1406688 (Refugee)

1406688 (Refugee) [2015] AATA 3280 (11 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1406688
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Andrew Mullin
DATE:11 August 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Statement made on 11 August 2015 at 12:21pm

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

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).
The Applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] September 2013. The delegate refused to grant the visa [in] April 2014 and [in] April 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.
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.
CLAIMS AND EVIDENCE
The Tribunal has before it the Departmental and Tribunal files file relating to the Applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources.
On the Departmental file is a record of the Applicant’s entry interview, conducted in [Australia in] August 2012. He is recorded as stating, in summary, that the main reason he came to Australia was poverty. His parents were ill and could not work and his brother also had a serious illness. He had to take care of his family as the breadwinner. He also claimed that unknown people from the governing party harassed his family, threw stones at the house and damaged his father’s car because his father had assisted his [uncle], a United National Party (UNP) candidate in elections in April 2011. He gave his religion as Catholic and said he had been involved in teaching the Catholic faith to children. He stated that he paid no money for his passage to Australia on the basis that he worked as a cook on the boat.
In his protection visa application and an accompanying statutory declaration the Applicant claims, in summary:
·He was born in Negombo, Gampaha, Western Province, Sri [Lanka]. His ethnicity is Sinhalese and his religion is ‘Christian (Evangelical)’ He lived at the same address in Gampaha up to the time of his departure from Sri Lanka in July 2012. He received [a number of] years of formal education in Sri Lanka, ending in 2008, and was employed in a variety of jobs as kitchen hand, machine operator and labourer. He is unmarried and his parents and [siblings] are all living in Gampaha.
·He was born to Catholic parents and practised Catholicism from an early age. In August 2011 he attended an evangelical Christian meeting in [Park 1] in Colombo and made a decision to accept Jesus Christ as his saviour and be born again. He began attending Sunday worship at a local evangelical church, [Church 2] located about five kilometres from his house.
·The Buddhists and Catholics were opposed to evangelical Christians whom they saw as a threat, as they were attracting many to their meetings. In October 2011 he was at an evangelical meeting in the park which was attacked by a group of Buddhists and Catholics and he was physically assaulted. He also suffered harassment in his work place because of his religion and his employer fired him when he discovered he was an evangelical Christian.
·In January 2012 he became involved in spreading the good news in his area, distributing Christian pamphlets and accompanying other church believers in house-to-house visits. In the same month he was present at church one Sunday morning when a mob of Buddhists and Catholics entered the premises and beat the congregation, including him. In the period from January to March 2012 he was physically assaulted by Buddhists and Catholics on numerous occasions when distributing Christian pamphlets in his area.
·In March 2012 he tried to complain about these attacks at his local police station but the police would not accept his complaint. As Sri Lanka is a Buddhist country he believes a majority of the police are Buddhists and turn a blind eye when Christians attempt to lodge complaints of this nature.
·It was becoming unsafe for an evangelical Christian like him to practise his religion, due to the threats directed at him by the Buddhists and Catholics. While it may be possible to some extent for Catholics and other Christian denominations to practise their religion uninterrupted by the Buddhists, evangelical Christians are unable to do so. Because of these problems he decided to flee Sri Lanka in July 2012, eventually arriving in Australia.
·He fears that in Sri Lanka he would be seriously harmed by Buddhists and Catholics for reason of being an evangelical Christian.
·He also fears he would be jailed for a long period because he left Sri Lanka illegally and also because the Australian authorities believe he was part of the crew that steered the boat which reached Australia. The Sri Lanka authorities may suspect him of being a people smuggler. Jail conditions in Sri Lanka are harsh and he would be at risk of harm in jail.
·The authorities will not protect him as Sri Lanka is a Buddhist country and they have condoned attacks against minority religious groups. He could not find safety by relocating.
On the Departmental file are:
·Records of the Applicant’s bio data and entry interviews.
·Photocopied pages from the Applicant’s Sri Lanka passport, issued [in] 2011.
·Photocopies of the Applicant’s national identity card, birth certificate and school records.
·A photocopy of what appear to be pages from a Catholic prayer book.
·A photocopy of a letter on the letterhead of [Church 3] signed by [a parish priest in] July 2012. [The priest] states that the Applicant is from his parish. He had been working in [a hotel] for about a year but the hotel closed without informing him. He is the eldest in his family and has gone to Australia for a job.
·A document in Sinhala with an English translation identifying it as a letter on the letterhead of [Church 2 in] December 2013 and signed by [the chief pastor]. The writer states that the Applicant is a permanent member of the congregation.
·A baptism certificate stating that the Applicant was baptised at a church in [Town 4 in] September 2012.
·Media articles reporting incidents of religion-based violence and abuse of human rights in Sri Lanka.
The Applicant discussed his claims at a protection visa interview [in] November 2013
·It was put to him that his claim to be an evangelical Christian was not mentioned in the information he provided at the time of his arrival in Australia or at an entry interview [in] November 2012, and was in direct conflict with the information he had given then that he was a Catholic and had instructed children in the Catholic faith. In response he claimed that this arose from a translation error; he had stated only that he was a Christian and this was translated as ‘Catholic.’ He claimed that he had been told before his entry interview began that if he failed to gain protection all his claims would be divulged to the Sri Lankan authorities.
·Asked about the letter he had submitted from a Catholic church ([Church 3]) dated [in] July 2012 stating that he was a member of the parish he said this was obtained by his father. He had asked him to obtain a letter from the [Church 2] but he was reluctant to do so and approached [Church 3] instead. He said he had provided the letter in order to show that he came from Sri Lanka.
·He said he had become estranged from his father because he had joined [Church 2]. He moved out of the family home in October 2011. He was working in a hotel in Negombo and began living there. Asked why, in his entry interview and protection visa application he would have given his family home as his address right up to his departure for Australia he said he did so because this was his postal address.
·Asked on how many occasions he had been attacked as a result of his religious activities with [Church 2] he said there were two such incidents – in October 2011 and January 2012. In the second attack as many as forty members of his church, including the pastor, suffered injuries requiring hospital treatment. He stated both that the pastor reported the attack to the police and that he himself did so alone.
·He said that after the January 2012 attack he stopped attending the Church. This was, variously, because Sunday services were suspended and because he was too afraid to do so. He would nevertheless evangelise door-to-door, ‘spreading the good news’ until his departure for Australia.
·Asked about the certificate showing he was baptised in [Town 4] September 2012 he said he was not baptised in [Church 2] as he had not attended it for the six months preceding his departure.
A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
Tribunal hearing
The Applicant appeared before the Tribunal on 8 May 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Sinhala language.
The Applicant submitted a number of media reports regarding incidents of religion-based violence in Sri Lanka and abuse of human rights. Included in the material is what appears to be an official Australian government document, obtained under freedom of information provisions, containing a briefing on people smuggling from Sri Lanka. Also included is a further copy of the letter, in Sinhala, from [Church 2] which was submitted to the Department. The Applicant confirmed that none of the country information referred specifically to him.
The Applicant’s evidence was, in summary:
·He had religious concerns in Sri Lanka because Christian people were harassed by Buddhists. He was originally a Catholic but converted to the Bible Christian faith, joining [Church 2] after attending its monthly meetings in [Park 1]. Buddhists do not like Christians because they convert people to their religion. Almost every church in Sri Lanka has problems. He himself experienced many problems, including an attack by Buddhists on his church in Negombo one Sunday in January 2012 in which he was hit. He went to the police with the pastor but they would not accept the complaint. On another occasion, in January or February 2012, people attacked him when he was returning from making home visits. This was reported to the police but again they would not accept the complaint.
·Asked if these incidents were reported in any of the media articles he had submitted he said they were not. In those days in Sri Lanka information about attacks on Christians were not sent to the media. To the observation that this seemed strange, given that the media articles he had submitted did, in fact, report on these matters he said these are provided on websites but not in Sri Lankan newspapers. I noted that the material he had provided regarding Buddhist attacks on Christian churches did seem to include extracts from various Sri Lankan newspapers. He referred to a number of the articles and said he had been looking unsuccessfully for reports of the two incidents in which he was involved.
·Asked why he left Sri Lanka in June 2012 he said he had worked with others as a propagandist, explaining the good news of the Bible to people by going door-to-door. The Buddhists disliked this, thinking they would convert people. Many churches have been destroyed and pastors killed. He feared the same would happen to him one day.
·Asked about his Christian activities in the months before his departure for Australia he said he had been working in [a hotel] in Negombo. After the second attack, in February or March 2012, he ceased his visits to people’s homes. Asked what else he had done he said he was involved in the youth ministry. Youths would gather to worship God in [Church 2]. Asked if he had continued to worship in [Church 2] right up to the time he left Sri Lanka in June 2012 he said the police closed it for two or three weeks after the attack in January 2012, during which time he and a friend continued to worship in another place. When the church re-opened he began to attend it again, continuing to do so up to June. He also participated in youth ministry worship sessions.
·Asked what would happen in the youth ministry worship sessions in the Church he said that after the attack they began again, little by little, in prayer sessions and discussions about how to deliver God’s message to the public. They did not do anything else.
·Asked about the good news he was spreading to the public he said the Bible states that nobody can go to heaven other than with the guidance of Jesus. If someone does not know Jesus exactly they will go to hell. Jesus came to the world to eliminate sin and give people a peaceful happy life. Asked in which parts of the Bible these things can be found he said they are in Romans 8, regarding salvation. Asked if they appeared anywhere else he said everywhere in the Bible it is stated that Jesus came to the world to give eternal life. Asked which parts of the Bible talk about Jesus he named the four Gospels.
·I noted that in his protection visa interview he stated that he had not attended the Church again after it was attacked in January 2012, a claim which was inconsistent with his present claim that after the Church re-opened in February 2012 he had attended youth worship sessions there right up to the time of his departure in June 2012. He said that before the attack the youth worship sessions were held once a week but the frequency dropped to once a month after the attack. He normally worked on Sundays and went only once a month to the Church. I noted that the two claims were still inconsistent. He said he had been responding to different questions. I put to him that the questions were the same – they both had to do with when he attended the church. He said the Sunday services and the youth ministry were two different things.
·I put to him there was a further inconsistency between his claim in his protection visa interview that he had continued his evangelising visits to houses after the second attack on him, up to the time he left, and his statement at the hearing that he had ceased doing so. He denied having made this claim in his protection visa interview – he said he had been scared and so stopped visiting homes.
·Asked where he had been living immediately before leaving Sri Lanka he said it was in the staff quarters of [the hotel where he worked]. Asked about the address in Gampaha he had given in his entry interview and in his protection visa application he said this was his home address. Asked why he would not have mentioned that he was living in the hotel he said he had been responding to the way the question was put to him. He had been living in the hotel from January 2012 because his family members did not like the fact that he had changed his religion and made him feel unwelcome. The family home in Gampaha is presently occupied by his parents and [some siblings].
·He confirmed that he was born into a Catholic family. His first contact with [Church 2] was in October 2011 (he then corrected himself by saying it was in August 2011) when he was taken to a meeting in the park by a friend from Negombo. A person named [Pastor B] was talking about the good news. [Pastor B] had been conducting these meetings for some time. Asked if [Pastor B] was still conducting the meetings at the time he left Sri Lanka he said he did not know, then said he heard he had stopped in October 2011 when Buddhist monks threw stones and told him to stop. Asked if this incident had been reported in the media he said there was a video of attacks on Buddhist churches available on Youtube, which he had copied and included in the materials submitted to the Tribunal. Asked if there was anything relating to the attack on the meeting in the park he said there was. . He confirmed that the church involved in this incident (the [church]) was different from [Church 2].
·Asked about the incident in which [Church 2] was attacked by Buddhists he said about eight hundred members of the congregation were present at the time. Asked how many Buddhists were involved he said there were more than this number. Asked if it was only Buddhists who invaded the church and beat the worshippers he said he did not know if there were Catholics or Buddhists just by looking at them, adding that there are also Hindus and Muslims in Sri Lanka. To the observation that he would have known if Buddhists were involved he said this would be the case only if Buddhist monks were present. He agreed that if a mob of eight hundred or a thousand Buddhists attacked the church they would be led by monks. Asked if Buddhist monks were present he then agreed that they were there.
·I noted that in his statutory declaration he stated that the mob which attacked the Church was composed of Catholics and Buddhists. He said he did not know if they were Buddhists or Catholics as he lived five kilometres from the Church. He agreed he was present during the incident and added that a friend told him Catholics were also present in the mob – he himself could not distinguish between Buddhists and Catholics. I noted that in his statutory declaration he had made the quite definite claim that Catholics and Buddhists carried out the attack but that he now seemed to be saying he did not know who they were. He said Buddhists and Catholics are both against his Church and went on to confirm that they were both involved in the attack.
·I put to him that it seemed difficult to believe a mob of Catholics would get together with a mob of Catholics and decide to carry out a joint attack on the Church. He said the Catholic cardinal in Sri Lanka had written a letter telling Catholics not to allow American evangelicals to gain ground. I put to him, again, that it seemed implausible that Catholics and Buddhists would join together to cooperate in this violent attack. He said that was what happened.
·Asked if he had any media reports or other information to indicate that Catholics join with Buddhists to attack evangelical Christians he said, once more, that he could not distinguish between Catholics and Buddhists. I asked why, in this case, he would say in the statutory declaration that Catholics and Buddhists joined together to attack evangelicals. He said people living close by the Church can recognise Buddhists and Catholics but he lived some distance away.
·I put to him it seemed implausible that as many as two thousand people could have been involved in a violent altercation inside a church without the incident ever being mentioned in the media. He said that at the time Buddhist organizations like Bodu Bala Sena prevented the news of attacks on Christian churches from being provided to the media. I put to him that there has been reporting from Sri Lanka about incidents of violence between religions during these years, including media articles and reporting by international agencies and other governments. He himself had provided some of this in the form of the United States State Department’s International Report on Religious Freedom. He said he had searched for reports about the attack on his church but could not find them.
·He confirmed that he was involved in only one other incident of violence. This occurred a few weeks later when he was attacked on his way home from preaching the good news. Asked if he was sure of this he said he was. I noted that in his statutory declaration he spoke of an incident when he was physically assaulted when a group of Buddhists and Catholics attacked a good news evangelical Christian meeting in [Park 1] in October 2011. He then denied saying that he was harmed on only two occasions, adding that there were more than two attacks. Asked if he meant there were only three incidents he said he did. Asked if he was sure of this he said he was. I noted that in the statutory declaration he claimed to have been assaulted on numerous occasions by Buddhists and Catholics while distributing Christian tracts in his area, in the period from January to March 2012. He said he had mentioned the two incidents that happened in this period. I noted that in the statutory declaration he spoke separately of these incidents and that the reference to ‘numerous attacks’ clearly did not cover the two incidents. He said he was hit one Sunday.
·Asked if he had suffered any other form of harm, apart from physical harm, as a result of his new religion he said he was sacked from one job. The boss may have been a Buddhist and once he knew of his religion he sacked him.
·Asked if he had been baptised as a Catholic he said he did not know as he was an infant. Asked whether his parents had not told him later that he had been baptized he said they did tell him. Asked why, in this case he would not know about it he repeated he was an infant at the time. Asked his Christian name he said he did not know about that sort of name. I observed that when people are baptized into the Catholic Church in Sri Lanka they are usually given a Christian name if they do not already have one. He said he did not know that Catholics do this in Sri Lanka but knew that the Christian church gives people such names.
·He confirmed that he had provided a certificate of baptism from a church in [Town 4]. Asked why he would have been baptized twice he said Jesus taught that one must be baptized after reaching the age of understanding – his Catholic baptism occurred when he was only an infant. Asked why he had not been baptized in [Church 2] in Sri Lanka he said the church carried out baptisms only every three months, after gathering a group of people together. Noting that he claimed to have been involved with it for at least six months I asked again why he was not baptized there. He said that ‘for some reason’ he did not have the time during the period, although he had been informed by the pastor about it. I put to him that it seemed difficult to understand why he would have had the time to go out proselytizing on behalf of his new church but not have the time to be baptized into it. He said he had missed the opportunity for various reasons, including the attack on the Church at that time. Recalling his evidence that the Church was closed for only two or three weeks after the attack I put to him that this could not have prevented his baptism. He said that apart from the attack the church had other problems.
·Noting that evangelical churches, in general, place great importance on baptism I put to him that it seemed hard to understand how he could have been a member of [Church 2] for as long as eight or nine months without being baptized: they would have required this of him from the beginning. He repeated that he had ‘somehow’ missed it.
·Asked if he attended any church in Australia he said he joined [Church 5] after arriving. He submitted a letter on the letterhead of this church, at an address in [Suburb 6 in] December 2013 and signed by [the pastor]. Asked when he had begun attending there he said it was from the first day of his release from immigration detention, in September 2013. He had been attending since then. He submitted a further supporting letter, on the letterhead of [Church 7], also at an address in [Suburb 6, in] May 2015 and signed by [a senior pastor]. Asked the relationship between [Church 5] and [Church 7] he said because the former conducts services in Tamil and English he and others started their own church in their own language.
·Later in the hearing I put to him that information before the Tribunal indicates false or fraudulent letters, of all kinds, are easily obtained in Sri Lanka. While this did not mean that the letter from [Church 2] was not genuine it could cast some doubt on the weight which could be placed on it. He said it is genuine.
·I noted that in his entry interview [in] August 2012 he had stated that the main reason he came to Australia was because he needed to make more money to support his family. He had stated that he was a Catholic and made no mention of any involvement with an evangelical church or having suffered any harm as a consequence. Asked about the inconsistency between these claims and his current evidence he said he was told by the Australian authorities that any information he gave would be sent back to Sri Lanka. Given that Sri Lanka is a Buddhist country he was afraid what might happen to him if he gave evidence against Buddhists. I put to him I found it hard to believe he would have been told this. He repeated that he was told [while in Australian detention] that if he were unsuccessful his information would be passed on. He was told the same thing in [a certain city] by his case officer.
·I asked why, if he feared that the things he said would get back to Sri Lanka and cause him harm, he would have felt able to claim in the entry interview that he feared harm in Sri Lanka from the governing party because his uncle and father were involved with the opposition UNP. He said he was scared to say other things. He was not involved with the UNP – only his father was. Asked again he said his father had worked for the UNP, a defeated party, and he had feared harm for that reason. Asked again why he would have felt able to divulge this in his entry interview he said it did not affect him so much.
·He confirmed that when he arrived [he] had a number of documents in his possession, among which was a Catholic prayer book. Asked why he would carry a Catholic prayer book if he had abandoned Catholicism for an evangelical church he said he thought it came from someone else in the boat. He did not know how it came to be in his bag.
·Asked how he had obtained the letter from the priest of [Church 3] he said the Australian government required evidence that he had been living in Sri Lanka. He asked his mother to provide a letter but she did not like attending the church so his father went in her place. I put to him that a letter from a Catholic priest describing him as a member of the parish seemed to be evidence that he was a Catholic right up to the time he left Sri Lanka. He said nobody in his family attended Christian (in context, evangelical) churches. He obtained the letter to prove he had been living in Sri Lanka. I put to him that it seemed hard to understand why a Catholic priest would provide this information about someone who had left the church and joined another religion, particularly if the Cardinal had written a letter stating that American evangelical churches must not be allowed to gain ground. He said his father worked for the Catholic parish – this must have been the reason the letter was written.
·Reminded of his claim in the protection visa interview that he was estranged from his father because of his new religion he said his father had abandoned him but he had not abandoned his father – he valued his whole family. Asked why his father would approach the Catholic Church on his behalf if he had abandoned him he said it was because he was his son.
·I put to him that I would need to consider what weight I should place on his baptism in [Town 4] and his attendance at [Church 5 and Church 7]; in particular, if I were to disbelieve his claims about converting to an evangelical church in Sri Lanka this could lead me to believe he had engaged in this conduct in Australia in order to strengthen his claims for protection, requiring me to disregard the conduct under 91R(3) He indicated that he had no comment to make on this.
·Noting his reference in the entry interview to fearing harm in Sri Lanka because of his uncle’s involvement with the UNP I asked if he did in fact fear harm for this reason. He said he did not, because the UNP is now in power in Sri Lanka.
·He confirmed his claim that he faced a jail term of twenty years for having been part of the crew on the boat which brought him to Australia, as a cook. Asked how much he was paid for this work he said he was not paid but had charged nothing for the voyage. He agreed that the normal cost for the passage was ten lakhs. I put to him this meant he had, in effect, been paid ten lakhs for cooking for three weeks, the wages which a top chef might command; given that he had previously been employed only as a kitchen hand it seemed more likely that he would have been offered a small discount on the normal fare. He said there were four Sinhalese on the boat, all of whom travelled free of charge. To the suggestion that people smugglers are ruthless, hard people who would be most unlikely to give up a potential income of ten lakhs simply so that he could cook during the voyage he said he had been desperate to leave.
·I put to him that even if I were to accept that he had somehow obtained free passage to Australia by doing the cooking on the boat this did not make him a people smuggler. He said everyone else in the boat had been released after arriving in Australia but he and the crew members were detained for over a year. He confirmed that he had not been charged with any offence in this regard.
·Asked how the Sri Lankan authorities would know that he had done the cooking on the boat he said it was known to the Australian officials and, so he had been told, it would be sent to the Sri Lankan authorities. I put to him that the information he provided was held in confidence and would not be reported to Sri Lanka. He maintained he had been told, in [a certain city], that he and the other Sinhalese were being punished as crew members and the information about him would be sent to Sri Lanka.
·I put to him that non-discriminatory enforcement of the laws of Sri Lanka for those found to have been engaged in people smuggling might not trigger Australia’s protection obligations. He said he was never involved in people smuggling. The majority of those on the boat were Tamils and if he returned to Sri Lanka he would be accused of being involved in the war. I suggested this seemed very unlikely. He said many people who are returned are in detention.
·I noted there is information before the Tribunal, including recent DFAT reporting, indicating that those who return to Sri Lanka after having breached the law by leaving through a non-official port are likely to be arrested and taken to Negombo magistrates court for a bail hearing. Bail is granted and if convicted at a later magistrates court hearing, such persons are fined sums ranging from Rs 5,000 to 50,000. Those who arrive on a weekend or a public holiday are likely to be held on remand in Negombo prison for few days before they can be taken to the court for a bail hearing. Although conditions in the prison are reportedly cramped and dirty, the information does not indicate that those held there on remand for illegal departure are harmed. I put to him the Tribunal might decide that being arrested at the airport, taken before a magistrate, possibly being held on remand for a few days awaiting bail or subsequently being fined would not amount to serious or significant harm such as to engage Australia’s protection obligations in his case. He said he would be seen as a crew member of the boat and punished accordingly. Unbelievable things are happening in Sri Lanka, including to the 1300 or so Sri Lankans returned from Australia. I put to him that the information before the Tribunal does not support the claim that those returned from Australia suffer serious harm either for leaving illegally or for having sought asylum.
·He repeated that he would face severe punishment for the offence of people smuggling and that he would come under suspicion of aiding the LTTE. I put to him the information before the Tribunal indicates that even Tamils are not suspected of having connections with the LTTE simply because they have travelled by boat to Australia and sought asylum there. He said this was what the Australian authorities said but it is different inside Sri Lanka – there are still problems for Tamils in the north.
·Asked if there was anything he wished to add he said he is very scared to return to Sri Lanka as he would be treated as a crew member who brought people to Australia. In Australia he had been treated as a crew member and if he were to be returned the Sri Lanka government would be informed of this. He also had problems relating to his religion.
FINDINGS AND REASONS

The Applicant claims to fear serious harm in Sri Lanka because of his evangelical Christian religion and because he will be regarded as a people smuggler for having worked as a cook on the boat which brought him to Australia. I have also considered whether he would be at risk of serious or significant harm as a person who had unsuccessfully sought asylum in Australia and who had left Sri Lanka unlawfully. At the hearing he specifically renounced the claim, raised in a general way at the time of his entry interview in August 2012, that he would suffer harm because of political activity by his father and uncle in support of the United National Party.
On the basis of the photocopied pages of his passport provided with his protection visa application I accept that the Applicant is a citizen of Sri Lanka and that his identity is as he claims it to be. I also accept that he is ethnically Sinhalese and is from [Gampaha], in Sri Lanka’s Western Province.
Religion
The Applicant claims to fear harm, at the hands of unidentified Buddhists and Catholics, because he converted from the Catholic faith of his family to an evangelical church. He claims he was physically injured on three occasions and was dismissed from his job because of his conversion. Having carefully considered his evidence about these matters I believe there are good reasons to doubt the credibility of his claims, as follows:
First, there are significant discrepancies between the Applicant’s current claims about his religion and those he made soon after he arrived in Australia. As put to him at the hearing, in his entry interview [in] August 2012 he gave his religion as Catholic and made no mention whatsoever of having joined an evangelical church or of fearing harm for that reason. He gave as his main reason for coming to Australia the need to earn more money, in order to support his family. He also spoke of a fear of harm from members of the governing United People’s Freedom Alliance because in 2011 his uncle had contested an election for the UNP, supported by his father.
When he was asked the reason for the discrepancy the Applicant claimed he had been told by officers of the Department, [in two Australian locations], that if he were unsuccessful in obtaining a protection visa the details of his claims would be divulged to the Sri Lanka authorities; given that Sri Lanka is a Buddhist country, he feared this meant he would be harmed for criticizing Buddhists. Having considered this explanation I am not satisfied it is plausible. I find it generally implausible that an Australian official would state such a thing to an applicant for protection, at any stage in the process. Moreover, if the Applicant had been told such a thing and genuinely believed that everything he claimed would get back to the authorities in Sri Lanka, it is difficult to understand why he would have been prepared to reveal that his uncle had campaigned for the opposition UNP, supported by his father, and that his family had suffered harassment from the ruling party as a consequence. I am not satisfied that the Applicant did, in fact, fear that the claims he made in the course of his entry interview would be divulged to the Sri Lankan authorities.
Second, the Applicant submitted to the Department a supporting letter dated [in] July 2012 from a Catholic priest at a church [stating] that he is a member of the parish. As put to him at the hearing, it is difficult to believe that a Catholic priest would provide such a letter for a person who had abandoned the Catholic Church by converting to an evangelical church. This is particularly the case if, as the Applicant claimed, the Catholic Cardinal had written to the faithful warning against the encroachments of just such evangelist churches. When this was drawn to his attention at the hearing he appeared to suggest by way of explanation that his father was a member of the parish and was able to obtain the letter for him through some form of influence or connection but this claim, in itself, appears to be in conflict with his further claim at the hearing that his father had abandoned him over his embrace of his new faith making the atmosphere in the family home so difficult that he moved out in January 2012..
Third, when he arrived in [Australia] the Applicant had in his possession a Catholic prayer book, a circumstance which appears difficult to understand if he had renounced his Catholic faith at least six months previously. When this was put to him at the hearing he confirmed the prayer book was in his bag but suggested, in my view implausibly, that it belonged to someone else on the boat.
Fourth, the Applicant’s explanation for his having been baptized in [Town 4] after arriving in Australia was that his baptism in the Catholic Church occurred when he was an infant and incapable of understanding its meaning. He asserted that Jesus taught one must be baptized after reaching the age of understanding. When he was asked why, in that case, he had not been baptized in [Church 2] he stated that he had not had an opportunity to do so but was unable to explain exactly why, over the course of an alleged association with the Church lasting more than six months, such an opportunity would not have arisen. I find his explanations for this unconvincing and I am not satisfied it is at all plausible that he could have gone out proselytizing in his local area under the auspices of this Church without pressure having been placed on him to undergo baptism in it.
Fifth, the Applicant’s evidence at the hearing about his association with [Church 2] was significantly inconsistent with the information he has previously provided about this aspect of his claims. In his protection visa interview he claimed that he converted to the Church in about October 2011 and regularly attended services there until he was injured in an attack on the Church one Sunday in January 2012. After the attack he ceased attending the Church – it was closed and, in any case, he was too fearful to go there. Nevertheless, he continued to spread the good news of the Bible by going from door to door in his area. In clear contrast, he claimed at the hearing that the Church was closed by the police after the attack but this was for only two or three weeks. When it re-opened he again attended worship there and also participated in prayer meetings with a youth group, up to the time he left for Australia. However, as a result of the attack he completely ceased his evangelising visits to homes in the area as they were too dangerous. When these inconsistencies were drawn to his attention he denied making the conflicting statements but, having carefully considered his responses in the protection visa interview (an audio recording of which is available on the Departmental file) and in the hearing I am satisfied that he did in fact make them.
In this context I note as well that in his statutory declaration the Applicant claims to have been physically assaulted on numerous occasions by Buddhists and Catholics in the period from January to March 2012 while distributing Christian tracts in his area. This version is in conflict with his claim at the hearing that he ceased this activity after January 2012 and is also inconsistent with his claim at the hearing that he was involved in only two such incidents, a number he then amended to three.
Finally, I have particular difficulty in accepting the Applicant’s account of the alleged attack on his Church in January 2012. As put to him, I find implausible his claim that Buddhists and Christians would agree to cooperate in a joint attack in this way. His evidence about the composition of the attacking mob appeared evasive and his suggestion that he was unable to tell the difference between Buddhists and Catholics is difficult to understand in the light of the clear claims he makes in his statutory declaration. I also find it implausible that a violent attack on a congregation numbering as many as eight hundred people, by a still larger group of Buddhists and Catholics, would attract no media attention of any kind. I do not accept the explanation offered by the Applicant for this – that extremist Buddhist groups were able to exercise censorship of the media at the time – given the material he himself has submitted includes reports on attacks on Christian churches by Buddhists.
Taking these considerations together I am unable to be satisfied as to the truth of the Applicant’s claims about his experiences in Sri Lanka. While I accept that he was born into a Catholic family and baptized as a Catholic I am not satisfied that he ever abandoned his Catholic faith by joining [Church 2] or any other evangelical church. I am not satisfied that he was ever involved in youth group activities or in evangelising from door to door in his area in connection with this Church. It follows that I do not accept he ever suffered harm for such a reason, either by being physically attacked, made to feel unwelcome in his home or dismissed from his employment. I believe that these claims are no more than fabrications which the Applicant adopted at some point after his entry interview. Given that they involve central aspects of his claim to fear harm in Sri Lanka I find that this casts doubt on the credibility of his claims in general.
I have reached this conclusion having had regard to the letter said to have been written by a pastor of [Church 2]. As put to the Applicant, the information before the Tribunal indicates that false or fraudulent documents are readily available in Sri Lanka and, taking this information together with my findings on other grounds about the credibility of his claims concerning this Church, I am not satisfied that any weight can be placed on the letter.
I have also considered the Applicant’s claims to be an active member of evangelical churches in Australia. Apart from his baptism in [Town 4] he claims to have been associated with [Church 5 and Church 7 both in Suburb 6]. At the hearing he said that [Church 5] conducted its services in Tamil and English and so he and others founded a new church, [Church 7], whose services are in Sinhala. Although the hearing did not have the benefit of any oral evidence in support of these claims, he submitted letters from the pastors of both churches stating that he is a regular worshipper.
I accept that the Applicant underwent a baptism ceremony in [Town 4] in 2012, apparently while he was still in immigration detention, and I am also prepared to accept that has attended [Church 5 and Church 7]. However, as I do not accept that he was ever a member of an evangelical church in Sri Lanka, and given my conclusions about the credibility of his evidence in general, I am not satisfied that his conduct in undergoing baptism and associating with these churches has been engaged in otherwise than for the purpose of strengthening his claim to have a well-founded fear of persecution in Sri Lank. This being so, I have disregarded this conduct in considering his claims as required by s.91R(3)
People smuggler
The Applicant claims that he served as the cook on the boat which brought him to Australia and although he was not paid directly for this work the arrangement was that he was able to travel free of charge. This is a somewhat surprising claim given that, as the Applicant himself agreed, people smugglers are reported to charge as much as Rs ten lakhs (i.e. Rs 1 million) for the voyage and it is difficult to understand how he can have obtained forgiveness of the whole of such a sum, rather than a small discount, for his services. However, I note that he has advanced the claim consistently since his entry interview and I am prepared to accept that it is true.
At the hearing the Applicant claimed that he and three other Sinhalese who were on the boat were held in immigration detention for over a year in Australia, long after the Tamil passengers were released, on suspicion of being people smugglers. He confirmed that he was never charged with such an offence in Australia but claimed to have been told that if his protection claims were to prove unsuccessful he would be returned to Sri Lanka and the details of the claims he had made would be divulged to the Sri Lankan authorities. He claimed this would lead to him being charged and convicted in Sri Lanka with the offence of people smuggling and sentenced to a term of twenty years in prison (I note in this context that he appears to have obtained information about sentencing from an official Australian government briefing paper but that he has confused the penalties in Sri Lanka with those in Australia; the briefing paper states that under Australia’s Migration Act the maximum penalty for the aggravated offence of people smuggling is imprisonment for twenty years, a $220,000 fine or both)
As put to the Applicant at the hearing, I am not satisfied that details of the claims he has made in seeking a protection visa, or the circumstances of his travel to Australia, have been made available to the Sri Lankan authorities or that they would be made available in the event that his claims proved unsuccessful and he was returned to Sri Lanka. He was never charged with such an offence in Australia and there is no evidence that his having been the cook on the boat has ever come to public attention here. Nor am I satisfied there is any other way the authorities in Sri Lanka would reasonably be expected to learn these details.
Further, even if it were to become known in Sri Lanka that the Applicant had worked as a cook on the boat (and I do not accept that it would become known) I am not satisfied that this would lead to him facing criminal charges. As he himself stated at the hearing, he is in no sense a people smuggler. He was simply a passenger on the boat who accepted an offer to do the cooking on the basis that he would pay nothing for his passage. He was not involved in planning the voyage, providing the boat, gathering the passengers, collecting the fares or making any of the other arrangements. He had no relationship with the crew of the boat or the agents who organized the travel. Nor did he receive any payment or make any profit from the voyage, given that the value of his labour was taken to equal the normal fare. On this basis I am not satisfied that he would be regarded as a people smuggler by the Sri Lanka authorities or that he would face prosecution on this basis.
I note that at the hearing the Applicant also claimed, for the first time, that the rest of the passengers on the boat were Tamils who would be suspected of having connections with the LTTE because of their ethnicity and the fact that they were seeking asylum in Australia, and that because of this he himself would come under suspicion of supporting the LTTE. As put to him, however, the information before the Tribunal indicates that, six years after the end of the civil war, Sri Lankan citizens do not come under suspicion of LTTE involvement because of their ethnicity or because they have sought protection in Australia. This being the case I find it implausible that the Applicant himself, who is ethnically Sinhalese, would come under such a suspicion and I do not find this claim credible.
Failed asylum seeker
I have considered whether the Applicant might face harm on return to Sri Lanka because he had sought a protection visa in Australia.
There is considerable information available to the Tribunal on this subject, including the material cited in the delegate’s decision record, the United Kingdom Upper Tribunal decision in GJ and Others and DFAT reporting. Having considered the information I accept that in relatively recent times some of those who have returned to Sri Lanka from the United Kingdom and elsewhere in Europe claim to have experienced torture and other abuses at the hands of the authorities. I note, however, that these cases have overwhelmingly involved Tamils who have either had some form of actual connection with the LTTE or are strongly suspected of such linkages, or who are criminal suspects. A majority of the complaints are from persons who returned to Sri Lanka voluntarily. The claimed mistreatment they involve is thus not directly relevant to the risks for persons involuntarily returned and whom the authorities have no particular reason for suspecting of criminal or LTTE links. I am not satisfied these claimed incidents demonstrate that simply applying for asylum in another country exposes returnees to harm.
I also note that in considering this issue, in the context of appeals against the planned forced return of a group of a group of Tamils from Britain, the United Kingdom Upper Tribunal identified the categories of persons currently at real risk of persecution or serious harm on return to Sri Lanka as:
(a)Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka; (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
DFAT reporting indicates it is only those returnees who are suspected of LTTE involvement or criminal activity, including people smuggling, who are at risk of harm, and that there has been no substantiation of claims that returnees from Australia without such links have been targeted.[1] Regarding procedures for those returned to Sri DFAT reported in 2015[2] that:
Upon arrival in Sri Lanka involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
[1] DFAT 2013 Country Information Report Sri Lanka, 31 July.
[2] DFAT Country Report: Sri Lanka, 16 February 2015.

On the subject of the experiences of returnees from Australia the latter DFAT report also notes that:
Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.[3]
[3] DFAT, Country Report: Sri Lanka, 16 February 2015.
On the basis of this information I find that standardised procedures apply to all returnees, regardless of their ethnicity, that they are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID) and that police and security clearances, including checks with the person’s local police station, may take some hours. If checking reveals outstanding arrest warrants for prior criminal offences, or if there are alerts in immigration watch-lists, returnees may be subject to further questioning. Additional questioning would also be involved if the person were of security interest or if there were evidence of involvement in people smuggling.
I accept the Applicant would be subjected to such processes on return. I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion. He does not claim he has ever been under suspicion of having links with the LTTE in the past and there is nothing in the information before the Tribunal to suggest he would now fall under such suspicion, particularly given his Sinhalese ethnicity. As noted, I am not satisfied that the fact of his having worked as a cook on the boat which brought him to Australia would be known to the authorities or, even if known, would lead them to regard him as a people smuggler. There is nothing to indicate that he has, or would be suspected of having, any other form of criminal background. I am not satisfied he would be arrested, detained or subjected to harm for these reasons. Nor am I satisfied that he falls within any other identified category of persons who might be at risk of persecutory harm on return. I am not satisfied that the fact of his being questioned at the airport, even for an extended period, could in itself reasonably be characterized as harm, or that he would be subjected to any other form of mistreatment there. While the information suggests he might be visited by the CID or police on return to his home area in Gampaha to check on his arrival, and that he might be placed under some degree of monitoring I am not satisfied that in his particular circumstances he would be subjected to any more serious forms of attention and I do not accept that such visits or monitoring in themselves could reasonably be described as harm.
Taking this information together I am not satisfied the Applicant would face a real chance of serious harm at the hands of the authorities on return to Sri Lanka, either at the airport or after his return to his home for the reason that he had unsuccessfully sought asylum in Australia.
Unlawful departure
I have also considered whether the Applicant might be at risk of harm on return because he left Sri Lanka illegally.
As put to the Applicant at the hearing, information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing. Bail is routinely given on the accused’s own recognizance although a family member may also be required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports[4] as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act, including those returned from Australia, have been subjected to torture or other forms of deliberate mistreatment.
[4] ‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, >
Although the Act provides for penalties of both imprisonment and fines on conviction for illegal departure, the information before the Tribunal indicates that magistrates and judges have discretion in imposing penalties, and that in practice those who have simply breached the terms of the Act by departing through a point other than an official port of entry or exit are only fined. DFAT reports that it was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was only a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent against joining boat ventures in the future. According to DFAT, fines eventually imposed on returnees for illegal departure range from Rs 5,000 to 50,000 (about AUD 45 to 450 at current exchange rates)[5] DFAT reported that it had not received, and was unaware of, allegations of mistreatment of returnees in general at the airport or in remand.
[5] DFAT 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October; DFAT 2012, SRI LANKA: CIS Request Sri Lanka: Questions arising from recent applications, Country Information Report No.12/67, 29 November; CISNET CX299951; DFAT 2013, MRT/RRT Information Request: LKA41452; DFAT Report 1478, 28 February; DFAT Country Report: Sri Lanka, 3 October 2014 (repeated in Country Report: Sri Lanka of 16 February 2015.
I accept that the UNHCR and DFAT do not monitor individual court processes or follow up on what happens to persons charged under the legislation. However given the extensive media interest in this issue and the fact that well over one thousand Sri Lanka citizens have been returned from Australia over the last three or four years I consider it is significant that no evidence has emerged of any other penalties or forms of punishment having been inflicted on them for this offence.
On the basis of the available information concerning the enforcement of Sri Lanka’s Immigrants and Emigrants Act I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment on conviction. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application. I am not satisfied that it would amount to serious harm in his circumstances, either in itself or because it would exacerbate the circumstance that he had sought protection in Australia.
Summary - refugee claims
In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would suffer serious harm amounting to persecution for his religion, his having sought asylum in Australia, his illegal departure from Sri Lanka or his having worked as a cook on the boat. As noted, he made it clear at the hearing that he did not fear harm because of the political activities of his uncle and father in support of the UNP. While I accept that he might be questioned on arrival and placed on remand for a brief period while awaiting a bail hearing on a charge of leaving the country unlawfully I am not satisfied that this would constitute serious harm, or that it would represent systematic and discriminatory conduct as required by s.91R(1)(c)
The Applicant does not claim to fear serious harm for any other Convention-related reason and no other reason is apparent on the face of the information before the Tribunal.
I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
Complementary protection
As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because of his religion, the fact that he sought asylum in Australia after leaving Sri Lanka unlawfully or because he worked as a cook on the boat. Nor, having considered the information before the Tribunal, am I satisfied he would be at risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons.
I accept that the Applicant has had some involvement with two evangelist churches in Australia. However, on the information before the Tribunal I am not satisfied that he was motivated in this by anything more than a desire to strengthen his claims for protection. Nor am I satisfied that this conduct indicates he would involve himself with an evangelist church on return to Sri Lanka, rather than the Catholic Church to which I consider he still belongs, or that his failure to do so would flow from a fear of the possible consequences. I am not satisfied there is a real risk that he would suffer significant harm for this reason.
I accept that the Applicant would face arrest on charges of unlawful departure, under a law of general application, and that he would be fined if found guilty. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself. Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in these circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A). I have had regard to the relevant PAM 3 refugee and humanitarian -complementary protection guidelines, including those dealing with prison conditions and I accept that there may be circumstances in which even a brief period of imprisonment may meet the definition of degrading treatment or punishment. However, having considered both the applicant’s circumstances and the nature of what would most likely be a short period in detention on remand I am not satisfied this would involve a real risk of significant harm to him. Nor am I satisfied on the information before the Tribunal that he would suffer any more serious form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.
The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.
Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.
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
The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.
Andrew Mullin

Member

[2015] AATA 3280

11 August 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

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Statutory Construction