1412408 (Refugee)

1412408 (Refugee) [2016] AATA 3458 (4 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412408
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:David Corrigan
DATE:4 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 04 March 2016 at 4:51pm

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

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).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2014.
The applicant appeared before the Tribunal on 3 March 2016 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
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
I have before me material which includes:
·Application for protection visa with accompanying statutory declaration dated [in] October 2012;
·Copies of the applicant’s birth certificate, [Country 1] registration card, driving licence and emergency passport;
·Copies of a letter of [Organisation 1];
·Copy of photo of [vehicle] and registration and insurance papers;
·Interview with the delegate dated [in] March 2013;
·Agent’s written submissions dated 2 July 2013 and 19 February 2014;
·Email from the applicant’s agent dated 13 May 2013.
·Copies of letters from mosques in [two locations];
·Translated copy of a notice from [a] Police Station for the applicant to present [in] June 2015;
·Copy of a translated death certificate for [an age] year old man who died in a [District 1] hospital [in] July 2003 due to [medical condition] due to [an] accident;
·Copy of an inquirers’ certificate of death, dated [in] June 2014.
The applicant’s claims can be summarised as follows. He is a Muslim born in [his home town], [in District 1], Sri Lanka in [year]. In 2003 to 2006 he lived in [Country 1]. When he returned he worked in [an industry] and as [an occupation] until 2012.
The applicant left Sri Lanka for work to support his family and to save his life. He could not obtain work because the Sinhalese were given preferential treatment. If he was fortunate enough to get a job he would be paid around 75% of the wages of the Sinhalese. They were constantly abused by the Sinhalese and did not feel safe at work or on the streets. If they complained to the police, they would not take any action as they were all Sinhalese. Sinhalese men would come to his house looking for him and wanting money and he would stay at different houses to avoid them.
After the tsunami in Sri Lanka, he was unable to contact his family and decided to return. He returned with the help of [Organisation 1]. They gave him a package including 500 pounds and they assisted him to get [equipment]. He later sold the [equipment] and people believed he had money. Many Sinhalese men were jealous. He paid a deposit on [other equipment] after selling land which was owned by his father and he used this leased [equipment] to [conduct business].
Within 12 months of his return, he was kidnapped by Sinhalese men. They took his [vehicle] and blindfolded him and tied him up. They thought he had money and he was beaten and tortured. The kidnappers called his wife and demanded money. They came and collected money and released him.
The applicant also had problems with the Criminal Intelligence Division (CID) who wanted money from him. However, he managed to avoid them as he was never at home.
The applicant left Sri Lanka illegally by boat in June 2012.
[In] May 2013, the applicant’s [child] did not return home from school. His wife became concerned and made enquiries and was told by classmates who walked home from school with [him/her] that two men forced him into a white van. [The next day], his [child] was returned by a stranger who found [him/her] on the side of the road. [His child] was badly beaten and was taken to hospital. The applicant believes that members of the CID are responsible because they have been harassing his family for months and have frequently told his wife that since they cannot find the applicant they will take his [child]. His [child] was later found dead.
A few days after this incident, the applicant could not contact his family because they no longer answered the phone or stay at home for fear of their safety. [In] June 2013, between 12am and 1am, several Sinhalese men attended his house to search for him. The men shouted his name and banged on the house. His family were present and stayed in the house out of fear. The applicant suspects they were the men from the CID.
Country of reference
The applicant has claimed to be a citizen of Sri Lanka. He has provided documentation (including a copy of his birth certificate) that supports this claim. On the basis of this evidence, I find that he is a national of Sri Lanka for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.
Assessment of claims
I have considered carefully the applicant’s claims but I do not accept he is a credible witness. His evidence was vague and undetailed and displayed a very high level of fundamental inconsistencies. I am of this view for the following reasons:
·The applicant told the Tribunal that the first kidnapping incident occurred 3-4 months after he arrived back in Sri Lanka in 2006 and that he was driving his [vehicle] and was stopped by Sinhalese men who captured him and demanded money from him and that he was able to escape. He said the second kidnapping incident occurred later and in this incident his wife had to pay money for his release. However, this order of events is inconsistent with the evidence in his statutory declaration and in his interview with the delegate. In his statutory declaration, he said the kidnapping incident where his wife had to pay money for his release occurred within 12 months of his return to Sri Lanka and in his interview with the delegate, he said the incident where he escaped occurred two years after the first kidnapping incident. The applicant told the Tribunal that he was unable to recall what happened, but I do not accept that he would be unable to recall the order of the claimed kidnappings if they had actually occurred and I find this detracts from his credibility.
·Other significant inconsistencies in the applicant’s evidence were also present. For example, he told the Tribunal that his wife had paid [an amount] rupees for his release but in his interview with the delegate he said it was [double this amount]. The applicant put this down to problems with his memory; however I find this further detracts from his credibility.
·At the hearing, the applicant told the Tribunal that his adopted [child] [Child A] was abducted and beaten and later was killed. However, in the email from the applicant’s agent, it is stated that they had been instructed that it was the applicant’s [child] [name deleted] who was abducted. The applicant commented at the hearing that it was probably a mistake by the interpreter. However, the applicant’s protection visa application (D. 49) which asked him to provide details of all family unit members makes no reference to an adopted [child] called [Child A]. The applicant told the Tribunal that he did not want to give [Child A’s] name and wanted [him/her] to stay in the village and be in a good state; however, I do not consider this explanation at all addresses why he would have failed to refer to this adopted [child] in his protection visa application. I do not accept that the email of the agent was affected by an error of a translator and it is apparent that the applicant has given highly inconsistent evidence about the identity of the person who was allegedly kidnapped and I find that this reflects poorly on his credibility.
·The applicant told the Tribunal that he did not know who was responsible for his adopted [child]’s abduction. However, in the email from the applicant’s agent, it is stated that he believes that members of the CID are responsible because they have been harassing his family for the last 7-8 months and that throughout that time, CID members regularly told his wife that since they cannot find the applicant they would take his [child]. The applicant told the Tribunal that at that time he had a better memory, but I do not consider this to be a satisfactory explanation and I find this further detracts from his credibility.
·The applicant’s evidence was very vague and undetailed. For example, at the hearing he could not recall whether he had gone to the police after the kidnapping incident where he escaped and he said he did not notice if the men who did these kidnappings were the same men. Nor was he able to recall how many times he was physically mistreated prior to going to [Country 1] and he said he could not remember any other problems prior to going to [Country 1] (despite having claimed at the interview with the delegate that Sinhalese men had come to his house wanting money and that the CID and army had demanded money off him). I do not accept that the applicant would not be able to recall such matters if they had actually occurred. Nor do I accept that he would not be aware if they were the same men involved in the kidnappings and I find these matters detracts from his credibility. The applicant told the Tribunal that he had difficulties remembering matters because of his age and due to the death of his adopted [child]; however I note that he is of middle and not old age ([age] years old) and I do not accept that his adopted [child] was killed and I do not consider these to be satisfactory explanations for his claimed memory loss and inability to recall details.
·Despite their obvious and central importance, the applicant failed to refer to a second kidnapping incident or to any problems with the authorities in his statutory declaration which accompanied his protection visa. The applicant told the Tribunal that 3-4 years ago he told everything and that he had been under a lot of tension due to the loss of his [child]. I do not accept this explanation. The applicant was legally represented in the preparation of this statutory declaration, he signed it and it indicates that the contents of it were interpreted to him. I find this further detracts from his credibility.
Given these highly significant concerns about his credibility, I do not accept that Sinhalese men came to his house to look for him and that they wanted money and he would stay at different houses to avoid them. I do not accept that he was constantly abused by Sinhalese. I do not accept that he was tortured as he claimed at the hearing. I do not accept that Sinhalese men came around to his house and he reported this to the police. I accept that he owned [equipment], but I do not accept that he was ever kidnapped and mistreated by Sinhalese men or anyone else and that a ransom had to be paid for his release or that he ever escaped. I do not accept that the CID or the authorities, Sinhalese men or anyone else ever demanded money from him.
I do not accept that the applicant’s adopted [child] or any family member was kidnapped and beaten and then later found dead. I do not accept that the authorities, the CID, Sinhalese men or anyone else have ever come looking for the applicant. I do not accept that the police have requested that he attend a police station for questioning. I do not accept that he is or was of adverse interest to the authorities, the CID, Sinhalese men or anyone else. I do not accept that his family stopped answering the phone or moved away due a fear of the CID or Sinhalese men or anyone else.
In making my findings, I have taken into account the Tribunal’s Guidelines on the Assessment of Credibility (including the effects of anxiety and trauma on applicants and the passage of time). However, these do not overcome the highly significant concerns I have about the applicant’s credibility that are set out above.

In making my findings, I have also taken into account the evidence at the hearing given by the applicant’s wife by telephone. She told the Tribunal that their adopted [child] was taken and beaten and then was later killed. She said that men not in uniform and speaking Sinhalese had twice come looking for the applicant. She stated that her husband had previously been abducted and she had to pay money for his release. She said that after he left Sri Lanka, the police had come looking for her husband but they did not mention why there were interested in him. She said she had received in the post, the letter requesting her husband to attend a police station. I have given some weight to her evidence in the applicant’s favour, however it does not overcome the highly significant concerns that I have about the applicant’s credibility as set out above.
In making my findings, I have taken into account the translated letter from the police notifying him to report to them [in] June 2015. As to why he had been sent this letter, the applicant stated it was because they thought he was smuggling goods. However, whilst I accept that the applicant [transported] goods, I consider this claim to be completely speculative given that he had been involved in this work for several years up until 2012 and had not come to the adverse attention of the authorities in that time and there is no evidence that he was involved in any illegal activities and there is no apparent reason why he would have been issued this notice, three years after his departure from the country. Given this and my overall concerns about the applicant’s credibility, I have given this document no weight in my assessment.
In making my findings, I have taken into account the death certificate of the [age] year old man. However, it indicates that this man died a long time ago in June 2003 at the [District 1] Hospital and that the cause of death was [medical condition] due to [an] accident (a [medical condition]). I accept that this is an authentic document and that this person died, but given that it relates to a hospital death from natural causes a long time ago, I do not accept that this has any relevance to the applicant’s claims or is indicative of any future prospect of harm to the applicant.
In making my findings, I have also taken into account the copy of the inquirer’s death certificate, dated [in] June 2014. However, given the highly significant concerns I have about the applicant’s credibility set out above, I have given this document no weight in my assessment and do not accept that it relates to an adopted [child] of the applicant.
Given my rejection of all these claims, I find that the applicant does not face a real chance of persecution on the bases of these claims, now or in the reasonably foreseeable future from the authorities, CID, Sinhalese men or anyone else.
Given my rejection of all these claims, I find that there are not 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 that he will suffer significant harm on these bases.
Muslim claims
The applicant has provided copies of letters from mosques in Sri Lanka and I accept that he is a Muslim. He told the Tribunal that though he speaks Tamil, he does not consider himself of the Tamil ethnicity but rather that he is a Muslim.
I have taken into account the country information referred to in the agent’s submissions concerning the situation of Muslims. However, in making my assessment, I have given substantial and greater weight to the information from the Australian Department of Foreign Affairs and Trade (DFAT) as it is recent and because it is an authoritative source and they have been specifically charged with the provision of such information to the Australian government.
DFAT has stated:
3.14 DFAT assesses there is little official discrimination on the basis of religion as there are no official laws or policies that discriminate on the basis of religion….
3.16 DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely…
3.17 The Muslim community is the fastest growing ethnic community in Sri Lanka. Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million…
3.19 Although most Muslims sided with the Sinhalese Government forces during the civil conflict, there has been a recent rise in religious tensions between Muslims and the Sinhala-speaking Buddhist majority, particularly with nationalist groups such as Sinhala Ravaya (Sinhalese Roar) and the BBS. In early 2013, Sinhalese Buddhist nationalist groups called for the removal of Halal certification of food produced in Sri Lanka, which they objected to on religious and economic grounds. The apex religious body of Muslims in Sri Lanka, the All Ceylon Jamiyyathul Ulama (ACJU), agreed in March 2013 to stop issuing Halal certification, other than for products produced for export to Islamic countries.
3.20 There have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses. According to the SLMC there were at least 241 anti-Muslim attacks and 69 anti-Christian attacks during 2013, some of which involved physical violence or the destruction of property. For example, in March 2013, a Buddhist mob attacked the warehouse of a Muslim-owned business at Pepiliyana near Colombo. The alleged perpetrators were released without charge. In August 2013, Buddhist monks attacked a mosque at Grandpass in Colombo, resulting in several injuries. Charges were laid in some cases and other cases were settled between the parties, but many alleged attacks were not investigated. In April 2014, the former Government established a special police unit to investigate ‘complaints relating to religious matters’. Reported anti-Muslim attacks have dropped in 2015.
3.21 In June 2014, Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that was blamed by many for inciting violent riots between Buddhists and Muslims in Aluthgama. The violence lasted two days and resulted in four deaths and more than 80 injuries. Three of those killed were Muslims; the fourth was a Tamil security guard at a Muslim-owned farm. Following the riots, police imposed a two-day curfew and acted to prevent further protests in the area. At the time, the BBS operated with support from the Rajapaksa government. Its activities have drastically decreased in 2015 as a result of the change of government.
3.22 Although many Muslims are employed in agriculture and fisheries, many are also employed in business, industry and the civil service. DFAT has no evidence to indicate that Muslims are economically disadvantaged in Sri Lanka.
3.23 DFAT assesses that, given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka.
3.24 DFAT assesses that, like other religious groups, Muslims in Sri Lanka are not subject to official discrimination and are generally able to practise their faith freely. Muslims in Sri Lanka are able to exercise their political will to elect representatives of Muslim parties. DFAT was told that religious tensions and violence described above have reduced in 2015, but DFAT assesses that there remains a moderate risk of societal discrimination against Muslim Sri Lankans.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 18 December 2015.
I accept that the applicant left Sri Lanka in 2003 after experiencing difficulties obtaining work and discrimination in employment and wages. However, when he returned to Sri Lanka in 2006, he was (with the help of financial support from [Organisation 1]) able to purchase [equipment] and operate his own [business]. The most recent information is that Muslims are not economically disadvantaged in Sri Lanka and that many are employed in agriculture, fisheries, business, industry and government and that there is little official discrimination on the basis of religion. Whilst there is a moderate risk of societal discrimination against Muslims, I do not consider that this would amount to either serious harm or significant harm to the applicant considering the country information as a whole and the applicant’s past ability to operate his own [business]. Whilst there has been some incidents of political and violence against Muslims, these are of a relatively low number and reduced in 2015. Whilst Buddhist nationalist groups have campaigned against Halal certification and the peak Muslim body has agreed to stop issuing Halal certification, I do not consider that this amounts to either serious harm or significant harm to the applicant. The applicant has not claimed that he was prevented from attending mosque or otherwise practising his religion in the past.
Based on his individual circumstances and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of being a Muslim, now or in the reasonably foreseeable future from the authorities or anyone else.
Based on his individual circumstances and the overall weight of the country information, I find that there are not 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 that he will suffer significant harm on this basis.
Muslim failed asylum seeker
DFAT have recently reported:
4.23 There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low including those suspected of offences under the Immigrants and Emigrants Act. Under the previous Rajapaksa government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes, including terrorism offences. This was due mostly to the greater exposure these returnees had to authorities on their return which generally includes extended periods of pre-trial detention. While overall monitoring has reduced under the Sirisena government and general fears about mistreatment have reduced, it is difficult to verify if the intent to improve general conditions has yet led to a lower risk of torture or mistreatment of returnees.
…
5.29 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.
5.30 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.
5.31 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[2]
[2]
I have given substantial weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government. I note that a number of the sources referring to harm to returnees highlight the significance of an actual or suspected affiliation with the LTTE. Freedom from Torture has reported that an actual or perceived association with the LTTE was a factor placing individuals at risk of torture and inhuman and degrading treatment. It described Tamils with an actual or perceived association with the LTTE, including those returning from abroad, as being at particular risk.[3] This aspect of the information is consistent with advice from sources such as the UNHCR concerning those with actual or perceived links to the LTTE.[4] I accept that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applies to people with such a profile who have returned to Sri Lanka from abroad. Having regard to all of the information on the treatment of returnees, I am not satisfied that returnees generally are regarded as having links with the LTTE or being opposed to the government simply because they have been in Australia. I do not accept that returnees generally or returnees who have been in western countries are seen as having links to the LTTE. The applicant is not a Tamil and has not claimed to have experienced any previous problems for suspected involvement in the LTTE. Accordingly, I do not accept that, if he were to return to Sri Lanka, the authorities or anyone else would regard him as a supporter of the LTTE or someone with links to the LTTE.
[3] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 <
[4] Referred to in Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 18 December 2015.
I accept that when the applicant returns he will be questioned by the authorities and his identity checked. I do not consider such treatment amounts to either serious harm or significant harm and considering the country information as a whole (including DFAT’s assessment that the risk of torture or mistreatment for the great majority of returnees is low), I find the chance or risk he will be seriously harmed or significantly harmed is remote.
Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or Muslim returned failed asylum seekers or returnees or failed Muslim asylum seekers returning from a Western country or failed asylum seekers returning from a Western country).
Based on his individual circumstances and the independent country information, I do not accept 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 on these bases.
Illegal departure
DFAT have reported:
5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.
5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat...
5.32 Most Sri Lankan returnees, including those 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’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then 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 may be held at a nearby prison.
5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).[5]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 18 December 2015.
There is also country information that supports that returnees are granted bail. In November 2012, the ABC reported that 32 failed asylum seekers deported from Australia were arrested in Colombo upon their arrival at the airport; most were reportedly released on bail soon after.[6] Sinhalese as well as Tamils are being charged in relation to illegal departure.[7]
[6] Edwards, M 2012, ‘Deported asylum seekers arrested in Sri Lanka’, Australian Broadcasting Corporation, source: Australia Network News, 16 November < Accessed 17 December 2012.
[7] Sydney Morning Herald, Asylum seekers face court in Sri Lanka, 8 July 2014, - accessed 24 December 2014.

A Sri Lankan lawyer who represents returned asylum seekers has stated:
If found guilty of leaving the country improperly, they will likely be fined between 50,000 and 100,000 rupees ($880 and $1760), Jayasinghe said.[8]
[8] Sydney Morning Herald, ‘Asylum denied, a penalty awaits at home’, 8 December 2012.
Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[9] Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[10] In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[11]
[9] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March.
[10] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.
[11] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.
I accept that the applicant illegally departed Sri Lanka by sea. The provisions of the I&E Act that deal with irregular departure are not expressed in terms that are discriminatory on their face or reveal a discriminatory intent or impact. I find that the enforcement of this law of general application does not constitute discriminatory conduct and that the law is not selectively enforced and does not have a different impact on different groups. The country information indicates that all persons who are returnees who have left Sri Lanka by irregular means are dealt with equally regardless of ethnicity. A Sydney Morning Herald report cited above indicates that both Tamil and Singhalese returnees have been charged under these provisions. There is no suggestion of discriminatory enforcement or punishment of a particular group of returnees in the country information.
The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling or terrorism and therefore there is no reason to suspect he would accused of this and to thereby face possible long term imprisonment. There is no independent country information before me that shows that persons in the applicant’s circumstances are being imprisoned under the I&E Act. The DFAT information is that persons who have illegally departed are not given a custodial sentence but are only fined as a deterrent. My findings are also supported by information from a Sri Lankan lawyer cited above who states that persons caught illegal departing are likely to face a fine of between 50,000 to 100,000 LKR. The information from DFAT and the Sri Lankan lawyer is strong evidence that offenders in the applicant’s circumstances do not face both a fine and imprisonment.
The applicant told the Tribunal that he would not plead guilty and I find that on the applicant’s return to Sri Lanka that he faces short term detainment prior to applying for and obtaining bail and a fine (which can be paid by instalment) as a result of being charged under the I&E Act. The information from DFAT is that returnees have been granted bail on personal recognisance immediately by magistrates. I note the applicant has family in Sri Lanka who would be able to come and collect him from court and an amount of money would not need to be paid to obtain bail. I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law and is not discriminatory. I accept that prison conditions in Sri Lanka are poor but I do not accept that he faces a real chance of persecution for any reason (Convention or non-Convention related) during any short term period of being detained. I am not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population and not specifically to Muslims. I am not satisfied therefore, that questioning, arrest, detention, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Nor do I accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm.
I further find that this short term detention, questioning or imposition of a fine does not amount to significant harm under s.36(2A) in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I have considered carefully the country information and accept that prison conditions in Sri Lanka are poor but the short term nature of any detention means that I find that it would not constitute significant harm. Based on the above country information concerning the poor prison conditions being due to a lack of resources and the government’s willingness to address it (by building more prisons in conjunction with the Red Cross) I find it does not involve intentionally inflicted severe physical or mental pain or suffering or intentionally inflicted physical or mental pain which could reasonably be regarded as cruel or inhuman in nature. I further find it does not involve any act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, I find that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, I find 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.
In making my findings, I have taken into account the Department’s PAM 3 Refugee and Humanitarian Complementary Protection and Refugee Law Guidelines including in particular the statements therein about prison condition and examples of prison conditions which have been held to constitute breaches of Article 7 of the International Covenant on Civil and Political Rights.
I have also considered carefully country information concerning the mistreatment of Tamil political prisoners suspected of involvement with the LTTE. As earlier found, I do not accept that the applicant is in this position and would be suspected of involvement with the LTTE. I therefore find that he would not face a real chance or real risk of such treatment (or any form of serious harm or significant harm) during any short detention. Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution on account of his illegal departure in the reasonably foreseeable future from the authorities or anyone else.
Based on his individual circumstances and the independent country information, I find that there are not 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 that he will suffer significant harm on this basis.
Cumulative assessment
Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related). His fear of persecution is not well-founded.
Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not 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 that he will suffer significant harm.
Conclusions
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David Corrigan
Member

[2016] AATA 3458

4 March 2016

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Immigration

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