1407606 (Refugee)

1407606 (Refugee) [2016] AATA 3101 (8 January 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1407606
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Sydelle Muling
DATE:8 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 January 2016 at 10:20am

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] February 2013 and the delegate refused to grant the visa [in] April 2014.
On 23 October 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 November 2015. On 9 November 2015 the applicant advised the Tribunal orally, that he would attend the hearing. However the applicant subsequently emailed the Tribunal on 11 November 2015 requesting a postponement of the hearing for one to two weeks to allow him time to approach another lawyer and receive some assistance with his case. The Tribunal considered the applicant’s request but decided to continue with the scheduled hearing on the basis that the hearing had been rescheduled on two previous occasions, including once at the request of the applicant. The Tribunal was also of the view that the applicant had had sufficient time since receiving notice of the hearing to confirm whether his previous adviser was going to continue to act for him or to engage the services of another adviser. The Tribunal responded to the applicant on the same day, by email, advising him that his request for postponement had been denied and that the hearing scheduled on 12 November 2015 would be continuing. The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.
The Tribunal subsequently wrote to the applicant on 13 November 2015 inviting him to a rescheduled hearing on 30 November 2015 at 9:30am. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. It consequently came to the Tribunal’s attention that there may have been an issue regarding notification of the hearing scheduled on 30 November 2015. While the applicant had provided the Tribunal with an email address which he wanted correspondence to be sent to, during the intervening period he had subsequently communicated with the Tribunal using a different email address and the Tribunal had responded to him directly to that address. However, the hearing invitation was sent to the email address he had originally provided. The Tribunal contacted the applicant on 15 December 2015 and although he confirmed he received the hearing invitation sent on 13 November 2015, the Tribunal decided to invite the applicant to a further hearing.
On 7 December 2015 the Tribunal wrote to the applicant inviting him to attend a hearing on 22 December 2015. The applicant appeared before the Tribunal on 22 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
According to the applicant’s protection visa application, the applicant is a citizen of Sri Lanka who was born in [Town 1], in Negombo in the Western Province of Sri Lanka on [date]. He lived in [Town 1], Negombo from [his birth] to [January] 2008, in [Country 2] from [January] 2008 to [September] 2008, in [Town 1], Negombo from [September] 2008 to [February] 2010 and in [Town 3] from [February] 2010 to [July] 2012. He completed grade [number] of his schooling, from [specified year] to [year], at [named school], Negombo. The applicant is fluent in Sinhalese and can speak Tamil and Hindi. He described his occupation before coming to Australia as [Occupation 4]. He worked in Sri Lanka [in Occupation 4] and [related duties] from [January] 2000 to [January] 2008, assisting with the [similar products] from [August] 2009 to July 2012, casual work [in Occupation 4] from [September] 2009 to [December] 2010 and working in [another business] from [February] 2010 to [July] 2012. The applicant departed Sri Lanka illegally [in] July 2012. The applicant’s mother and [siblings] are residing in Sri Lanka.
The applicant presented his claims in his protection visa application [in] February 2013 (folios 52 to 86 of the Department File [number]), a Departmental interview he attended [in] January 2014 (folio 126 of file [number]) and at his Tribunal hearing on 22 December 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:
2. I am a member of the Sinhalese ethnic group and Christian religion.
3. I am a citizen of Sri Lanka and have no other citizenship or right to legally reside in any other country, whether on a permanent or temporary basis.
4. I fear returning to Sri Lanka because I believe that if I return to my country of origin I will suffer persecution, as defined in the United Nations Convention on the Refugee, due to my political opinion and as a member of a particular social group — United National Party supporters.
5. I left Sri Lanka due to the following reasons:
I was a political activist for the United National Party in the Negombo area. I started working for them in 2006 up until the election in 2010. I worked for them as an activist during the election periods. During the last presidential election campaign 1 organised meetings, collected people and put up posters.
I received death threats from opposition supporters, but I did not mention these in the initial entry interview as I thought we were to be sent back to Sri Lanka and I would have to face the consequences of naming people. I misunderstood the officer when they told me that my details would be shared amongst departments and I thought this meant that this would be shared with the Sri Lankan government if I returned. At this time the Australian government was sending people back to Sri Lanka.
During the 2006 election we worked hard for the party, but at that time the UNP lost the election. After the 2006 elections, two of the leading members in my area disappeared and were never found. The first person to disappear was [Mr A] in July 2007 and the other was [Mr B], who was of Tamil ethnicity, and disappeared in September 2007. After the second incident, my mother got very worried and thought that I may be targeted too. My mother knew both these men well and was also worried because I worked with them on the campaign. The police were informed of their disappearance, but nothing was done. Because of this, we assumed they had been kidnapped by the opposition, as they didn't have any enemies in the village and this is a common occurrence in Sri Lanka. When a party comes to power, the people who worked for the opposition party are then targeted.
My mother arranged for me to go to [Country 2] to escape the troubles. When my father died later that year, I then returned to Sri Lanka. I began working and I started to participate again in political work for the UNP in the 2009 provincial council elections. In these elections, the government's candidate won. Then in 2010, Sarath Fonseka was a candidate for the presidential elections. In January 2010, three of my fellow campaigners, who were returning from putting campaign posters up, were attacked near a bridge by a known thug from the area called [Mr C]. His father is [a] member of [parliament] and his name is [the MP]. My friends were on a [vehicle] and they had to stop as the van was blocking their path. To escape they jumped into the water. Two of them managed to escape, but my other friend drowned. When we complained to the police and, they only gave a report to say my friend had drowned and there was no mention of the attack. So we protested in front of the police station and demanded they arrest [Mr C] and report what actually happened. We had an argument with the police and then [Mr C] and people who attacked my friends also came with another gang and they tried to chase us out.
After that incident we were unable to go to the police station to report any incident because the police would not listen to us. They always support the wealthy and powerful people. I was noticed during that incident and the same MP is still in parliament. [Mr C] then threatened me. I was talking with friends at the [location] when a vehicle carrying [Mr C] and several others stopped next to us. They had been drinking and got out of the vehicle and he made a veiled threat that if we were to keep agitating our lives would be under threat. He then threatened me again two days later. He came to my home with his supporters, but I was not at home. He demanded to know where I was, and they told my mother they would kill me if I went 'back to the police again and to stop my work on the campaign.
A few days after the threat, my mother then sent me to a distant relative's place in the [Town 3] area for my protection. She also sent my passport to an agent's in order to try and find me work out of the country. We were trying to find ways I could get out of the country and staying with my [relative] was a temporary arrangement until I could do this.
In June 2012, I became aware that there were boats leaving for Australia. My mother helped me make arrangements to leave and I left Sri Lanka by boat from Negombo in July 2012. Our boat was then intercepted by the Australian Navy [in] July 2012 and we were then taken to Cocos Island.
6. The persecution I have suffered has been perpetrated by the agents of the government and is known to the government which is either unwilling or unable to prevent the persecution. They don't protect people like myself who are campaign workers/supporters and support the opposition. I don't think I will have adequate protection anywhere in Sri Lanka and I will have to live in fear of my life all the time.
7. The contents of this Statutory Declaration are within my own personal knowledge and, to the best of my knowledge and belief, true and accurate in every material respect. I have tried to give accurate dates and include all important events and facts but wish to place on record that some errors may be made as a result of conversion of dates from one calendar to another, faulty recall or honest mistake in recollection. I confirm that the contents of this Statutory Declaration have been interpreted to me by an interpreter in the Sinhalese language ([Interpreter details]).
The primary issue in this review is whether there is a real chance that, if he returns to Sri Lanka, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claimed in the hearing that he feared he would be harmed by [the MP] and his son and another thug called [Mr D] because one of his friends was killed by these people and he opposed the killing and them so that was why they were after him. He stated that this was the more specific reason why he feared being harmed but previously he worked for the UNP and they belonged to the opposition Sri Lanka Freedom Party (SLFP) so there was also that difference there.
Firstly, in relation to the applicant’s claims regarding his work for the UNP, for the following reasons the Tribunal does not accept that the applicant was a member or active supporter of the party.
The Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed he became a member of the UNP in 2005. However, in the hearing the applicant’s evidence was that he did not join the UNP as a member. While the applicant claimed that legal members are required to contest elections, the Tribunal does not accept as plausible that every member of the UNP is required to contest elections. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that he worked as an activist for the party during election periods. However, according to the applicant’s evidence in the hearing and his evidence to the Department (as discussed in the delegate’s decision, a copy of which he provided the Tribunal), his role within the party was working in a group with other members to primarily rally the people, canvass support, put up posters and attend and decorate the stages for meetings during election time. According to the delegate’s decision, the applicant claimed that his role was a minor one; he simply followed what the others were doing.
Further, while the Tribunal notes the applicant claimed in his statutory declaration attached to his protection visa application and in the hearing that he started working for the UNP in 2006, which the Tribunal notes the applicant was unable to tell the Tribunal what type of election it was or when it was held in 2006, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed that the first election he participated in as a UNP member was the 2005 Presidential election. He claimed in the hearing that after the 2006 election he went to [Country 2] and it was in 2009 or 2010 that he participated in the next election. He could not recall whether it was a municipality election or general election. The applicant confirmed in the hearing that he only supported the UNP during two elections, the first in 2006 and the second in 2009 or 2010. However, according to the delegate’s decision the applicant claimed that he supported the UNP during three elections; the first the 2005 Presidential election, the second the 2009 Provincial Council election and the third, the Presidential election in 2010. The applicant also told the Tribunal that he did not engage in any activities outside of the two elections. However, he subsequently claimed that when he was living in [Town 3], he helped his [relative] who contested an election, which the Tribunal notes the applicant had not raised at any time prior to the hearing. The applicant could not tell when that election his [relative] contested was, and when asked what type of election it was he, he thought it was a provincial council election but he could not remember.
The Tribunal has taken into consideration the applicant’s evidence that he could not remember what type of elections he allegedly participated in because he is not keeping any of these things in his head and is living life. The Tribunal finds it implausible that if the applicant had only actively supported the UNP during two elections by pasting posters, canvassing for votes and attending and organising meetings, that he would not be able to recall what type of elections he engaged in these activities. The Tribunal has considered the applicant’s evidence that he had become a drug addict since coming to Australia. His evidence was that he started taking drugs two and a half years ago, including cannabis, heroin and ice, and that he had stopped taking drugs for a period of two and a half weeks. The Tribunal asked the applicant if he had any evidence to confirm his claims regarding his drug addiction. He claimed that he had been on the methadone programme and had something from a doctor. The applicant claimed he advised his lawyer previously about this and had sent his lawyer a slip which he explained was related to the methadone programme he was put on six months ago. The Tribunal notes that it received an email from the applicant’s previous adviser on 9 November 2015 stating that the applicant has an addiction to methamphetamines. No medical evidence was provided by the applicant’s previous adviser. The applicant subsequently showed the Tribunal photographs on his phone of what he claimed was a prescription to the pharmacy. As the Tribunal put to the applicant in the hearing, the image showed very little information and was illegible. Based on the Tribunal’s concerns regarding the applicant’s credibility generally, and those of his claims, it does not accept on the evidence before it that the applicant has had a drug addiction for the last two and a half years and that this has accordingly affected his memory or ability to recall his personal experiences upon which his application is based.

Although the applicant provided a letter from [Mr E] which is dated sometime in 2012 stating that he was an ardent supporter of the UNP and a fulltime political activist, the Tribunal places little weight on this letter given that it also states that the applicant changed residence from place to place as a precautionary measure yet for no avail, which does not appear to be consistent with the applicant’s evidence. The applicant also provided a letter purportedly from [Mr F], dated [in] November 2012, also stating that the applicant was an active member of the UNP. However, the Tribunal notes that there is nothing official about this letter, such as it being on official letterhead, and from appearance could have been written by anyone. Further, the Tribunal notes that according to [Mr F] the applicant was unable to do a job or education which is not consistent with the applicant’s evidence in his protection visa application that he worked [in Occupation 4] and [related duties] from January 2000 to [January] 2008, in [similar duties] from September 2009 up until July 2012, [in Occupation 4] from September 2009 until February 2010 and for his [relative] at the [other business] from February 2010 to July 2012, in addition to working casually for various employers within the [specified] industry in [Town 1] between September 2009 and July 2012 . As such, the Tribunal also places limited weight on this letter.
Considering all the evidence before it, including the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, the Tribunal is not satisfied that the applicant was a member of the UNP or a political activist for the party between 2006 and 2010 as he claimed.
As the Tribunal does not accept that that the applicant was an active supporter or member of the UNP or a political activist, the Tribunal does not accept on the evidence before it that the applicant received death threats from opposition supporters. The Tribunal notes the applicant did not raise these alleged death threats in the hearing when asked if he experienced any problems during the elections he allegedly participated in. Instead he claimed that there were a lot of confrontations between the opposing sides. While the Tribunal accepts that there may have been altercations between the supporters of the different parties when putting up posters, flags and other election material, given the Tribunal does not accept that the applicant actively supported the UNP in Sri Lanka, it does not accept that he was caught up in any such altercations.
The applicant claimed in his statutory declaration attached to his protection visa application and during the hearing that two of his friends who were UNP workers disappeared and were never found. According to the applicant’s statutory declaration, the first to disappear was [Mr A] in July 2007 and the other was [Mr B] (of Tamil ethnicity), who disappeared in September 2007. When asked in the hearing how he became aware that these people had become lost, as he claimed, that applicant stated that they were from villages close to his. The applicant was unable to provide the Tribunal with any detail regarding the circumstances of these two people’s disappearances. His evidence was that there was a rumour that they had been kidnapped by the opposition, however the applicant did not elaborate in the hearing as to the basis upon which this assumption was made. Similarly, the Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant assumed the police did not take any action because he did not see anything done. In the hearing he claimed that the police were informed and said they were looking for them but no information was forthcoming and they were not found. Based on the somewhat vague and limited evidence provided by the applicant regarding the alleged disappearance of these two men, the Tribunal is not satisfied that these two men disappeared or that it has any connection to their alleged political opinion and activities.
In relation to the applicant’s claims regarding the death of his friend, which resulted in him allegedly opposing [the MP’s] son and his gang people, and is the basis of his primary fear, the Tribunal notes in the hearing, when asked about what happened to his friend, the applicant claimed that it was during election time and there was a confrontation between the opposing sides and his friend was hammered by the opposing side. The applicant claimed that his friend was with another person doing electioneering work and was on top of the bridge which connects the town to the village and because they were so angry with each other, that was why the confrontation started. The applicant was unable to tell the Tribunal why his friend was on top of the bridge or what sort of work he was doing. The Tribunal found the applicant’s evidence regarding what happened during this alleged incident to be vague and lacking, and while the Tribunal notes the applicant was not present when these events took place, as it observed in the hearing, he provided a great deal more detail about this particular incident and what allegedly happened in his statutory declaration attached to his protection visa application.
The Tribunal also finds the applicant’s evidence in the hearing to be inconsistent with his previous evidence to the Department. The Tribunal notes the applicant claimed in the hearing that his friend was killed in February 2010, he thought the [specific date], however, according to the applicant’s statutory declaration attached to his protection visa application, he claimed that this incident allegedly happened during the 2010 Presidential election, in January 2010. As the Tribunal put to the applicant, while he claimed in the hearing that his friend was with another person, he had claimed in his statutory declaration that three of his fellow campaigners were attacked near a bridge. Further, in the hearing, when asked how he learnt about what happened to his friend, the applicant claimed that he would not be able to tell the person who told him and suggested that it may have been through other people that he got to know about it. Yet, according to the delegate’s decision, a copy of which was provided to the Tribunal, it was stated that the applicant claimed that he heard about it later from one of the two surviving men.
For these reason, the Tribunal does not accept the applicant’s claims that in 2010 any of his friends were attacked by opposition party supporters including [Mr C]. The Tribunal therefore does not accept the applicant’s claims that he was responsible or involved in reporting the incident to the police. The Tribunal also finds the applicant’s claim that he was responsible for reporting the alleged incident that resulted in the death of his friend to be implausible given that he claims he was not present at the time and was unable to tell the Tribunal who had told him about what had allegedly happened.
It therefore follows that the Tribunal does not accept the applicant’s claims that they protested in front of the police station and demanded they arrest [Mr C], as he claimed in his statutory declaration attached to his protection visa application. He claimed they had an argument with the police and then [Mr C] and his people came with another gang and they tried to chase them out. According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed that when he and others went to the police station to protest, [Mr C] and his supporters came to the police station and assaulted them with clubs and rods before chasing them away. The Tribunal notes, as it did in the hearing, that there was nothing in the applicant’s statutory declaration suggesting that there was any physical altercation at the time of this alleged protest, and given the seriousness of the applicant’s subsequent evidence that these people used weapons to assault him and his friends, the Tribunal is further satisfied that the applicant’s claims regarding this event are not credible and that he has embellished this aspect of his claim in order to bolster his case.
As the Tribunal does not accept that the applicant’s friend was killed in an altercation between them and [Mr C] and his gang and therefore does not accept that the applicant engaged in any protest outside the police station to oppose the killing of his friend, it does not accept that following this incident the applicant was threatened by [Mr C] when he was talking with friends at the [specified location]. Further, the Tribunal finds that the applicant has provided inconsistent evidence regarding what happened during this alleged incident. The applicant claimed in his statutory declaration that a vehicle carrying [Mr C] and several others stopped next to them and they got out of the vehicle and made a veiled threat that if they kept agitating their lives would be under threat. According to the delegate’s decision, a copy of which was provided to the Tribunal, it was stated that the applicant claimed this incident at the [specified location] took place in February 2010 and he was harassed and attacked by [Mr C] and his supporters. He claimed when [Mr C] and his supporters were passing the [location] in a van and they saw him, they got out of their vehicle and confronted him and they started beating the applicant but the fight was broken off by others present in the [location]. In the hearing, the applicant claimed that they attempted to beat him but were prevented from doing so by those who intervened. The Tribunal also notes, as it put to the applicant in the hearing, according to his protection visa application the applicant claimed that he was living in [Town 3] from [February] 2010. As the information provided by the applicant in his protection visa application regarding his residence in Sri Lanka suggests that he was not living in Negombo from [February] 2010 onwards, the Tribunal does not accept that he could have been attacked there in February 2010, as he claimed.
In light of the Tribunal’s findings regarding the alleged death of the applicant’s friend and what transpired after this (namely the Tribunal’s non acceptance that the applicant was involved in reporting the incident involving his friend to the police or protesting outside the police station), the Tribunal does not accept the applicant’s claim that two days after the alleged incident at the [specified location], [Mr C] and his supporters came to his home, when he was not there, and demanded to know where he was and told his mother they would kill him if he went back to the police again and to stop his work on the campaign. It also does not accept that the applicant’s mother sent him to his [relative] place in [Town 3] for his protection. While the Tribunal accepts the applicant may have gone to live with his [relative], the Tribunal does not accept that this was because of any problems he experienced in his home area from [Mr C] or anyone else. The Tribunal notes according to the applicant’s protection visa application, he was working for his [relative] during this period but he also claimed that between [September] 2009 and 1 July 2012 he worked casually for various employers in his home area of [Town 1] which is in stark contrast to his claim that he would not go to Negombo openly and would visit only every 3 to 6 months for a period 2 to 3 hours.
Based on the above, the Tribunal does not find the applicant’s claims credible. It does not accept that he was a member or supporter of the UNP and that he actively supported the party during any elections in Sri Lanka. Nor does it accept that the applicant will be harmed by [the MP] or his son, the thug [Mr D] or anyone associated with these people because of his alleged opposition to the alleged killing of his friend. As such, the Tribunal does not accept that the applicant faces a real chance of persecution for reason of his alleged political opinion or for any other reason.
The Tribunal notes the applicant’s evidence at the conclusion of the hearing that if he returns to Sri Lanka he would support the Janatha Vimukthi Peramun (JVP). The Tribunal finds the applicant’s claims regarding his future political alignment with the JVP vague and given the lateness in which he raised this claim, the Tribunal does not accept it as credible and does not accept that the applicant will support this party or any other on his return to Sri Lanka.
The Tribunal asked the applicant if there were any other reasons why he feared returning to Sri Lanka. The applicant stated no; he had told the reason at the beginning of the hearing and that was all. The Tribunal has considered whether the applicant will face persecution as a result of his illegal departure from the country, if returned to Sri Lanka. The Tribunal refers to the recent DFAT Country Information Report on Sri Lanka dated 18 December 2015, which it put to the applicant in the hearing, which provides that most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the Immigration & Emigration Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison. Based on this information, the Tribunal does not accept looking at the applicant’s particular circumstances and the country information, he would face extended administrative detention on his return or that he would be seriously harmed during any brief period he may be detained.
The Tribunal notes according to the recent report, DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. There is no general requirement to report to police or police stations between hearings. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures.
As the Tribunal put to the applicant in the hearing, the applicant has his mother and [siblings], as well as extended family members who can stand as guarantor for him, if needed, and there is nothing to suggest that they would not do so, therefore it does not accept that he would face extended administrative detention on his return to Sri Lanka. Further, the Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.
The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by [the MP], his son, the thug [Mr D] or anyone associated with these people or the SLFP because of his alleged political opinion or for any other reason. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
Complementary protection obligations
On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).
As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. . As discussed above, the Tribunal does not accept that the applicant’s claims regarding his association with the UNP are credible. Nor does it accept that the applicant’s friend was killed and he was responsible or involved in reporting this to the police or protesting against his friend’s killing. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from members or supporters of the SLFP or any other opposition parties, the [MP] or his son, the thug [Mr D] or anyone associated with these people.
The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, the Tribunal does not accept that this would constitute significant harm.

In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a risk faced by the population generally and not the applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.
Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
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 s.36(2)(a).
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).
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 visa.
Sydelle Muling
Member

[2016] AATA 3101

8 January 2016

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction