1409745 (Refugee)

[2015] AATA 3977

1409745 (Refugee) [2015] AATA 3977 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409745

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Stuart Webb

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2015 at 12:50pm

CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Actual or imputed political opinion – Liberation Tigers of Tamil Eelam – Particular social group – Tamil fisherman – Young Tamil male from the north of Sri Lanka – Country information does not suggest that the applicant will suffer serious harm – Conditions in home country significantly improved – Decision affirmed

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

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 30 January 2013 and the delegate refused to grant the visa on 29 April 2014.

3. The applicant appeared before the Tribunal on 20 August 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. The applicant had an agent assist him at the primary stage of his application but not at the AAT. The applicant provided the Tribunal with a copy of the delegate’s decision.

   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 provided the following statement with his application.

    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. I was born on [a particular date] in [a particular district], Sri Lanka. I have never been married. My parents and siblings live in Sri Lanka. I fled Sri Lanka illegally in July 2012 to seek protection in Australia. I travelled on a boat for [a number of] days before arriving in Australia on [date]/07/2012.

    The country to which I fear returning

    I fear returning to Sri Lanka.

    Why I left Sri Lanka.

    Our area was controlled by LTTE once and now it is under the control of the Sri Lankan army. Over the years, I suffered a lot as a result of the conflicts and war against the above powers. I was displaced a few times as a result of the conflicts.

    During the LTTE time, 27th of November each year, the LTTE fighters used to pay tribute to the lost soldiers of LTTE. The Sri Lankan army however disliked that practice. I never participated in that particular celebration.

    [In] November 2011 I was going to work very early in the evening. I went through the Sri Lankan army checkpoints on the way to work. I had already registered and was permitted to fish. There is [a particular building] near our village. Apparently some local Tamils had conducted the relevant ceremony for the LTTE soldiers the previous night in that [building]. During the day whilst I was at sea, two SLA officers went to my house and spoke to my parents asking about my whereabouts. They left me a message to appear in the army camp.

    When I returned home the next morning, they turned up again and asked me to follow them to the SLA camp. In the camp, they mentioned a few people and asked me whether I knew them or not. I did not know any of those people. Then they asked me if I attended the relevant ceremony. I denied and showed them the registration as proof that I was not in the town that night.

    They did not believe me and detained me in the camp. They resorted to making threats and told me that I had to divulge information about people who attended the relevant ceremony. My parents later came to the camp and begged them to let me know. Finally they let me go on the condition that I would attend the camp to answer to their investigations whenever I was ordered to.

    Apart from the above incidents, I was punished once by the navy officers for fishing without registration. I had to push a heavy wooden fishing boat in the sand. I was also harassed by the army officers many times. They were very offensive and always humiliated me when blaming me as a Tamil for staying under the control of LTTE for all those years and not moving to the government controlled areas. I was also a usual suspect for them. Anytime that a crime or wrong happened in the town they would call me for investigations.

    I was sick and tired of their usual harassments and humiliations. I could not relocate to any other place inside Sri Lanka because I would face the same or similar situation so I decided to flee the country and seek asylum in a safe country.

    After I left the country, CID officers visited my house searching for me. My mother said that she did not know where I was so they left. I suspect that the CID may be aware that I have fled the country unlawfully. Almost one month after I left, my father was also taken to the SLA camp by the army officers and was investigated in relation to my whereabouts. The officers had looked through my father's mobile phone call history to check whether I had contacted him.

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

    I believe that I will be harmed by the CID, Sri Lankan army as well as other agencies of the Sri Lankan government.

    Why I will be harmed.

    I will be investigated and harmed because I fled the country unlawfully. My fear is exacerbated because I am a vulnerable Tamil.

    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.

    No, the Sri Lanka authorities are the ones I fear. They would never protect me. They caused a lot of harm during the years I lived in Sri Lanka. I could not even go to work safely. I am a Tamil civilian who is susceptible to harm rather than qualified protection in Sri Lanka.

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

    No, the same agents of the Sri Lankan government are present all over the country. They engage in inhumane practices against Tamil people. I cannot speak Sinhalese and cannot survive in Sinhalese dominated areas. I am a fisherman and would have significant problems finding a job and surviving if I moved to an unknown place in Sri Lanka. I do not have any relatives or associates anywhere else in Sri Lanka (except my home town) who would be able to provide me with any assistance or protection.

20. The applicant’s agents provided a post hearing submission. This stated that the applicant feared harm because he is a Tamil; will be imputed as a pro LTTE supporter or supporting the renewal of hostilities against the Government of Sri Lanka; and is a failed asylums seeker. Country information about the mistreatment of Tamils was provided, in particular from the north of Sri Lanka. It was submitted that fishermen from the north were being targeted, with significant economic hardship which threatens the ability to subsist, denial of access to basic services and denial of capacity to earn a livelihood. Country information about the mistreatment of failed asylum seekers were provided. It was claimed that the applicant would be harmed because he left Sri Lanka illegally, and would be harmed in prison.

21. The delegate accepted that the applicant was a Tamil from Sri Lanka. The delegate noted that the applicant had been hidden by his mother when the LTTE came looking for child soldiers, and that he and has family had no connection to the LTTE, nor had ever been accused of LTTE membership by the authorities. The delegate accepted that the applicant was displaced, and had been living under the military regime since the war ended. The delegate considered the applicant’s evidence regarding his interaction with the authorities on [in] November 2011 to be internally consistent and detailed in material points. He was held for 3 to 4 hours and shouted at, but otherwise not harmed. He was released without harm. He was shouted at rudely by soldiers after this, but had no further interaction with the authorities.

22. The delegate considered the applicant’s claims that he was harassed many times after that incident, when crimes were committed in his village. The applicant noted he was not the only person affected in this way, other young men were treated in this manner too.

23. The delegate considered the applicant’s claim that he was punished for fishing without a permit. He was punished by having to push a boat in the hot sun. No other penalties were applied to the applicant for this incident.

24. With respect to his father being questioned by the authorities after he had left, the delegate noted that his father had not been harmed in this questioning. The delegate considered it plausible that the authorities had come to the applicant’s father to make enquiries, knowing that the applicant had gone to Australia.

25. The delegate did not accept that simply because he was a Tamil from the north the applicant was owed protection. The delegate did not consider that the applicant was considered to be attached to the LTTE. The delegate did not consider that the racially based taunts the applicant may have received amounted to persecution. The delegate did not accept that the authorities imputed an anti-Government political opinion to the applicant. The delegate accepted that the applicant may have been questioned with others regarding pro-LTTE, such as raising the flag. The delegate considered that the enquiries made of the applicant when criminal actions occurred were routine only, and not persecution. The delegate did not accept that the applicant would be harmed because of his fishing permit. The delegate did not accept that the applicant was a person of interest to the authorities. The delegate did not accept that the applicant would be harmed by the manner of his departure or because of his being a failed asylum seeker.

    FINDINGS AND REASONS

    Country of nationality

26. The applicant claims to be a citizen of Sri Lanka, has consistently claimed this. He has provided documentary evidence to the Tribunal in the form of an identity document, with the applicant’s name and date of birth shown. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.

    Third country protection

27. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

28. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

29. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:

   First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

2. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

6. The applicant has been generally credible with his claims, including the details of his issues with the authorities from November 2011 onwards. The applicant noted at the hearing that his memory for dates and so forth had suffered over time, and the Tribunal accepts that this does occur, and does not have concerns as to when an incident occurred, or how many times he may have been caught up with some form of harassment. The applicant stated that when he arrived in Australia he could remember more, the Tribunal noted that in his entry interview he stated that the army came to his home on two occasions, and harassed him at a [checkpoint] a few more times, the applicant stated that this sounded about right.

7. However there are a few issues of credibility that did concern the Tribunal from the evidence of the applicant at the hearing. The first of this was about the actual treatment that he has suffered at the hands of the authorities in Sri Lanka.

8. The applicant has consistently claimed that in November 2011 he was requested to come to an army camp to answer questions regarding the raising of the LTTE flag at [a particular building] on Martyrs Day, 27 November 2011. The applicant went to the camp. In his statement of claim the applicant did not make any claim that he was physically harmed, only that they resorted to making threats to the applicant to get him to divulge information. Similarly in the Entry Interview the applicant made no reference to being harmed, only threatened. In discussing this matter in the Departmental interview, the applicant stated that he was required to kneel and asked questions, that the soldiers pretended to hit him and spoke to him in a frightening way.

9. At the Tribunal hearing the applicant initially again mentioned that he was forced to kneel and answer questions, and the kneeling scuffed his knees up a little, drawing blood, but not a significant amount. He was again threatened during questioning. The applicant later returned to this incident and stated he was beaten while he was detained. The Tribunal noted that this was the first time that the applicant had raised this claim, and found this concerning. The applicant stated it had been left out. The Tribunal noted that the applicant had not previously raised any claim that he had physically been harmed in any incident with the authorities, the only claim of any physical nature he had made was that he had to push a heavy boat in the sun on one occasion after he was caught fishing without going through the registration process. The Tribunal stated that it found it very surprising that the applicant would not reference being beaten in any of his submissions prior to this point. The Tribunal noted that there was a discussion in the delegate’s decision[1] regarding other incidents, where the authorities would pay attention to ‘other youngsters’ in the village’, the applicant ‘stated soldiers would come and “beat up” whoever was near an incident, but this had not happened to him’. The applicant has discussed physical violence in the village, but had not claimed it had occurred to him. While this was a discussion of incidents after the 27 November 2011 incident, the Tribunal considers that if the applicant truly was beaten, as he claimed, he would have raised this in his submission and in the interview with the Department, and would not have left it to the Tribunal hearing to make this claim. The Tribunal considers that the applicant is embellishing his claims with respect to the mistreatment he received at the hands of the authorities for the purpose of bolstering his application.

   [1] DIBP Decision p7

10. The Tribunal has also considered the applicant’s claims that he was the target of the authority’s attention. The Tribunal accepts that the applicant was asked to come and answer questions about the flag raising incident. The applicant stated he was asked if he recognised some other young men who were in the camp at the time, which indicates that other men were of interest to the authorities at the same time. After being questioned, and on the request of his parents, the applicant was released from the camp. He was not questioned about this flag raising again. The applicant claimed that he had further incidents of harassment, again, mentioning threats, but no physical harm. The evidence of the applicant is that he again was not the sole recipient of this attention, the information from the delegate’s decision quoted above demonstrates that the applicant knew that other ‘youngsters from the village’ were being paid attention by the authorities, including being beaten, while the applicant was never beaten. When asked by the Tribunal about this, the applicant stated he saw others with difficulties, but felt he had become a target. The applicant stated that he believed that they had been involved with the LTTE.

11. The Tribunal asked the applicant about this imputed support or involvement with the LTTE. The applicant stated that he and his family had no connection with the LTTE, beyond living in an area that was under LTTE control. The Tribunal noted that the applicant was [a] teenager when the civil war finished. The Tribunal acknowledged that child soldiers were used by the LTTE in the latter stages of the war, but that even in these circumstances it would not be considered that the applicant would have had any position of authority. The Tribunal noted that the applicant had been in a refugee camp from 2009 to mid-2010, and was not harassed by the authorities during this time. He had no difficulties with the authorities until the 27 November 2011 incident, a year and a half after he had left the refugee camp and lived in his village with his family. The Tribunal noted that the authorities had had a significant period of time and opportunity to arrest and interrogate the applicant if they suspected he was involved in any way with the LTTE.

12. The applicant stated that this was true, but that they were watching him after the November 2011 incident. The Tribunal noted that the applicant had consistently claimed that there had been incidents of harassment, after incidents, but he had not been taken in for any further questioning. He had had one incident regarding not having permission to fish. The applicant stated that there would be a file created about him. His decision to leave Sri Lanka would be noted, the applicant stating that the CID had been to his home shortly after he had left for Australia, with his father questioned about his whereabouts and his father’s mobile phone checked. The fact that the applicant had gone to Australia was mentioned by the CID at this time.

13. The applicant also added further information about the authority’s mistreatment of his father. The applicant stated that his father was taken and beaten with wire. The Tribunal noted that the applicant had not raised this claim previously, and that the account in the delegate’s decision states that the applicant made no mention that his father was harmed at the time of this interaction or subsequently.  The applicant stated that his father had only recently told him of this mistreatment. The Tribunal expressed its concern that the applicant’s father would withhold this information and then suddenly disclose this information for the applicant to raise it for the first time at the Tribunal hearing. The applicant stated that the authorities had also come in May 2015 to ask about the applicant. The Tribunal asked why they would come, given that they already knew the applicant was in Australia, and so long after they knew he had departed. The applicant stated that he suspected it was because they had not closed the file.

14. The Tribunal noted country information about Martyrs Day. A report of 2012 states:

    Martyrs Day has been set aside in the Tamil community to remember those who died in the civil war between the Tamil and Sinhalese community in Sri Lanka. A report on Martyrs Day states:

    Violent clashes broke out on November 27, Martyrs’ Day for Tamil, between students of Jaffna University and Sri Lankan security forces. Each year Tamils use Martyrs’ Day to honor friends and family members who were killed in the Sri Lanka Civil War (1983-2009).

    The civil war pitted the Tamil militant group, the LTTE (often called the Tamil Tigers), against the Sri Lankan government forces. The conflict was essentially an ethno-political struggle that had its roots in the early years of Sri Lanka’s independence when Sinhalese leaders effectively transformed the country into a Sinhala-Buddhist state through a series of laws such as the controversial Official Language Act No. 33 of 1956, which made Sinhala the official language. The excluded Tamil population protested and demanded a government based on federalism where the Tamils in the east and north of the country would enjoy greater autonomy. When these calls went unheeded for decades, some Tamils formed the Tamil Tigers and began taking up arms against the government in 1983.

    The 26-year civil war that ensued, which ended with the LTTE’s military defeat in 2009, would come to claim the lives of between 80,000 and 100,000 people, according to the UN. Some non-governmental organizations like the International Crisis Group say the number of deaths was actually much higher.

    Since the LTTE’s defeat, Tamils have observed Martyrs’ Day by quietly “lighting lamps inside their homes.” This year, however, “some Jaffna University students decided to perform the rituals on campus,” E Saravanapavan, Tamil National Alliance (TNA) Member of Parliament (MP) representing Jaffna district told The Diplomat in a phone interview. According to Saravanapavan, this prompted Sri Lankan security forces to forcibly enter the student’s dormitories to prevent them from lighting lamps for Martyrs’ Day.

    Tensions have always run high in Jaffna peninsula on Martyrs’ Day. Security forces are put on heightened alert in anticipation of a LTTE attack. These forces equate citizens observing Martyrs’ Day as them showing solidarity with the LTTE militant group. For Tamils, however, it is “a day of mourning, not just for dead LTTE combatants but also for the thousands of civilians, including their kin, who were killed in the war,” Saravanapavan says.

    With Tamils determined to properly mourn their dead, and security forces equally determined to stamp out any show of support for the LTTE, it is nearly inevitable that Martyrs’ Day will be marked with some degree of confrontation and tension. What made this year’s Martyrs’ Day more complicated was that it coincided with Karthigai Theepam, a festival when Hindus decorate their homes with lamps.[2]

    [2] Sri Lanka: War is Over but Tensions Run High, The Diplomat.com 13/12/2012

15. The Tribunal asked if there had been any other flag raising issues in his home area since he had left. The applicant stated there had not been. The Tribunal asked how he knew this. The applicant stated that his family would have told him immediately if any such incident occurred. The Tribunal contrasted this with the applicant’s evidence that his father would not tell him of any mistreatment that he had received at the hands of the authorities.

16. The Tribunal has considered the applicant’s claims with respect to the interest of the authorities in him, that he believes would lead to his being harmed on return. The Tribunal notes the letter from the local priest in support of the applicant in this regard. The Tribunal accepts that a pro-LTTE flag was raised in the applicant’s village, and this was seen as confrontational by the authorities in an area that was previously under the control of the LTTE. The Tribunal accepts that the authorities asked the applicant to attend the camp, after he returned home, to answer questions regarding this incident. The applicant was a young Tamil man of the area and as such could have been a person of interest in November 2011. The Tribunal notes the presence of other young Tamil men at the same camp at the same time, and considers that the authorities had a broad interest in the applicant but did not have any specific interest in him. The Tribunal notes that after a day, and with the request of his parents, the applicant was released, and no further enquiry was made of the applicant regarding this flag raising incident at the time. The Tribunal notes the country information mentioned above that the authorities want to ‘stamp out any show of support for the LTTE’, and Martyrs Day provides a ‘degree of confrontation and tension’. The Tribunal considers that the actions of the authorities on this day in November 2011 reflected this intention, but that having questioned the applicant, there was no further interest in the applicant arising out of this flag raising incident.

17. The applicant has stated that there was further harassment from the authorities, especially after incidents occurred, and threats of violence, but that he was never harmed, unlike others in his village. The Tribunal considers that this claim by the applicant reflects the somewhat heavy handed approach to law and order in this area of Sri Lanka in the years following the end of the civil war, noting the interest of the Sri Lankan authorities to stop any resurgence of the LTTE in the region. The Tribunal considers that the applicant’s account of some limited attention being paid to him, as a young Tamil male from the North of Sri Lanka, is consistent with the country information of the time. The applicant remained living and working in the village until he decided to leave for Australia in July 2012, 8 months after the initial incident that brought him to the attention of the authorities.

18. The Tribunal finds that the authorities paid some attention to the applicant in the aftermath of a specific incident, but no more attention to the applicant than other young Tamil men from the North. The Tribunal accepts that the applicant had a few other minor interactions with the authorities, but at no time was harmed by the authorities when he came to their attention.

19. The applicant has also claimed that his father has been targeted by the authorities. He claimed that one month after he left, his father was taken and questioned, and that they looked at his father’s mobile phone. At the hearing, the applicant stated that his father had actually been beaten with wire during this event. When asked why he had not raised this previously, either in his statement or to the delegate at the interview, the applicant stated he had only recently been told. The Tribunal expressed its concern at this late claim, noting that the delegate had expressly stated in their decision that his father had not been harmed. The applicant stated that his father had not told him previously, and had been upset. The Tribunal noted that the letter from the priest made no mention of any comment about his father being beaten. The applicant stated that the priest had not witnessed this. The Tribunal stated that the issue of an injury caused by the authorities would not have needed to be witnessed for it to be included. The Tribunal notes that the letter from the priest mentions threats that the applicant and his parents had had in the past, and that a report of an injury to his father would not be unexpected. The lack of such a comment is of concern to the Tribunal. The applicant subsequently provided a letter from a doctor dated 2 September 2015 about an injury that his father suffered. The Tribunal notes that the doctors report states that his father had an accident while working and got [an] injury since 2012/09/20. The Tribunal considers that this letter demonstrates that the applicant’s father was injured in a work accident, and was not caused by any action of the authorities. The Tribunal considers that a work injury would not mentioned by the priest in his letter, and it supports the determination that the applicant’s father was not harmed by the authorities but was injured at work. The Tribunal does not accept that the applicant’s father was harmed by the authorities. The Tribunal considers it plausible that the authorities asked the father about the applicant about the applicant going to Australia, but does not accept that his father was ever harmed.

20. Further, the Tribunal does not accept that there have been further enquiries made of the applicant’s father about the applicant. The applicant claimed that in May 2015 the authorities came to family home and asked the applicant’s father where the applicant was, he had to be handed over. The Tribunal asked why the authorities came looking for the applicant 3 years after he had come to Australia. the applicant stated the file remained open and the authorities were suspicious. The Tribunal does not accept this explanation. As the applicant has stated, the authorities knew the applicant was not in Sri Lanka. The Tribunal does not accept that they would seek him so long after any previous dealings, or want him to be produced even though they knew he was in Australia. The Tribunal considers that the applicant is embellishing his claims to seek to emphasize his risk of harm on return. The Tribunal does not accept that the authorities have sought the applicant in the manner as claimed by the applicant.

1. The applicant has also claimed that he will be detained because of his [relative], who has come to Australia and been accepted as a refugee. The applicant stated he is the only male child, if the authorities wanted the applicant’s [relative], that would want him. The applicant was not able to explain why the authorities would want to arrest him in place of his [relative]. The Tribunal put it to the applicant that this claim was a guess on his part. The applicant stated that later on they may take him, he did not know what the authorities would do. The Tribunal considers that this claim of the application is purely speculative, and not something that has a real chance or real risk of occurring, The Tribunal does not accept that the authorities would have any interest in the applicant because of any relationship to his [relative], or because of anything his [relative] is accused of doing, which the applicant is not aware of.  The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for any reason arising from his [relative].

2. The applicant has also claimed that he will face difficulties as a fisherman in Sri Lanka. It was submitted that fishermen from the north were being targeted, with significant economic hardship which threatens the ability to subsist, denial of access to basic services and denial of capacity to earn a livelihood. The applicant stated that permits were required to fish. The Tribunal noted that he had gained his O Levels, then went to work as a fisherman. The applicant also stated that he worked in [a particular industry].

3. The Tribunal noted country information which discussed fishing in Sri Lanka. The Tribunal noted that permits had been required, but that since he had left this system had stopped. The Tribunal noted country information about the permit system.

4. A DFAT advice of November 2012 stated that:

   the Department of Fisheries (DoF) “is the regulatory body dealing with fishing matters in Sri Lanka and is the only organisation with the authority to issue fishing licences in the country”: Furthermore:

   The Department also informed post that the Sri Lanka Navy does not issue fishing licences for fishing boats. During the conflict period the navy issued a pass for outgoing boats. Boats were not allowed to go out to sea without this pass. However, after the end of the conflict, fishing restrictions have been lifted and such passes are no longer issued. However, due to security reasons, the navy still may carry out security checks on boats before they leave to go to sea.

   …

   We have spoken to Sri Lanka's Western Naval Command (responsible for the area in question). The navy said that it did not issue fishing licences. This was undertaken by the Department of Fisheries. During the conflict, under the state of emergency, the navy issued fishing permits to fishermen in areas where there was no Department of Fisheries representation. With the lifting of the state of emergency it no longer had responsibility for issuing any fishing permits. The navy said that it does undertake security checks of fishing vessels and crew before boats depart at some marshalling points around Sri Lanka to prevent illegal smuggling of goods and persons. This involves checking registration details against lists provided by local fishing cooperatives.

   …

   Post is not aware of any reports that Sri Lankan Tamils (or any other ethnic grouping) are mistreated if they are caught illegally fishing.

   …

   Post is not aware of any reports indicating/alleging the Sri Lankan Navy takes a fishermen's catch. Post spoke to several organisations with grass roots level presence in the relevant area as well as in the north who said they had also not heard of any such complaints from local fishermen.[3]

   [3] Department of Foreign Affairs and Trade (DFAT), Country Information Report No. 12/67 – CIS Request Sri Lanka: Questions arising from recent applications, 29 November 2012, CX299951

5. However there are some reports that passes were required for some period after the war. The most recent UNHCR eligibility guidelines for asylum-seekers from Sri Lanka refers to fishermen in many areas of the north having to submit their civil documentation when going out on the water. It is stated in the document that:

   In many areas of the north, including parts of Jaffna, Mullaitivu, and Mannar districts, a special permit must be obtained from the naval authorities to access coastal waters, and fishermen must submit their civil documentation on a daily basis when going out on the water.[4] 

   [4] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p. 24   

6. A 2012 report by Scholtens et al. in Economic and Political Weekly notes:

   We mentioned earlier that most fishing restrictions have now been removed and many high security zones have been progressively lifted from 2009 to 2011. This is not to say that the situation has completely normalised. Several coastal areas are still not open to civilians, and Mannar and Kilinochchi fishermen still require a navy-approved pass for fishing. Important fishing harbours remain monopolised by the navy, while army and navy personnel are present in the landing sites of the Northern Province. [5]

   [5] J. Scholtens, M. Bavinck, A.S. Soosai, ‘Fishing in dire straits: Trans-boundary incursions in the Palk Bay’, Economic and Political Weekly, 23 June 2012, p. 91, < CIS25020

7. A more definitive report about the pass system being scrapped is in a report of the Sunday Observer from April 2013. This stated

   SRI LANKA: Fishermen assured a better catch

   By P.Krishnaswamy

   Fishermen's Societies and Unions representing the fishermen of the Northern province expressed delight over the abolition of the compulsory 'Navy Pass System' that was in operation for over 20 years.

   They also welcomed the marked decline in the presence of Indian trawlers, consequent to the stiff security and patrolling measures enforced by the Navy. Another positive development reported last week towards the improvement of the fisheries sector of the Northern province was the spontaneous discontinuation of 'prohibited fishing methods' by local fishermen, including trawler fishing, under motivation by the Ministry of Fisheries and Aquatic Resources Development.

   The issuance of the Fisheries Ministry Identity Cards to fishermen of the Northern, Eastern and North-Western provinces started last week, replacing the 'Navy Pass System', and this process will be completed soon, Ministry sources said.

   Some representatives of the fishermen's organisations contacted by the Sunday Observer also said that the accusations repeatedly made by some of their Tamil Nadu counterparts saying that they were attacked by the Sri Lankan Navy in the Indian territorial waters are spurious and baseless.

   To the best of their knowledge the Sri Lankan Navy never attacks any intruding Indian fishermen but only seizes their vessels and apprehends the fishermen, they said.

   The political leaders across the Palk Strait should verify the authenticity of such statements before raising them as major political issues, they said.

   President of the Union of Northern Fishermen's Cooperative Societies S.Thavaratnam, which has over one hundred fishermen's societies of the Jaffna district in its membership told the Sunday Observer that the abolition of the 'Navy Pass System' is a landmark event in the life of the Northern fishermen who had borne the brunt of the three-decade-long conflict, lost their livelihood and came under various harassments and restrictions from time to time.

   The Navy Pass System, that was intended at monitoring LTTE activities, had caused untold hardships to the fishermen. The huge presence of Indian poaching trawlers and their prohibited methods of fishing also deprived them of their livelihood.

   The abolition of the 'Navy pass system' last week incidentally coincided with the spontaneous withdrawal of bottom trawler fishing by the local fisherman on the motivation of the Ministry of Fisheries and Aquatic Resources Development making it a heyday in the life of the fishermen, he said.

   To make things even better, the presence of the Indian poaching trawlers has considerably declined, he said. Thavaratnam said that all credit goes to Minister Dr.Rajitha Senaratne, the Ministry and the Government and the fishermen are very grateful. Bottom trawler fishing caused extensive damage to the coral reefs, which are breeding grounds to the aquatic life, and also substantially depleted fish stocks, posing a threat to the future livelihood of the fishermen.

   Realising this grave situation, the local fishermen who were engaged in bottom trawler fishing have now voluntarily agreed to stop it, Thavaratnam said.

   The Indian fishermen who come in their hundreds in huge trawlers to engage in bottom trawler fishing and other prohibited methods of fishing should follow suit, Thavaratnam said. Being fishermen, depending on the sustainability of aquatic resources, fishermen should desist from all acts that will annihilate the source of their livelihood, he said. He also welcomed proposals on deep sea fishing put forward by the Indian government. He said that this will be very advantageous to fishermen of both India and Sri Lanka and, therefore, the two

   Governments should jointly take measures to provide the necessary fishing gear, training and other assistance for promoting deep sea fishing. Repeated accusations that Indian fishermen were attacked by the Sri Lankan Navy in Indian territorial waters is false and baseless, Thavaratnam said. Not a single incident where Indian fishermen were attacked by the Sri Lankan Navy either in the Sri Lankan territorial waters or in Indian territorial waters have come to their knowledge so far although they have fishermen belonging to over 100 fishermen's societies going fishing round the clock, he said.

   On this matter, the Sunday Observer also contacted representatives of other fishermen's societies and unions, especially in the Mannar and Jaffna districts. They included Mariadas Logu, President of the St. Mary's Fishermen's Society in Arippu in Mannar, Gregory Shankar, President of the Panamkattikottu Fishermen's Cooperative Society in Mannar, Kandasamy Rajendran, President of the Ambal Fishermen's Cooperative Society in Karainagar, Jaffna, J.Sagayaraja, President of the Gurunagar Fishermen's Development Cooperative Society in Jaffna, K.Kulasingham, President of Alaimagal Fishermen's Cooperative Society in Salipuram, Jaffna and Abdhul Majeed Uvais, President of the Erukkalampiddy Fishermen's Society in Mannar. All of them expressed similar views as Thavaratnam. They said that they are jubilant after the 'pass system' was done away with. When the system was in force they had the feeling that they were under surveillance and observation but now they breathe the air of freedom. [6]

   [6] CX311391: "Fishermen assured a better catch", Sunday Observer, 14 April 2013,

8. This report would support the contention that the use of passes in the northern regions of Sri Lanka, the applicant’s home area, is no longer required. The Tribunal considers that the applicant would not be required to use a permit to fish in his home area, and so will not be denied the opportunity to earn a living in this manner. The Tribunal also notes that the applicant provided evidence that his father is a fishing businessman, that they own their own home. The applicant’s father currently maintains his fishing business, managing others. This would demonstrate that there is opportunity for the applicant on return to Sri Lanka and employment in the family business.

9. The Tribunal has considered the issue of being a fisherman more broadly, and the ability to subsist. The applicant was able to maintain a livelihood as a fisherman while residing in Sri Lanka, even under the permit system.  While the life of a fisherman is difficult, the Tribunal notes it remains a common profession in coastal areas of Sri Lanka. When the applicant has not worked as a fisherman, the applicant has found employment in other areas. The applicant has not provided any detail as to how he would not be able to subsist, which is contrary to his previous experience living and working in Sri Lanka.

10. While the Tribunal accepts that there have been challenges for the Tamil community in this area arising out of the changes to their economic opportunities and more competition from other fishermen, the Tribunal does not accept that these have reached the level that would constitute serious or significant harm for the applicant, now or in the reasonably foreseeable future. The applicant’s family have been able to continue a fishing business despite these competitive challenges. The Tribunal considers that this claim is not made out.

    Tamil / young male Tamils / young male Tamils from the North of Sri Lanka

11. The Tribunal has considered the applicant’s claims revolving around his identity, background, and an imputed political opinion arising from this background. The applicant stated that he has no connection to the LTTE, nor has been suspected of having such a connection.

12. In discussing the concern that he had as a Tamil in Sri Lanka, the Tribunal raised information from the UNHCR Eligibility Guidelines[7] and the UK Case GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) regarding risk profiles that have been identified in Sri Lanka. While these lists are not exhaustive, it is notable that there is a discussion regarding people of Tamil ethnicity, and the types of people of Tamil ethnicity who warrant ‘particularly careful examination[8]’, notably those with suspected links to the LTTE.

    [7] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December,

    [8] Ibid p26

13. According to the United Nations High Commissioner for Refugees (UNHCR), “the risks facing individuals with the profiles outlined below require particularly careful examination”.

    All claims lodged by Sri Lankan asylum-seekers, whether on the basis of the refugee criteria contained in the 1951 Convention, or complementary forms of protection based on human rights obligations, need to be considered on their own merits according to fair and efficient status determination procedures and up-to-date and relevant country of origin information.

    More specifically, the possible risks facing individuals with the profiles outlined below require particularly careful examination. UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.

    (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);

    (ii) certain opposition politicians and political activists;

    (iii) certain journalists and other media professionals;

    (iv) certain human rights activists;

    (v) certain witnesses of human rights violations and victims of human rights violations

    seeking justice;

    (vi) women in certain circumstances;

    (vii) children in certain circumstances; and

    (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[9]

    [9] Ibid p5

14. A similar list of risk profiles was summarised in the case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), a UK case that considered significant country information and testimony regarding Sri Lanka. This case stated that:

    The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

    (a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

    (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

    (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

    (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

15. The Tribunal put country information to the applicant with respect to the treatment of Tamils in Sri Lanka. DFAT released a Country Information Report on Sri Lanka in February 2015. It had the following information with respect to the treatment of Tamils.

    3.5      Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.

    3.8      Since independence in 1948, Sri Lanka has experienced tensions between the majority Sinhalese and the minority Tamil populations. Sinhalese have traditionally perceived that Tamils received preferential treatment under British rule. The growing dominance of Sinhala nationalist politics contributed to the implementation of a series of policy changes during the 1970s designed to assist Sinhalese, particularly in the areas of education and employment. This meant that many Tamils faced barriers to education and employment, creating a sense of discrimination among the Tamil community that was a primary driver of the conflict. Partly as a result of the conflict, successive Sri Lankan governments have made some efforts to address these ethnic and linguistic tensions through constitutional, legal and policy changes.

    3.9      In practice, Tamil speakers who speak no other language can face difficulties, including in the Tamil-majority Northern Province. For example, Tamils can sometimes have difficulty communicating with the police, military and other Government authorities. DFAT assesses that these practical difficulties are not due to official discrimination as such, but are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of previous discriminatory language policies.

16. This information reflects the advice that the UNHCR has provided in its most recent determination on Sri Lanka. ‘Tamils’ or ‘male Tamils’  or ‘Male Tamils from the North’ as a distinct group are not mentioned as in need of international protection, with references made to Tamils who have other circumstances, such as real or perceived links with the LTTE being referenced. While the UNHCR does state that its list is not exhaustive, the absence of the Tamil race generally, or reference to specific ages or gender of Tamils in this list is of note. The risk profiles in GJ and Others also do not include these attributes in its list.

1. The Tribunal has discussed above the applicant’s personal experiences as a young male Tamil from the north, including the heavy handed treatment from the authorities. The Tribunal has not accepted that the applicant was personally of interest to the authorities, but that he was asked questions, as were other young men, at certain times. He was permitted to leave after answering these queries. The Tribunal has not accepted that this treatment constitutes serious or significant harm

2. The Tribunal has considered this treatment more generally as a young Tamil male from the north. The Tribunal does not accept that his status as a young male Tamil fisherman from the north would lead to a real chance of serious harm or a real risk of significant harm in Sri Lanka. These attributes are not identified by the UNHCR or in GJ and Others as being a reason for concern, and while these lists are not exhaustive, the Tribunal considers, as discussed directly above, the applicant will not be targeted because of his issues with the authorities in 2012, or therefore, from any associated issue arising from this dispute because he is a Tamil.

3. The Tribunal does not accept that applicant’s claim that all Tamils in Sri Lanka face harm because of their race, age or gender, or from where they come from. The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or a relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR states that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. The Tribunal does not accept that this applies in the circumstances of the applicant, a man from the northern region with no involvement in such activities, historically or presently.

4. The Tribunal does not accept that the applicant, a young male Tamil from the northern region of Sri Lanka, faces a real chance of serious harm because he is of Tamil ethnicity, gender or age.  The Tribunal considers that the applicant is not a person, who simply because of his ethnicity, location in Sri Lanka, age or gender, will be targeted by the authorities for harm. The Tribunal finds that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of race, or membership of particular social groups arising from his race or gender, or any imputed anti-Government political opinion arising from this background. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

5. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. Based on the considerations of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.

   Religion/Sinhalisation

6. The applicant also made a very generic statement at the hearing, that Tamils had difficulty because of their language, race and religion. The Tribunal asked the applicant whether this was a new claim, that the Tribunal was not aware that Hindus were being denied opportunities to express their religion. The applicant stated that it was a sign of difference in Sri Lanka to the Sinhalese community.

7. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm arising out of his religion, or that he would be denied the right to practice his religion. The Tribunal notes that the applicant has a good relationship with a local parish priest, who provided a letter to the applicant, despite the applicant being a Hindu, not a Christian. While the Tribunal notes that the majority of Sinhalese are Buddhists, the Tribunal does not accept that the applicant will be targeted because of his religious beliefs.

8. More broadly, considering the claim of being identifiable through his language, race and religion, the Tribunal considers that this is not a concern in the home region that the applicant comes from Sri Lanka. The population in the north of Sri Lanka has a high proportion of Tamils, who speak Tamil and are Hindus. While there has been some migration of Sinhalese into the area in the post-civil war period, the Tribunal does not accept that this has led to the Tamils being marginalised or limited in their circumstances in their home area. The Tribunal does not consider that this claim is made out, and that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

   Failed Asylum Seeker

9. The applicant has claimed that he will be harmed because he is a failed asylum seeker. It was submitted that failed asylum seekers are readily identified on return to Sri Lanka, and that he will be arrested and interrogated by the authorities upon his arrival. The Tribunal raised the issue of the applicant’s illegal departure in this context as well. The Tribunal accepts that the applicant has illegally departed Sri Lanka, departing by boat and travelling to Australia in 2012.

10. With respect to the failed asylum seeker claim, the following country information is relevant. Specific advice received from the DFAT, discussed with the applicant at the hearing, indicates that Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen:

    R1. Returnees are subject to standardised identity and security checks regardless of ethnicity and the circumstances of their departure from Sri Lanka. Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Government of Sri Lanka has standardised re-entry procedures in place at the airport to undertake identity and security checks for all returnees. These processes are applicable to all Sri Lankan returnees regardless of ethnicity and are standard for returnees from all countries regardless of the circumstances around their departure from Sri Lanka (ie regardless if the returnee is voluntary or involuntary).

    In general, all arrivals at the airport are screened against an immigration database. Sri Lankan law enforcement agencies, including intelligence agencies, may place alerts against names in the immigration watchlist. A person with an alert against his or her name would be subject to further questioning at the airport.

    Where a person is not on the immigration watchlist but the person is otherwise identified to be of security interest, such as if a person has been removed/deported (returnee) or is suspected of being involved in criminal behaviour, including people smuggling, s/he is likely to be interviewed by Police's Criminal Investigation Department (CID) airport office or the State Intelligence Service (SIS), or both. This checking would occur regardless of ethnicity.

    We understand that where a person is known to be a non-voluntary returnee (we note again regardless of ethnicity), Sri Lankan immigration authorities have a standing agreement to refer the person to both SIS and CID at the airport for questioning.

    The process for returnees (non-voluntary and/or voluntary returnees) who have departed Sri Lanka illegally (not through an official port of entry/exit or not with a valid travel document) is that they will be processed by Sri Lanka's Department of Emigration and Immigration (DIE), SIS and Airport CID. Procedures include Airport CID obtaining police and security clearances, including from the person's local police office, to confirm there are no outstanding warrants against the person before they are allowed to exit the airport.

    In situations where the person is required to be interviewed by Sri Lankan security agencies, the SIS interview would normally precede the police interview. In the SIS interview, the returnee would be checked against intelligence databases. In the police interview, checks against police databases would be made, fingerprints would usually be taken and the person photographed. It would also be common for the person to be held until checks are made with the returnee's local police station.

    Increasing numbers of Sri Lankans have been returned from Australia either voluntarily or non-voluntarily in 2012. A representative from Post (DIAC) is present at the airport for the arrival of non-voluntary returns. The arrival of voluntary returns is facilitated by the International Organization of Migration. Based on post's current experience, Sri Lankan agencies endeavour to complete identity and security checks as soon as possible. Police's Deputy Inspector General of CID has advised post that CID endeavours to complete all processing at the airport as quickly as possible with no unnecessary delays. Post has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.

    R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

    We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they have facilitated.

    We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report "Sri Lankan Tamils tortured on return from the UK" [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

    "We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture."[10]

    [10] CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012

11. Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka,[11] other sources contest these claims. The UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankan – particularly Tamil – asylum seekers returned to Sri Lanka following the rejection of asylum claims, but acknowledged that ‘[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned’.[12]

    [11] 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

    [12] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p.8 < <CIS29707>

12. In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that ―[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity.[13] Further information on procedures at the airport can also be found in the UK Home Office Country of Origin Information report of March 2012.[14]

    [13] Immigration and Refugee Board of Canada, ‘Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport’, LKA103815.E, 22 August 2011 CIS29896

    [14] UK Home Office, ‗Sri Lanka: Country of Origin Information (COI) Report‘ 7 March 2012, 7 March, pp.202-203 CIS29709

13. The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

    UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.[15]

    [15] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012, p.8 CIS29707

14. The Tribunal discussed this information with the applicant, including whether he had any fears being harmed while being asked questions about his manner of departure and return to Sri Lanka. The Tribunal noted that the applicant had stated that he believed the CID would view him with suspicion, and that the country information available showed that he would be interviewed by the CID on arrival in Sri Lanka. The Tribunal asked if the applicant had any fears about that interview. The stated he would be harmed by the CID at this interview, who would be interested in him because of the flag raising incident. The Tribunal questioned whether the CID would be interested in the applicant arising out of anything other than a flag raising incident in November 2011. The applicant confirmed that he had no outstanding criminal charges or involvement in people smuggling.

15. The applicant claimed that it would not be reported if anything happened to him. The Tribunal noted that there are media outlets that describe the situation in Sri Lanka, such as Tamilnet, and that the claim that no information is presented is not correct.

16. The Tribunal notes that it is particular groups of people, as specified by the UNHCR[16], who are targeted by the authorities, including persons linked with the LTTE, certain opposition politicians and political activists, human rights activists or journalists. The Tribunal has considered the applicant’s profile above, such that it is, and does not consider that he is a person whom the authorities would have any interest in because of this background. The Tribunal does not accept that the authorities will have any interest in the applicant on his return. The Tribunal does not accept that the applicant will be harmed on return through the airport because of his issues with the authorities in his home area. The Tribunal finds that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. The Tribunal finds that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka.

    [16] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012

17. The Tribunal accepts the Sri Lankan authorities will assume the applicant has sought asylum in Australia, having regard to his unlawful departure by boat and the context and circumstances in which he would likely be returned. The Tribunal does not accept, given the confidentiality of the process, that his individual claims will be known. Having regard to the evidence and country information before it, the Tribunal does not accept the authorities will be concerned by the applicant's imputed asylum claim such that there is any real chance any state-actor will be motivated to harm him at any stage of the re-entry and return process, or the charge, remand and bail process, or in the process of imposing legal penalties for his illegal departure, for this reason because of his residence in a western country or seeking asylum in a Western country, either individually or cumulatively.

18. The Tribunal accepts country information, including Amnesty International, Human Rights Watch and Freedom from Torture, which report cases of certain returnee failed asylum seekers being specifically targeted and harmed by the Sri Lankan authorities. However, as discussed at the hearing, the Tribunal finds these reported instances are relatively isolated, and are not routine or regular, and turn on the particular profiles of those involved, such as real or imputed LTTE links.

19. The Tribunal is not willing to extrapolate from these reports a real chance of such harm to the applicant who had some limited issues with the authorities in late 2011 and/or would be a failed asylum seeker, having regard to his circumstances. The Tribunal does not accept that the weight of the evidence before it supports the view that there is any real chance the government will detain, harm, torture or kill the applicant personally due to any assumption that he has criticised the government in the course of seeking asylum, or otherwise arising from seeking asylum. For reasons outlined elsewhere above, the Tribunal has found there is no real chance the applicant, in his circumstances, will be harmed because of his previous difficulty with the authorities.

20. The Tribunal accepts on the basis of the country information provided that the applicant will be questioned by Sri Lankan authorities (including airport immigration officials or CID) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and return. However, having regard to his accepted circumstances, the Tribunal does not accept the applicant faces any real chance of being detained for questioning or otherwise targeted for harm – at the airport or in his home area - due to his race and/or identification as a failed asylum seeker, or any adverse real or imputed political opinion, or because of his illegal departure from Sri Lanka. Having regard to the cumulative accepted evidence, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home area. The Tribunal does not accept the applicant’s submission that the authorities would wait a period of time before seeking to harm him; the Tribunal does not accept that there is any reason for the authorities to want to harm him.

21. Were the applicant to be questioned or monitored briefly at the airport or in his home region by the authorities due to his illegal departure and failed asylum seeker bid, the Tribunal does not accept this itself amounts to harm or serious harm to him. The Tribunal does not accept that the applicant would be of ongoing or recurrent interest, or that he would face a real chance of serious harm in this context.  The Tribunal does not find the weight of evidence before it supports that view.

1. The Tribunal has considered country information provided, including from Amnesty International and Human Rights Watch, which indicates that they (and other credible global rights groups) are monitoring and assessing the situation of returnee failed asylum seekers to Sri Lanka, and the Tribunal does not accept that reporting as suggesting more than isolated and profile-specific instances of detention, torture or harm to returnees.

2. For these reasons the Tribunal finds the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of being a man of adverse political opinion or illegal departure.

3. Having determined that the applicant does not face a real chance of the applicant being harmed for this reason, the Tribunal further finds that the applicant does not face a real risk of significant harm for this reason.

   Illegal departure

4. The Tribunal accepts that the applicant has illegally departed Sri Lanka, departing by boat and travelling to Australia. The DFAT country information cited above discusses the process on return to Sri Lanka. The Department of Emigration and Immigration (DIE) would interview the applicant on return to Sri Lanka. It is likely that the applicant’s unlawful departure will be identified by DIE and the applicant may face criminal sanction due to the manner of his departure. The Tribunal raised this country information with the applicant for comment, including that he would face charges that any person who left Sri Lanka in a manner that is proscribed by Sri Lankan legislation would face.

5. The Tribunal asked the applicant if he had been involved in people smuggling or had been previously convicted of any matters. The applicant stated that he had never been convicted, or involved in any people smuggling.

6. DFAT states in its February 2015 report on Sri Lanka that:

   Offences under the Immigrants and Emigrants Act

   5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.

   5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. 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. Sometimes returnees then need to wait until a family member comes to court to collect them.[17]

   [17] DFAT report February 2015

7. The Tribunal then asked the applicant about bail, and the possibility of paying a fine if convicted of an emigration offence.  The Tribunal noted that punishment, if convicted, could be up to 5 years imprisonment and up to a 200,000 rupee fine but country information from DFAT indicates that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. This information indicates that fines that have been handed out are between 5000 – 50 000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats. The Tribunal noted that this may lead it to conclude that the fine the applicant would have to pay would be similar or not much higher. The Tribunal asked if the applicant was in a position to pay the fine and the amount for bail that may be required. The applicant stated that paying a fine was not a problem, that his family were earning very well, and that a family member would provide the surety for him to be provided bail. The Tribunal considers that the applicant has the financial capacity to pay a fine that may be imposed.   

8. Country information indicates that people are released on personal bail. People who have been involved in people smuggling or had previous convictions and not complied with bail conditions may not be released on bail. The Tribunal places weight on the DFAT information, and is satisfied that the applicant will be held for a short period on arrival for questioning, and is likely to be charged with an offence under the Immigrants and Emigrants Act.

9. The Tribunal has considered the applicant’s responses to this information and the punishment that he claims he may face on returning to Sri Lanka after illegally departing. The Tribunal notes that the applicant’s family are presently in Sri Lanka, and the Tribunal considers that they will guarantee his bail and thus ensure his quick release from any process required to inform the applicant of the charges he will face. The Tribunal does not consider that the applicant will be remanded for an extended period on return to Sri Lanka due to the manner of his departure from Sri Lanka in 2012.

10. The Tribunal accepts the applicant will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka. The Tribunal finds that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing, and then generally face a financial penalty (and not a custodial sentence).

11. The Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal considers that the laws are not selectively enforced. The Tribunal does not accept the submission that they are selectively enforced against failed asylum seekers, who are placed into the situation of having to depart illegally. The Tribunal considers that the laws are enforced against anyone who breaches them. Accordingly, the Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act, and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The very process of determining if someone was in breach of the Immigration & Emigration Act, or has any other pending charges, which the applicant will be required to do on returning through the airport, is a process applied to all returnees from Australia to Sri Lanka. The Tribunal therefore find that the applicant's very brief remand by the authorities for questioning, and for the provision of pending bail at the airport or in prison will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.

12. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure, or therefore, that there is any real chance or real risk he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty being imposed.

13. The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departed Sri Lanka. The Tribunal does not consider the imposition of a fine, or the process of being charged and possibly convicted, constitutes serious or significant harm.

100.   Having regard to the applicant's background, his ability to readily establish his identity (as he has done in the course of the protection visa application) and the presence of family in Sri Lanka, and noting the Immigrants and Emigrants Act bail provisions encompass bail on personal recognisance and without requirement of financial surety, the Tribunal finds the chances remote that the applicant will spend more than a very short period (of hours or at most a few days) remanded in custody awaiting bail on his own reconnaissance, after his return to Sri Lanka. The applicant stated he could meet the financial requirements of any payments required to be made.

101.   Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka[18], the Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay on remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison, by the authorities generally or the prison guards who would target him, as claimed by the applicant. The Tribunal does not accept that the applicant would be targeted in this way. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand, the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

[18] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014,     

102. Further, the Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. While the applicant may be placed in overcrowded and poor conditions for a short period of time, the Tribunal does not accept that the applicant will be singled out or intentionally harmed by the authorities in these circumstances while waiting for his bail. The Tribunal does not accept that there is any intention on behalf of the authorities to significantly harm the applicant, as defined in the Migration Act, while being detained. The Tribunal finds that there is no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. The Tribunal also does not consider that the applicant’s detention in these conditions for a short period of time constitutes significant harm. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.

103.   In these circumstances, the Tribunal finds the applicant faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, the Tribunal also finds that the applicant does not face a real risk of significant harm due to his illegal departure, taken alone or in combination with his other circumstances.

104.   Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka arising from his race, imputed political opinion, or as a member of a particular social group of either failed asylum seekers or returnees from a Western country or persons who left Sri Lanka illegally.

105.   Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Sri Lanka.

106. 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).

107. 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).

108. 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

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

Stuart Webb
Member