1407962 (Refugee)

[2015] AATA 3279

1407962 (Refugee) [2015] AATA 3279 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1407962

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:3 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2015 at 5:40pm

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] December 2012 and the delegate refused to grant the visa [in] April 2014.

3. The applicant appeared before the Tribunal on 23 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 Colombo, in the western province of Sri Lanka on [date]. The applicant lived in Panadura, in Colombo from birth  to 2010. From 2000 to October 2001 he lived at [a location], Jaffna and from October 2001 to July 2012 he was living in [another location], in [Town 1], Jaffna. He completed [grade] of his schooling and is fluent in Tamil and can speak Sinhalese. The applicant described his occupation before coming to Australia as [occupation]. He claimed that between [year] and 2000 he was employed by various employers in Colombo doing [various occupations]. Between 2000 and 2008 he was the owner of a [business] and from 2008 to 2012 he was self-employed as a [occupation].  The applicant departed Sri Lanka illegally [in] July 2012. His wife, two sons and a daughter are living in Jaffna and his mother and sister are residing in Colombo.

10. The applicant presented his claims in his protection visa application [in] December 2012 (folios 18 and 19 and 39 to 68 of the Department File [number]), a Departmental interview he attended [in] October 2013  (folio 147of file [number]), a submission made by the applicant’s adviser dated 14 November 2013 and at his Tribunal hearing on 23 July 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Introduction - Citizenship

    1. I am a Hindu of Tamil ethnicity and a Sri Lankan citizen. I have no other citizenships and I am not entitled to citizenship nor have I a right to residence in any other country.

    2. I was born on [date] in Colombo, Sri Lanka. I am married. My wife and children live in Sri Lanka. I fled Sri Lanka illegally in July 2012 to seek protection in Australia. I travelled on a boat for [number of] days before arriving in Australia [in August] 2012.

    The country to which I fear returning

    3. I fear returning to Sri Lanka. Why I left Sri Lanka.

    4. I was living in [Town 1] in the Northern Province of Sri Lanka. The harassments, round-ups and abuses of the Sri Lankan Army started in my town in 2008.

    5. In 2008 and 2009 we had to go to the SLA camp and signed every day. If we did not go there we would be shot. [A friend] who was a neighbour of mine was shot dead by the SLA. So as to another friend of my mine who was killed by unidentified people.

    6. After the civil war, our town was heavily militarised. The SLA officers harmed the Tamil civilians in the Northern Province on the suspicion that they were all supporters of the LTTE.

    7. For a period of eight months in 2009, I was personally targeted by the SLA officers. The SLA officers would visit my house unexpectedly and irregularly. They used to first question me whether I knew any LTTE members or I helped them and then ransack the whole house.

    8. In one of their visits, they shot my pet dog because he was barking. The SLA officers used to make my family members to wait in the yard when they were searching my house. We should show them our identity documents in every occasion.

    9. I was also ordered by the SLA officers to appear in the local SLA camp once a week and sign my presence in the relevant book. I was beaten a few times during the visits. I have sustained injuries in my head as a result of the SLA physical assaults.

    10. Some Tamil civilians who used to do the same thing were shot by the SLA officers. It was a frightening experience to go to the SLA camp each time.

    11. After 2009, SLA continued visiting my house and counting the family members living in the house. In 2012, the white vans started abducting Tamil civilians in [Town 1] at night. I was scared that I would be targeted as well. So 3-4 weeks before I fled Sri Lanka I went to hiding in Kilinochchi. I decided to flee Sri Lanka to seek protection in a safe country.

    Who I think may harm/mistreat me in my country.

    12. The problem is that it is unknown who these operators of the white vans are. We do not know who they are supported by. However, it does not make any difference in the fear that they have caused to the Tamil civilians in [Town 1]. 2-3 Tamil people in my neighbourhood have been abducted and shot dead in the current year. I am fearful that the same plight could happen to me if I stayed in Sri Lanka.

    Why I will be harmed.

    13. I do not know. The SLA officers harass, harm and torture us without any explanation. We have to obey whatever they order us to do, even though harsh and unreasonable. They sometimes called us to attend meetings to safeguard our neighbourhoods and we had to attend but then a few days after the meetings people were shot in our area. We do not know who does that!

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

    14. No, the government authorities have not protected the Tamil community in [Town 1] over the last few years. If they had offered any sort of protection, i would not have to flee Sri Lanka to seek protection overseas.

    Do I think that there is a place in that country where I could be safe?

    15. No, there is no safe haven for the Tamils in Sri Lanka. The government has killed Tamils who were supposed to be protected, even the ones in prison. SLA is present all over the country and they are involved in harmful practices against Tamil civilians. If I relocated to Sinhalese areas, I would be persecuted by the Sinhalese people because they are our enemies and they accuse us of supporting LTTE.

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 30 April 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 birth certificate and driving licence. 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 [a specified town], in the Western province of Sri Lanka. According to the applicant’s evidence, he lived in Panadura, Colombo from birth up until 2000 and then he moved to Jaffna and lived in [Town 1].

16. In the applicant’s statutory declaration outlining his claims for protection, he claimed to fear the unknown operators of white vans which were targeting Tamil people in his area and of being abducted or shot dead by these unknown people. However, in the hearing, the applicant claimed that he fears harm from the EPDP and the military. The applicant stated that the other paramilitary groups, such as the EPDP, TELO and PLOTE, had joined with the military.

17. The Tribunal notes that the applicant claimed for the first time during that hearing that he had been required to pay the LTTE from 2002 to 2008. The applicant explained to the Tribunal that he had not said anything about this before because he was scared and worried for his wife and children in Sri Lanka. The applicant also said the reason he was telling the Tribunal about this now was because he thought “they” would have accepted his truth and allowed him to live in this country and give him citizenship earlier.

18. While the Tribunal has serious concerns about the credibility of the applicant’s claims regarding his payment of money to the LTTE over a period of six years given his failure to raise this until the hearing, the Tribunal has considered the independent information which confirms that the LTTE used various means to raise funds including taxing goods passing though LTTE controlled areas, sales tax on goods sold, tax on individual households in LTTE areas and money or taxes paid by Tamil businessman, not only in Jaffna, but also in other parts of the country including Colombo. In light of this information, the Tribunal accepts as plausible that the applicant may have been required to pay the LTTE a form of monthly tax as a business owner in Jaffna.

19. However, the Tribunal does not accept that the applicant’s claim in the hearing that he was taken on suspicion and beaten and asked how much money he gave to the movement. The applicant named three people in particular who he claimed were from the military and a further person who was from the EPDP. He stated that after the LTTE had gone, he had trouble from the EPDP mostly, who would come and harass him because he gave money to the LTTE. The Tribunal notes that there was nothing in the applicant’s statutory declaration suggesting that he was of any interest to the EPDP as he claimed during the hearing. Similarly, reading the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, there is no mention of the EPDP being responsible for harassing the applicant or the applicant having being questioned about providing money to the LTTE. As the Tribunal put to the applicant in the hearing, it finds it implausible that if the applicant had had problems with the EPDP or that he feared harm from the EPDP, he would only raise this for the first time at the Tribunal hearing and not at an earlier stage in the process. The Tribunal notes the applicant’s evidence that his wife told him to tell the truth and also that he had sought advice from lawyers and they advised him to tell the truth and if he does so, he would be allowed to stay. However, the Tribunal notes the applicant has had the assistance of lawyers in preparing his application for a protection visa and in these circumstances the Tribunal does not accept that the applicant would not have been aware of the importance of disclosing all relevant information to his claims prior to the review hearing. The Tribunal also does not accept the applicant’s explanation that he was too scared to raise these claims earlier out of concern for his family given the private and confidential nature of the process, would have been explained to him not only by the Department but also the lawyers assisting him. 

20. Although the applicant subsequently explained that the EPDP was helping the military to find out who paid the LTTE and he was not trying to put the blame on the EPDP, the Tribunal finds this inconsistent with the applicant’s own evidence, as outlined above. The Tribunal finds the applicant’s failure to mention anything at all about the EPDP prior to the hearing raises serious concerns about his claims and his general credibility and leads the Tribunal to finds that he has embellished his evidence in an effort to bolster his claims for protection.

21. The applicant claimed in the hearing that from 2008 he was required to go and sign in every Sunday at the military CID office, located next to the [Town 1] [landmark], for a period of 8-9 months and in that period of time he was beaten 10 to 15 times, although he could not remember exactly. However, according to the applicant’s statutory declaration attached to his protection visa application, he claimed that in 2008 and 2009 he had to go to the  Sri Lankan Army (SLA) camp and not the CID office, and sign every day. He also claimed in the same statutory declaration he had to go and sign once a week.

22. In the hearing, the applicant claimed that when he reported to the military CID office they would question him, during which time two people would stand behind him with sticks and sometimes they would beat him. When asked what he would be questioned about, he stated they asked him how much money he gave the movement, how much support he gave and how many people belong to the movement in the area. The applicant claimed that he would be questioned two or three times a month and not every time he went to sign. He stated that he would report at the military CID office at 9am and sometimes he would be there until 12pm and sometimes until 5pm. The Tribunal notes the applicant made no claims in his statutory declaration that he was questioned about the LTTE when he allegedly reported to sign the register. Instead the applicant claimed in his statutory declaration that he was questioned about the LTTE in 2009 when the SLA officers would visit his house.

23. The applicant claimed in the hearing after the period of 8-9 months of signing in every Sunday, “they” would come looking for him at his house and would check all his files. He also stated that in addition to searching his home for files, they would use a steel iron to poke into the ground around his house. He claimed they would come very often, sometimes at 5 or 6 in the morning or in the evening. He stated that they came after 2009 up until 2011 and even now they were coming. The applicant confirmed that over a period of two years they would come maybe at least 4 or 5 times a month. The Tribunal notes in contrast, the applicant claimed in his statutory declaration attached to his protection visa application, that it was for a period of 8 months in 2009 that SLA officers visited his house unexpectedly and irregularly.  Further, in his statutory declaration he claimed that after 2009, the SLA visited his home and counted the family members living in the house. The Tribunal notes that there was nothing in the applicant’s statutory declaration suggesting that the SLA came and searched his home after 2009, in the manner in which he claimed in the hearing.

24. More specifically, the Tribunal notes that there was nothing in the applicant’s statutory declaration to suggest that he was beaten when the SLA came to his home after 2009. However, the applicant claimed that in 2011 he was beaten resulting in a lump to his head and during that incident, his son was injured when a small piece of the stick that the military was beating him with, broke off and [injured his son]. The applicant stated that he was warned that if he mentioned anything about his son’s [injury] issue they would destroy his family.  The Tribunal notes according to the applicant’s statutory declaration, he claimed he sustained injuries to his head when he was beaten a few times during his visits to the local SLA camp, and not when the SLA allegedly came to his home. Further, the Tribunal finds it extremely concerning that the if the applicant’s son was injured by the SLA during this alleged incident, the applicant would fail to mention this in his statutory declaration. The Tribunal notes the applicant referred to his dog allegedly being shot because it was barking during their visit (which the applicant did not raise during the hearing) but there is nothing about his son being seriously injured during any visit by the SLA. The Tribunal has taken into consideration the applicant’s explanation that he was scared of disclosing this information. However, as the Tribunal put to the applicant in the hearing, he came to Australia seeking protection and given the significance of this alleged incident to his claimed fear, the Tribunal does not accept that he would not raise this in his detailed statutory declaration outlining his claims for protection. The Tribunal also does not accept that the applicant’s feelings of stress or tension accounts for his failure to raise this evidence in his statutory declaration.   

1. While the Tribunal accepts that the applicant’s son did incur some sort of [injury], based on the photographic and medical evidence submitted by the applicant at the hearing, the Tribunal does not accept that this injury was sustained in the circumstances the applicant claims given the inconsistencies in the applicant’s evidence in the hearing, as compared to his statutory declaration, as discussed above and his failure to mention this important event in his statutory declaration.

2. The applicant claimed that following this incident, “they” came once or twice and checked their identification and went. He also claimed the second or third time they threatened to destroy his family if he publicly disclosed what allegedly happened to his son and it was after this that he decided to flee the country. The Tribunal finds the applicant’s evidence that there were only three or four visits to his home after this alleged incident, which he thought may have occurred in May or June 2011, somewhat inconsistent with his earlier evidence that “they” were even coming to his home now. Further, when the Tribunal asked the applicant why he went to Kilinochchi a few weeks before he left the country in July 2012, he claimed that he could not live there as they were coming and doing all this searching and checking. Yet, as discussed above, the applicant had given evidence that after the alleged incident in mid-2011, they only came a few times and asked for ID. The applicant subsequently claimed that they came and checked and looked at pictures of his wife [working] in the Vanni, before they were married in 2003, and they told his wife they had suspicions of her so that was why he took his family and went to Kilinochchi. The Tribunal notes that there is nothing in the applicant’s statutory declaration regarding any searches that took place in his home after 2009. Instead, he specifically stated that after 2009, the SLA visited his house and counted the family members living there. Nor was there anything to suggest that his wife was suspected of being associated with the LTTE, which the Tribunal considers to be a relatively significant claim and as such finds it implausible the applicant would only raise it for the first time at the review hearing.

3. The applicant also claimed in the hearing that he was asked to pay money to the people that allegedly came to his home in 2011. Further, he claimed that a particular high ranking EPDP military officer would come frequently to his home, as he would have to pass his (the applicant’s) house to get to his office. The applicant claimed the EPDP officer would come two or three times a month, and ask for money from him. He stated that this person would say that he knew that he had given money to the LTTE and that if he wanted to continue working, he would have to pay him at least half the money that he paid the movement. The Tribunal notes the applicant made no mention until the hearing that he was asked to pay money by either the military, the EPDP or a particular EPDP military officer and given the lateness of this claim, the Tribunal finds that the applicant has concocted this evidence in an effort to bolster his claims. Further, the Tribunal finds the applicant’s evidence that he did not pay this officer by telling him that he was not working, despite the fact he continued to travel to various places such as Colombo and around Jaffna district for his job as [occupation], and nothing happened to him over a substantial period of time, implausible.

4. Similarly, the Tribunal notes that there is nothing in the applicant’s statutory declaration regarding the SLA or anyone else coming to his home in November 2012, following his departure from the country, and making enquiries about him from his wife, as he claimed in the hearing. The applicant told the Tribunal that since that alleged visit, his wife and children have lived at different places up until now. Further, he claimed that he had been informed by his mother-in-law, who is looking after his house, that “they” have come often to his home. The Tribunal notes, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant was recorded as stating during the interview with the delegate that he went to Kilinochchi in January 2012 and not three or four weeks before his departure from the country, as he claimed in his statutory declaration and in the hearing. Additionally, it states that the applicant claimed that his wife and children moved to Kilinochchi [in] December 2012 because the SLA harassed them. 

5. Given the numerous inconsistencies and discrepancies in the applicant’s evidence regarding what happened to him in the past, , as discussed above, in addition to the lateness in which the applicant has raised significant aspects of his claims, the Tribunal finds the applicant is not a credible witness and does not accept his claims of past harm. The Tribunal has taken into consideration the documentary evidence the applicant submitted at the hearing in support of his claims, namely a letter from [the] pastor of the [a church], an affidavit from the applicant’s wife, a letter from a retired district judge and a letter from [a local official]. However, given the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal places little weight on these documents.

6. Based on the above, the Tribunal finds that the applicant has exaggerated and embellished the bulk of his claims.  The Tribunal does not accept that the applicant was required to report to the military CID or army every day or every week in 2008 and 2009, for a period of eight or nine months, during which time the applicant was occasionally beaten. Although the Tribunal accepts that the applicant may have paid the LTTE a monthly amount from his business over the period 2002-2008, as a large part of the Tamil population did, the Tribunal does not accept that the applicant was questioned by the SLA or the EPDP or any other paramilitary organisation about the money that he provided the LTTE or about any other support he gave. Nor does the Tribunal accept that the applicant was extorted by the EPDP, the SLA or a particular EPDP military officer. While the Tribunal is prepared to accept on the country information before it that following the end of the conflict in May 2009, the SLA may have visited the applicant’s home two or three times to check his and his family’s identification and/or to count the family members living in the house, it does not accept that in 2009 the SLA or EPDP would come to the applicant’s home and question him or ransack his house or check his files for a period of eight months or two years or that in 2011 they came and beat him with a stick and injured his son. It does not accept that the SLA or EPDP searched the applicant’s home and looked at pictures of his wife or that the applicant and his family went to Kilinochchi in the three to four weeks prior to the applicant’s departure. Nor does the Tribunal accept that following the applicant’s departure from the country, the applicant ‘s wife and children were visited by the SLA or EPDP or that they have been living in various places, including in their home area in [Town 1], since. The Tribunal finds that the applicant was of no interest either to the SLA or the EPDP or any other paramilitary group as a suspected supporter of the LTTE or for any other reason.

7. The Tribunal has taken into consideration the country information it put to the applicant in the hearing, which suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009 with no large scale terrorist or military attacks occurring since the end of the conflict.  While UNHCR in their guidance dated 2010 does refer to some reports that young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE, they also stated that there was no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity. 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 due to imputed links with the Liberation Tigers of Tamil Eelam (LTTE):

   UNHCR recognised that given the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka at the height of the war, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

8. As the Tribunal put to the applicant in the hearing, UNHCR provides that people with “more elaborate links to the LTTE” may require protection. This includes persons who held senior positions with considerable authority in the LTTE civilian administration, former LTTE combatants or “cadres”, former LTTE supporters involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists or person with family links or who are dependent on other otherwise closely related to persons with the above profiles. The information indicates while Tamils face a degree of discrimination and an ongoing risk of low-level harassment, it would appear that it is only Tamils who are identified as having connections with the LTTE or in other ways opposed to the current Sri Lankan government who face a risk of serious harm in Sri Lanka and not Tamils generally.  This is also consistent with DFAT’s advice that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, are now at low risk of being detained or prosecuted in Sri Lanka.

9. 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. 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 are those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka.

10. The Tribunal has also had regard to information in relation to the situation in the north of the country, including information referred to by the applicant’s adviser in their submission to the Department. The Tribunal notes the recent DFAT report,  dated 16 February 2015, provides that the situation has improved since the end of the military conflict and while military and security forces maintain a significant presence in the Northern province including in Jaffna districts, the number of personnel has been reduced by approximately 30 per cent since the end of the conflict. The information confirms that in the north and east, Sri Lanka security forces maintain a significant presence and high level of awareness of the civilian populations of the area. A 2013 UNHCR survey found that 87 per cent of mostly Tamil IDP’s who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the CID. However, according to a more recent DFAT report the forced registration of Tamils has now ceased suggesting that the trend of monitoring and harassment of Tamils in day to day life has generally eased since the end of the conflict.

11. Since the new government led by President Sirisena came to power, two retired senior civil servants have been appointed governors in the northern and eastern provinces, replacing retired military personnel, The government has also commenced discussion on progressively reducing high security zones in the northern province and has decided to release land to the public. Restrictions places on persons visiting the north, introduced in October 2014, have also been lifted.

12. The Tribunal finds on the basis of the country information before it that Tamils, including Tamils in northern Sri Lanka do not face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils from the north of Sri Lanka were connected with the LTTE. While the applicant may have paid money to the LTTE, as a large part of the Tamil population (particularly in the north) were required to, the Tribunal finds that the applicant does not fall within any of the potential risk profiles identified by UNHCR or that he would be perceived as a threat to the integrity of Sri Lanka as a single state or because he would be perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka. Given the Tribunal’s findings regarding the applicant’s claims of past harm in Sri Lanka, the Tribunal does not accept that the applicant has been of any interest to the authorities, including the military, the CID or any paramilitary groups, as a suspected supporter of the LTTE in the past or that he would be of any interest to the authorities, now or in the reasonably foreseeable future, on his return to Sri Lanka.

13. The Tribunal notes the applicant’s claims in his statutory declaration attached to his protection visa application regarding the presence of white vans operated by unknown people in 2012, which he claimed was responsible for abducting Tamil civilians in [Town 1]. The applicant did not elaborate any further on this particular claim in the hearing. In light of the vague nature of this particular claim and the applicant’s evidence, as outlined in the delegate’s decision, a copy of which was provided to the Tribunal, that he had only heard of people being abducted in the media and had not seen anyone being abducted from his area by these white vans, in addition to the country information before it regarding the current situation in Sri Lanka for Tamils in the north of the country, the Tribunal does not accept that there is a real chance, now or in the reasonably foreseeable future, that the applicant will be abducted by unknown people in white vans because of his Tamil ethnicity or for any other Convention reason. 

14. Considering the country information cited above, and the applicant’s particular profile as someone who was not associated with the LTTE, was not of any interest to the authorities and was not suspected to have any links with the LTTE, the Tribunal does not accept that the applicant would face a real chance of persecution, now or in the reasonably foreseeable future, either from the SLA, the EPDP, PLOTE, TELO or any other group, for reason of his Tamil ethnicity or an actual or imputed political opinion as either a perceived sympathiser or supporter of the LTTE or as someone seen to hold Tamil separatist vies or views supporting the renewal of hostilities against the government of Sri Lanka.

15. The Tribunal notes in the submission from the applicant’s adviser it was claimed that the applicant fears persecution for reasons of his membership of a particular social group of failed asylum seekers. However, when the Tribunal asked the applicant if there was any other reason he feared returning to Sri Lanka, he stated no, only the checking problem. When the Tribunal referred to the submission of his adviser and the delegate’s decision and asked the applicant if he had any fears in relation to the fact he had sought protection in Australia, the applicant stated no.

16. While the Tribunal finds on the applicant’s evidence in the hearing that he does not have a subjective fear of harm based on his membership of a particular social group of failed asylum seekers, the Tribunal nevertheless has considered the information from DFAT, which noted that significant numbers of Tamils have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee as identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm.  As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests 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 and there is no further interest of persons without any adverse profile. The UK Home Office reports that the authorities know many Sri Lanka Tamils travelled abroad as economic migrants and it was noted that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.

17. Although the Tribunal notes, as it did in the hearing, that there are some reports, as cited in the submission from the applicant’s adviser, by human rights organisations such as Amnesty and Human Rights Watch,  suggesting some examples of serious harm to returnees, these appear to be isolated examples where individuals have had particular adverse profiles. The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities. Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and 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 or as a suspected supporter of the LTTE.

18. The Tribunal has considered whether the applicant will face a real chance of serious harm as a result of his illegal departure if returned to Sri Lanka. Again, the Tribunal notes that when it asked the applicant if the fact he left Sri Lanka illegally causes him any fear for his safety or of harm on his return to Sri Lanka, the applicant stated no.

19. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. The Tribunal therefore finds that what the applicant will face on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.

20. The Tribunal accepts on the basis of the information before it, including the DFAT Country Information Report on Sri Lanka, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally the applicant will face brief 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. As the Tribunal put to the applicant in the hearing, 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. The Tribunal notes, as it did in the hearing, the applicant has family members of working age in Sri Lanka who can stand as guarantor for him. The Tribunal therefore 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. 

1. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal noted that DFAT reported 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 and that 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 in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

2. 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.

3. 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, an actual/imputed political opinion based on his Tamil ethnicity including being a perceived sympathiser/supporter of the LTTE or someone seen to hold Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka, his illegal departure from Sri Lanka or as a failed asylum seeker or returnee or Tamil failed asylum seeker or returnee. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

4. 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).

5. 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.

6. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not find the applicant’s claims credible. The Tribunal does not accept that the applicant was of any interest to the SLA or the EPDP or anyone else because he was suspected of supporting the LTTE. The Tribunal does not accept that the applicant was required to report to the military CID or army every day or every week in 2008 and 2009, for a period of eight or nine months, during which time the applicant was occasionally beaten. Although the Tribunal accepts that the applicant may have paid the LTTE a monthly amount from his business over the period 2002-2008, the Tribunal does not accept that the applicant was questioned by the SLA or the EPDP or any other paramilitary organisation about the money that he provided the LTTE or about any other support he gave or that the applicant was extorted by the EPDP, the SLA or a particular EPDP military officer. While the Tribunal accepts that following the end of the conflict in May 2009, the SLA may have visited the applicant’s home two or three times to check his and his family’s identification and/or to count the number of family members living in the house, it does not accept that in 2009 the SLA or EPDP would come to the applicant’s home and question him or ransack his house of check his files for a period of eight months or two years or that in 2011 they came and beat him with a stick and injured his son. It does not accept that the SLA or EPDP searched the applicant’s home and looked at pictures of his wife or that the applicant and his family went to Kilinochchi in the three to four weeks prior to the applicant’s departure. Nor does the Tribunal accept that following the applicant’s departure from the country, the applicant ‘s wife and children were visited by the SLA or EPDP or that they have been living in various places, including in their home area in [Town 1], since. The Tribunal finds, for the reasons discussed above, that the applicant was of no interest either to the SLA or the EPDP or any other paramilitary group as a suspected supporter of the LTTE or for any other reason or that he would be of any interest to the authorities or these particular groups on his return to Sri Lanka as a perceived supporter of the LTTE. 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 the SLA, military CID, the EPDP or any other paramilitary groups on his return to Sri Lanka as a suspected supporter of the LTTE.

7. 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 applicant has not made any claims to have had any links to the LTTE, apart from having to pay money, which a large part of the Tamil population were required to do during the war. The Tribunal has also considered the claims the applicant made in his statutory declaration regarding the existence of white vans in his area and the abduction of Tamil civilians by unknown people. However, in light of the independent information before it, the Tribunal does not accept that there is a real risk of the applicant being abducted by unknown people in white vans or being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhumane 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. 

8. 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 discussed above, the Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee 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.

9. 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, 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.

10. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. 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.

11. 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).

12. 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).

13. 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).

14. 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

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

    Sydelle Muling
    Member