1406578 (Refugee)

[2015] AATA 3231

1406578 (Refugee) [2015] AATA 3231 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406578

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:24 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2015 at 12:55pm

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

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

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention 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.  A summary of the relevant law is contained in Attachment A. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and protection claims

7. The applicant was born in [year] in [Town 1], North Western Province, Sri Lanka.  He is married and has a [child]. His wife and [child] remain in [Town 1].  He worked as a fisherman in Sri Lanka and owned his own boat.  The applicant provided copies of his birth certificate, marriage certificate, boat owner identity card, fishing permit, national identity (ID) card, driver’s license and passport to the Department.  The Tribunal is satisfied that the applicant is a national of Sri Lanka of Tamil ethnicity and has assessed his claims against Sri Lanka as his country of nationality. 

8. The applicant departed Sri Lanka by boat in June 2012.

9. The applicant’s specific claims for protection are outlined in a statutory declaration by the applicant provided to the Department dated [in] November 2012 and a written submission from his representative to the Tribunal dated 2 February 2015.  According to the representative’s written submission, the applicant has a well-founded fear of persecution on return to Sri Lanka because of his:

   ·Tamil ethnicity;

   ·His imputed political opinion against the current government of Sri Lanka and in support of the Liberation Tigers of Tamil Eelam (LTTE) on account of:

   -    His Tamil ethnicity;

   -    His past as a fisherman from [Town 1];

   -    His illegal departure from Sri Lanka; and

   -    His extended presence in Australia as an asylum seeker; and

   ·His membership of a particular social group of ‘Tamil returned failed asylum seekers’.

10. The Tribunal has considered these specific claims for protection below, having regard to the written and oral evidence before it as well as independent country information relevant to these claims.

11. In doing so the Tribunal has taken into account the representative’s submission that the applicant’s fears in this regard are well founded, supported by reference to relevant country information (both in general terms about the human rights situation in Sri Lanka and specifically with respect to the applicant’s claims), another Tribunal decision, and case law.

    Tamil ethnicity

12. It is submitted that if returned to Sri Lanka, the applicant will be persecuted because of his Tamil ethnicity and that his Tamil ethnicity is one of the reasons why he will be perceived as an LTTE supporter.

13. In her written submission to the Tribunal the representative contends, among other things, that whilst there has been some progress in relation to ethnic relations since the end of the war, underlying ethnic tensions have not been resolved.  She submits that since the end of the war there have been only token efforts toward reconciliation and reintegration of the Tamil population by the Sri Lankan government.  She refers to country information from a variety of sources[1] that indicate that Tamils continue to be disproportionately suspected and targeted and that the authorities have expressed ongoing concern about the re-emergence of the LTTE.  She also submits that whilst there has been a change to the structure of the federal government it is still questionable whether this has led to a substantial or material change at a local level. 

    [1] Including citing excerpts from Freedom from Torture submission to the UN Human Rights Commission Committee for the 5^th periodic review of Sri Lanka in October 2014 is cited and an August 2014 International Policy digest article.

14. The Tribunal has had regard to these submissions and acknowledges the representative’s concerns about lack of progress towards meaningful reconciliation for Tamils in post-war Sri Lanka. However, for the following reasons, the Tribunal finds the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity is not well-founded. 

15. The Tribunal accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, the Tribunal does not accept that simply being a Tamil, or a young Tamil male gives a rise to a well-founded fear of persecution from the authorities in Sri Lanka.  The Tribunal makes this finding on the basis of independent sources indicating that it would no longer be assumed that all Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.[2] 

    [2] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2015 DFAT Country Report 16 February 2015; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August; UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December;

16. The Tribunal also noted at the hearing that the independent sources indicated that the absence of any anti-government activity before or after leaving Sri Lanka will mean that any enquiries made by the Sri Lankan authorities upon a person’s return is not likely to result in a concern that person will be a security risk.[3]

    [3] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August

17. When this matter was discussed at the hearing the applicant stated that there are still problems for Tamils but they are not seen by the outside world. When asked what he meant specifically, he said that young Tamils are beaten by other ‘youngsters’ and police officers, for example.  The applicant also said that whilst they (the Sri Lankan government) are saying that the problems between Tamils and Sinhalese are finished, they are not completely finished. 

18. In her written submission the representative also contended that the residual effect of the war with the LTTE cast a “pall of suspicion and assumptions of guilt over Tamils residing in areas formerly under the control of the group”.  The Tribunal notes that [Town 1] was not formerly under the LTTE’s control.  Even if the applicant did originate from an area previously controlled by the LTTE, UNHCR’s 2012 guidelines confirm that this fact does not in itself result in a need for international protection.[4]  This is consistent with DFAT’s advice that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, are now at a low risk of being detained or prosecuted in Sri Lanka.[5] 

    [4] ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, UNHCR, 21 December 2012

    [5] DFAT 2015 Country Information Report for Sri Lanka 16 February; DFAT 2014 People With Links to the LTTE 3 October

19. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity. However, in light of the end of the war in May 2009 and the country information cited above that assess that being of Tamil ethnicity does not on its own warrant international protection, the Tribunal finds that the applicant does not face a real chance of suffering serious harm solely on account of his Tamil ethnicity.  In reaching this conclusion, the Tribunal has had regard to country information that indicates that since the end of the war in 2009, the focus of the Sri Lankan government’s concern has changed and they are now interested in those who are perceived who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka[6].

    Imputed political opinion

    [6] UK Home Office Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August 2014 at 1.3.7.

20. It has been submitted that the applicant fears returning to Sri Lanka on the basis of his imputed political opinion against the current government and in support of the LTTE for a number of reasons including because he is a Tamil man, a fisherman from [Town 1] known to the authorities, because of his illegal departure and his time spent in Australia seeking asylum.

21. The applicant has provided to the Department a copy of his boat owner identity card and to the Tribunal a copy of his translated fishing permit.[7]  On this basis the Tribunal accepts that the applicant is a Tamil and worked as a fisherman in [Town 1] prior to departing Sri Lanka in June 2012.

    [7] Dated [date].

22. The applicant submits that he was known to the authorities in the past and fears this will heighten his risk on return.  Specifically, in his oral evidence to the Tribunal the applicant said his problems first started when he came across an anti-government protest[8] in [Town 2] (which is about 30 kilometres from [Town 1]) [in] 2012.  At that time he was visiting a friend in [Town 2] who was to look after his boat engine pending repairs, when he heard gun shots nearby.  He went to the scene and saw a dead body and two people injured.  He said that when the police officers started to chase civilians he jumped on a bus and returned home (to [Town 1]).  The applicant said two or three days later three men – one speaking Tamil and the other two Sinhalese – came to his house and asked his wife his whereabouts. They told his wife they wanted to question the applicant about participating in the anti-government protest in [Town 2] a few days earlier.  The applicant said these men visited his home two or three times after this occasion, again searching for him. The applicant said after the first time they visited his home he moved to his mother’s house. 

    [8] With respect to [issue].

23. The Tribunal accepts that an anti-government protest took place in [Town 2] in [2012] as claimed by the applicant and that a number of people were injured and possibly one person died as a result. The Tribunal is willing to accept that the applicant may have witnessed these events. However, for the following reasons the Tribunal does not accept that the applicant was then pursued by the authorities for questioning as a result of being present at this protest. First, it is unclear how the authorities would have known that the applicant witnessed the protest (and the police reaction). At the hearing the applicant said that when he attended the scene there were not many people. He also speculated that there may have been a camera. The Tribunal does not accept this explanation as plausible. Second, there was an inconsistency between the applicant’s oral evidence before the Tribunal and written evidence to the Department about this matter. That is in his statutory declaration the applicant stated that the men visited his wife more than five times however at the hearing he said that they visited his wife two or three times. Third, the Tribunal finds it odd that, if the applicant was being sought after for questioning and went into hiding as claimed, he contacted the authorities – the navy to be specific - in relation to seeking permission to fish only around a month later. He stated in his statutory declaration that he had no choice, noting that he had to earn a living. Whilst that may be the case to a certain extent, the Tribunal is of the view that if the applicant genuinely feared the authorities, or men linked to the authorities, in relation to the [Town 2] protest the month previously, he would not have done so at that time. Further, the Tribunal notes that according to the applicant’s oral evidence, the navy refused to issue the applicant his fishing pass for a few days at that time (discussed in more detail below) purportedly because he failed to attend a government sponsored anti-US protest [in] March 2012; he did not mention anything about his attendance at the [Town 2] protest in [2012].

24. For these reasons, whilst the Tribunal accepts that the applicant witnessed civilians being harmed by the authorities during an anti-government protest in [Town 2] in [2012], it does not accept that he was subsequently pursued by unidentified men (whom he speculates were linked to the government) for questioning in relation to that protest. It follows that the Tribunal finds the chance of the applicant being persecuted by the authorities – or people linked to the authorities – on account of him witnessing an anti-government protest in [Town 2] in 2012 on return to Sri Lanka to be remote. 

25. As discussed, the applicant also told the Tribunal that around late March 2012 the navy refused to issue his fishing permit for three to four days, which directly affected his employment.  The applicant said this was recrimination for failing to attend an anti-US protest organised by the government [in] March 2012, despite being told by members of the local fishing cooperative that he must attend.  The applicant said after [March] 2012, when he went to get his fishing pass (in return for his National ID Card) the navy personnel refused and said he would not be given his pass until he paid a fine of LKR10,000.[9] The applicant said he paid the fine but did not resume fishing.  Instead he made arrangements for his departure from Sri Lanka.  

    [9] AUD100 as at 14 July 2015,

26. The Tribunal accepts that the applicant may have experienced some problems obtaining his fishing pass for three or four days in late March 2012 and was forced to pay the navy LKR10,000 to have his ID card and fishing pass returned.  Whether the navy’s initial refusal to issue the applicant his (daily) pass during that time was due to the fact that he failed to attend an anti-US/pro-government rally as claimed, is speculation only.  Nonetheless, for the following reasons the Tribunal is not satisfied that there is a real chance that the applicant would be seriously harmed on return to Sri Lanka in relation to this incident.  First, whilst inconvenient and an expensive exercise, the Tribunal is not satisfied that the applicant was seriously harmed during this incident.  Although the applicant states in his statutory declaration submitted to the Department that he was beaten by the authorities when he first went to get his fishing permit after [in] March 2012, he did not mention this at the Tribunal hearing and the Tribunal is of the view that he exaggerated this aspect of his claim.  Second, the Tribunal does not accept that the applicant was of any particular interest to the navy after this incident, because it is of the view that if he was they would not have returned his ID card and pass, allowing him to fish and continue life as normal once he had paid the ‘fine.’ The applicant told the Tribunal that ‘they’ came looking for him two or three times thereafter, but were unsuccessful because he was in hiding. The Tribunal does not accept the applicant’s claims in this regard, noting that his oral evidence about where he stayed and with who was vague and general. Further, the Tribunal notes that the applicant has not claimed that the navy questioned him about suspected LTTE involvement during this time, or any other time. Given these considerations, as well as the fact that three years have passed and the applicant told the Tribunal that his family have not experienced any problems in relation to this matter, the Tribunal finds the chance of the applicant being seriously harmed by the authorities on return on the basis of failing to attend an anti-US rally and/or the navy refusing to issue him a fishing pass for two or three days in March 2012 is remote.

27. Looking to the future, the Tribunal acknowledges that if the applicant returns to [Town 1] he is likely to work as a fisherman again. Whilst the Tribunal accepts that in the past there were restrictions on Tamil fishermen being able to work and that the permit system was restrictive, at the Tribunal hearing the applicant said that the permit system is no longer in place and that he does not envisage any problems on return to Sri Lanka in relation to his work as a fisherman, noting that he did however have problems in 2012, when he left.  The applicant told the Tribunal that his brother has been using his boat to fish since his departure and has not experienced any problems, nor has his [relative] who owns his own fishing boat in the same area.  For these reasons the Tribunal does not find that there is a real chance that the applicant would be subjected to serious harm on the basis of his profile as a Tamil fisherman if he returns to Sri Lanka, now or in the reasonably foreseeable future. 

28. For the reasons set out above, the Tribunal is not satisfied that the applicant would be imputed with an anti-government/pro-LTTE political opinion on account of his Tamil ethnicity and/or his past as a fisherman from [Town 1] on return to Sri Lanka, now or in the reasonably foreseeable future.  His fears of serious harm on this basis are not well founded.  His claims to be imputed with an anti-government/pro-LTTE political opinion on return on account of his illegal departure from Sir Lanka and extended presence in Australia as an asylum seeker are addressed later in the decision record.

    Other matters:-

29. In his statutory declaration to the Department the applicant states that in the past next to the area where he fished was a Sinhalese area for fishing and Sinhalese fishermen would abuse and beat them if their fishing nets accidently went too close to their area or interfered with their fishing.  The applicant submits that he was insulted as a Tamil and threatened by them on many occasions.  The Tribunal notes that the applicant states in general terms about Sinhalese fishermen beating and abusing ‘us’ – referring to Tamil fishermen – but does not provide any specific details.  Nor did he mention any specific incidents at the hearing despite being asked specifically what (and who) he fears on return to Sri Lanka.  The Tribunal therefore does not accept that the applicant was seriously harmed by Sinhalese fishermen in the past in Sri Lanka.  It accepts that the applicant may have received verbal insults from Sinhalese fishermen in the past.  Looking to the future, the Tribunal is of the view that competition for resources between fishermen, including from different ethnic groups, may continue were he to return to being a fisherman in Sri Lanka.  However, verbal insults and threats do not constitute serious harm and given the Tribunal does not accept that the applicant suffered persecution at the hands of Sinhalese fishermen in the past in Sri Lanka it finds the chance that he would on return to Sri Lanka now or in the reasonably foreseeable future to be remote.

1. The Tribunal notes also that at the hearing the applicant said his father, who worked as a fisherman in Sri Lanka in the past, was beaten by the army on suspicion of helping the LTTE.  As a result he developed [a medical condition] and died in 1997.  The Tribunal accepts that was case.  However this took place 15 years ago, during the long-running civil war, and the applicant has not advanced any claims of having been targeted or harmed by the authorities or anyone else as a result. The Tribunal is not satisfied that the applicant was imputed with an anti-government/pro-LTTE political opinion on this basis and the Tribunal finds the chance of the applicant being persecuted by the authorities on return on the basis of his father’s profile is remote.

2. At the Tribunal hearing the applicant said that one of his brothers left Sri Lanka around 2007 and has sought asylum in [another country].  Another brother left Sri Lanka in April 2012 because he had had [problems] and was accused of helping the LTTE.  His protection visa application (and review) was unsuccessful and he has now returned to Sri Lanka. When asked about the specific details in relation to the applicant’s brothers' protection claims the applicant said he does not know.  The applicant gave no indication that he fears harm on return to Sri Lanka in relation to either brother’s claims for protection and the Tribunal therefore does not accept that the applicant has a subjective fear of harm from the authorities in Sri Lanka on account of his brothers’ situation.

   Membership of a particular social group of ‘Tamil returned failed asylum seeker’

3. It is submitted that there is a real chance the applicant would be seriously harmed on return to Sri Lanka on account of his status as a failed asylum seeker and due to the subsequent imputation of a pro-LTTE political opinion that would arise from that. 

4. The representative has provided an extensive written submission to the Tribunal on this issue (some of which are also relevant to the applicant’s claim to fear returning to Sri Lanka because he departed illegally, discussed further below), the main contentions which are as follows:

   ·There is evidence that failed asylum seekers from Australia are imputed with a pro-LTTE political opinion and that returnees have been subject to torture upon their return and a number of reports specifically record the mistreatment and torture of failed asylum seekers.[10] 

   ·That the large influx of Tamil asylum seekers in Australia gives rise to the perception that Australia has become a hub for Tamils to present their ideas in support of the beliefs and ideas of the LTTE.  Therefore they will come to the immediate attention of the Sri Lankan authorities on return and are more likely to have an anti-government political opinion imputed to them on account of their illegal departure from Sri Lanka and method of arrival to Australia. 

   ·There also exists a practice of waiting until returnees have left the airport before making arrests.[11]

   [10] Citing for example, Yasmin Sooka, The Bar Human Rights Committee of England and Wales (BHRC) and The International Truth & Justice Project, Sri Lanka An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 – 2014, 2014

   [11] Citing for example, Tamils Against Genocide report, Freedom From Torture submission to the UN Human Rights Committee for the 5^th periodic review of SL October 2014; the UK Home Office Operational Guidance Note April 2012; and ABC Lateline report ,June 2013

5. The Tribunal has had regard to these submissions and relevant country information and acknowledges the concerns articulated about what might happen to returnees, including Tamil failed asylum seekers, if detained. 

6. The Tribunal accepts that the applicant entered Australia in mid-2012 without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

7. The UK Home Office reports that Sri Lanka has an extensive intelligence system shared by the security forces and immigration officials and that its security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora[12]. That Guidance notes that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[13] 

   [12] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2

   [13] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

8. The Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that given he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE.  At the hearing the applicant told the Tribunal that neither he nor his family had any past involvement with the LTTE.  For the reasons set out above the Tribunal has not accepted that the applicant came to the adverse interest of the Sri Lankan authorities in [2012] in relation to him witnessing police reaction to an anti-government protest in [Town 2].  Furthermore, the Tribunal accepts that the applicant was refused his fishing permit for a few days in March 2012 but finds that there were no problems thereafter and there was no indication that the navy were suspicious that he had LTTE connections at that point or any other time.  In such circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant was not a member or supporter of the LTTE nor suspected of such.  It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka nor that he will do so if he returns to Sri Lanka in the foreseeable future. 

9. While the Tribunal notes the absence of systematic monitoring by the UNHCR (and others) of involuntary returnees to Sri Lanka both at the airport and once they have left the airport as submitted by the representative, and acknowledges that this places limits on transparency and accountability, that this can be said to support the existence of a real chance of serious harm for a particular reason impresses the Tribunal as highly speculative.

10. In her written submission to the Tribunal the representative also refers to the decision of GJ and Others in which the UK Asylum and Immigration Tribunal held that several groups of people in Sri Lanka are now deemed to be at risk, including Tamil diaspora activists and people who are on a “stop list/and or watch list” at Colombo Airport, and that anyone detained by the security services face a real risk of ill treatment or harm requiring international protection.  Nonetheless in this case, as mentioned, it is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.  For these reasons the Tribunal does not accept there to be a real chance that the applicant will be targeted for harm at the airport on the basis that he is returning as a failed asylum seeker who is Tamil, now or in the reasonably foreseeable future.

11. The Tribunal accepts that when the applicant returns to his home in [Town 1], his arrival will be noted and he may be questioned by the Sri Lankan authorities. However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis of that he is a Tamil who has sought asylum in Australia.

    Illegal departure

12. The Tribunal accepts that the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act for doing so.  However, for reasons above, the Tribunal does not accept that the applicant was wanted by the navy or the Sri Lankan authorities for having links to the LTTE or for any other reason.   DFAT indicates in its report that the applicant therefore would be subject to the same penalties as other Sri Lankan citizens who have departed illegally. 

13. At the hearing the Tribunal discussed with the applicant DFAT’s advice that persons charged with such offences are transported to the Magistrate’s Court in Negombo at the first available opportunity.  The Tribunal noted DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s office that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally and that in most cases they have been granted bail immediately and later fined between LKR 5,000 and 50,000. The representative argues in her written submission that this report also comments that the penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees.[14]  The representative also submitted that although discretionary, the imposition of a custodial sentence for illegal departure is possible, and does occur, refereeing to the recent United States Department of State report[15] indicating that it was unlikely in practice for a person charged to appear before a Magistrate that same day.  She also cited an article reported in The Age in July 2014[16] about Sri Lankan asylum seeker returnees from Australia charged with illegal departure.  A police spokesman is quoted in that article as stating that the sentence for those who are proved to have left illegally is two years of rigorous imprisonment and a fine.  Furthermore, it is submitted that where a person has a previous individual or family profile or either actual or imputed LTTE involvement, re-entry processing or screening will likely give rise to the adverse attention of the Sri Lankan authorities, which may extend beyond the immediate re-entry process. 

    [14] At paragraph 5.23

    [15] United Sates Department of State, 2012 Country Reports on Human Rights Practices – Sri Lanka, 19 April 2013

    [16] The Age, ‘Asylum seekers face court in Sri Lanka’, 8 July 2014

14. The Tribunal has had regard to these submissions and acknowledges ongoing concern for Tamils in Sri Lanka and returnees.  However, as discussed with the applicant at the hearing,  DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application.[17]  The representative asserts in her written submission that whilst punishment for illegal departure is a law of general application, it may be implemented in a discriminatory manner toward Tamils with distinct profiles.  That is once detected and questioned at the airport, there is a real chance that the period of remand and detention would be arbitrarily long, that the applicant would be subject to interrogation and mistreatment, including torture, while detained, and that the sentence imposed by the court would be disproportionately severe on account of his race and imputed political opinion. The Tribunal has had regard to this submission however, it is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  The evidence before the Tribunal does not indicate that the law is being applied selectively or in a discriminatory manner for a Convention reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen, regardless of ethnicity. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur any such prosecution or penalty on conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Refugees Convention because it does not involve systematic and persecutory conduct pursuant to s.91R(1)(c).

    [17] DFAT 2015 Country Information Report for Sri Lanka 16 February at 5.22 – 5.33

15. On the evidence before it, the Tribunal finds that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a period up to several days while awaiting a bail hearing.  The Tribunal notes DFAT’s advice that it is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, many of which have been made anonymously by third parties making verification difficult.  In making this assessment DFAT notes the thousands of asylum seekers returned to Sri Lanka since 2009 including from Australia, the US, Canada, UK and other European countries and assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I&E Act.[18]  The Tribunal does not accept there to be a real chance that the applicant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing.

    [18] DFAT 2015 Country Information Report for Sri Lanka 16 February at 4.20-4.21

16. On the basis of the DFAT advice cited above, the Tribunal does not accept there to be a real chance that the applicant will be denied bail, rather it considers that he will be granted bail when presented to court and that if convicted of charges under Sri Lanka’s I&E Act he will likely face a fine of between LKR 5,000 and 50,000.  The Tribunal notes that the applicant has worked in Sri Lanka in the past, that his brother is using the boat that he owns, and that there is no suggestion that he would not be able to work again and have the economic means to pay such a fine. 

17. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system[19].  However in this case the Tribunal has found, for the reasons set out above, that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system.  The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in prison have been targeted or harmed because of their ethnicity or membership of a particular social group of ‘Tamil returned failed asylum seekers’ or for any other Convention reason. Having regard to the advice contained in the DFAT report that returnees are treated in the same way regardless of their race or religion, that allegations of misconduct have not been substantiated and that it is not aware of allegations of mistreatment of returnees while on remand, the Tribunal does not accept that the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason.

    [19] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September.  That report records on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.

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

    Conclusion – Refugee grounds

19. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

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

    Complementary protection grounds

21. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

22. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his imputed political opinion, his membership of a particular social group of ‘Tamil returned failed asylum seekers’, or the fact that he departed Sri Lanka illegally. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[20]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [20] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

23. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  In view of the DFAT advice cited above, the Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, either during his questioning at the airport or during any period he spends on remand.  The Tribunal has found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine of between LKR 5,000 and 50,000.  The Tribunal is satisfied that the applicant will have the economic means to pay such a fine if it is imposed upon him, as discussed.  Further, the Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing.  The Tribunal has accepted that prison conditions in Sri Lanka are generally poor, but does not accept there to be a real risk that the applicant would face significant harm while on remand as a result of those conditions. 

1. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

   CONCLUSION

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

3. 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).

4. 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

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

   Nicole Burns
   Member

   
   

   Attachment A – Summary of Relevant Law

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

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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