1408966 (Refugee)

[2015] AATA 4024

1408966 (Refugee) [2015] AATA 4024 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1408966

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Magda Wysocka

DATE:7 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2015 at 10:42am

CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – race – Sinhalese – imputed political opinion – sympathetic to Tamils – particular social group – Sinhalese fishermen in the north – failed asylum seeker – illegal departure – questioning by the Sri Lankan Army – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

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 on 12 December 2012 and the delegate refused to grant the visa on 16 May 2014. A copy of the delegate’s decision was provided in the application for review.

3. The applicant appeared before the Tribunal on 26 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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.

   Refugee criterion

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

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

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

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

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

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

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

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

    Complementary protection criterion

15. 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’).

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

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

    Section 499 Ministerial Direction

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant is an unauthorised maritime arrival who arrived in Australia [in] August 2012. According to information provided to the department, his claims are as follows.

    a.He is a Sinhalese Roman Catholic from Negombo. He worked as a fisherman in [Town 1], Northern Province which was heavily militarised. He had a good relationship with Tamil fishermen which resulted in the Sri Lankan Army (SLA) stopping and questioning him and his crew. When his crew finished worked their boats were stopped and searched by the SLA who accused them of supporting terrorists.

    b.On one occasion they were asked to meet with the SLA who asked if they were talking to Tamils about the SLA, giving them intelligence or helping them transport goods. Because of these threats he stopped fishing which made it difficult for him to survive. This is why he fled Sri Lanka.

    c.He fears that the SLA will suspect that he had something to hide. About 1 ½ months ago his father told him the SLA came looking for their home but could not find it.

    d.He also fears that he will be harmed for leaving the country illegally and has heard that returned Sinhalese asylum seekers have been imprisoned, fined or gone missing.

20. The delegate had concerns about the applicant’s claim he resided in [Town 1] and did not accept that he was threatened by the SLA in May 2012. The delegate accepted that the applicant worked in a fishing village in the north for three months every year, had a good working relationship with Tamil fishermen and was questioned by the SLA once but did not find the applicant was at risk upon return.

21. Submissions received prior to hearing make reference to the applicant’s claims on the basis of his imputed political opinion (anti-government, sympathetic to Tamils or anti-government groups) and as a failed asylum seeker.

    Summary of evidence at tribunal hearing

22. The applicant gave evidence that he is [age] years old and born in Negombo. He lived in Negombo and fished in [Town 1]. He did not fish in Negombo but [carried out other jobs] there. He cannot remember when he went to [Town 1] and cannot say the exact number of years he worked there but had worked there for some years before leaving Sri Lanka before and after the war.

23. The time he spent in [Town 1] varied from one to three months and sometimes longer. Before he started working, he lived in [Town 1] for a year and a half when he was about [age] years old.  His [Relatives A] live there, they are doing fishing there.

24. He was asked how often he went to [Town 1] for fishing and whether it was once a year or more. He stated that they would go back and forth for a few months. The tribunal put to him that his evidence to the department was that he did it once a year for three months seasonally. He advised that he cannot remember what he said to the department.

25. He went to [Town 1] because his [Relatives A] live there. He stayed with [them] when he went there and sometimes there was a temporary shed that he stayed in. He went to [Town 1] alone. He worked for a Sinhalese man, [Mr A], living in [Town 1] who owned a boat.

26. In Negombo, he lived with his parents, [and family members]. His father also did fishing in [Town 1] but he did not work with his father. He speaks to his parents about once a week. He is single. He went to school up to [level]. He has not done any other work. He can’t remember how long he worked [on the other jobs].

27. He was asked if there were many Sinhalese fishermen in [Town 1]. He stated that there were and many Tamils as well. They all got along. He was asked if he had any problems with the authorities. He stated that he did because they were associating with Tamil people. When asked what that meant, he advised that they were talking to them and smiling. There were no special friends he had but he was good to them and they were good to him. They used to sit together and have chats. He could not speak in Tamil but some could speak in Sinhalese though not fully. They used words in both languages and talked to each other that way. He was asked if other Sinhalese fishermen also got along with the Tamils. He stated that he saw some behaving like him but he does not know about all of them.

28. He was asked what problems he faced. The SLA was suspicious of what they were doing and checked their boats. Every day they checked the boats when they went out to sea and came back but questioned them only once. He does not know what they were looking for; they were checking all the boats. Sometimes some boats escaped. He confirmed that they did not find anything suspicious on his boat. He confirmed that the SLA checked the boats up to the time that he left Sri Lanka.

29. The tribunal asked about the time he was questioned. He claimed that because they were associating with the Tamils, the SLA thought that they gave information to the Tamils. The SLA asked why the applicant was always with them and why he was talking with them: ‘We have seen you associating with these people, are you giving information about us to these people?’. When they asked these questions, he got scared and had fear.

30. He was asked where this questioning took place. He advised that they took him and [Mr A] to the camp. The applicant told the SLA that they were not giving any information but were just treating the Tamils as human beings and were friends. They released him but after that day he had a strong fear.

31. This is all that they asked. He was asked if they threatened him. He advised that after that, whenever they saw him in the village, they were ‘looking hard’ at him and [Mr A]. He was asked if they harmed him at all during this time. He advised that they did not. After the first questioning, they did not call them back to the camp.

32. He does not remember when that questioning happened. He was asked if it was in the same year he left Sri Lanka. He cannot remember. He was asked why he left Sri Lanka. He claimed that it was only due to that fear. He thinks that he came not long after the questioning. The tribunal put to him that he had previously said it occurred in May 2012 and he left Sri Lanka in July 2012. He cannot recall if that date is correct.

33. The tribunal noted that it appears nothing happened to him after that questioning apart from the SLA giving him ‘hard looks’. He confirmed this. He was asked what he thinks the SLA suspected him of. He advised that it is because he talked to Tamils. At that time, that type of attitude was there. He confirmed that he did not have any information about the SLA that he could have passed on to Tamils.

34. He was asked what his fear was now. He stated that if he goes back to Sri Lanka, he has to go back and work there. Knowing the situation in Sri Lanka, he feels he will have problems if he goes back. If those SLA officers see him and if they do anything which will affect his life, he does not know.   

35. He was asked why he thinks SLA officers would cause him problems if they saw him now. He advised that they will identify him and suspect him because he left the country a short time after that incident. He was asked if he heard them looking for him afterwards. His father told him that some SLA officers came to the family home in Negombo and asked for his whereabouts. He then clarified that the SLA did not come to the family house but that his father believed the SLA was looking for the applicant. They did not speak to his family but his father understood they were looking for the applicant. The tribunal asked how his father could know that if he did not speak to the authorities. He stated that it is because his father knew the applicant had a problem. The SLA were near the house at a junction. It is a small village; there is no reason for them to come to that village. If it is the police, that is something normal but the SLA is different. He does not know if they came from [Town 1]; he did not see them. There are a lot of SLA people and he does not know who came.

36. The tribunal put to him that it seemed somewhat speculative to conclude on that information that the SLA had come for him, just because he was questioned some time earlier. He claimed that he came here after this incident; it is because of this incident that he decided to come. His father knows that; his father wants to protect him. Because his father knows the story, he thought that they have come to look for the applicant. The tribunal put to him that maybe his father’s assumption could be mistaken. He advised that because he is here, it is easy to say that.

37. The tribunal questioned why he would have such fear so as to leave the country given that he was just questioned once, not threatened, harmed or accused of anything in particular and had not done anything that would lead him to be threatened. He stated that if he did not leave, his life would be at risk.

38. The tribunal referred to his original statement, where he claimed that he was asked if he was assisting Tamils to transport goods, accused of supporting terrorists and that these ‘threats’ led him to stop fishing. He stated that he did not do those things and then clarified that he was accused of those things as well. The tribunal questioned him about why he did not mention that earlier when asked about his instance of questioning by the SLA. The applicant referred to not remembering anything. The tribunal noted that it appeared that he also did not refer to threats in his interview with the department. The tribunal also questioned why the applicant would be suspected of these things in 2012 given that the war ended in 2009, the LTTE was a spent force and Tamil fishermen were not suspected of LTTE associations at that time.

39. He was asked if there was another reason why he left Sri Lanka. He advised that there was no other reason. He was asked why in his entry interview he claimed the reason that he came to Australia was to find a job and why there was no mention of his fears of the authorities. He advised that he was scared to say that. The tribunal put to him that it might not accept he would have been scared given that he was coming to Australia because it was a place where he could seek protection from what he feared. He claimed that the interview happened right after he landed. He was asked if he was sure about his evidence on that. He claimed that it was not right after but the next day or few. The tribunal noted that the interview was a month later. He again referred to being too scared. 

40. The tribunal put to the applicant that given country information indicating Tamils and Tamil fishermen were no longer all suspected of LTTE involvement or face a real risk of harm from the authorities, it questioned why he now would face any suspicion or harm for associating with them. He advised that his problem is something different. Because of the past he has fear. The tribunal noted that it has to decide the future risk.

1. He was asked about his claim that he stopped fishing. He stated that after the incident he did not work, even in Negombo. He just stayed at home. He was asked why. He stated that he did not need to work. The tribunal put to him that this appeared inconsistent with the claim that he suffered severe economic hardship because he had to stop work or that he would suffer that in the future.

2. It also put to him various information about Sinhalese fishermen in the north, including that they were reportedly favoured by the authorities, have a close relationship with the armed forces and enjoyed their support and protection. It put to him that this may lead it to doubt that he was or would be under any suspicion from the authorities.

3. The tribunal also discussed information indicating increasing fuel costs in 2012 for Sri Lankan fishermen and that decline in viability of fishing reportedly motivated many fishermen to leave Sri Lanka in 2012. It questioned whether this was the reason he left Sri Lanka and noted that this would be consistent with his comments at entry interview.  The applicant advised that he had nothing to say about this.

4. The tribunal put to him that the information before it did not indicate that fishermen, or Sinhalese fishermen were at real risk of serious harm including significant economic hardship or significant harm.

5. The tribunal asked where the applicant had any claims in relation to his religion- he stated that he never said anything about fears due his religion.

6. The tribunal asked about his claims as a (Sinhalese) failed asylum seeker. He stated that he heard that some of the asylum seekers are put in jail and taken by the CID. The tribunal discussed information indicating that all returnees are treated the same and that simply seeking asylum did not appear to give rise to a belief on the part of authorities that a person was associated with the LTTE or would lead to a real risk of being targeted. It put to him that he may be subjected to standard questioning and checks but did not consider this to be serious/significant harm. it further noted that the evidence did not suggest that Sinhalese failed asylum seekers were singled out or targeted.

7. The tribunal further noted that the evidence did not support his claim that he would be targeted for having illegally departed Sri Lanka but that he was likely to be arrested and charged with immigration offences, which would generally be considered a law of general application. The tribunal noted that the applicant was likely to be detained for a maximum few days and released on personal bail given his family members were in Sri Lanka. It referred to the likely punishment being a fine of 5,000-50,000 rupees and asked if he would be able to pay. He stated that he will not answer that question and will decide when he gets to Sri Lanka. Then he advised that, if ordered by a court, he will have to pay. The tribunal advised that it may find the chance he would face serious harm for any C onvention ground while on remand to be remote and that it may find the risk he would face significant harm also remote. It referred to conditions in Sri Lankan prisons but noted that it appeared the necessary ‘intent’ to cause eg severe pain/suffering may not be present for those conditions to constitute significant harm.

8. At the request of his representative, the tribunal granted the applicant until 4 December 2015 to provide any further materials or submissions. No further information was received.

   Findings and reasoning

9. The issue in this case is whether the applicant is owed protection obligations in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. The tribunal accepts on the evidence before it that the applicant is a Sri Lankan national and has assessed his claim against that country.

    The applicant’s mental health, ability to participate in the hearing and credibility

11. At the beginning of the hearing, the tribunal discussed with the applicant comments made to a tribunal officer prior to the start of the hearing that he felt he was unable to participate in the hearing due to his mental health. He provided a copy of a mental health care plan prepared by his GP the previous day indicating a referral to a psychologist for [specified conditions].  

12. When questioned why he felt he was unable to participate he claimed that he did not sleep the whole of the previous night he. He can’t remember things. He has been taking [medication] for sleeplessness and showed the tribunal a bottle of [a medication] prescribed to him. He confirmed that he took the medication last night but could not sleep until 2am. He woke up at 10am. The tribunal noted that it appeared he was able to get eight hours’ sleep and that the hearing was taking place in the afternoon.

13. The tribunal advised the applicant that many applicants before it have anxiety, depression and other mental health issues, are undergoing counselling and are still able to participate in hearings. It put to him that it takes these issues into account when considering evidence. It put to the applicant that the mental health report provided does not indicate that he is unable to participate in the hearing.

14. He advised that his problem is not a physical problem; it is a mental problem. He was asked when he thinks he could take part in a hearing if he felt unable to do so that day. He then advised that in addition to his mental problem he has some kind of physical problem. He has [a medical condition] – the applicant’s evidence on this was unclear- and is waiting for an operation. He wants time to have the operation. He was asked how this condition was preventing him from participating in a hearing. He stated that he cannot say that it is. He also referred to [other medical] problems.

15. The representative, who flew in from [interstate] to attend this hearing, stated that he had spoken to the applicant and was aware that a report would be submitted but that the applicant did not indicate that he was not going to be able to participate in the hearing.

16. When asked when the applicant was suggesting the hearing be held, he claimed that he was only asking for a short period. He does not know how long. He has to consult with a doctor.

17. The tribunal advised the applicant that it was not satisfied on the evidence before it that he was not able to participate in the hearing that day and suggested the hearing proceed, with the applicant taking breaks whenever he needed. The applicant advised that he will not be able to remember anything.

18. The tribunal is not satisfied that the medical documents provided by the applicant indicated that he was unable to participate in the hearing. Those documents state that he was referred to a psychologist for [specified conditions]. The tribunal accepts this. The medical documents provided indicate that the applicant has reported short term memory loss and difficulty in concentration. It refers to medication taken by the applicant (not including the [medication mentioned earlier]), none of which are related to his mental health. The tribunal accepts that the applicant may be experiencing such symptoms and has taken this into account in the assessment of his evidence. It does not, however, accept that the medical evidence before it indicates that the applicant cannot ‘remember anything’, as he claimed at his hearing. The documentation refers to short term memory loss only and the tribunal finds that the applicant was exaggerating the effect of his mental health issues.

19. The further does not accept that the applicant was unable to participate in his hearing because he had not gotten any sleep the night before. He advised that he had taken the [medication] prescribed to him and had received eight hours’ sleep.

20. The tribunal further does not accept that the applicant’s [other medical problem] or what he referred to as [his medical condition] meant that he was unable to participate in the hearing. The applicant was unable to explain how these matters affected his ability to give evidence and present arguments, specifically stated that he cannot say that his [medical conditions] were preventing him from participating in a hearing, and did not provide any medical evidence either pre or post hearing indicating that these matters affected his ability to participate in a hearing before the tribunal. 

21. The applicant appeared able to understand the tribunal’s questions and provided appropriate responses. When the tribunal noted this at the end of the hearing, the applicant advised that he was not satisfied with his evidence. He was given a further week to provide any other evidence relating to his mental health and to clarify any parts of his evidence that he was not satisfied with. No further evidence or submissions were received.      

22. Having regard to the above, the tribunal is satisfied on the evidence before it that the applicant was able to meaningfully participate in his hearing.

23. While the tribunal found various aspects of the applicant’s claims generally credible, it found his claims regarding events prior to his departure from Sri Lanka to be inconsistent and implausible. This is discussed further below. Given its observations above, the tribunal does not accept that the difficulties it has with the applicant’s evidence and claims, his inability to recall certain matters or his vague evidence on various aspects are the result of his [specified conditions], physical complaints or medication.

24. The tribunal accepts that the applicant is a Sinhalese Roman Catholic from Negombo. It accepts that he worked in Negombo [on his other jobs]. It accepts that the applicant travelled to [Town 1], in the Northern Province, for approximately three months at a time to fish where he worked with another Sinhalese man, [Mr A]. It accepts that the applicant’s father also did this. There is some discrepancy as to how often the applicant did this. At his hearing he claimed that he could not remember but that he would go back and forth for a few months. To the department, he referred to living in [Town 1] for three months of the year. The tribunal accepts that the applicant travelled to [Town 1] for fishing for three months at least once a year but possibly more. It finds on the applicant’s evidence that his permanent place of residence was in Negombo, where his family continues to reside. The applicant was unable to recall at hearing when he started travelling to [Town 1] but claimed that he did it both before and during the end of the war with the LTTE in 2009. He further claimed that his father has fished in the same area for a long time. Some country information indicates that during the war Muslim and Sinhalese fishermen were expelled from the North by the LTTE. Other reports refer to migrant fishermen from the south coming to fish seasonally in the north before the war.[1] Despite these reports, the tribunal is willing to accept that the applicant may have fished in [Town 1] at some stage prior to the end of the civil conflict. 

    [1] Groundviews 2013, State Facilitated Colonization of Northern Sri Lanka - 2013, 19 September <>

    Country information discussed with the applicant at hearing indicates that the return of a number of Sinhalese fishermen after the LTTE’s defeat to the north and northeast of the country has led to reported concerns that Sinhalese fishermen were receiving preferential treatment from the authorities in the form of being subject to less scrutiny and checks than Tamils including in the granting/renewing of fishing licences,[2] being given permission to fish unrestricted including unhindered access to some fishing zones close to military instalments[3] and having the support and protection of the Sri Lankan armed forces, with whom they have a close relationship.[4] Reports further indicate that there is a perception amongst Tamils that post-war reconstruction of the fishing industry is primarily benefitting Sinhalese.[5]  

    [2] The Social Architects 2012, Salt on Old Wounds: The Systematic Sinhalization of Sri Lanka’s North, East and Hill Country, March, p.33 < Accessed 28 March 2013 <CIS25264>.

    [3] International Crisis Group 2012, Sri Lanka’s North II: Rebuilding under the Military, Asia Report N°220, 16 March, pp.9, 18-19 & 21 < Accessed 19 March 2012 <CIS22743>.

    [4] International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights, Asia Report N°219, 16 March, p.19 < Accessed 19 March 2012 <CIS22742>; Groundviews 2013, State Facilitated Colonization of Northern Sri Lanka - 2013, 19 September < Accessed 18 October 2013 <CIS26391>.

    [5] International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights, Asia Report N°219, 16 March, p.19 < Accessed 19 March 2012 <CIS22742>

25. The tribunal accepts that, as a result of engaging in fishing in the Tamil-dominated North, the applicant’s boat may have been stopped and searched by the SLA. The applicant stated that hearing that he did not know what the SLA was looking for and that they checked all boats, including those operated by other Sinhalese and Tamil fishermen. He indicated that this happened continuously up until the time he left Sri Lanka. The tribunal is willing to accept that security may have been a factor in the authorities stopping and searching boats. However there are many other reasons why this could have occurred. For example, some reports refer to the Navy routinely inspecting fishing vessels on both the east and west coasts of Sri Lanka due to a surge in the number of boats carrying asylum seekers leaving various fishing ports in 2012.[6]

    [6] ‘No risk too high for Sri Lankans wanting to migrate’ 2012, Lanka Business Online, 19 August, source: Agence France-Presse < <CX0D38E8E19867>; ‘SRI LANKA: More people boarding boats to Australia’ 2012, Integrated Regional Information Network (IRIN) -United Nations, 12 July < Accessed 17 July 2012 <CX291187>.

26. The tribunal does not accept on the applicant’s vague evidence and the country information above that his fishing boat was routinely stopped and searched because he was suspected of supporting terrorists or that the SLA accused him of any such thing. The applicant did not give specific details about any instances during which he was accused of supporting terrorists, apart from one instance in May 2012 which the tribunal does not accept (discussed below). Furthermore, as discussed with the applicant at hearing, the LTTE was defeated in 2009. The tribunal does not accept that the Sri Lankan authorities would routinely search the boat of the applicant, a Sinhalese fishermen, simply because they suspected that he was supporting terrorists and/or the LTTE. In any event, the applicant advised that the SLA never found anything suspicious while searching his boat.

27. The applicant claimed that he and [Mr A] were called in for questioning on one occasion by the SLA.  His evidence on this has been somewhat inconsistent. His original statement refers to being asked by the SLA if they were talking and giving intelligence to Tamils about the SLA and if they were assisting Tamils with transporting any goods. The statement also refers to the applicant stopping his fishing because of these ‘threats’. However, the delegate’s decision record indicates that the applicant only referred to being questioned by the SLA about whether he had cooperated with Tamil fishermen. This was consistent with his evidence at hearing before the tribunal, where he claimed he and [Mr A] were questioned by the SLA about whether he was giving information about the SLA to Tamil fishermen. He did not refer to being threatened or accused of assisting Tamils with transporting any goods. When this was noted at the hearing, the applicant claimed that he was threatened and accused of those things but that he could not remember anything. As noted earlier, the tribunal does not accept that the applicant’s mental or physical health issues or medication have affected his long term memory in the way he has portrayed. The tribunal finds it difficult to accept that the applicant would not have remembered specific threats or accusations made against him during the only time he claims he was questioned by the SLA and which he claims made him fearful enough to leave the country.

28. The tribunal further finds the claim that the applicant was asked if he was giving intelligence to or assisting with transporting goods for Tamils/the LTTE, accused of supporting terrorists and threatened in May 2012, three years after the end of the war and the defeat of the LTTE, to lack plausibility particularly in light of information cited above regarding Sinhalese fishermen’s reported close relationship with and protection by the Sri Lankan authorities. The tribunal accepts that the applicant was on good terms with Tamil fishermen in the area. The tribunal does not accept, however, that this would have led to suspicions by the SLA that the applicant was assisting the LTTE/terrorists or passing on any information to them or Tamils in general about the SLA. The applicant did not indicate that he was particularly close to any of the Tamil fishermen he knew but stated that they would sit and have chats.

29. Furthermore, the applicant did not claim that he was harmed either during or any time after being questioned by the authorities. Nor did he claim that he or [Mr A] were called in for questioning at any other time afterwards. The tribunal finds the applicant’s evidence that the authorities ‘looked hard’ at him and [Mr A] whenever they saw them afterwards to be vague and lacking in detail; he did not explain what he meant by this. In any event, the tribunal does not consider the SLA ‘looking hard’ at him to constitute serious or significant harm.

30. The applicant claimed in his original statement that due to the threats he stopped fishing, which made it difficult for him to survive and was the reason he left Sri Lanka. When asked about this at his hearing, the applicant claimed that he stopped working altogether including in Negombo and just stayed at home. When asked why he did that, he claimed that he did not need to work. This is inconsistent with claims that the applicant’s inability to fish in [Town 1] due to fear made it difficult for him to subsist.    

31. The applicant’s claim that he left Sri Lanka only because of his fear of the authorities, as claimed in his hearing, is undermined by comments made in his entry interview (set out in the department’s decision record) that he came to Australia to find a job and earn money to build a house in Sri Lanka. As noted in the decision record and put to the applicant at hearing, he did not raise any claims in his entry interview about being suspected of helping terrorists/the LTTE.  The applicant and his representative have provided various reasons why he made such comments in his hearing. In his departmental interview, he advised that he was too scared to refer to being suspected of assisting terrorists whilst in detention although he did not elaborate why he was afraid to do so there. In his hearing, the applicant again referred to being scared to say this and because the entry interview happened right after he landed. Submissions from his representative referred to the applicant’s limited education, low socio economic background, lack of access to legal representation and lack of familiarity with formal interviews and argued that the economic problems raised by the applicant at his entry interview were a direct result of the problems he had with the SLA.

1. The tribunal has considered the factors and explanations raised by the applicant and his representative but is not satisfied on the evidence before it that these satisfactorily explain the applicant’s inconsistent evidence about his reasons for departing Sri Lanka and his failure to refer to being threatened or suspected of assisting terrorists by the SLA, particularly given inconsistencies in the applicant’s evidence highlighted above. The tribunal is of the view that, had the applicant actually left Sri Lanka because of his fear of the SLA- as he claimed to the tribunal- he would have mentioned these fears to the department at the earliest opportunity, regardless of any of the factors raised by him or his representative.

2. Having regard to the above concerns, the tribunal does not accept that the applicant and [Mr A] were questioned by the SLA about whether they were giving information or talking to Tamils about them or terrorists/the LTTE or whether they was assisting Tamils/terrorists/the LTTE in transporting goods in May 2012 or shortly before the applicant left Sri Lanka, as he has claimed. The tribunal does not accept that the applicant was suspected of supporting terrorists or that he was threatened by the SLA. Given its concerns, the tribunal further does not accept that the applicant and [Mr A] were given ‘hard looks’ by the SLA afterwards. Given the applicant’s inconsistent evidence about concerns about the applicant’s credibility the tribunal does not accept that he stopped fishing in [Town 1] or stopped working altogether as a result of these threats, does not accept that this made it difficult for him to survive and does not accept that threats or suspicions from the SLA were the reason why he left Sri Lanka. At the hearing, the tribunal raised with the applicant reports indicating that the rise in fuel prices in 2012 was making fishing less economically viable for Sri Lankan fishermen and was reportedly motivating many of them to travel on boats to seek asylum.[7]   

   [7] ‘No risk too high for Sri Lankans wanting to migrate’ 2012, Lanka Business Online, 19 August, source: Agence France-Presse < <CX0D38E8E19867>; ‘SRI LANKA: More people boarding boats to Australia’ 2012, Integrated Regional Information Network (IRIN) -United Nations, 12 July < Accessed 17 July 2012 <CX291187>.

3. Given that the tribunal does not accept that the applicant was of any interest to the authorities when he left Sri Lanka, it does not accept that the SLA or other authorities visited his village searching for him or his house (but could not find it) after he left the country. The tribunal also found the applicant’s evidence on this aspect far-fetched, vague and inconsistent. His original statement refers to his father telling him that the SLA went looking for their house in the village but could not find it. However, in his hearing, the applicant claimed that his father thought that the SLA were looking for the applicant because they were near at a road junction near the family house. His evidence did not indicate that the SLA were looking for but unable to find his house. The tribunal does not accept that the mere presence of the SLA at a road junction near the applicant’s home in Negombo indicates that they were searching for the applicant, even if it was unusual for the SLA to be present in the applicant’s village. 

   Future risk of harm as a fisherman and imputed political opinion

4. The tribunal accepts that, if he were to return to Sri Lanka, the applicant may wish to continue travelling to [Town 1] for approximately three month periods to fish. The tribunal is also willing to accept that the applicant may continue to associate with and be friendly with Tamil fishermen in [Town 1].

5. The tribunal is willing to accept that if the applicant returns to fishing in [Town 1], his boat may be stopped and searched as the tribunal accepted that it was in the past. The tribunal does not find on the evidence before it that this constitutes in and of itself serious or significant harm. Nor does it accept on the evidence before it that there is a real chance or risk that the applicant would face serious or significant harm in the course of his boat being stopped and searched or be suspected of giving information or assistance to Tamils/terrorists/the LTTE. The applicant is a Sinhalese fisherman, a group that country information indicates receive privileges, protection and support from and has a close relationship with the Sri Lankan authorities. The tribunal does not accept that he has a profile that would make him of any adverse interest or suspicion to the Sri Lankan authorities even if he were sympathetic to, on friendly terms or associated with Tamil fishermen and does not accept that this would impute him with an anti-government or anti-government group political opinion. As discussed with the applicant, the war with the LTTE ended in May 2009, more than six years ago. Country information does not indicate that Tamils including those from the North or formerly LTTE-controlled areas or Tamil fishermen face a real risk or chance of serious or significant harm as a result of perceived LTTE associations or any other reason. The tribunal therefore does not accept that the applicant’s association or friendly relations with Tamils or Tamil fishermen or any imputed political opinion arising out of this will lead to a real chance or risk of any such harm to him.

6. Given that the tribunal does not accept that the applicant was questioned by the Sri Lankan authorities in May 2012, it does not accept that he is of any interest to the authorities because he left Sri Lanka shortly after being questioned or that the authorities will suspect he had something to hide.

7. The tribunal has considered whether the applicant would serious harm including significant economic hardship threatening his capacity to subsist or significant harm as a fisherman. The applicant has claimed that he would be unable to subsist because of his fear of returning to [Town 1] to fish. Given that the tribunal does not accept that the applicant faces a real chance of serious harm or real risk of significant harm from the authorities in [Town 1], it is open to the applicant to return to fishing in [Town 1]. The tribunal notes information referred to above that the decreasing viability of fishing due to increased fuel prices, leading many fishermen to travel to Australia. While those reports refer to fishing becoming less viable, the information before the tribunal does not indicate that fishermen- or Sinhalese fishermen in particular- face a real chance of serious harm such as significant economic hardship threatening their capacity to subsist or that there is any discriminatory denial of employment to fishermen that would constitute such serious harm and does not accept that the applicant will face such a real chance. Nor does the information indicate that any difficulties faced by fishermen constitute significant harm and the tribunal does not accept that there is a real risk of the applicant facing any such significant harm as a (Sinhalese) fisherman. The tribunal further notes that the reports referred to issues for fishermen in 2012. The evidence before it does not indicate that the situation has significantly deteriorated in any way since then.

8. It appears that the applicant made some reference to fears regarding his Catholic religion at with the interview delegate. When asked about this at the hearing, the applicant advised that he never made any claims about fear due to his religion. The tribunal has therefore not considered this issue any further. 

   Future risk based on being a (Sinhalese) failed asylum seeker

9. Advice received from DFAT discussed with the applicant at the hearing, indicates that all returnees to Sri Lanka are subject to the same entry procedures as any other citizen and that no single ethnicity is `singled out' for special treatment.[8] Country information does indicate, however, that non-voluntary returnees are referred for questioning and criminal and security checks by Sri Lankan authorities.[9]

   [8] DFAT Country Report: Sri Lanka (16 February 2015).

   [9] CX29995 1: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012; DFAT Country Report: Sri Lanka (16 February 2015).

10. Whilst there are reports claiming that some (Tamil) returnees have been harmed on return to Sri Lanka,[10]other sources contest these claims.[11] In 2012, the UK Home Office noted that these allegations lack substance.[12] Furthermore, reports from the NGO Freedom from Torture identified returnees with an actual or perceived connection to the LTTE.[13] As noted above, the tribunal does not accept that the applicant has or will be perceived to have such a connection.

    [10] Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012; Amnesty International, Sri Lankan Asylum Seekers tortured after being forcibly returned from Australia, 3 September 2010; Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009 (August 2015).

    [11] Landlnfo, 2012, Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province, 7 December.

    [12] UK Home Office, 2012, Country Policy Bulletin - Sri Lanka, October.

    [13] Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009 (August 2015).

11. DFAT has advised that it is aware of a small number of torture/mistreatment allegations by returnees but that verification of such allegations is complicated by the fact that many such allegations have been made anonymously, often to third parties.[14] DFAT further noted that:

    …there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment… Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.[15]

    [14] DFAT Country Report: Sri Lanka (16 February 2015).

    [15] DFAT Country Report: Sri Lanka (16 February 2015).

12. The tribunal’s assessment of the country information before it, including reports provided by the applicant before and during the hearing, is that it does not indicate that all returnees/failed asylum seekers are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Nor does the information before it indicate that Sinhalese failed asylum seekers face a real chance or risk of being targeted for imprisonment, fines, disappearances or other harm due to having sought asylum. Where returnees are imprisoned and fined, it appears that this is due to them having breached Sri Lankan immigration law, discussed further below. It appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers may be of adverse interest to the authorities.

13. In light of its findings regarding the applicant’s past circumstances in Sri Lanka the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return due to being a (Sinhalese) failed asylum seeker. Furthermore while the applicant is likely to face immigration offences for leaving Sri Lanka without permission, as discussed below, the tribunal does not accept on the evidence before it that he will face a real chance or risk of serious or significant harm for having illegally departed Sri Lanka.

14. The tribunal finds that the applicant will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. Taking into account the applicant’s circumstances and profile, the tribunal does not accept that such standard questioning and security checks amounts to serious harm or significant harm. Nor is the tribunal satisfied on the evidence before it that there is a real chance or risk that the applicant would be subjected to serious or significant harm during such questioning either upon his arrival in Sri Lanka or at any other time after he is released from detention upon arrival given that, as noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities.

15. The tribunal therefore does not accept that the applicant would face a real chance or risk of serious or significant harm as a result of being a failed asylum seeker or specifically as a Sinhalese failed asylum seeker.

    Future risk of harm arising from the applicant's illegal departure from Sri Lanka

16. Illegal departure from Sri Lanka is an offence under s 45 of the Immigrants and Emigrants Act carrying a penalty of a term of imprisonment of up to five years or a fine of up to 200,000 rupees. DFAT has advised that, since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed.[16]

    [16] DFAT report 1478, MRT/RRT information request: LKA41452, 28 February 2013; DFAT Country Report: Sri Lanka (16 February 2015).

17. According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office for up to 24 hours during the investigation period. They are then produced before the Magistrate's Court and released on bail. Persons needing to be held for more than 24 hours because they arrived on a weekend or public holiday are transferred to the nearby Negombo Prison Remand Unit until the Magistrates Court is in session. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. There is no payment required for bail. Sometimes returnees then need to wait until a family member comes to court to collect them.[17] The court may impose specific bail conditions if the person has previous convictions and has not complied with past bail conditions. The court may decide not to grant bail if the returnee is considered to be a facilitator or organiser of people smuggling.[18]

    [17] DFAT Country Report: Sri Lanka (16 February 2015).

    [18] DFAT report: 1479, LKA41452: Further clarification regarding Post's response to LKA41452.

18. DFAT and other sources have indicated that returnees who departed Sri Lanka illegally are being charged regardless of ethnicity, as are persons intercepted attempting to leave Sri Lanka illegally and that the law is being enforced to deter future boat ventures.[19]

    [19] `Asylum denied, a penalty awaits at home', Sydney Morning Herald, 8 December 2012.

19. The tribunal accepts that the applicant departed Sri Lanka without a valid travel document and from a place other than an approved port of departure and that it is likely that the applicant will be charged with an offence under the Immigrants and Emigrants Act.[20]

    [20] Department of Foreign Affairs and Trade 2012, DF 4T Report no. 1446- Sri Lanka: RRT Country Advice Information Request LKA40999, 22 October.

20. The tribunal is satisfied that the Immigrants and Emigrants Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The tribunal is further satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The tribunal finds that s 45 of the Immigrants and Emigrants Act is a law of general application and its application does not give rise to persecution under the Refugees Convention.

21. As noted above, the tribunal finds that the standard checks and questioning of the applicant at the airport upon his return to Sri Lanka does not constitute serious or significant harm. As also noted above, the tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for leaving Sri Lanka illegally.

22. The tribunal places weight on the DFAT advice above and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court hearing regarding bail. The applicant’s parents, aunt and uncle are present in Sri Lanka to guarantee his bail and the tribunal finds on the evidence before it that they will be able to do so.

23. The tribunal further finds that the applicant will not be denied bail given that he has not been involved in people smuggling nor has he previously been convicted of any offences in Sri Lanka. Accordingly, having regard to the evidence before it the tribunal finds that the applicant will be granted personal bail and will only be on remand for a short period of a few days maximum.

24. The 2006 amendments of the Immigrants and Emigrants Act remove a legislative requirement for a minimum sentence of imprisonment for a conviction under s.45(1)(b) and allow a judicial discretion under s.303 of the Code in relation to the suspension of any sentences to imprisonment on a conviction under s.45(1)(b).[21] Courts also have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction.[22] Information before the tribunal indicates that no person who has just been a boat passenger has been given a custodial sentence to date but that fines have been issued to persons intercepted in the act of illegally departing Sri Lanka.[23] DFAT has reported that such fines have been between 5,000 and 50,000 rupees.[24]

    [21] See the Immigrants and Emigrants (Amendment) Act, No. 31 of 2006, available at These amendments do not appear to have been incorporated in the version of the Immigrants and Emigrants Act which is available online.

    [22] Code of Criminal Procedure Act (No 155 of X979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2.

    [23] Sri Lanka: LKA40999 - returnees -- Illegal Departure - Tamil Women -- Security in north and east - wealthy Tamils, 22 October 2012; `Asylum denied, a penalty awaits at home', Sydney Morning Herald, 8 December 2012; DFAT Country Report: Sri Lanka (16 February 2015).

    [24] DFAT Country Report: Sri Lanka (16 February 2015).

25. Having regard to the above information, the tribunal finds that the penalty most likely to be imposed on the applicant if convicted of an offence under the Immigrants and Emigrants Act is a fine of 5,000-50,000 rupees. The tribunal finds on the evidence before it that the risk that the applicant would be imprisoned instead of fined is remote. The tribunal does not accept that the imposition of a fine of that amount constitutes significant harm as defined in the Act.

26. The applicant did not indicate that he would be unable to pay a fine of that range. On the evidence before it the tribunal finds that the applicant would be able to pay the fine imposed upon him.

27. The above findings and reasoning lead the tribunal to find that the chance or risk that that the applicant would spend more than a few days maximum in prison after his return to Sri Lanka as a result of being charged with breach of Sri Lankan departure laws or for any other reason, is remote.

100.   The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the few days he would spend on remand. Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms and instances of torture, maltreatment and violence.[25] These conditions appear to affect all prisoners.

[25] US Department of State 2012, Country Reports on Human Rights Practices in 2011 - Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report - Sri Lanka, 31 March.

101.   Based on the country information referred to in relation to the applicant’s profile, the tribunal does not accept that he would face a real chance of serious harm as a result of any imputed political opinion based on his association with Tamils or Tamil fishermen, as a (Sinhalese) fisherman himself, as a (Sinhalese) failed asylum seeker, having left Sri Lanka illegally or any other Convention ground while he is imprisoned on remand for a few days after his return to Sri Lanka.

102.   As required by ministerial direction, the tribunal has taken into account the relevant guidance in the PAM (see “Lawful Sanctions Not Inconsistent with the ICCPR; Section 29; Imprisonment/Prison Conditions”) including in relation to the circumstances in which harsh detention conditions may amount to significant harm. Given that the applicant will be on remand for no more than a few days maximum, the tribunal finds that the risk that he would face significant harm for the reasons mentioned in the preceding paragraph or any other reason while on remand for this short period is remote. 

103.   Furthermore, as raised with the applicant, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that poor prison conditions in Sri Lanka are due to a lack of resources, which the government appears to have acknowledged and is taking steps to improve[26] rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. Accordingly, the tribunal also does not accept that there a real risk that the applicant will suffer significant harm from poor prison conditions while on remand for a short period of time.

[26] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report -- Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011-- Sri Lanka, 24 May, Section 1 ;US Department of State 2012, Country Reports on Human Rights Practices in 2011 - Sri Lanka, 24 May, Section 1.

104.   The tribunal does not accept that any anxiety and discomfort that the applicant would face while on remand between one and several days only, where the evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation, amounts to significant harm as set out in s 36(2A) of the Act.

Overall findings on the applicant’s real chance of serious harm and real risk of significant harm

105.   Having considered all of the applicant’s claims both separately and cumulatively, the tribunal does not accept that the applicant faces a real chance of serious harm as a result of his imputed political opinion based on his association with Tamils and/or Tamil fishermen, his profile as a (Sinhalese) fishermen, as a failed asylum seeker or Sinhalese failed asylum seeker, having left Sri Lanka illegally or for any other Convention ground. 

106.   The tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, as a result of his imputed political opinion based on his association with Tamils and/or Tamil fishermen, his profile as a (Sinhalese) fishermen, as a failed asylum seeker or Sinhalese failed asylum seeker, his illegal departure or for any other reason.

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

108.   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).

109.   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

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

Magda Wysocka
Member