not attempt to inflate or exaggerate his claims about what happened to him on that occasion despite the claim in his statement that he had been tortured many times. He engaged with the Tribunal’s questions and concerns about this claim. The Tribunal also accepts that the applicant’s wife reported him as missing to the police when he was detained by the LTTE. The Tribunal notes that the applicant in the entry interview document referred to being released in the 5^th month of 2005 but also referred to being released after the Tsunami ( in December 2004).  He had also claimed in his statement that he went to India after he was released but the evidence is that he remained in Sri Lanka until August 2006. Those issues indicate some of the vague aspects surrounding the applicant’s claims and indicate why the Tribunal had to question the applicant at length about issues in order to clarify matters.

6. The Tribunal also accepts that the applicant and his family left Sri Lanka and went to India because the applicant said that he was afraid to remain in Sri Lanka. The documentation referred to elsewhere in these reasons indicates that the applicant and his family were in a refugee camp in India. The Tribunal is not able to be satisfied on the evidence that the applicant was granted refugee status in india as he has claimed. The Tribunal accepts that the applicant and his family returned to Sri Lanka because they believed that it was safe to do so, notwithstanding that the ceasefire had ended. The Tribunal accepts the documentation that has been provided in relation to the applicant and his family being in India and having returned to Sri Lanka.

7. A critical aspect of the applicant’s claim to fear harm is that he was detained by the army in February 2008 and detained without charge until August 2010. As indicated elsewhere in these reasons the Tribunal was provided by the applicant’s representative with a copy of a International Committee of the Red Cross detention record in relation to the applicant. As indicated the applicant was asked about that document during the Tribunal hearing. He nominated the names of Red Cross personnel in the [Australian] office of the Red Cross who had been involved in obtaining that document for him. That document indicates that the applicant was visited by the Red Cross delegates between [March] 2008 and [June] 2010 in a police station and in [a] prison. The Department file also has a copy of a complaint made by the applicant’s wife to the Human Rights Commission of Sri Lanka regarding the applicant’s arrest. That document is dated [June] 2008. The applicant gave evidence to the Tribunal about what he said happened to him when he was arrested and his subsequent beatings by the CID. He also told the Tribunal that he had been arrested and detained under the Prevention of Terrorism Act  1979 (PTA) in Sri Lanka and that he had been informed of that by a Sri Lankan judicial officer during one of his court appearances. The country information available to the Tribunal in terms of the DFAT country report of February 2015 indicates that during the civil conflict more Tamils were detained under emergency regulations and the PTA than any other ethnic group and that this was largely due to LTTE members and supporters almost all being Tamil. The DFAT thematic report into people with links to the LTTE dated October 2014 indicates that under that Act suspects can be held without charge  for three month periods not exceeding a total of 18 months. As indicated elsewhere in these reasons the Red Cross document also indicates that the applicant had been detained and held on previous occasions. The applicant said that he was arrested and detained on those occasions between 1996 and 1997 on suspicion of being associated with the LTTE and that he had been released by court decisions in relation to those detentions. That detention record puts in perspective and in context why the applicant may have been of interest to Sri Lankan authorities when as he claims he was detained by the authorities in February 2008. His evidence to the Tribunal was that he was also questioned when he was detained about his whereabouts (presumably in relation to when he went missing in November 2003 ) and apparently in the context of his wife, having reported him missing in November 2003.  It would be reasonable to assume that the Sri Lankan authorities would have been able to ascertain that the applicant and his family had been in India for a period of time and had returned in October 2007. However, it is also reasonable to assume that the applicant’s family having fled to India may have also caused the Sri Lankan authorities to take a further interest in the applicant in terms of LTTE issues and that led to his arrest and detention in February 2008. The applicant gave the Tribunal evidence as to his mistreatment when he was arrested and detained and to his questioning on that occasion. He gave evidence about having been taken to court on multiple occasions but he was not charged but the CID wanted him to be detained to carry out ongoing investigations.

8. The Tribunal has considered this aspect of the applicant’s claims and the evidence and relevant country information. The Tribunal is prepared to accept that the copy of the document provided to the Tribunal is a genuine copy of a document issued by the International Committee of the Red Cross and relating to the applicant’s detention in Sri Lanka between 1996 and June 2010 and his release in August 2010. As indicated the Tribunal asked to be provided with an original of the Red Cross document but, this was not provided. The Tribunal has considered that issue and is prepared to accept that the document that has been provided to it is a genuine copy. The Tribunal notes that the applicant had not previously raised his detention between 1996 and 1997 on the basis that he was suspected of being connected to the LTTE. He told the Tribunal that he had been told not to raise issues where he did not have evidence to corroborate or support his claims and that is why he had not referred to the earlier detentions. The Tribunal has some concerns about that explanation. The Tribunal’s concerns relate to an apparent pattern over a number of years where the applicant has been detained by Sri Lankan authorities on suspicion of LTTE connections. The applicant’s earlier detentions on suspicion of LTTE connections puts a context to his claim that he was detained in February 2008 and questioned about LTTE issues. As indicated the applicant claimed that he had neither been a member or supporter of the LTTE and nor had any members of his family. The Tribunal has difficulty accepting the applicant’s explanation as to why he had not referred on earlier occasions to his previous detentions on suspicion of LTTE connections in terms of his protection visa application. The Tribunal believes that it would have been reasonable to expect in the circumstances of the applicant’s overall claims  that the applicant would have referred to those issues. The Tribunal has a concern that the applicant may have been trying to conceal those earlier detentions on suspicion of LTTE connections from Australian authorities. The fact that the Red Cross document reveals those earlier detentions also causes the Tribunal to accept that the copy of the Red Cross document is a genuine copy of an original document. The Tribunal after considering the applicant’s claims and the evidence accepts that the applicant was arrested and detained by Sri Lankan authorities and was questioned and mistreated by the CID as he claims on suspicion that he was connected to the LTTE. The Tribunal is prepared to accept ,in all the circumstances ,the applicant’s claim that he was being held and questioned under the provisions of the Prevention of Terrorism Act. He told the Tribunal that he was taken before the courts in Sri Lanka on about 60 occasions when he was being detained between 2008 and 2010 and it was a judicial officer who told him that he was being detained under the PTA. The Tribunal notes that the delegate referred in the record of decision to documentation that was provided to the Department by the applicant regarding his arrest in 2008. That documentation was also referred to in the written submissions provided to the Tribunal by the applicant’s representative and has been referred to elsewhere in these reasons..

9. The Tribunal has considered the applicant’s claim that his brother was murdered and that the applicant suspects that the Karuna group were responsible for his brother’s death. The Karuna group broke away from the LTTE during the conflict in Sri Lanka. The applicant told the Tribunal that he believed that the LTTE cadre who he had assaulted in 2003 had joined the Karuna Group and the applicant claimed to fear harm on that basis. The applicant told the Tribunal he only suspected the Karuna group were responsible for his brother’s  death. The applicant’s evidence to the Tribunal about this issue in terms of his claim to fear harm was very vague and general and the Tribunal is not satisfied on the basis of the evidence that the applicant had a well founded fear of harm on the basis of this claim that he fears harm from the Karuna group or from the LTTE cadre he assaulted in 2003. The Tribunal is prepared to accept the applicant’s claim that his brother was killed but is not in a position on the evidence to determine the reason for his brother’s death or who killed his brother.

10. The Tribunal has already indicated that it accepts that the applicant was detained by the LTTE for a period of about 18 months because of that assault on that occasion and that he was subsequently released by the LTTE in May  2005. The applicant’s claim to fear harm on this basis also appeared to be related to his claim that on two occasions after April 2012 men had spoken to his wife about the applicant’s whereabouts. The applicant did not know the identity of the people who he said were looking for him. He said he had reported these incidents to the police but that the police had taken no action. He told the Tribunal that after he had been released in 2010 he had not had any trouble in 2011 other than what he claimed was occasional questioning by the CID. He told the Tribunal that he had become afraid as a result of these visits by these men and that after having relocated to Jaffna briefly he had caught a boat to come to Australia.  The Tribunal also notes the applicant did not claim that the CID was behind these visits and his indication that he had only had occasional questioning by the CID after his release indicates to the Tribunal that the CID may have been keeping the applicant under low level  and occasional supervision but was not threatening the applicant with harm.

11. The applicant also told the Tribunal that after he came to Australia that in August 2012 men had come and spoken to his wife and his father and a priest about the applicant. The applicant had not raised that claim with the Department delegate. The Tribunal after having considered the applicant’s evidence and his claims and the surrounding circumstances does not accept the applicant’s claims that his wife was spoken to twice after April 2012 or in August 2012 that his wife and his father and a priest were spoken to in relation to the applicant’s whereabouts. The applicant’s evidence about these claims did not satisfy the Tribunal that these visits had occurred as claimed by the applicant. As indicated the applicant essentially referred to these people as unidentified men, and he really had no reason to advance to the Tribunal as to why these unidentified people would be looking for him, or making enquiries about him.  He did not claim that he had seen these men and said his wife told him about these men. He claimed in the entry interview document that these men had killed his brother and he thought they would murder him as well. Given that the applicant told the Tribunal he suspected the  Karuna group had killed his brother that indicates to the Tribunal that the applicant believed these men were from the  Karuna group and feared harm on that basis but was not able to indicate why the Karuna group would have killed his brother or be seeking to harm the applicant other than to speculate that the LTTE cadre he assaulted in 2003 may have joined the Karuna group. The Tribunal believes that the applicant has made these claims in an effort to strengthen his protection visa application. The applicant had referred to his brother who was in Australia as having had some unspecified difficulties when the applicant was detained by Sri Lankan authorities but provided no detail in relation to that aspect. Apart from the occasional questioning by the CID the applicant did not suggest or claim that he had had any further difficulties with Sri Lankan authorities after he had been released in 2010.The Tribunal is not satisfied on the evidence about the applicant’s claims to fear harm on this basis.

12. The Tribunal accepts that the applicant left Sri Lanka unlawfully and illegally to travel to Australia by boat. In those circumstances the Tribunal accepts in accordance with country information that the applicant is highly likely to be questioned , detained and arrested for offences under the  Immigrants and Emigrants Act if he returns to Sri Lanka. The country information in relation to that issue has been referred to elsewhere in these reasons. The Tribunal accepts that in those circumstances the applicant is a person who would come to the attention of the CID if he returned to Sri Lanka in relation to the CID’s previous interest in the applicant and his previous periods of detention on suspicion of having an LTTE connection. The country information referred to earlier indicates that returnees to Sri Lanka are questioned upon their return at the airport by investigation staff and including CID staff. The country information indicates that the authorities maintain databases in Sri Lanka in relation to former LTTE members and supporters. People of interest also include those who promote separatist beliefs or engage in criminal activities. The Tribunal accepts that the applicant was detained between 2008 and 2010 on suspicion of LTTE connections. The Tribunal accepts that the applicant left Sri Lanka illegally and unlawfully. The Tribunal accepts the applicant’s evidence that after he was released in 2010 that he was occasionally questioned by the CID. The Tribunal accepts the information provided in the copy of the Red Cross document and also accepts the applicant’s evidence that he was detained on two occasions in 1996 and 1997 on suspicion of LTTE connections. The Tribunal notes that the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka and which are referred to in the DFAT thematic report of October 2014 in relation to people with LTTE links indicates that people at risk in Sri Lanka include people who are perceived to have real or perceived links with the LTTE. The Tribunal believes that the applicant’s record of previous detention on suspicion of LTTE connections places the applicant at risk of a real chance of serious harm should he return to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal accepts that the applicant was previously mistreated when he was detained on suspicion of LTTE connections between 2008 and 2010 and the applicant’s evidence in relation to that issue is referred to elsewhere in these reasons. The country information in the DFAT country report for Sri Lanka dated February 2015 indicates that the risk of torture or mistreatment of returnees is greater for those who are suspected of committing serious crimes, including people smuggling or terrorism offences. The Tribunal accepts that the applicant has previously been detained on suspicion of being associated or connected to the LTTE. The country information indicates that the risk of torture or mistreatment is greater for returnees who are likely to spend extended periods in pre-trial custody and will have greater exposure to authorities on their return on that basis.

1. The Tribunal accepts the applicant’s claim that he has been previously held and detained under the Prevention of Terrorism Act and the country information indicates that under the legislation suspects can be detained without charge for up to 72 hours and potentially can be held without charge under detention orders for three month periods and for a period not exceeding 18 months in total ( see DFAT country report February 2015 page 20). The Tribunal accepts given the applicant’s detention record and the fact that he left Sri Lanka illegally and unlawfully and that he will be charged in relation to that offence or offences and because of his background he may be detained for a longer period in custody and be subject to questioning. The Tribunal notes that the country information contained in the DFAT country report of February 2015 indicates (page 19) that torture may be used to extract information or confessions from suspects and refers specifically to suspects held under the Prevention of Terrorism Act in relation to questions of admissibility of confessions in court proceedings. In those circumstances the Tribunal accepts that there is not just a remote or far-fetched possibility that the applicant may be physically harmed and mistreated and that includes the possibility of torture. The Tribunal considers that the use of the Prevention of Terrorism Act in terms of the applicant’s detention would be on the basis of the combination of his background and including his Tamil ethnic extraction and his earlier detention for suspected LTTE connections as well as having left illegally. The 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka indicate the applicant has a risk profile consistent with those guidelines. In those circumstances the Tribunal does not accept that the use of the PTA would be the application of a law of general application in that the Tribunal believes that there is a real risk that the law could be applied in a discriminatory fashion because of the combination of the applicant’s Tamil ethnic extraction and his suspected pro-LTTE political opinion and because he left illegally ( see DFAT country report February 2015 page 12).

2. The Tribunal believes in those circumstances that it is not a far-fetched or remote possibility that the applicant faces a real chance of serious harm should he return to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal believes that the combination of the applicant’s Tamil ethnic extraction and the CID’s previous interest in the applicant in relation to LTTE connections place the applicant at a real chance of serious harm. The DFAT country report indicates that the Department assesses that there have been credible reports of torture carried out by Sri Lankan security forces and those reports include in relation to suspects held on criminal charges and include reports in relation to people detained on suspected LTTE connections (see page 19 DFAT country report). In the Tribunal’s view It is a not remote possibility that the applicant may be held in detention for a longer period in relation to having left Sri Lanka illegally and unlawfully on the basis that he has been previously detained on suspicion of LTTE connections. The 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka suggest that the applicant has a profile that would place him at risk in Sri Lanka, given his detention previously on suspicion of LTTE connections. The evidence before the Tribunal indicates that even after his release in 2010 the applicant continued to be of some interest to the CID and that resulted in low-level and occasional questioning by the CID of the applicant. The Tribunal believes that it is not a remote or far-fetched possibility that given that background the applicant would be a person of interest to the CID and he could be held in detention and questioned for a longer period should he return to Sri Lanka, either now or in the reasonably foreseeable future and be at risk of a real chance of serious harm on that basis. The Tribunal accepts that jail conditions in Sri Lanka are poor and that the applicant could be at risk or a real chance of serious harm the longer he remains in those conditions.

3. The Tribunal after having considered, individually and cumulatively, the applicant’s claims and the evidence and the submissions made on the applicant’s behalf and relevant country information is satisfied that there is a real chance the applicant would face serious harm amounting to persecution for a convention based reason if he returned to Sri Lanka, either now or in the reasonably foreseeable future because of the combination of his Tamil ethnic extraction and his perceived imputed political opinion of being pro-LTTE, together with having left Sri Lanka illegally. The Tribunal is not satisfied that the applicant faces a real chance of serious harm solely on the basis that he is of Tamil ethnic extraction or solely because he left Sri Lanka illegally. The Tribunal believes that it is the combination of factors relating to the applicant that have been discussed in these reasons that places him at a real chance of serious harm if he returned to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal is satisfied that those reasons would be the essential and significant reasons for the persecution and the persecution would involve systematic and discriminatory conduct. The Tribunal is satisfied that the applicant has a well founded fear of persecutory harm should he be returned to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant would avoid a real chance of serious harm by relocating to another part of Sri Lanka because of the nature and source of the harm that he fears.

   Overall Summary

4. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   James Jolliffe

   Member