1409963 (Refugee)

[2015] AATA 3771

1409963 (Refugee) [2015] AATA 3771 (20 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409963

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:20 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 20 November 2015 at 1:33pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] March 2013 and the delegate refused to grant the visa [in] May 2014.

3.    The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6.    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8.    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9.     The applicant claims to be a citizen of Sri Lanka who was born in [Matale], in the Central province of Sri Lanka on [date]. According to his protection visa application, the applicant lived in [City 1] from [birth] to June 2012. He studied to Grade [number] from [year] to [year] and also completed a technical course in [subject] and a [subject] course in 2011. He is fluent in Sinhalese, English and Tamil. The applicant departed Sri Lanka illegally [in] June 2012. His father, mother and [siblings] are residing in Sri Lanka.

10.       The applicant presented his claims in his protection visa application [in] March 2013 (folios 24 and 25 and 43 to 71 of the Department File [number]), a Departmental interview he attended [in] November 2013 (between folio 144 and 145 of Department File [number]), a statement made to the Department received on 28 April 2014 (folio 110 of Department File [number]) and at his Tribunal hearing on 6 November 2015. The following is the statement made by the applicant attached to his protection visa application:

Introduction    

1.     I am a citizen of Sri Lanka. I do not have a right to citizenship or a right to reside in any other country.

2.     My ethnicity is Sinhalese and am in the Catholic religion.      

3.     I was born on [date] in [birth town], Sri Lanka. This is a small village with a majority of people being Catholic Singhalese.

4.     I was born in this village because my mother was travelling with my father to his work place in [another city]. I was born weeks too early, on the trip and immediately after my birth my family moved onto [City 1].

5.     When I was a child I lived with my family in my father's work place. He [did an occupation]. This work was full of [hazards] and the [he was injured]. Although he is only quite young, in his early [age], he could no longer work because his health has been so badly affected by his job. After a few years my father lost his job and we moved back to our one [house] near [location] in [City 1].

6.     After I finished year [number], I left school and did [a] course in [subject] and obtained a certificate to enable me to work [in related jobs]. I was unable to get a job. At this time I also was selected for [a representative sports] team to represent Sri Lanka however I did not travel. I played [other representative teams]. Our Club also won [a competition] which also increased my profile as [this sport] is very popular in Sri Lanka.

The country to which I fear returning

7.     I fear returning to Sri Lanka because of threats to my life from the party in government. I left Sri Lanka as a result of political actions which involved death threats to me.

8.     The person/s who made the threat to me is a member of the ruling party. My father and I worked for the United Peoples Party because we believed they were trying to help the poor people (like ourselves) in Sri Lanka. We helped them all around [City 1] by canvassing, putting up poster, leafleting and accompanying the candidates when they went around the area electioneering.

9.     The last election was held [in] October 2011 and around 3-4 days prior to the election we held an election rally.

10.  [In] September 2011, a day before the election, we were assisting with putting up posters for the election and I entered a street accidently. The location of where we put up posters is at [address] [City 1]. I was stopped by a man who used a gun to threaten me. This man is called [Mr A] (political man) and he resides at a village next to the one I lived at. A fight ensued over the putting up of the posters and when he tried to hit my father, I intervened and stopped him. I believe this is the reason for the threats towards me and my father. The names of 2 people who were helping me with posters and therefore were eye witness to my father in a fight are: [name] and [name].

11.  After around 2-3 days, 4 people broke into my house and threatened my father. I was with my friends at the Church and my father was out also. They asked for myself and my father and my mother said that we were out. My [siblings] told me that the men had come in a white coloured [car]. She was told that if they found us they would kill us and so my father and I left to stay with [another friend], a friend of my father living at [location], [name] which is the village where I had been born. This all happened in 2011 and I stayed in hiding for about several months.

12.  Then my father took me to [City 1] by 3 wheeler taxi. I went to the following address: [address], [City 1] where another friend of my father lived called [name]. I was too scared to go home to say farewell to my mother and [siblings] and have not seen them since i first left in 2011.

13.  Is is not safe for my father to live at home so he stays at home very infrequently. Sometimes my mother and [siblings] leave our house and go and stay with a [relative] in [City 1] as they are nervous being at home.

14.  My father had been a member of the UNP for a long time and had always believed in the way they tried to assist us.

What I fear may happen to me, by who and why, if I return to that country

15.  I fear that I will be pursued by the thugs from the ruling party and that I will not be able to live safely in my area. The [relative] of our village Leader who was [politically active] in our area, came on the boat with me to Australia. Even a person with a high profile cannot get protection in Sri Lanka. I would say that I would have no chance of protection as my father and I have no power.

Why I think the authorities of that country cannot or will not protect me if I were to go back to that country?

16.  I do not believe that the authorities will choose to help us as there is so much corruption in our area, that the police only help those who are in power. Our Party is in opposition.

17.  People like me cannot go to the Police station to complain about [Mr A] (political man) because we are in the Opposition Party and the Police will ring [Mr A] and inform him. So we will not go to the Police for protection.

Why I think relocation to another area in my country is not a reasonable option

18.  I believe that I will be located wherever I am and my mother and [siblings] report that the political man and his supporters continue to visit my house and check with my mother whether I am there.

In my Entry Interview I talked about my family being very poor and having huge debts and that I had to work to pay this debt off in Australia. I had said this because I was told by others on the boat trip not to talk about my political involvement and to say any other reason why I had come to Australia.

The truth is that I came to Australia because of the political threat from the current ruling party and the fact that I have no way of protecting myself from acts of violence which they carry out on those they see as any sort of threat.

1. The delegate of the Minister for Immigration and Border Protection refused the applicant a protection visa [in] May 2014 and he applied to this Tribunal for review of that decision on 5 June 2014. Attached to the review application was a copy of the delegate’s decision.

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

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

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

5. The applicant claimed in the hearing that he fears returning to Sri Lanka because of an incident that happened to him just before the elections, when he and his father were doing canvassing work. He claimed that they went to a different village to paste posters and put posters on the wall of a person from the opposition party named [Mr A]. This person came out and they had a an argument and [Mr A] tried to hit his father so he (the applicant) blocked him and [Mr A] slapped him and he slapped [Mr A] back. A week after, [Mr A] broke into his house looking for him and his father. When asked who he fears will harm him if he returns to Sri Lanka, the applicant claimed that he fears this “political guy”. In response to the Tribunal’s question why this person would want to harm him, he stated because they had a fight. The Tribunal notes the applicant’s evidence in the hearing that the dispute with [Mr A] was not a political matter but a personal dispute between [Mr A] and him and his father.

6. The Tribunal does not accept the applicant’s claims regarding this particular incident, which according to the applicant’s evidence in the hearing, is the basis upon which he fears returning to Sri Lanka. As the Tribunal put to the applicant, he has provided inconsistent evidence regarding the circumstances of this alleged incident. As discussed above, in the hearing the applicant claimed that he and his father were together when they were pasting posters and they pasted a poster on the wall of [Mr A’s] house. This person came out and started yelling at them and came close to his father and pushed him. The applicant claimed he jumped in to stop him and [Mr A] slapped him and he slapped [Mr A] back. The applicant claimed that [Mr A] pushed his father and his father fell to the ground. The applicant could not remember the date that this incident occurred.

7. However, in the statutory declaration attached to the protection visa application, the applicant claimed [in] September 2011, a day before the election, he and his father were assisting with putting up posters for the election and he entered a street accidentally and he was stopped by a man who used a gun to threaten him. He claimed a fight ensued over the putting up of posters and when [Mr A] tried to hit his father, he intervened and stopped him. The Tribunal notes that there is no mention about the applicant’s father being pushed to the ground or that the applicant slapped [Mr A].

8. In contrast to the applicant’s evidence in both his statutory declaration and at the hearing that he was together with his father pasting posters during this incident, in the applicant’s statement received by the Department [in] April 2014, he claimed that his father, along with a group of UNP supporters were putting up posters, around the area close to [Mr A’s] house. He specifically stated that he was not there at the time but understood that his father and [Mr A] got into a heated argument regarding the posters. They began yelling and shouting at each other, which eventually declined into pushing and hitting. The applicant claimed the other people phoned him to come and take his father home because it was getting messy and was building up to becoming a big fight. He claimed when he arrived his father and [Mr A] were hitting each other and when he tried to stop the fighting between [Mr A] and his father, [Mr A] pulled him down and hit his father and after that he (the applicant) slapped him.

9. While the applicant claimed that he may have said some dates differently and this can happen as we are all human and make mistakes, as the Tribunal explained it is not concerned about dates but the detail regarding what occurred. While the Tribunal appreciates it has been some time since this alleged event occurred, given the significance of this incident, being the basis upon which the applicant is seeking protection, the Tribunal would expect some consistency in the detail about what actually occurred during this incident.

10. Given the differences in the applicant’s evidence regarding the circumstances of this incident, namely the inconsistencies in his evidence as to whether he was with his father pasting posters at the time that this incident occurred and the discrepancy in his evidence as to what actually transpired during this incident, particularly the use of a gun to threaten him and what happened to his father, the Tribunal finds that this incident did not occur and that the applicant’s claims are not credible.

11. As the Tribunal does not accept that the applicant and his father were involved in any incident with this opposition political man called [Mr A], the Tribunal does not accept that following this incident [Mr A] and a couple of other people broke into the applicant’s house and asked for him and his father and threatened to do something to them. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, he claimed that this incident allegedly occurred 2-3 days after the first incident. However, in the hearing he claimed that this visit took place a week after the initial incident.

12. It follows, as the Tribunal does not accept that the applicant and/or his father had been in any argument or fight with [Mr A] or had received any threats from him following this alleged incident, it does not accept that the applicant left [City 1] and went to live in [his birth town] up until he left Sri Lanka. The Tribunal also does not accept that the applicant’s father went to [his birth town] and when the applicant’s father returned to [City 1] he was involved in any argument with [Mr A] and subsequently left [City 1].

13. Nor does the Tribunal accept the applicant’s claim in the hearing that there were a couple of times that [Mr A] or people associated with him came and asked about him or his father in his village. The Tribunal notes the applicant’s evidence that his father was living at his home address in [City 1] and as it put to the applicant in the hearing, it finds it implausible that if this person was after his father, that he would not go to the applicant’s home to look for him but instead simply ask the people in his village. The Tribunal also does not accept the applicant’s claim in his statutory declaration that [Mr A] and his supporters continue to visit his house and check with his mother whether he is there. The Tribunal notes the applicant made no mention of any visits to his home in the hearing apart from that one that allegedly occurred soon after the initial incident.

14. Based on the above, the Tribunal does not find the applicant a witness of truth and does not accept that his claims regarding this encounter with [Mr A] and the subsequent problems he experienced are credible. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, if he returns to Sri Lanka, from [Mr A] or people associated with him or anyone else because of the alleged fight that he and [Mr A] had.

15. The Tribunal also does not accept that the applicant was an active supporter of the UNP, as he has claimed. The Tribunal found the applicant’s evidence regarding his support of the UNP to be vague and lacking in detail. While the applicant was able to identify the UNP colour and symbol, when asked about the UNP’s policies, the applicant simply stated it was helping out the people. When the Tribunal noted that all political parties wanted to help the people and asked what the UNP was going to do in particular for the people, he stated developments and promises about “housing things”. He stated that they would promise people who did not have land or a house, to give them land and to build them a house, to build roads and water “things”. The Tribunal does not accept that if the applicant attended meetings, pasted posters and engaged in canvassing activities, including shouting slogans, since the end of 2010, as he claimed in the hearing, that he would be unable to provide more detailed evidence regarding the UNP’s policies or elections promises other than helping people with housing and water “things”.

1. Further, the Tribunal has had regard to the applicant’s inability to tell the Tribunal when the election that he allegedly participated in was held, other than that it was in 2011. The Tribunal does not accept that if the applicant engaged in putting up posters, attending meetings and travelling in vehicles shouting slogans, as he claimed in the hearing, that he would not be able to at least provide the month in which the only election that he essentially claimed to have participated in was held.  While the Tribunal appreciates that this election took place several years ago, given that the central and significant incident which forms the basis of the applicant’s claims allegedly occurred during this particular election, the Tribunal finds it implausible that the applicant would be unable to recall the month in which this election was held if he in fact actively supported the UNP.

2. The Tribunal has also taken into consideration the fact that the applicant’s claims have changed over a period of time. As the Tribunal put to the applicant in the hearing, he did not raise any claims regarding his involvement with the UNP or the altercation between him and his father and [Mr A] and the subsequent threats they received as a result of that particular incident prior to his written statutory declaration lodged with his protection visa application. As noted in the delegate’s decision, in his entry interview the only statement made regarding UNP involvement was that his father attended the meetings for UNP, but was not involved; he was not an active member, which is in stark contrast to the applicant’s evidence in the hearing that his father had been working for the UNP “since forever”. More significantly, there was nothing to indicate that the applicant had been associated or involved with the UNP despite the fact that his subsequent claims for protection were based on his association with the UNP.

3. Additionally, the Tribunal notes, as was discussed in the delegate’s decision, a copy of which was provided to the Tribunal, in the entry interview, in relation to why he left Sri Lanka,  the applicant discussed the fact that his father had lost his job and accumulated significant loans which his family were unable to repay and he came here to gain employment in order to repay this debt.  The applicant went through an enhanced screening process [in] November 2012 and was notified that he had been screened out of processing further through the IMA process. [In] November 2012 the applicant advised his case manager of a motor bike accident he was allegedly involved in, stating that the woman involved died and her son now wished to kill him. It was stated that the applicant had not raised this previously because he was told by people on the boat only to mention economic reasons. The Tribunal notes that the applicant did not raise at this time anything about the UNP or problems related to his alleged political opinion. On 3 December 2012 the applicant submitted a copy of a court document in relation to the motorbike accident. [In] January 2013 the second ‘screened out’ decision was handed down and [several days later] the applicant raised for the first time claims of his previous involvement with the UNP and the altercation with [Mr A], stating again that he had not previously mentioned this because he was told by people on the boat to only mention economic reasons. The applicant was also reported as claiming that he did not provide this information during the handing down of the second screened out decision because he did not have particular documents with him at the time. Further correspondence from the applicant’s case manager, which was referred to in the delegate’s decision, stated that the applicant did not provide information in relation to his involvement with the UNP earlier because he felt his story of the accident was sufficient at the time. While the applicant explained his delay in raising the various claims he has made as being the result of advice he received on the boat only to mention economic reasons, not having particular documents with him and believing his story of the accident was sufficient, the Tribunal finds these explanations unconvincing, particularly when considered in the context that his alleged association with the UNP was raised essentially only after his earlier claims had proven to be unsuccessful.  As the Tribunal put to the applicant in the hearing, looking at the progression of his case, and his delay in raising claims regarding the UNP, it has serious concerns about his credibility generally and the credibility of his claims for protection.

4. The Tribunal has taken into consideration the letters submitted by the applicant from [Mr B] and [Mr C] but finds that the contents of these documents are not consistent with the applicant’s evidence. As the Tribunal noted in the hearing, [Mr B] refers to the applicant as a devoted member of the party and states the applicant was highly involved in UNP activities during 2010 to 2012 general election times. The Tribunal finds the applicant’s evidence is not consistent with the information in [Mr B’s] letter given the applicant has not claimed to have participated in any general elections, or to be a member of the party. Similarly, the Tribunal notes the applicant made no claims that his house and belongings had been destroyed by opposition party thugs, as stated in [Mr C’s] letter. As such, the Tribunal places little weight on these documents.

5. Based on the above, the Tribunal does not accept that the applicant was a supporter of the UNP. The Tribunal also does not accept that the applicant ‘s father was a UNP member for a long time or that his father worked for the UNP. As the Tribunal finds the applicant’s claims regarding his support of the UNP are not credible, it does not accept that he faces a real chance of serious harm, now or in the reasonably foreseeable future, if he returns to Sri Lanka, from thugs of the ruling party, the ruling party or [Mr A], the political man, or his supporters because of his alleged political opinion.

6. The Tribunal has taken into consideration the applicant’s original claims, as detailed in the delegate’s decision, a copy of which was provided to the Tribunal, that the reason the applicant left Sri Lanka was because his father had lost his job and accumulated significant loans which his family were unable to repay and he came here to gain employment in order to repay this debt. The Tribunal notes the applicant’s evidence in his statutory declaration, as outlined above, that in the entry interview he talked about his family being very poor and having huge debts and that he had to pay this debt off in Australia, because he was told by others on the boat trip not to talk about his political involvement and to say another reason why he had come to Australia. Further, according to the delegate’s decision, the applicant gave evidence that his father has no debts and is ‘alright’ financially. The Tribunal therefore does not accept the applicant’s claims regarding the economic difficulties his family allegedly experienced in Sri Lanka are credible.

7. Similarly, the Tribunal has also had regard to the applicant’s claims in relation to the motorbike accident that he was involved in before he left Sri Lanka. In the hearing the applicant claimed that a couple of months before he left the country he hit a lady and she was injured and hospitalised and he received a fine for speeding. The Tribunal notes when asked what happened to the lady, the applicant’s response was that he did not know. In response to the Tribunal’s question as to whether he experienced any problems as a result of this accident, apart from receiving a fine, the applicant stated that there were some issues with the sons of the lady. He stated that his father had a couple of arguments with them and the sons had spoken to him when he was at the hospital. When asked if the issue was resolved with the lady’s sons, the applicant stated that he thought so. He thought his father had paid them something. He stated that his father would not tell him anything. The Tribunal asked the applicant if he had any concerns in relation to this accident if he returned to Sri Lanka. He stated maybe; he could not tell.

8. As discussed above, the applicant had previously claimed that the lady who was involved in the accident had died and her son wished to kill him. Further, according to the delegate’s decision, the applicant gave evidence that in early 2011, when he and his friend were riding his father’s motorbike, a drunk woman suddenly came in front of the motorbike and the handle stuck her hip and she was injured. It was stated that the applicant claimed he and his friend took the woman to [City 1] hospital, where she was treated and that he gave money to woman’s children to cover her medical expenses. He also claimed to have contacted the police and obtained a police certificate for the incident. He stated that within one week the woman was discharged from hospital and he came to a settlement with the family as they agreed not to pursue the matter further with the police and the matter had been resolved. The applicant stated that there was a summons that came from the police because he was not wearing a helmet during the incident. He stated the matter ‘is all done’ As the Tribunal observed in the hearing, the applicant provided significantly more detail regarding this accident during the interview with the Department, as compared in the hearing, much of which was inconsistent with his subsequent evidence to the Tribunal. While the Tribunal is prepared to accept the applicant was involved in a motorbike accident in which he injured a lady, the Tribunal does not accept that the lady’s son or sons want to kill the applicant or that the matter continues to be ongoing. The Tribunal is satisfied on the applicant’s earlier evidence that the issue was  resolved.  As such, the Tribunal does not accept that the applicant faces any problems or difficulties either from the lady or her family or the authorities in relation to this incident.

9. The applicant claimed in the hearing that his mother had received another letter that he has to go to court in relation to the accident. When asked about what this summons was for, the applicant was unable to provide the Tribunal any information regarding the content of this alleged document. Following the hearing the Tribunal received a copy of what is purportedly a Summons to an Accused from [a] Court in [City 1], which was signed by the Registrar [in] June 2015, ordering the applicant to appear in [City 1] [Court] [in] August 2015 in relation to a complaint that was lodged on that day accusing him of “conducting interviews with accused persons related to careless drive, did not prevent an accident, driving without driving license, driving without insurance certificate, driving without revenue tax licence”. The Tribunal places little weight on this document. The Tribunal finds it implausible that if the applicant’s mother had received this document, what appears to be several months ago given the applicant was allegedly required to appear at court in August 2015, that the applicant would be unable to tell the Tribunal anything about the reason why he had been summonsed.  The Tribunal also finds the contents of the document to be inconsistent with the applicant’s evidence and nonsensical. According to the applicant’s evidence, as discussed above, the matter was resolved, yet in June 2015, four years after the incident, a complaint has been lodged and this was in relation to the applicant conducting interview with accused person related to careless driving. In light of these concerns, and the independent information put to the applicant in the hearing regarding the prevalence of document fraud in Sri Lanka and the ease in which such documents can be obtained, the Tribunal does not accept that this document is genuine and therefore does not accept that any summons has been issued against the applicant in relation to the motorbike accident he was involved in prior to his departure from the country. 

10. The Tribunal asked the applicant if there were any other reasons why he feared returning to Sri Lanka. The applicant stated that was all. When asked if he had any concerns related to the fact he departed Sri Lanka illegally, the applicant stated that he would go to jail. The applicant stated that when he left Sri Lanka he gave his identification to border protection in Sri Lanka. When asked to explain why he would be giving border protection his identification documents if he departed illegally, he stated that he left the country as if he was a fisherman so he had to give them documents, a fishing document, and they still have them on file. He explained that in [City 1], when taking the boat out from the bay, on the pretext of fishing, the navy searched the boat and the documents were given. He claimed that there were [number] of them on the boat when the navy made their checks and that the other passengers got on the boat in the middle of the night. The Tribunal notes that there is nothing in the applicant’s statutory declaration or in the delegate’s decision regarding the applicant having any interaction with border security or the navy on his departure from the country and him giving them his identity documents. The Tribunal does not accept that if the applicant had had any interaction with the authorities in Sri Lanka on his departure from the country in the manner he claimed for the first time in the hearing, and had concerns that this may result in problems for him on his return to country, that he would not have alluded to this at some stage prior to the hearing and only after the Tribunal specifically asked him about this. Given the lateness in which the applicant raised these claims regarding the documents he allegedly provided to border protection or the navy and the Tribunal’s concern about the applicant’s credibility generally, the Tribunal does not find the applicant’s claims regarding handing over his identification documents to the authorities credible.

11. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

12. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the [City 1] Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at [City 1] prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport.

13. As the Tribunal put to the applicant in the hearing, the information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes, as it did in the hearing, the applicant has his parents in Sri Lanka who can stand as guarantor for him and there is nothing to suggest that they would not do so. The Tribunal therefore does not accept looking at the applicant’s particular circumstances and the country information, he would face extended administrative detention on his return.

14. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote. While the applicant claimed that he knew a guy who went back and had heard he was imprisoned for six months, the applicant was unable to provide any further information regarding this person’s circumstances, including his name. The Tribunal prefers the information from DFAT that most people are not going to jail and are fined, unless there is some other reason they might be of interest, particularly if they had some role in people smuggling itself. As discussed above, the Tribunal does not accept the applicant’s evidence in the hearing regarding him having to handover any identification to the navy or border protection. As such, the Tribunal does not accept the applicant will be assumed to be a people smuggler or the captain of the boat as he suggested in the hearing.

15. The Tribunal also considered whether the applicant will face a real chance of serious harm based on his membership of a particular social group of failed asylum seekers. The Tribunal notes that this issue was not raised by the applicant but was recognised by the Tribunal as arising on the particular facts of the applicant’s case. When asked if he had any concerns that by seeking asylum in Australia, he may face problems or harm if he returns to Sri Lanka, the applicant stated maybe. In response to the Tribunal’s question as to what sort of difficulties he may experience, the applicant stated that they may put him somewhere else or in jail; that is all he is guessing.

16. The Tribunal has considered the information from DFAT it put to the applicant in the hearing, which noted that significant numbers of Sri Lankans have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm.  As the Tribunal put to the applicant, various sources including DFAT, other foreign governments and UNHCR regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period. The reports suggest that persons without any adverse profile, for example a criminal record or previous suspicions of association with the LTTE, are released at the airport without further interest (see Sri Lanka: Treatment of Failed Asylum Seekers and Returns Issue Paper dated May 2015). While the Tribunal accepts that the applicant as a failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile, while there was the incident involving his motorbike, he was fined and the matter was resolved, therefore there is nothing to suggest he would fall within the profiles of  those who the authorities would have an adverse interest in. As a result, the Tribunal finds that the applicant would be released without further interest and he would not face a real chance of persecution as a failed asylum seeker or returnee.

1. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by [Mr A] or people associated with this person or the ruling party and their thugs or anyone else because of his alleged political opinion or his involvement in any altercation. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka or his membership of the particular social group of “failed asylum seekers”. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

2. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

3. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

4. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept that the applicant was involved in politics in Sri Lanka. It does not accept that he supported or worked for the UNP at any time in the past, including in 2011 during local government elections. The Tribunal does not accept that the applicant was involved in any argument or fight with a person named [Mr A] or had received any threats from him following this alleged incident. The Tribunal does not accept on the evidence before it that the applicant will be involved in politics in the future. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from [Mr A], or anyone associated to [Mr A] or from opposition party supporters, members or thugs.

5. The Tribunal accepts that the applicant may have been involved in a motorbike accident in which he injured a drunken woman crossing the road. However, the Tribunal finds on the totality of the applicant’s evidence that this issue was resolved both between him and the lady and her family and also the authorities. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm as a result of this accident.

6. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, the Tribunal does not accept that this would constitute significant harm. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty.

7. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

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

9. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

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

11. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Sydelle Muling
    Member