1406438 (Refugee)

[2015] AATA 3319

1406438 (Refugee) [2015] AATA 3319 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406438

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:17 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 17 August 2015 at 9:56am

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] February 2013 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on 31 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

10. The applicant claims to be a citizen of Sri Lanka who was born in [Village 1], in Puttalam district, in the north western province of Sri Lanka on [date]. In the hearing, the applicant claimed he lived in [a location] and in [Village 1]. He completed [a stated level] of his schooling and later completed a course in [a trade]. The applicant is fluent in Sinhalese. He described his occupation before coming to Australia as fisherman. In the hearing he claimed that he worked [in a trade] after finishing his course, for a period of 7 years and then he worked as a fisherman. He started going out to sea in about 2005. The applicant stated that he did no other work. The applicant departed Sri Lanka illegally [in] July 2012. In the hearing he claimed that his wife is no longer in Sri Lanka and is living in [another country]. His [children] are living in [Village 1] with his mother-in-law. The applicant stated that his mother, [and siblings] are residing in Sri Lanka.

11. The applicant presented his claims in his protection visa application [in] February 2013 (folios 18 to 20 and 39 to 70 of the Department [File]), a Departmental interview he attended [in] September 2013 (folio 124 of file [number]), submissions made by the applicant’s adviser dated 17 October 2013 and 24 July 2015 and at his Tribunal hearing on 31 July 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Entry Interview and summary of my claims:

    1. An Entry Interview was conducted with me on [date] September 2012 with a DIAC officer in [Australia]. My entry interview is not an exhaustive statement as to why I am unable to return to Sri Lanka. The information given in this interview was not read back to me in Sinhalese.

    2. The following is only a summary of my claims. It is not an exhaustive statement of the reason or reasons why I cannot return to Sri Lanka. I will provide further information in relation to my protection claims during my interview with the DIAC case officer.

    Background:

    3. I was born in Puttalam District, Western Province, SRI LANKA.

    4. I was born on [date]. I am [age] years of age.

    5. I am a citizen of Sri Lanka. I do not have Citizenship or the right to reside in any other country.

    6. My ethnicity is Sinhalese.

    7. My religion is Catholic.

    8. I am married with [children]. My wife and children are currently residing in Sri Lanka.

    The country to which I fear returning:

    9. I fear returning to Sri Lanka. Why I left Sri Lanka:

    10. I fled Sri Lanka on [date] June 2012 because my life has been directly threatened by the fishermen who killed my cousin.

    11. I used to be a [occupation] and I started working with my [brother] as a fisherman in 2001. I have a problem with my [hand]. [So] I could not work on the sea fishing. My brother told me to work on the shore selling the fish.

    12. From 2004 I started selling fish on the shore with one of my cousins. We had been selling fish to a person called [Mr A]. We had to buy the fish from the fisherman for a price then we would sell the fish for a higher price to [Mr A].        

    13. We purchased large quantities of fish to sell to [Mr A] and the other fish sellers started to have a problem with us because we paid a higher price for the fish because we purchased large quantities.

    14. In May 2011 I was in Negambo at the place where we would purchase our fish, I arrived at approximately 3am. While I was driving there my cousin called my and give me the instructions about which fish to buy.

    15. My cousin arrived there at 4am, he was the one who would settle the money matters for the fish. An argument broke out with two of the other fishermen who attacked him and cut him with a knife and killed

    16. At the time of the attack I was putting the fish in the van. When I heard and saw that my cousin had been killed so savagely, I was so upset and shocked that I fainted. Then someone took me back to my house and took the body to the hospital. After 3 days the hospital returned the body to us.

    17. The incident was reported to the police, however the police refused to take my report because they claimed that I was not in a stable state of mind to make my statement. My family saw that the men who had killed my cousin were at the police station at the same time that we were there. When they saw that the police would not take my statement they knew that they had gotten away with their crime

    18. I could not do anything for about10 days, I was so shocked and also now feared that the same thing might happen to me. The killers were still out there and I was living in fear that they would come after me.

    19. I took my family to [a village] to a friend's for 2 months to hide myself. Then we went to another friend's place in [another village] right up until I fled Sri Lanka in June 2012.

    20. While I was in hiding the men who had killed my cousin had come to my village enquiring about my whereabouts. My wife's brother has told me this.

    21. In August/September 2011 I sent my children with a friend and his wife back to our village so that they could start school. I could not go back because I was still fearful for my life.

    22. In June 2012 my brother talked to me about a problem that he was having and that he was making plans with a smuggler to get a boat to Australia. He suggested that I flee Sri Lanka with him and seek asylum in Australia.

    23. I discussed the situation with my wife and we decided that this was the only solution available to me to protect my life.

    24. The Men who killed my cousin have been looking for me as recently as December 2012. They stopped my wife on the street and told her that they would kill me when they find me. They pushed her and she fell to the ground. [One child] was with my wife and [started] screaming, so they left.

    25. My wife was too scared to live in the same village so she has moved to a new village. Since she has moved there the men who are after me have found where she moved to and have beaten up her brother.

    What I fear may happen to me if I return to Sri Lanka.

    26. If I return to Sri Lanka I fear that I will be killed by the people who killed my cousin. I know that they are still looking for me.

    Who I think may harm/mistreat me in that country and why.

    27. I believe if I return to Sri Lanka I fear the men who killed my cousin.

    28. I fear the Sri Lankan authorities because I have sought asylum in a western country.

    Why do I think this will happen to me if I go back?

    29. I know this will happen to me because they have already brutally killed my cousin and are now after me.

    30. I also fear persecution for seeking asylum in a western country.

    Why I think the authorities of that country cannot or will not protect me if I go back to that country.

    31. The authorities in Sri Lanka cannot and will not protect me because I have already tried to report the murder of cousin and the police refused to take my complaint.

    32. The Sri Lankan Government are the ones making and enforcing the laws in relation to failed asylum seekers.

    Why I think relocation to another area in my country is not a reasonable option.

    33. I believe that relocation is not a reasonable option for me because I have a real fear that the men who are after me will find me wherever I go. They have already located my wife when she has attempted relocation.

    Other reasons I cannot return to my home country — Complementary protection:

    34. I fear if I am returned to Sri Lanka I will suffer significant harm at the hands of the men who killed my cousin and also because I have sought asylum in a Western Country.

12. The delegate of the Minister for Immigration and Border Protection refused the applicant a protection visa [in] March 2014 and he applied to this Tribunal for review of that decision on 4 April 2014. Attached to the review application was a copy of the delegate’s decision.

13. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

15. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including his birth certificate, national identity card and marriage certificate. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

16. The Tribunal accepts the applicant was born in Puttalam district in the north western province of Sri Lanka and that he lived in [a location] and [Village 1] prior to his departure from the country in June 2012.

17. The applicant’s claims for protection relate to his alleged witnessing of the murder of his cousin in Negombo in 2011, while he was working in his cousin’s fishing business, and his fear that he will be harmed by [Mr B], the person responsible for killing his cousin, and [Mr B]’s associates, if he gives evidence against them. While the Tribunal notes that it was accepted by the delegate of the Department that the applicant’s cousin was killed because of a financial dispute over the sale of fish, the Tribunal has taken into consideration the numerous and significant inconsistencies and discrepancies in the applicant’s evidence regarding most aspects of his claims, as discussed below, and finds that he is not a credible witness.

18. The applicant claimed that he started working with his cousin in his fishing business after he experienced problems with his arm which prevented him from going out to sea and working as a fisherman. In the applicant’s statement of claims attached to his protection visa application, he claimed that he started working as a fisherman in 2001. However, in his protection visa application form he stated that he worked as a fisherman for several people in Negombo from [December] 2007 to [July] 2012 and prior to this he worked in the [a certain] industry from [December] 1999 to [December] 2007. In the hearing, the applicant claimed that he started going to sea in about 2005 and prior to that he worked [as an occupation] for seven years, soon after he completed his [course]. The Tribunal notes according to the applicant’s protection visa application he claimed he studied [at a] College in Colombo until December 1999. However, when asked in the hearing until when he worked [in that occupation], the applicant stated until 2001, which the Tribunal notes is not consistent with his evidence that he worked [in that occupation] for seven years after completing this course. Further, the Tribunal also notes the applicant claimed in the hearing he started working with his cousin as a driving assistant at the beginning of 2010, however according to his statement of claims he stated that he started selling fish on the shore with one of his cousins from 2004. Given the applicant’s vastly different evidence regarding his employment history, particularly when he started working with his cousin, the Tribunal does not accept that the applicant was employed as a driver’s assistant or in any other capacity in his cousin’s business.

19. As the Tribunal does not accept that the applicant worked with his cousin selling fish, the Tribunal does not accept that he was present when his cousin was allegedly killed during an argument at the Negombo port. The Tribunal notes that in the applicant’s statement of  claims attached to his protection visa application, he claimed that in May 2011 he was in Negombo at the place that his cousin purchased their fish, at approximately 3am, and his cousin arrived at 4am. He claimed an argument broke out with two other fisherman who attacked his cousin and cut him with a knife and killed him. He claimed at the time of the attack he was putting fish in the van and when he heard and saw that his cousin had been killed so savagely, he fainted and then someone took him back to his house. However, in contrast, during the hearing the applicant claimed that when his cousin got in an argument with two people, one of them kicked his cousin and his cousin fell and then the other person stabbed his cousin. The applicant initially stated that he started to go and check on his cousin but then someone pushed him away and he also fell. Yet, he subsequently claimed that he started running to his cousin when he saw him being kicked but he slipped and fell and after that he saw them cutting his cousin into pieces. He told the Tribunal that someone came and grabbed him and pulled him away. The person who grabbed him was [Mr C] and he claimed [Mr C] took him to his, [Mr C]’s place, where he fainted when [Mr C] told him what had happened and he stayed for three days before returning to his home.

20. The Tribunal notes that there was nothing in the applicant’s statement of claims to indicate that his cousin was cut up into pieces, as he claimed in the hearing. Similarly, the Tribunal notes that the applicant did not claim in his statement that he ran towards his cousin when he saw that he was allegedly being attacked, instead the applicant had claimed that he had fainted when he saw and heard that his cousin had been killed. However, in the hearing the applicant’s evidence was that he fainted when he was at [Mr C]’s place and was told about what had allegedly happened to his cousin. Further, the applicant claimed in his statement that he was taken back to his house after he had fainted. The Tribunal notes that the applicant made no claims regarding being taken to any other house but his own or that he spent a period of three days at [Mr C]’s house.

21. The applicant claimed in his statement of claims that the incident was reported to the police however the police refused to take his report because they claimed he was not in a stable state of mind to make a statement. He also claimed that his family saw the men who allegedly killed his cousin were at the police station at the same time and  when they saw the police would not take his statement, they knew they had got away with their crime. He claimed he could not do anything for about ten days because he was so shocked and feared the same thing would happen to him. In the hearing the applicant claimed that his cousin’s wife lodged a complaint but there was no witness for the complaint, despite his evidence to the Tribunal that there were 300 to 400 people at Negombo port when this alleged incident occurred. When asked if he went to the police station and gave a statement, the applicant stated that he was told that he blacked out for a period of ten days but because of his cousin’s wife’s insistence and continuous determination, he was taken to the police station 3 or 4 months after the alleged incident but apparently he was telling stories and did not answer the questions properly because of his mental status. When asked if he knew what he would have told the police, he stated that he could not remember but confirmed that he did not tell them what happened because his cousin’s wife had been threatened that if he gave evidence he would be killed. In response to the Tribunal’s questions as to when his cousin’s wife was threatened, the applicant stated that it was when he and his cousin’s wife were returning home from the police station. The Tribunal notes that there was nothing in the applicant’s statement of claims regarding his cousin’s wife or any family members receiving threats against him by these people when he allegedly went to the police station to give his statement. Further, the Tribunal finds the applicant’s evidence that he did not tell the police what happened because of the threats made to his cousin’s wife implausible given that he claimed the threats were made on his way home from the police station, after he had spoken with the police. Additionally, the Tribunal finds it extremely odd that these people would not threaten the applicant directly, as the witness, but instead threaten his cousin’s wife that they would kill him if gave evidence.  

1. According to the applicant’s statement of claims attached to his protection visa application, he claimed he took his family to [a] friend’s house for two months to hide himself and then he went to the another friend’s place in [Town 2], where he stayed right up until he fled Sri Lanka in June 2012. However, in the hearing the applicant claimed that after this incident, he and his wife and children went to a friend’s place in [Town 2] for a period of two months and then they returned to his village. He claimed when they went back home, ‘they’ came looking for him at his house and his family members told them to leave him alone and he was not going to give a witness statement. The applicant confirmed he was at home at the time of this alleged visit. He claimed after this visit, he and his family returned to his friend’s place in [Town 2]. He stated that he was in his village for a month before returning to [Town 2] and he came back to his village and stayed there for a period of a month before he left the country. The applicant stated that nothing happened in that month that he was home, prior to his departure.

2. The  applicant claimed that since he left Sri Lanka, his wife was approached by [Mr B]’s henchmen when shopping in town with his [child] and these people attempted to hit his wife and threatened her. The Tribunal notes in the hearing the applicant claimed this incident happened in January 2012, when the applicant was still in Sri Lanka. The Tribunal also notes a according to his statement of claims the applicant stated this incident happened in December 2012 and in the recent submission from his adviser it was stated that it occurred in November 2012. When this was put to the applicant, he claimed that this incident took place when he was in the [Australia].

3. The Tribunal notes the applicant claimed in the hearing that nothing further happened apart from this alleged incident when his wife was threatened by [Mr B]’s henchman. He confirmed in the hearing that his wife and children continued to live at their home after his departure from the country and that they did not move to another village. Yet, in the applicant’s statement of claims attached to his protection visa application, he claimed that his wife moved to a new village after being allegedly being threatened by [Mr B]’s henchmen. He also claimed since moving, the men after him had found out where his wife had moved to and had beaten her brother up, however the applicant made no mention of this particular incident despite being repeatedly asked if anything else happened. While the applicant claimed in response that he could not remember the incident and he would have provided the information if he been asked directly about it by the Tribunal, the Tribunal does not accept that the applicant’s failure to raise this particular claim is the result of any difficulty with his memory or because of the nature of the questions asked by the Tribunal.

4. The applicant also claimed in the hearing that police had come to his house asking about his whereabouts, after [Mr B]’s henchman threatened and attempted to assault his wife. When asked why the police would be interested in his whereabouts, the applicant stated that perhaps it was because he was the only witness to the case. The Tribunal notes the applicant claimed  that the police had not come looking for him at any time prior to this alleged visit. The Tribunal finds it implausible that the police would wait over a year to come and speak to the applicant and not any time earlier if he was the only witness to this alleged incident. The Tribunal also notes that there was nothing in the applicant’s statement of claims attached to his protection visa application about this alleged visit by the police enquiring about him.

5. The Tribunal has had regard to the applicant’s assertions in the hearing that the significant discrepancies in his evidence is because he is trying to get his memory back and is in that process. The Tribunal has considered the medical evidence that was submitted to the Department from [an agency in] November 2012, and notes that there is nothing in this report indicating that the applicant has any difficulty with his memory. In fact in relation to cognitive function, it is stated that the applicant is coherent in storytelling and seems to remembers details well. While it was submitted in the recent submission from the applicant’s adviser that the applicant continues to suffer mental health trauma as a result of witnessing the murder of his cousin and his intense fear of suffering the same harm and has moments where he feels disassociated and cannot recall the murder event or other information clearly, the Tribunal does not find that the medical evidence submitted supports the assertions made by the applicant’s adviser regarding the applicant’s mental health issues or that it has any impact on his capacity to give evidence. Nor does the Tribunal accept the adviser’s contention that the contents of the report supports a finding that the applicant has witnessed or experienced a severely traumatising event, particularly the witnessing of his cousin’s death.

6. The Tribunal has also had regard to the applicant’s evidence in the hearing that he knew there were inconsistencies in his statement and that there may be false information included at that time. When asked which information that he had previously provided was false, the applicant stated that he could not pinpoint what is true and not true but he accepts there may be discrepancies in the previous statement he made. As the Tribunal put to the applicant in the hearing, in circumstances where he has admitted to providing false information, but has not elaborated any further as to which aspects of his claims or evidence is fabricated, it is extremely difficult to determine what it true and what is not. While the applicant asserted that his evidence to the Tribunal is accurate, the Tribunal finds the applicant’s willingness to provide false information raises serious doubts about the credibility of his claims regarding the death of his cousin and his subsequent problems as a result of being a witness to this alleged crime, and in light of the Tribunal’s concerns as discussed above, it does not find the applicant to be a witness of truth.  

7. Based on the numerous discrepancies and inconsistencies in the applicant’s evidence regarding relatively significant and central aspects of his claims,  as discussed above, the Tribunal does not accept that the applicant’s cousin was killed by a man named [Mr B] in 2011 and that the applicant was a witness to this alleged event. As such the Tribunal does not accept the applicant will be required to give evidence on his return to Sri Lanka and that he will be harmed by [Mr B] or his henchmen because he is the only witness to this case. Nor does the Tribunal accept the applicant’s claim which was raised in the hearing that essentially he does not believe he will have any problem with [Mr B] but his concern is that when his cousin’s wife returns from overseas to Sri Lanka towards the end of 2017, she will push for the case to be reopened and he will be compelled to give evidence and then he will have a threat to his life. The Tribunal therefore does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka from [Mr B], his henchmen or the police because of his attempts to obtain justice for the murder of his cousin (which the Tribunal finds is not consistent with his evidence in the hearing), an imputed political opinion of being opposed to the Sri Lankan police and authorities and the individual who committed this alleged crime or as a member of a particular social group of “a witness to a serious crime, being murder” or for any other reason.

8. The Tribunal notes that the applicant claimed in his statement of claims attached to his protection visa application that he fears persecution from the Sri Lankan authorities for seeking asylum in a western country. When the Tribunal asked the applicant in the hearing if he fears being harmed because he came to Australia and sought protection, the applicant stated that it is not a big problem for him. He stated that he did not know for certain, but maybe he would be put in jail for 1 year or 6 months; he was not sure. He reiterated that this was not his major concern. While the Tribunal finds the applicant’s evidence in the hearing suggests that he does not have a subjective fear of persecution as a failed asylum seeker or for having sought asylum in a western country, the Tribunal nevertheless has considered DFAT’s advice in its recent Country Information Report on Sri Lanka dated 16 February 2015 that a significant number of Sri Lankans have been returned involuntarily to Sri Lanka from Australia and other countries and the independent sources do not indicate that returnees, as identified as someone who had sought asylum in Australia or another western country, would face a real chance of serious harm. As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile (see Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August; Department of Foreign Affairs and Trade 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October). The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern to the Sri Lankan authorities given that the applicant has never been of any interest to the police or any other authorities, for any reason, in the past in Sri Lanka. The Tribunal notes the applicant’s response to the information put to him regarding failed asylum seekers that he is not concerned about this as he is aware of friends who had returned to Sri Lanka, spent about a week in jail, were bailed out and fined and they were living there okay. While the Tribunal noted that this appeared to be more relevant to his claims regarding illegal departure, the applicant insisted that this was his response to this particular information.

9. Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities,  the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, as a failed asylum seeker or returnee asylum seeker from a western country.

10. The Tribunal has also considered the submissions made by the applicants’ adviser that the applicant has a well-founded fear of persecution as a returnee asylum seeker from a western country who fled Sri Lanka and travelled to Australia unlawfully and who assisted the unlawful transportation of individuals to Australia. The Tribunal notes the applicant’s evidence was that his brother told him about the boat trip being organised to go to Australia and his confirmation that he had no role in organising the boat trip. He stated that he only had to come to the boat and go on the journey; he claimed on the boat everything had been organised. While the applicant claimed that he cooked for the others on the boat, with the assistance of his friend, and that he was allocated time at night to navigate the boat along with four others, the applicant’s evidence was clear that he was not part of the crew or played any role in organising the trip. When the Tribunal put to the applicant that the independent information was that people being charged with people smuggling in Sri Lanka were facilitators and organisers of people smuggling and given his evidence regarding his role on the boat, the Tribunal may not find that he would be considered a facilitator/organiser or a people smuggler, the applicant responded that he agreed people smugglers get harsher punishment and that he could have said he was part of the crew or an organiser when he arrived in Australia but he did not. Based on the applicant’s evidence, the Tribunal does not accept that the applicant will be considered a facilitator or organiser of people smuggling and would therefore be treated as a people smuggler and receive a harsher punishment.

11. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law which has a legitimate objective in upholding border integrity and applies to everyone who breaches it and the information does not suggest that it is applied selectively or discriminatively. The Tribunal therefore finds, as it put to the applicant in the hearing, that what the applicant will face on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.

12. The Tribunal accepts on the basis of the information before it, including the DFAT Country Information Report on Sri Lanka, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally the applicant will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. DFAT assessed that detainees are not subject to mistreatment during their processing at the airport. As the Tribunal put to the applicant in the hearing, the information suggests that all persons are granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor and that there is no payment required for bail. The Tribunal notes, as it did in the hearing, the applicant has his mother [and siblings] in Sri Lanka who can stand as guarantor for him and there is nothing before it to suggest that his family would not do so.

13. Taking into consideration the information discussed above, in addition to the applicant’s particular profile, the Tribunal finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. However, the Tribunal does not accept that any period the applicant is held in detention prior to being bailed constitutes persecution as it is the operation of a law of general application. The Tribunal also does not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention prior to be being bailed. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution. 

14. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports in the Country Report on Sri Lanka dated 16 February 2015 that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. As discussed above, the Tribunal finds that the applicant was just a passenger on the boat and that he would not face any further punishment or penalties as a result of having assisted in piloting the boat or cooking food for the others on board. Nor does the Tribunal accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice for those who are not captains of boats that departed illegally or organisers of people smuggling ventures, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

15. The Tribunal notes the applicant’s response to the independent information put to him regarding illegal departure from Sri Lanka, that the court process or legal process is not his concern. He stated that what happens on his arrival in Sri Lanka is not a significant or serious problem. In light of the applicant’s evidence, the Tribunal does not accept that he has a subjective fear of harm based on his illegal departure from the country. However, in any event, based on the independent information discussed above , the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally.

16. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of his membership of a particular social group of  ‘witness to a serious crime, being murder’ or ‘murder witnesses’, an imputed political opinion of being opposed to the Sri Lanka police and authorities and the individual who committed the alleged crime or as a returnee asylum seeker from a western country who fled Sri Lanka unlawfully and assisted the unlawful transportation of individuals to Australia. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

    Complementary protection obligations

17. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

18. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

19. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant’s claims regarding the murder of his cousin and him being the witness to this crime and the subsequent problems he experienced when he attempted to report the crime to the police. The Tribunal does not accept the applicant’s fears if he is compelled to give evidence against the perpetrator of this alleged crime are credible. Therefore, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk he will suffer significant harm from either [Mr B], his henchmen, the police or the authorities.

1. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained for a period of a few hours to a few days depending on when he arrives in Sri Lanka, that he would be placed on remand for a period while awaiting a bail hearing and he will face a penalty, the Tribunal does not accept on the country information before it and the Tribunal’s earlier reasoning referred to above, that he faces a real risk of being significantly harmed during this process.

2. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment. As discussed above, the Tribunal does not accept on the applicant’s evidence that he played any role as boat captain or organiser of the a people smuggling venture.  As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention.

3. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. Based on the country information the Tribunal put to the applicant from various sources including DFAT, other foreign governments and UNHCR regarding people returning to Sri Lanka as failed asylum seekers, the Tribunal accepts that the applicant as a failed asylum seeker/returnee or  as a person who sought asylum in a western country, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka and as the applicant does not have an adverse profile, he would be released without further interest. The Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

4. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

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

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

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Sydelle Muling
   Member