1407794 (Refugee)

[2016] AATA 3301

1407794 (Refugee) [2016] AATA 3301 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1407794

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Suzanne Carlton

DATE:5 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 05 February 2016 at 10:56am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, was born in [year].  He entered Australia in June 2012 as an unauthorised maritime arrival.  The applicant made the application for a protection visa in January 2013.

3. The applicant stated in his application that he is married with [children].  After school, he worked as [occupation] before becoming a Police Officer in 1990.

4. The delegate refused to grant the visa [in] March 2014. The applicant seeks review of that decision.  The applicant appeared before the Tribunal on 4 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

6. The issues that arise on review are –

   a.whether Australia has protection obligations under the Refugee Convention; and

   b.whether Australia has protection obligations under the complementary protection criteria.

   RELEVANT LAW

7. 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.

   Refugee criterion

8. 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).

9. 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.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. 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. In particular, the Tribunal has had regard to the DFAT report on Sri Lanka dated 16 February 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Brief summary of the applicant’s claims

22. The applicant claims to have been a police officer since 1990, working in the North and North Western provinces of Sri Lanka.  He has lived most of his life in [Town 1]. 

23. When he first married, he and his wife, his [siblings] and his parents all lived together in the family home in [Town 1] (the [Town 1] House).

24. In 1997 the applicant bought land in [Town 2] and later built a house there (‘the [Town 2] House’).

25. After finishing his police training, including training with [a particular section], he was posted to [a] District, where there is a small police camp. After that, he was posted to [District 1]. He can speak Tamil, although he cannot read or write it.

26. In 2002 the applicant was posted back to [Town 1] and his job was as [Position 1] in the [Section 1]. 

27. In 2006 the nearby [Town 3] area needed assistance and he was posted there for a three-month period.  Whilst there, he claims to have arrested a driver of [an official] for the area, [Mr A].  He also arrested [a number of] other supporters of [Mr A]. 

28. Once the applicant had taken the driver into custody, the applicant was pressured to release him at the apparent behest of [Mr A].  He did not do so, instead producing the driver to the court and the driver was sentenced. 

29. The applicant said that he then received a message transferring him to [Town 4]. He understood this to be a ‘punishment’ transfer for having caused the driver to be imprisoned. He was posted to [Town 4] between 2006 and 2009 before returning to the [Town 1] Police Station. 

30. The applicant next experienced difficulties, he said, in 2012 when he was asked to execute a warrant and arrest a suspect.  He went to the suspect’s worksite and spoke with the supervisor, who said that the suspect was not working there.  He later returned to the worksite, noticed one of the workers was missing and believed the supervisor to have deceived him.  He tried to take a statement from the supervisor. 

31. The supervisor refused to give a statement and telephoned [Mr A].  The applicant said he then received calls from his superiors ordering him to return to the police station.  He did not immediately do so, instead attending the court and seeking the support of a judge there, who ordered the suspect to be arrested and brought to the court the next morning. 

32. When the applicant finally returned to the police station, his superiors ordered him to effect the arrest.  He did so and brought the suspect before the court for sentencing.

33. After that, he received a series of threatening phone calls and his home in [Town 1] was damaged.  He was told there were people looking for him and that those people were associated with [Mr A].  The applicant reported these events to the police, but no inquiry was undertaken. The applicant then fled the country.

34. This was the consistent account put forward by the applicant in his statement of claims, his interview for his protection visa, and during his hearing before the Tribunal.

    Does Australia have protection obligations to the applicant under the Refugee Convention?

35. The applicant claims to be a national of Sri Lanka and has provided identity documents issued in Sri Lanka.  The Tribunal accepts the applicant is a national of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.

    Imputed political opinion

36. The applicant claims that his perceived opposition to [Mr A] has raised his profile to the point that he is a target of [Mr A] and his associates.  The applicant claims that he will be harmed or killed upon return to Sri Lanka because of his work as a [Position 1] and his perceived opposition to [Mr A].  For the reasons that follow, the Tribunal rejects the applicant’s claims. 

37. The Tribunal has found the applicant’s evidence to have been exaggerated and embellished at times, but at other times to have been evasive.  On several occasions, the Tribunal had to repeat its questions to elicit an answer from the applicant.  The Tribunal found that many of the applicant’s claims have been inconsistent with his earlier claims and that there were other deficiencies in the applicant’s evidence which are outlined below.

    2006 Events

38. I note that [Mr A] was [in office] as [an official] [in] 2008 following a [vacancy]. [Mr A] was not [an official] in 2006.  I note that [Mr A’s] [role] and the power of that position is critical to the applicant’s claims.

39. [Mr A] was [in a higher position] from [2008] until [2010] when he was [promoted]. He held that [position] until [2015].

40. [Details deleted].

41. In his written statement of claims dated [in] December 2012 the applicant stated that, in his role as a [Position 1], he arrested and produced to the court [a number of] supporters of [Mr A], a then [official] in 2006.  As stated above, [Mr A] was not then [an official] and did not become one until two years later.

42. One of the [number of] persons arrested was [Mr A’s] driver who had been convicted of [given] charges and sentenced in absentia and had then been in hiding.  The applicant said he was made to serve the warrant without any support – accompanying officers or vehicle.  He said this was because the Officer in Charge (OIC) was afraid of losing his job.

43. He effected the arrest and produced the driver to the court.  The applicant then learned that he was being transferred to [a] Police Station in [Town 4]. 

44. During his protection visa interview, the applicant indicated that these events occurred when he was temporarily stationed in [Town 3] for three months.  He reiterated that he was given no support, not even a vehicle to effect the arrest, but then said he was given a vehicle but that it was unmarked.  His explanation for the discrepancy given to the interview was that the Deputy Officer in Charge (DOIC) initially refused to give him a car, but that the actual Officer in Charge (OIC), who was on holidays, overruled the deputy and allowed the applicant to use a car.

45. During the hearing, the applicant reiterated that the events occurred during a short posting to [Town 3].  The applicant said he used a vehicle to effect the arrest but that he had to get it from “a normal person from the area” because the Acting OIC would not give him any support. I note both the inherent contradictions in these accounts as to material particulars, as well as the ‘development of the story’ in an apparent effort to strengthen it.

46. During the applicant’s protection interview, he claimed to have arrested the driver, taken a statement and produced him to the court within an hour; a process he claims generally takes four hours.  He said he did this so quickly in order to avoid the involvement and potential influence of the [official].

47. However during the hearing, the applicant said that after he arrested the driver and took him to the station, he was told by the Acting OIC that he should release the driver.  The applicant says that he responded that he did not have the power to release him – only the OIC did and as the Acting OIC, he could release the man if he wished.  The applicant said that he then took a statement from the man.  While he was doing so, the [official] called the police station to speak with the applicant two or three times.  The applicant opined that the [official] wished to speak with him because the [official] had been told by the Acting OIC that the applicant was the arresting officer.  The applicant spoke with the [official] who wanted him to release the driver. Nevertheless, he said he took the arrested driver to the court and the arrested driver was sentenced and imprisoned. I note both the inherent contradictions in these accounts as to material particulars, as well as the ‘development of the story’ in an apparent effort to strengthen it.

48. The applicant maintained, during the hearing, that the orders to arrest the driver had come through the Inspector General of Police (IGP) and that his transfer orders also came from the IGP.

49. During the hearing, I asked the applicant about the chain of command in the police.  He said that he answered to the OIC of the [Section 1] for the local police station.  The [Section 1] OIC answers to the Police Station OIC who answers to the Assistant Superintendent of Police (the ASP).  The ASP answers to the Senior Superintendent of Police (the SSP), who is normally in charge of six or seven police stations. 

50. The SSP answers to the Deputy Inspector General of Police (DIG), who answers to the IGP, who answers to the courts and tribunals.

51. In his written statement, he said that upon receiving his transfer orders, he “went to the [Town 1] District Court and appealed to the [judge], who complained, on [his] behalf to the Justice Commission.  The transfer was cancelled for a period and [he] remained working as [Position 1].  However, two months’ salaries were withheld and [he] received four transfers in total, which [he] appealed.  The fourth transfer [he] lost and was transferred.”

52. During the hearing, I inquired of the applicant what role [the judge] played in police transfers.  He said she had nothing to do with police transfers and that he knew her because he used to bring prisoners before her.  He said he sought her advice on this issue but it was only advice.  She took no action on his behalf.  I note both the inherent contradictions in these accounts as to material particulars.

53. Also during the hearing, I inquired whether the transfer to [Town 4] had any financial implications for him.  He indicated that working in [Town 4] actually attracted additional allowances for hardship and security, but he had to pay for the meals he took at the police barracks where he lived. 

54. This contradicts his 2012 statement in which he claimed that he was docked two months’ salary.

55. I inquired of the applicant how he was able to distinguish between a transfer and a punishment transfer.  He responded that a punishment transfer was generally to an ‘operations area’ which was dangerous and strongly affected by war, like [Town 4].  However, he said that his earlier posting to [District 1], which he acknowledged was an operations area, was not a punishment posting.

56. He also said a punishment posting would have no clear end date, but later in the hearing then said postings in operation area were generally for a year and once the year is up, you advise the IGB and a transfer generally comes.  He acknowledged that it took him more than two years to get a transfer back to [Town 1] and that it was only through securing the help of the people working in the area with international organisations that he was able to get a transfer.

1. I note the inherent contradictions in this account as well as the country information that the government of Sri Lanka, particularly during this very violent period during the civil war, was not generally swayed by international organisations or pressure.  On the contrary, the Sri Lankan Army and Police were known to persecute international aid workers who they perceived as overly sympathetic to Tamil causes.

2. Further, I consider that a more likely explanation of the decision to appoint the applicant to [Town 4] and to continue that posting was more likely due to his experience as a police officer, his experience working in the north, and his ability to speak and understand Tamil, a skill shared by only a very small minority of the police force on the applicant’s evidence.

3. I find the applicant to lack credibility with respect to these events and I do not accept that the claimed 2006 events occurred.

   2012 Events

4. I note that the applicant claims that he experienced no further difficulties between 2006 and 2012 as a result of his relationship with [Mr A]. This is despite the fact that [Mr A] became not only [an official] in 2008 but [achieved a higher position], before being [elevated to another office]. Had the 2006 events occurred as claimed and had the applicant become a focus for [Mr A], as claimed, it would be logical to expect that as [Mr A’s] power grew, so would his persecution of the applicant.

5. In 2012 the applicant claims he was working in [Town 1] when he was asked to serve a warrant on a suspect. He contacted one of the suspect’s bailers, the suspect’s [relative], who told the applicant where the suspect could be found – namely a [workplace]. The applicant attended the [workplace] and spoke with the supervisor there.

6. In his 2012 statement, the applicant said that he showed the supervisor the warrant and the supervisor said that none of the workers had the name appearing on the warrant.

7. During the hearing, the applicant said that he did not show the supervisor the warrant, instead asking the supervisor to identify the workers present. After the supervisor did so, the applicant provided the suspect’s name asking about his whereabouts. The supervisor denied that anyone of that name worked there.

8. I asked the applicant whether he is generally given a description of photo of a suspect when he is supposed to execute a warrant. He said that sometimes he was but that he did not have a photo or description on this occasion. Nor did he obtain a photo or description from the suspect’s [relative]. Nor did the applicant ask any of the four workers on the site for identification or their national identity cards.

9. Given the applicant’s lengthy career in the police, I find it implausible that he would not have had better preparation before attending the man’s work site to effect an arrest warrant.

10. In his 2012 statement, the applicant said that when he tried to take a statement from the supervisor, the supervisor refused and instead called [Mr A]. According to that statement, the supervisor put the call on speakerphone and the applicant explained to [Mr A] that he “had an arrest warrant from the high court for this man.”

11. However, during the hearing the applicant contended that he did not then speak with [Mr A], instead telling the supervisor to tell [Mr A] to call the police station if he wanted to discuss the matter. I note the inherent contradictions in this account.

12. The applicant said that he received a call from the OIC asking where he was. The applicant replied that he was executing a warrant. The OIC told him to return to the station immediately. The OIC told him that both the DIG and ASP were asking about this warrant and who was executing it.

13. Nevertheless, the applicant states that he did not go to the police station, instead going to the court to “get advice from somebody there”. This account contrasts with the braggadocio he asserted in his 2012 statement. In that statement, he says that he told his OIC that he would return to the station when he finished his work. In response, according to that statement, the OIC ‘warned’ him that he would get another ‘punishment transfer’.

14. After obtaining the intervention of a judge who is said to have called the DIG and demanded the suspect be presented to the court, the applicant was able to effect the arrest with the help of the suspect’s [relative], who took him to the suspect’s hiding place. The applicant brought the man to the police station, took a statement and escorted him to court the next morning.

15. It was after this that the applicant said people were looking for him; he sustained property damage at his [Town 1] house and received threatening phone calls.

16. In his 2012 statement, he said that when he returned to the [Town 1] house, his [child] told him that a group of people had come in a van looking for him. However, during the hearing, he said that his [child] was not in [Town 1] at that time. Instead, [he/she] was staying with [another relative] in [Town 2].

17. The applicant also said in his 2012 statement that other villagers told him that the van belonged to [Mr A]. During the hearing, he said that it was his [siblings] who told him the van was [Mr A’s]. His [siblings] knew this because the local shopkeeper told them.

18. The local shopkeeper also told the applicant that people had come looking for him. Ultimately, the applicant says he did not feel safe. His property was damaged and the police did not follow up on his complaints. He received threatening phone calls aimed at intimidating him to stop being a [Position 1]. In his statement, he said that he did not return to the [Town 1] house after [February] 2012 instead staying at the [Town 2] house until he began his departure from the country.

19. The delegate noted that the applicant left the country in May, suggesting that the three months the applicant spent in [Town 2] without issue may have indicated that the applicant could safely relocate to [Town 2].

20. During the subsequent hearing, the applicant said that he did not return at all to the [Town 2] house following the issues he had in February of that year. Again, I note the inherent contradictions in these accounts.

    Concerns

21. The Tribunal explained to the applicant the concerns it had with his evidence and provided time for a written response, which was agreed to by his representative. However, the representative did not provide a written response by the date provided or subsequently.

22. Accordingly, the Tribunal maintains as unaddressed the concerns expressed relating to the applicant’s credibility based on a number of contradictions identified to the applicant. For all these reasons, the Tribunal has formed the view that the applicant has not been truthful in his claims. The Tribunal has formed the view that the applicant has fabricated his claims for the benefit of his protection visa application. The Tribunal rejects the applicant’s claims. The Tribunal does not accept that the applicant was punished by a transfer to [Town 4] in 2006. The Tribunal does not accept that the applicant was punished because he executed on arrest warrant against the driver of [Mr A]. The Tribunal does not accept that [Mr A] was [an official] in 2006 or that he wielded sufficient power to cause the applicant to be punished in the way asserted.

23. The Tribunal does not accept that the applicant received threats or suffered property damage. The Tribunal does not accept that the applicant experienced any adverse response from his attempt to arrest a suspect in 2012. The Tribunal does not accept that the suspect had any relation to [Mr A]. The Tribunal does not accept that [Mr A] orchestrated the persecution or persecuted the applicant in 2012 or in 2006. On the evidence of the applicant, he experienced no other persecution at any other time.

24. The Tribunal does not accept that the applicant made the decision to leave Sri Lanka because of the threats he claims to have received or because of any risk of harm.  The Tribunal does not accept that the applicant’s family has received any threats or enquiries about the applicant following his departure from Sri Lanka. The Tribunal does not accept that the applicant has been harmed by anyone associated with [an official] or political groups in Sri Lanka. The Tribunal does not accept that the applicant is, or has ever been, of any adverse interest to any [official] or political group, or anybody else.

25. The Tribunal has formed the view that the applicant has fabricated the entirety of his claims and the Tribunal rejects these claims. The Tribunal finds that there is no real chance that the applicant will be persecuted for the reason of his political opinion or his imputed political opinion, as a result of events he claims to have occurred prior to his departure from Sri Lanka.  He has made no claims of persecution based on events taking place whilst he has been in Australia.

26. The applicant has made no claims of persecution based on religion (Hindu), nationality (Sri Lankan), or ethnicity (Sinhalese) and none arises on the evidence before the Tribunal.

    Treatment as a returnee/failed asylum seeker/illegal departure

27. The applicant left Sri Lanka by boat. He claims that he would be missed treated, harmed or tortured as a failed asylum seeker and because of his illegal departure from the country were he to return voluntarily or involuntarily. For the reasons that follow, the Tribunal does not accept that the applicant will suffer home as a result of being a failed asylum seeker, because he has been living in Australia, or because he left illegally.

28. With respect to the allegation of torture a failed asylum seekers and returnees, the information from the Department of Foreign Affairs and Trade indicates that allegations of mistreatment of returnees, absent significant LTTE links, have not been substantiated.[1] This country information was conveyed to the applicant by the Tribunal as part of the Tribunal’s concerns.

    [1] DFAT Country Information Report – Sri Lanka, February 2015.

29. The information before the Tribunal, including from the Department of Foreign Affairs and Trade, and the evidence before the UK Upper Tribunal and UNHCR Guidelines[2] indicate that standardise procedures apply to all cases, regardless of circumstances in which a person has left the country. Returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service, and the airport Criminal Investigations Department (CID). These processes involved police and security clearances, including checks with person’s local police station, and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person’s name in immigration watch lists, they 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.

    [2] UNHCR Eligibility Guidelines — Sri Lanka, 2012.

30. The information before the Tribunal also indicates that under tightened procedures adopted in late 2012 returnees who are believed to have left the country in breach of the law on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognizance, although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday, the returnee is placed on remand section of Negombo prison, possibly for some days, until a bail hearing is available. Conditions in remand have been described in media reports as overcrowded and unsanitary, although there have not been reports that returnees held their wedding bail hearings have been subjected to torture or other forms of deliberate mistreatment. The information before the Tribunal indicates that the most likely penalty would be a fine, unless the returnee was considered to be an organiser of people smuggling.[3] The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging from 50,000 to 200,000 LKR. However, DFAT was informed in February 2015 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and the fines levied by the Magistrates Court in Colombo are typically about 5000 Sri Lankan Rupees (around AUD 40), although one magistrate in Negombo typically levied fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.[4]

    [3] DFAT Sri Lanka: RRT Country Information Request — LKA40999, 19 October 2012, CX29741; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31 July 2013, paragraphs 3.73, 3.75, 3.77, 3.79; DFAT Country Report on Sri Lanka 16 February 2015, paragraphs 5.22-5.23.

    [4] DFAT 2014 Country Report Sri Lanka, 15 February 2015 at paragraphs 5.28 – 5.29.

31. The Tribunal accepts that the applicant departed the country illegally and that he had done so not through an authorised airport or a port. The Tribunal accepts on the basis of the information discussed above that the applicant would be subjected to such processes on return. The Tribunal has rejected the applicant’s claims that he had any political opinion or imputed political opinion or any profile of adequate substance to attract the persecution of the named [official], either directly or indirectly. The Tribunal does not accept the applicant will be treated any differently on return because of this claimed political opinion/imputed political opinion or profile because the Tribunal has rejected these claims. Contrary to the submissions made, the Tribunal is not satisfied that they would involve him being singled out or targeted in a discriminatory fashion for any reason.

32. The Tribunal accepts that the applicant will be questioned at the airport, it does not accept that any of the characteristics to which the applicant referred in his application, including his political opinion/imputed political opinion or the fact that he has lived in Australia or sought asylum in Australia, will result in the applicant been questioned more thoroughly. The law in relation to illegal departure, which will result in questioning at the airport and the subsequent fine, is a law of general application that applies equally to every person. The Tribunal finds that it does not involve systematic and discriminatory conduct. The Tribunal finds that the processes to which the applicant will be subjected upon return, as result of illegal departure, will not be applied due to any Convention reason. The Tribunal is not satisfied that the applicant would be subjected to any other form of mistreatment in Sri Lanka. The tribunal Place that also does not consider that being fined, for a relatively small amount, constitutes serious harm.

33. The Tribunal accepts that there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and low levels of sanitation. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally or because he is a failed asylum seeker and considers that questioning at the airport, being placed in of remand for a short period and charged is not because of any characteristic in 8 to the applicant, including his political opinion, But because he left Sri Lanka illegally. The tribunal Lace that is not satisfied that the applicant will be imputed with the political opinion because he left illegally or because he sought asylum in Australia or that he would be singled out or treated differently because he is a member of a particular social group, however defined, including a particular social group a failed asylum seekers or any other particular social group. The Tribunal is not satisfied that any problems the applicant may face as result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed the applicant for any Convention reason. The Tribunal is also not satisfied that questioning, arrest, or the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c).

34. Neither is the Tribunal satisfied that the applicant would be subsequently targeted or subjected to serious harm because he sought asylum in Australia. The Tribunal accepts that Sri Lanka’s Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure. However, on the information the Tribunal is not satisfied that in practice, imprisonment is imposed in such cases (as noted in the February 2015 DFAT report), or that courts do not have discretion in sentencing. The Tribunal is not satisfied that there is a real chance that the applicant would suffer imprisonment or that he would be subjected to penalties other than a fine. As noted above, while the Tribunal accepts that the applicant may be fined, the Tribunal considers that the fine, as all other steps arising from his illegal departure, reflect the law of general application and are not applied in a systematic and discriminatory manner or for any Convention reason.

35. Taking together the independent evidence and the applicant’s personal circumstances, and noting in particular the evidence in the UK Upper Tribunal report which indicates that the Sri Lankan authorities are aware that many Sri Lankans travelled abroad as economic migrants (and would therefore not impute the applicant with any adverse political opinion as a result of seeking asylum overseas or being failed asylum seekers or having lived in Australia for some time), the Tribunal is not satisfied that the evidence establishes that there is a real chance that he would suffer serious harm on arrival in Sri Lanka or it any subsequent point, because he is a failed asylum seeker or because he is a returnee from a western country where he has lived for a number of years or because he departed the country unlawfully.

36. The Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason, including his political opinion/imputed political opinion or membership of a particular social group, however defined, or a combination of these reasons, if he were to return to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

    Does Australia have protection obligations to the applicant under the complementary protection criteria?

37. The Tribunal has also considered the applicant’s claims, having regard to the complementary protection provisions.

38. The Tribunal has found above that there is no real chance, nor a real risk, that the applicant will suffer harm of any kind, and no discrimination, on return to Sri Lanka for the reasons he has claimed in – being actual or imputed political opinion or being a failed asylum seeker, his residence in Australia, or any personal characteristics or other matter.

39. Nevertheless, the Tribunal has accepted that the applicant departed the country illegally. Doing so is an offence under the Immigration and Emigration Act of Sri Lanka. The information before the Tribunal indicates that the most likely penalty for such a breach is a fine, unless the person is considered to be an organiser of irregular migration of people from Sri Lanka.[5] There is no suggestion that the applicant would be perceived as an organiser and he does not claim that.

    [5] DFAT Sri Lanka: RRT Country Information Request — LKA40999, 19 October 2012, CX29741; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31 July 2013, paragraphs 3.73, 3.75, 3.77, 3.79; DFAT Country Report on Sri Lanka 16 February 2015, paragraphs 5.22-5.23.

1. The Tribunal accepts that due to his illegal departure, the applicant will be questioned, charged, find and may be arrested. The Tribunal considers that such treatment would be inherent in or incidental to law sanctions and not inconsistent with the articles of the International Covenant on Civil and Political Rights (ICCPR). The information before the Tribunal indicates that, as a result of the breach, the applicant could also be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal accepts that the applicant may spend up to a fortnight in jail on remand.[6]

   [6] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

2. The Tribunal does not accept assertions that the applicant will be tortured or harmed upon his return to Sri Lanka. The Tribunal notes that despite large numbers of reported involuntary returnees to Sri Lanka and high-level media interest in such persons, there has been no reporting of such person suffering torture, arbitrary deprivation of life, or 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 home as contemplated by s.36(2A). The Department of Foreign Affairs and Trade has also advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand.[7] Having regard to the DFAT advice, 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 to Sri Lanka, voluntarily or involuntarily, there is a real risk that he will suffer significant harm or specifically, that he will be arbitrarily deprived of his life, that a death penalty will be carried out on him, that the applicant will experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period which he may spend in jail on remand.

   [7] DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT, Sri Lanka: RRT Country Information Request — LKA41955, 28 March 2013, CX305410.

3. The Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable. However, the Tribunal does not accept that such treatment is intentional, as is required by the law in Australia.

4. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’, as defined in the Act, while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

100.   Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[8] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act. Neither does the Tribunal accepts that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

[8] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

101.   The Tribunal finds that there are no substantial grounds for believing that, as unnecessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, voluntarily or involuntarily, there is a real risk that he would suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in jail on remand. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

102.   Having considered the applicant’s circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm

Conclusion

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

104.   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).

105.   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

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

Suzanne Carlton
Member