1407800 (Refugee)

[2015] AATA 3230

1407800 (Refugee) [2015] AATA 3230 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1407800

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:30 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 30 July 2015 at 4:50pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] April 2014.

3. The applicant appeared before the Tribunal on 21 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. The applicant claims to be a citizen of  Sri Lanka, who was born in [his home town in] Batticaloa in the Eastern province of Sri Lanka on [date]. The applicant lived in [his home town] in Batticaloa from [year] to 2012. He also claimed to have lived at [another address in] Batticaloa from 2008 to August 2009 and [a further address] in Batticaloa from 2010 to 31 May 2012. He completed eighteen years education and is fluent in Tamil and English. He described his occupation before coming to Australia as student. The applicant departed Sri Lanka illegally [in] June 2012. His parents and [sibling] are living in Sri Lanka.

10. The applicant presented his claims in his protection visa application [in] November 2012 (folios 2 to 35 of the Department File [number]), a Departmental interview he attended [in] April 2013  (folio 104 of file [number]) and at his Tribunal hearing on 21 July 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Summary of my claims

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

    Background

    2.     I am a [age] year old single man from [a] village in [Batticaloa] district, Sri Lanka. I am Tamil and I am Hindu. I am a citizen of Sri Lanka and no other country. I had not travelled outside of my country until I fled in June 2012. I came directly to Australia by boat.

    The country to which I fear returning

    SRI LANKA

    Why I left that country

    3.     Since 2005 I have been pursued by TMVP. They are a powerful Tamil party and they work with the government now. They have the support of the government and the army.

    4.     They wanted me to join them and help them. They wanted young and educated people to join them. I consistently avoided helping them. I did not want to get involved in such things. I just wanted to get an education and to live a simple life. I was not interested in politics.

    5.     I was a member of [a] youth club in our village while I was studying at [a] college. They targeted me and other members of the youth club.

    6.     In 2005 they abducted me. They told me to join them and help them and they mentioned the name of their party, that is how I am sure that they were behind my abduction. I was walking from class and a van pulled up and they pulled me in. They took me at around 5pm and then let me go the following evening. They let me go after my father paid them 50,000 rupees.

    7.     Over that time they took me to a rundown large bungalow. There were four other people there too. They were all young Tamils. When they spoke to me they told me I had to join them and help them.

    8.     They just suddenly released me the next day. I found out later that my father had arranged to pay them the money. My father had been looking for me, He found out where I was and asked whether they would let me go if he offered them money and the response was yes,

    9.     They kept asking me to work with them. They again tried to kidnap me in 2008. They tried to kidnap me and a lot of my friends at that time. They tried to take us from [a location] after we had left class. They tried to take me and three friends. They tried to catch us and put us in a van, but there were a lot of other people around and we managed to flee.

    10.  In 2012 I more problems with them. [In] February 2012 an unknown man came to our house with a message for me. He said I had to go and see "[Mr A]" but he did not say why. [Mr A] is a TMVP person and he is one of their most violent members. I was at my [relative]'s house at the time. I did not go to see [Mr A].

    11.  I should also mention that earlier [in] February 2012 a friend of mine from the club was abducted. They ended up letting him go after a few days. He would not say what they did to him.

    12.  [In] February 2012 in the evening I was home having dinner with my family. 7-8 people came in a van. One of them was [Mr A]. My parents intervened and obstructed them as they tried to take me. I managed to get out the back door and fled to my [relative]'s house. They beat my father badly that evening and he was taken to hospital. I found out about that later. I found out about that later and I was also told that [Mr A] said to my father that he wanted me to go to him.

    13.  After I fled that day I stayed at my [relative]'s house. I was very afraid that they would kidnap me. I was too afraid to stay at home. That is when I decided to leave the country.

    What I fear may happen to me in my country of reference

    14.  I fear that I will be killed/tortured/mistreated/detained.

    Who I think may harm/mistreat me in my country of reference and why.

    15. I fear the TMVP because they are forcing me to work with them.

    16. I fear the army and the government as well because they work with the party.

    Do I think the authorities of Sri Lanka can and will protect me and or my accompanying family members, where applicable, if I / we were to go back.

    17.The government will not protect me. They work with TMVP. They have no interest in protecting me.

    Do I think that there is a place in Sri Lanka where I could be safe.

    18.TMVP is with the government. I cannot escape the party or the government wherever I go in that country.

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

    19.I will be murdered/and or tortured by the TMVP with the assistance of the government (or the government will not protect me). They have already abducted me and tried to do so again earlier this year.

11. The delegate of the Minister for Immigration and Citizenship refused the applicant a protection visa [in] April 2014 and he applied to this Tribunal for review of that decision on 1 May 2014. Attached to the review application was a copy of the delegate’s decision.

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

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

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

15. The Tribunal accepts the applicant was born in [his home town in] Batticaloa in the Eastern province of Sri Lanka and that he lived in [a location] in [home town], except for [year] and [year] when he boarded in Batticaloa town while he was in high school.

16. The applicant claimed that he fears that he will be kidnapped or tortured by [Mr A] if he returns to Sri Lanka. He stated that [Mr A] is in the TMVP and he fears not only him but also his group. When asked why [Mr A] or his group would want to harm him, the applicant stated that they asked him to join them and participate in politics because they need young educated people to be part of their group.

17. The applicant claimed he first experienced problems in 2005 when he was kidnapped by the TMVP (but not [Mr A]). He told the Tribunal he was returning home from class around 5pm to get the bus when a van suddenly pulled up beside him and he was grabbed and put inside the vehicle. The applicant stated that there were maybe four or five people in the van and when he was pulled inside, they pushed him down to the floor and blindfolded him with a black cloth. He stated that after the van was moving for nearly one to one and a half hours, it stopped but he did not know the exact location. He stated that he was taken blindfolded into a room where he initially claimed there were three people, including him. Later in the hearing he amended his evidence to there being four people in the room, including him. He stated that the other people in the room were crying and were talking in both Sinhalese and Tamil. He stated that they did not have anything to eat or drink the whole night there. The next day, until evening, people would come and go and they would hit him and the others with their legs. He also claimed, when asked if these people said anything to him, that they said he and the others in the room had to join them and support them as they needed people like them. He stated that they said they were from the TMVP. The applicant stated in the evening they asked who [applicant name] was, and then they put the blindfold on him and put him in the van and at some point they slowed down and pushed him on to the road. The applicant stated that the people around came and took the black cloth off him and someone gave him some money for the bus fare to return home.

18. The Tribunal asked the applicant why he was released. The applicant stated that they did not tell him anything. However, after he returned home his father told him that he had payed money for his release. When asked how his father knew he had been abducted, the applicant stated that his father had talked to a Justice of the Peace (JP) and found out that these people had abducted him and that he had to pay 50,000 rupees for his release. When the Tribunal queried how this JP knew he had been abducted, the applicant stated that he did not know how this person got to know. The applicant stated that his father gave the money to a person from the TMPV named “[name]”.

19. While the Tribunal has some concerns regarding the somewhat vague details provided by the applicant as to how his father learnt of his abduction and arranged for his release, the Tribunal accepts as plausible that the applicant may have been kidnapped in 2005 and released after payment of a ransom. The Tribunal refers to the country information cited in the delegate’s decision which confirms that abductions and forced recruitment of children in Batticaloa was occurring in 2005 and 2006. According to Patrick Cammaert, UN Special Envoy of the Special Representative for Children & Armed Conflict to Sri Lanka, the TMVP is documented as having recruiting and used some “596 children under the age of 18 years of age since the UN began documenting cases in 2006”.[1] On 28 May 2010, Amnesty International reported that “TMVP members and cadres loyal to the former TMVP leader, V. Muralitharan (known as Karuna), were accused by local parents of child recruitment in Batticaloa district”.[2]

    [1] Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children & Armed Conflict, to Sri Lanka 05-11 December 2009, p.5; International Crisis Group 2010, Sri Lanka: A Bitter Peace, Asia Briefing no.99, 11 January, p.9, footnote 62

    [2] Amnesty International 2010, Amnesty International Annual Report 2010 – Sri Lanka, 28 May

20. On 15 June 2010 DFAT advised that they are aware of instances in which Sri Lankan Tamils in the East have been threatened with extortion by the government aligned paramilitary groups, the Sri Lankan Army and the police. The report states that:

    The dynamics of these threats vary from city to city and the frequency of reported cases varies; reports of such cases are currently fewer than was the case during much of the armed conflict. In Trincomalee and Batticaloa in the east, threats have involved abduction for ransom and also threats of murder. In the East, the majority of cases involving extortion are understood to be carried out by paramilitary groups..[3]

    [3] DIMA Country Information Service 2010, Country Information Report No. 10/33 – CIS Request No. LKA10306: Sri Lanka Tamil Request, (Sourced from DFAT advice of 11 June 2010), 15 June

21. The Tribunal finds the applicant’s claims regarding his abduction in 2005 consistent with the country information regarding TMVP’s activities at that time. While the applicant was not forcibly recruited, which the Tribunal notes the information suggests was happening on a large scale by 2006, the Tribunal accepts that TMVP were also involved in abductions for ransom. Based on this information, the Tribunal is prepared to accept that the applicant was kidnapped and held overnight by the TMVP and released after his father paid them money.

22. The Tribunal notes that following this incident, the applicant claimed to not have experienced any further problems until 2008, some three years later, when he claimed he and his friends escaped an attempted abduction. The applicant explained in the hearing that while he was boarding in Batticaloa city, when he and two friends were riding their bikes from class to their boarding room, a van stopped about 50 metres in front of them and because they knew that vans were used to kidnap people, they panicked and left their bikes and ran. The applicant claimed that people got out of the van and chased them but as there were a lot of people around and they intervened, their pursuers returned to the van and left. The Tribunal asked the applicant he knew who these people were. He stated no but that they were from the TMVP because they were the only one’s kidnapping people. The Tribunal asked the applicant if the people from the van said anything to him and his friends. He said they did not say anything.

23. The Tribunal notes according to the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that “they” tried to catch him and three friends and put them in a van, as opposed to the two friends that he claimed in the hearing.  Further, in the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, it was stated that the applicant had claimed that the men had called out to him and his friends, “hey, if you tell people we came to abduct you we will shoot you”.  When the Tribunal noted that he had claimed in the hearing that the men had not said anything to him and his friends, the applicant stated that he had said that he mentioned they would kill him. As the Tribunal put to the applicant, he had claimed in the hearing that they made the threat shoot him during the first incident, in 2005. He subsequently stated that he was running in front and they were behind shouting. However, as the Tribunal noted it had specifically asked him if these people had said anything to him and his friends and he had stated no. The Tribunal also notes that there was nothing in the applicant’s statutory declaration or in the delegate’s decision suggesting that the applicant and his friends had been chased by the alleged abductors.

24. The Tribunal has considered the applicant’s evidence regarding this alleged incident in 2008 and does not accept that it occurred. In addition to the inconsistencies in the applicant’s evidence, as discussed above, the Tribunal finds it implausible that there would have been an attempt to abduct the applicant and his two or three friends in front of a large number of people, as the applicant claimed in the hearing. The Tribunal therefore does not accept that there was any attempt to abduct the applicant and his friends in 2008 while the applicant was away from home studying in Batticaloa city.

25. The applicant claimed in the hearing that after this alleged incident in 2008, there was another attempt to abduct him in 2012. He claimed that [in] February 2012 a person came to his home when he was not there and told his parents that he was required to go and see [Mr A]. He stated that he was staying at his [relative]’s home but would go home for his meals. He explained at that time there were a lot of abductions taking place, including a friend of his who was abducted [in] February 2012. The applicant claimed that after this visit, [in] February 2012 while he was at home having dinner, at about 7 pm, he heard the noise of a van coming and stopping. He stated that his father told him to wait and his father went out to see what was happening. He stated that very quickly they all came and his father realised that they were TMVP so he told him to run and he ran through the back door to his [relative]’s house. The Tribunal asked the applicant if he saw how many people had come to his home. He stated that his father told him  including [Mr A], four or five people, and out of the five people, two were army personnel.

1. The applicant stated that after he went to his [relative]’s place, his [relative] went to his home to find out what happened and she came back and told him that his father had been beaten and had been taken to the hospital. He stated that while he wanted to go to the hospital to see his father, his [relative] advised him not to go as they would be waiting to grab him. The Tribunal asked the applicant what injuries his father sustained. The applicant stated that his father’s arm was hit with a gun and broken. When asked if his father had any other injuries, the applicant stated that his father was hit in the cheek and all over his body. The Tribunal asked the applicant how long his father was hospitalised for. He stated he could not remember exactly; he thought it was two weeks or ten days and after that period of time he had to go back to the hospital and get dressing.

2. The applicant told the Tribunal that he reported this incident to the police [in] February 2012. He also claimed that he went to the Human Rights Commission and informed them of this problem. The applicant stated that neither he or his parents followed up on his complaint to the Human Rights Commission and he never heard back from them.

3. The applicant claimed that nothing happened after the incident [in] February 2012. He stated that he did not go home but stayed at his [relative]’s place, which the Tribunal notes he had claimed earlier in the hearing was in the same area, close to his home. The applicant also confirmed that he continued to go to college up until he left the country.   

4. The Tribunal does not accept that the applicant’s claims regarding the request made of him [in] February 2012 to go and see [Mr A] and the subsequent visit to his home [in] February 2012 by [Mr A] and others, allegedly to abduct the applicant. The applicant claimed that the reason [Mr A] and his men came to recruit him was because he is young and educated. As the Tribunal put to the applicant in the hearing, there is nothing in the country information suggesting that the TMVP were targeting educated youth to work for them in promoting the party during the 2012 elections. The Tribunal also finds it implausible that the applicant, who is an ordinary young Tamil male with no political background, would be of any interest to [Mr A], a provincial [official]. While the Tribunal accepts the applicant’s claim that he was a member of a youth group in his area, the Tribunal has had regard to the activities in which he claimed he participated as part of this group which included participating in functions in the locality such as funerals and weddings or taking part in athletic events. The Tribunal does not accept that the applicant’s involvement in this group would have brought him to the attention of [Mr A] or the TMVP. The Tribunal notes the applicant’s claims that a youth from his group was kidnapped in February 2012 by the TMVP, held for four days and then released. Apart from telling him that it was the TMVP, the applicant stated that this person did not tell him anything else about what happened to him, including why he was abducted. The Tribunal does not accept the applicant’s somewhat vague claims regarding the alleged kidnapping of this person.

5. The Tribunal also notes that according to the applicant’s statutory declaration he claimed that 7 to 8 people came in the van to his home, including [Mr A]. However, in the hearing he claimed that there were only 5 people including [Mr A]. Further, the applicant appears to have raised for the first time during the hearing that two of the five people were army personnel.

6. The Tribunal has also had regard to the applicant’s evidence regarding the injuries to his father as a result of the alleged attack on him and the period of time he spent in the hospital. As the Tribunal put to the applicant in the hearing, the medical certificate from the [hospital], dated [in] April 2013 provides that the applicant’s father presented at the hospital at about 10pm on [in] February 2012 with injuries “due to assault with blunt and sharp weapons by unidentified persionals (sic)” . In terms of diagnosis it was stated that the applicant’s father had a laceration to his [arm] of 10cm length, a contusion in the back of the chest, soft tissue damage to dorsal aspect of his [hand] and his [index] finger had been cut.  Further, It was stated that the applicant’s father was discharged on [in] February 2012 with antibiotics and painkillers. However, in contrast to the information contained in this medical document, the applicant claimed in the hearing that his father’s arm was broken and he did not articulate any other particular injuries that his father allegedly sustained. The Tribunal also notes the applicant’s evidence that his father was hospitalised for a period of two weeks or ten days, which is significantly more than the four days indicated in the documentary evidence he provided. The Tribunal does not accept that the applicant would not be able to recall, consistently with the evidence he provided, what injuries his father sustained during this alleged incident or how long his father was allegedly hospitalised for.

7. Additionally, the Tribunal has taken into consideration the fact the applicant claimed that he continued to live in his area following this alleged incident, up until he left the country and nothing happened to him during this period. While the applicant claimed he no longer stayed at home but stayed at his [relative]’s house, the applicant’s evidence was that his [relative] lived close by to his home. Further, the Tribunal confirmed in the hearing that he continued to travel from his village to Batticaloa to attend his classes up until he left the country at the end of May 2010. The Tribunal finds it implausible that if the applicant was of interest to [Mr A], as he has claimed, that nothing would have happened to him in the three months between this alleged incident in February 2012 and his departure from the country at the end of May 2012. The Tribunal finds that in these circumstances, if the applicant was of any interest to [Mr A], there was ample opportunity for him to harm him if that was his or his group’s intention and the fact that nothing happened to the applicant confirms that the applicant was of no interest to [Mr A] and the TMVP.

8. Based on the above, the Tribunal does not accept that there was any attempted abduction of the applicant by [Mr A] and his men or the TMVP in February 2012. It does not accept that the applicant received a request from [Mr A] to come and see him or that [in] February 2012, [Mr A] and others came to his home and assaulted his father after he fled from his home.

9. The Tribunal has taken into consideration the documentary evidence that the applicant submitted in support of his claims. As the Tribunal put to the applicant in the hearing, the country information provides that document fraud is widely and well-practiced in Sri Lanka.  In relation to the untranslated police extract dated [in] February 2012, the Tribunal notes that the document is handwritten and does not include the name of the police station from which the extract from the Information Book is from. Further, the date of issue recorded at the bottom of the document is dated [in] August 2012. When this was put to the applicant, he stated that he did not know what was written in the report and that the police are supportive of “them”. Similarly, the medical certificate from the hospital is handwritten and the signature does not appear to correspond with the stamped name on the document. The Tribunal therefore places little weight on these documents.

10. The applicant also provided a letter from [a church official from] Trincomalee  dated [in] February 2012 which stated that he was abducted by unknown armed person when he was going for study in Batticaloa [in] May 2005, that in 2008 he was disturbed by TMVP and [in] February 2012 “unknown arm person who were searching him, he was escaped and ran away”.  The applicant confirmed in the hearing that he went and saw the [church official] and told him his problems and that the letter was based on what he had reported to the [church official]. In these circumstances, the Tribunal places little weight on this letter as corroborative evidence of the applicant’s claims.

11. The applicant also provided a receipt from the Human Rights Commission of Sri Lanka, Regional Office for a complaint which he lodged [in] February 2012. The Tribunal does not accept that the applicant’s lodgement of a complaint is evidence that this alleged incident occurred [in] February 2012. The Tribunal has considered the applicant’s evidence, when asked why he went to the Human Rights Commission, that he went to inform them of his problem although they also could not do anything. The Tribunal also notes that the complaint states that the category is “fearful by unknown arm person” which does not appear to be consistent with the applicant’s claims. While the applicant claimed that he told the Human Rights Commission it was [Mr A] but they themselves are afraid of him and told him they could not mention his name because they will be targeted, the Tribunal does not accept on the evidence before it that the applicant lodged a complaint against [Mr A]. Instead, the Tribunal finds that the applicant lodged a complaint to establish evidence to support his application for protection. The Tribunal is further convinced of this finding on the basis of the letter from [church official from] Trincomalee which pre-dates the complaint, and in which it was stated by the [church official] that he strongly recommended that the applicant’s application to migrate to Australia be considered sympathetically on humanitarian grounds. As such, the Tribunal places little weight on this complaint receipt.

12. The Tribunal finds on the evidence before it, that the applicant was not of any interest to [Mr A] or the TMVP prior to his departure from Sri Lanka because they wanted him to join them or work for them during the 2012 elections. While the Tribunal accepts that the applicant may have been kidnapped by the TMVP for ransom in 2005, ten years ago, the Tribunal finds that since then the applicant has not experienced any further problems, including any attempted abduction in 2008 or in 2012. The Tribunal has considered the country information it put to the applicant in the hearing from DFAT that the security situation in the east has greatly improved since the end of the military conflict and incidents of abduction across the country have reduced significantly since the time of the military conflict and its immediate aftermath, although credible cases continue to be reported. According to DFAT there have been incidents of kidnapping for ransom as well as incidents of kidnapping that appear to be politically motivated and no particular group has been the target of these attacks and they do not appear to be ethnically-based. DFAT had also advised in their recent report dated 14 April 2015 that the TMVP have reportably renounced paramilitary activities. DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity, however while credible, these reports are difficult to verify. DFAT assess the number of disappearances and kidnappings for ransom has fallen considerably since the end of the conflict.  

13. In light of the country information and the Tribunal’s findings that the applicant was not of any interest to [Mr A] or the TMVP prior to his departure from Sri Lanka, the Tribunal does not accept that there is a real chance that the applicant faces persecution, including being harmed, killed or jailed by [Mr A], the TMVP, the government of Sri Lanka, the military or anyone acting on [Mr A’s] behalf.

14. The Tribunal asked the applicant if there were any other reasons he feared retuning to Sri Lanka apart from the TMVP or [Mr A]. The applicant stated no; nothing else. When asked if he had any fears in relation to his Tamil ethnicity, the applicant stated that Mahinda Rajapakse is going to come in again and he would not question Tamil people being killed. He stated [Mr A] is working with the government and the TMVP is with the military. The applicant stated as a Tamil he is afraid; no-one knows what will happen to the Tamil people in Sri Lanka now.

15. In the hearing the Tribunal put to the applicant independent information which suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009.  In the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicates that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm. Similarly, the UK Home Office assessed in 2014 that being of Tamil ethnicity does not on its own warrant international protection and in the decision of the UK Upper Tribunal (Immigration and Asylum Chamber) it was noted that representatives from Human Rights Watch and Tamils Against Genocide both stated that they did not consider every Tamil returning to Sri Lanka was at risk. As the Tribunal put to the applicant in the hearing, information from DFAT, UNHCR and the UK Home Office indicates that there are particular types of Tamil people that would be at risk. UNHCR provides that people with “more elaborate links to the LTTE” may require protection. According to the UK Home Office, Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka, dated 28 August 2014, since the end of the war in 2009, the focus of the Sri Lankan government’s concern has changed and they are now interested in hose 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-war separatism and/or a renewal of hostilities within Sri Lanka.

16. The Tribunal finds, on the totality of the country information before it, that Tamils, including Tamils in eastern Sri Lanka, do not face a real chance of suffering serious harm solely on account of their Tamil ethnicity. Considering the country information, as well as the applicant’s particular profile as someone who the Tribunal has found was not of any interest to the authorities in the past in Sri Lanka and does not fall within any of the risk profiles identified in the information discussed above, the Tribunal does not accept the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, if he returns to Sri Lanka because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity.

17. The Tribunal notes when asked if there were any other reasons he feared returning to Sri Lanka, the applicant stated that all his problems are coming from the TMVP and [Mr A]. When asked if he had any concerns related to his illegal departure from Sri Lanka, the applicant stated he does not know anything about what would happen to him if he returns to Sri Lanka.

18. The Tribunal put to the applicant that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law which has a legitimate objective in upholding border integrity and applies to everyone who breaches it and 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 noted that the country information provides that as a returnee who departed the country illegally he would face questioning in relation to determining ID, right of entry and criminal history,  he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal noted that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport.

19. The Tribunal also noted that the information suggests that all persons are granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor and that there is no payment required for bail. As the Tribunal put to the applicant in the hearing, he has his mother and father who can stand as guarantor for him and therefore the Tribunal finds that the applicant will be released on bail. The Tribunal does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution. 

20. In terms of penalties DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally. In most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be able to pay a fine 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.

21. The Tribunal also noted that there was mention in the delegate’s decision that the applicant had raised claims that he would be at risk of persecution if he returned to Sri Lanka because he had sought protection in Australia. When asked what he fears would happen for this reason, the applicant stated that [Mr A] is [an official] and as long as he is there, his life will be in danger.

22. As the Tribunal put to the applicant in the hearing, DFAT’s advice is that significant numbers of Sri Lankan Tamils have been returned involuntarily to Sri Lanka from Australia and other countries and the independent sources do not indicate that a returnee, as identified as someone who had sought asylum in Australia or another western country, would face a real chance of serious harm. The Tribunal noted that country information various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers specifies that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period. The reports suggest that persons without any adverse profile are released at the airport without further interest.

23. Considering the information put to the applicant in the hearing, as well as the information cited in the delegate’s decision and the article submitted by the applicant in the hearing , as well as the applicant’s profile as someone who was of no interest to the authorities and was not suspected of having links with the LTTE,  the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, as a failed asylum seeker or a Tamil failed asylum seeker or a returnee or Tamil returnee or as a person who fled to a western country seeking asylum.

24. Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally and sought refuge in a Western country or as a failed asylum seeker.

1. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of his Tamil ethnicity, including as a young educated Tamil male, his illegal departure from Sri Lanka or as a failed asylum seeker or returnee or Tamil failed asylum seeker or returnee or any other Convention reason. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

2. 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).

3. 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.

4. 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, while the Tribunal accepts the applicant may have been kidnapped and released for ransom in 2005 by the TMVP, the Tribunal does not accept that there have been any further attempts to abduct the applicant in 2008 and later in 2012. The Tribunal finds, for the reasons discussed above, that the applicant was of no interest to either [Mr A], the TMVP, the military prior or the government of Sri Lanka to his departure from Sri Lanka. 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 he will suffer significant harm from [Mr A], the TMVP, the government of Sri Lanka or the military on his return to Sri Lanka because he is an educated young Tamil male or for any other reason.

5. The Tribunal has considered the applicant’s situation based on his Tamil ethnicity and refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE. The Tribunal notes the applicant has not made any claims to have had any links to the LTTE or to have been suspected of having any links. The Tribunal does not accept on the evidence before it that the applicant falls within any of the potential risk profiles identified by UNHCR. In light of the independent information before it, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lanka authorities or anyone else because of his Tamil ethnicity or because of an imputed political opinion based on his Tamil ethnicity. 

6. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. As the Tribunal discussed with the applicant in the hearing, the country information provides that as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee he may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

7. 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 prior to being released on bail and he will face a penalty in the form of a fine, the Tribunal does not accept on the country information before it and the Tribunal’s earlier reasoning referred to above, that he faces a real risk of being significantly harmed during this process.

8. 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 but instead he will be fined, which the Tribunal finds he will be able to pay, either by himself or with the assistance of family members living in Sri Lanka. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention.

9. 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).

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

11. 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).

12. 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

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

    Sydelle Muling
    Member