1413836 (Refugee)

[2015] AATA 3299

1413836 (Refugee) [2015] AATA 3299 (14 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413836

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Goodier

DATE:14 August 2015

PLACE OF DECISION:  Perth

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

Statement made on 14 August 2015 at 3:33pm

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] July 2013 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out in the Refugees Convention 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.   In considering these issues, the Tribunal has applied the law set out in Annexure “A” and has carefully considered all of the applicant’s claims and evidence in light of the independent material referred to by the applicant and that referred to by the delegate in their decision which was attached to the application for review as well as the independent country information referred to in this decision as set out in Annexure “B”. 

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

   Country of reference and home area

7. The applicant claims to be a citizen of Sri Lanka.  The delegate accepted he was a citizen of Sri Lanka.  In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and that Sri Lanka is his country of nationality and receiving country.

8. The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is  not excluded from Australia’s protection obligations under s36(3).

9. The applicant was born in Galle District in the Southern Province of Sri Lanka.  The Tribunal finds that Galle District in the Southern Province of Sri Lanka is the applicant’s home area.  

   Background

10. In his Form 866 the applicant indicates he is of the Sinhalese ethnic group and his religion is Buddhist.  He was born on [date] and is currently [age] years of age.  His mother, father, [and siblings], all of whom are married, continue to reside in his home [village].

11. He completed [certain] years of education, was unemployed then self-employed until 2011 as the [driver] and from 2011 to his departure from Sri Lanka was employed in various casual positions on fishing boats. 

12. He departed Sri Lanka by boat [in] February 2013.

13. The applicant’s claims are restated in the delegate’s decision.  He states that in his village, he and his father owned 2 houses.  One house was rented to [Tamil] people who were working on a [project].  They were there for about a month without any problems.  He was working [as a driver] at the time and was told by his brother that the police had searched the house [in] July 2011.  The police found guns in the house.  The people who rented the house had left and they could not find them.  His friends helped him to search but to no avail.  The villagers started pelting stones at his house saying he was aiding and abetting Tamils.  Then the police searched their family home looking for weapons.  He was asked to report to the police station but didn’t go as he could not find the [men].  He was frightened he would be taken into custody as he couldn’t find the [men].  The police is Sri Lanka are ruthless and anyone who associates with Tamils and is under suspicion of involvement with the LTTE is in danger of being detained and tortured.

14. On the same day the police searched the house he went to [location] with a friend.  He worked on fishing boats and also went to [a place] where he worked on fishing boats.  He never went back to the village even when his father became seriously ill and was paralysed. 

15. Since he went into hiding and has been in Australia, the police have been going on and off to the house looking for him.  Also a group of thugs have visited the house on separate occasions looking for him and ask his parents if they had their weapons.  These are part of a criminal gang whose leader is a local [official] and SLFP supporter.  Only his family and his friend he stayed with in [location] know he is in Australia.  He told his parents after his arrival in Australia.  

16. The applicant provided an untranslated document he claims a document stating he was wanted for questioning.  The delegate referred to the document not being dated and inconsistencies in the font.  He claimed his parents received the document while he was still in Sri Lanka but he was not aware of its existence until December 2013 as his parents did not take the document seriously.  The delegate did not accept the document was genuine.  

17. The applicant told the delegate that his village has a population [who] are all Sinhalese.  [A certain company] had a contract to [undertake a project] throughout the Southern province and about 100 people were working on the project, mainly Tamils.  He indicated that they stayed on company property, on old hotel damaged in the tsunami, except the [men] who stayed in his house.  He also indicated to the delegate that some stayed in an adjoining village.

18. The delegate did not accept he leased his house to Tamils or that the police found guns or he was imputed to be a LTTE supporter.  The delegate was concerned that he would lease his house to people with whom he could not communicate.  The delegate had concerns as to the applicant’s credibility.

    Credibility considerations

19. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

20. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

21. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

22. The Tribunal carefully considered all of the applicant’s claims and has reached a conclusion that while certain aspects of his evidence are credible, there are other important aspects which are detailed below where the Tribunal finds the applicant was not credible and the Tribunal rejects aspects of the applicant’s evidence as unreliable, exaggerated or fabricated for the purposes of strengthening his protection claims.

23. A submission was received prior to hearing enclosing a further statement from the applicant as well as statement’s from the applicant’s father, family lawyer and gram sevak.  It was submitted that it was not reasonable to conclude that the distinction between the 2 Sri Lankan ethnicities is basis enough to conclude that no liaison, business or otherwise would have existed between the applicant and the Tamil tenants.  It also asks that should the document not be accepted as genuine, no negative inference as to the applicant’s credibility should be drawn as he obtained it in good faith from his parents, delivered in their absence by the police.

24. Further submissions were made in relation to the applicant’s claims to fear harm returning to Sri Lanka as a failed asylum seeker and referred to a recent report from Edmund Rice Centre as well as other reports on the situation facing returnees from Sri Lanka returning as failed asylum seekers.  The submission also addressed the applicant’s illegal departure from Sri Lanka and his possible detention on his return.

25. The applicant in his further statement dated 21 June 2015 stated that the hotel was in one part of the village and not isolated from it. The Tamil people interacted with the local people, attended the Temple and bought goods from the local stores.  There was not enough room in the badly damaged hotel so these workers were staying in the village.  They assembled each day with the other workers at the hotel to be allocated work for the day.  He leased the house through a friend who could speak Tamil and Sinhalese.  He agreed to the lease as he received good money from them.   The document was sent to him by his parents.  They told him it was delivered to them by the local police asking him to present at the local station.  He does not know whether it is genuine or not or fabricated by the authorities to frighten his parents. 

26. An undated statement from Grama Sevaka was provided stating that the applicant is a suspect who will be arrested on sight for an alleged offence with the discovery of certain military rifles within his residence at [his village].

27. The statement from his father affirmed 13 March 2015 states his son fled to Australia as he was in fear for his life as the police were looking for him for an offence connected the finding of certain military rifles in his residence he had let out.  In Sri Lanka due to the emergency situation created by the civil war, persons suspected of being connected with an armed revolt or violence directed against the state is subject to torture and extra judicial killings.    

28. An undated statement from an Attorney at Law stating he knows the family and is aware the applicant had to leave the country as the police were looking for him following the discovery of [rifles] in his residence.  This is a serious offence under the Prevention of Terrorism Act which enables any member of the armed forces and police to arrest, detain, person who is suspect.  It has been alleged that persons arrested for these offences are not brought within the Courts and the worst human rights offences take place.

29. As discussed with the applicant at hearing, the document claimed to be issued indicating that the applicant was wanted for questioning by the terrorist investigation unit was not translated.  The Tribunal referred to the delegate also indicating concerns over the authenticity of the document.  The Tribunal indicated to the applicant that it had concerns over each of the documents presented and referred to country information indicating the ease in which fraudulent documents could be obtained.  The applicant told the Tribunal that his father did not speak, read or write English and when asked why the document he provided was written in English was, the applicant responded that his father’s friend was a lawyer and wrote it for him.  The Tribunal indicated that the letter from the lawyer did not identify him, apart from a mention at the end that he was an Attorney at Law.  All 3 letters provided were set out similarly and in the same type.  The letter from the Grama Sevaka similarly identified him as Grama Sevaka but no name.  All letters were written in English and there was no confirmation of the identity of each writer.  The applicant indicated he could arrange the address block to be translated and they could be verified.  However, as indicated at hearing, that would not overcome the concerns of the Tribunal as to the overall authenticity of the 3 letters provided by him.  The applicant’s response to the Tribunal’s concerns was that his father obtained the documents for him. 

30. It was submitted by the representative that as the applicant’s father obtained the letters, no adverse credibility finding should be made against the applicant should the Tribunal find the documents provided as not credible. 

31. The Tribunal has carefully considered the content of these various documents but they do not overcome the Tribunal’s concerns about the applicant’s credibility.  While the applicant claims that he would not submit false documents, in view of the country information as to the ease of obtaining false documents in Sri Lanka and the concerns the Tribunal has over the applicant’s credibility, the Tribunal gives the documents little evidentiary weight as independent evidence that he is wanted by the police in relation to finding firearms in his house.

Assessment of claims

Political/Imputed Political beliefs – finding of guns and imputation involved in terrorist activities or associated with/supporter of LTTE

1. The applicant told the Tribunal that he left Sri Lanka as he fears for his life following the police discovering guns in his house.  When asked he told the Tribunal that it was his father’s house.  The applicant told the Tribunal that his father built him the house as parents do in Sri Lanka when they have money and build houses for their children.  His parents built a house for his [sibling].  The applicant told the Tribunal that he lived with his parents but used the house when his friends came over and they stayed there.  He decided that as he wasn’t using the house, he would lease it to some Tamil people who were [working] and earn some money.  His friend organised it for him.  The house was about [a certain distance] away from his parent’s house.  There was no duration specified and they could live there as long as they wanted.  He has only leased the house once and this was the occasion.  The applicant told the Tribunal that he was a [driver] at the time and worked on fishing boats for the period he claimed he was in hiding.

2. The applicant told the Tribunal that the police searched his house [in] July 2011 and found [rifles] and as the people living there had disappeared, the police held him responsible.  He stated he tried looking for these people but could not find them and his friends have tried to look for them but can’t find them. His friend who referred them to him could not find them.  As the police were suspecting him, he ran away.  The Tribunal asked when he fled and was told that day. 

3. The applicant told the Tribunal that the [people] had gone to work when the police searched the house.  They then went to his parent’s home and searched that looking for more weapons.  They interrogated his parents.  He told the Tribunal that his mother and cousin telephoned him to tell him that the police came to check the house, found weapons and he should find those [guys] immediately.  The Tribunal referred the applicant to his statement where he says that his brother called him.  The applicant responded that it was his cousin brother as that is what they call them in Sri Lanka.  The Tribunal asked why he now says his mother called him and he responded that his mother called after his cousin to say don’t come home as it is too dangerous.  The Tribunal asked why she would say that and he responded that there were 2 boys in a nearby village taken into custody for keeping weapons and they were both killed so she was worried.  The Tribunal confirmed that he did not have any weapons and was told that weapons were found in his house and he was implicated.

4. The applicant told the Tribunal that the police will torture him first before they ask questions.  They will harm him as Sri Lanka is not like Australia and the police hold him guilty as the house belonged to him so he is responsible.  He told the Tribunal that you cannot argue with the police. 

5. The Tribunal put to the applicant that he stated the house belonged to him and he responded that the land is in his mother’s name.  The Tribunal asked why he would be held responsible if the house and land did not belong to him and he responded that everyone in the village knew it was his house.  The applicant told the Tribunal that the village had [a number of] families living in it.  The Tribunal asked that if the village all knew it was his house, wouldn’t they know he had rented it to [Tamils].

6. The Tribunal asked the applicant why he did not tell the police that he rented the house to [Tamil] people and was told that he thought they would arrest him if he went to the police.  The Tribunal asked whether his friend who referred them to him would speak on his behalf as he organised the Tamils to rent from him and was told they suspect him.  He told the Tribunal that he rented the house to [Tamils] in 2010 and for a month there were no problems and then the police visited following a tip-off.

7. The Tribunal asked whether there were police in the village and was told there is a police post but these police were from a larger village.  The Tribunal as why they did not check with the local police about who lived in the house as he states it is a small village and everyone knows everything and was told that they may have informed them.  The Tribunal asked if so, why would they hold him responsible for the guns and was told that they would question the owner of the house if the renters were not there.  The Tribunal asked whether it would be standard to question the owner of a house if the renters were not there and was told the police would definitely create a case against him and he does not trust the police.  The Tribunal asked the question again and was told the police are different from Australia and are not fair. 

8. The Tribunal indicated to the applicant that he had stated that the whole village knew he had rented the house to the [Tamils], they were employed [on the project] and according to him gathered each morning to be given their work for the day, they would need to show their IDs and surely the police could find the [Tamils] through their work.     The Tribunal was told that maybe they did not have to show their ID, there were lots of Tamils working there and they probably couldn’t find them so that is why they are looking for him. The applicant stated they could not find the [Tamils] and they are looking for him as he is the culprit in their eyes.

1. The applicant told the Tribunal that the police have been visiting his house to see if he is there.  When asked how often, he responded no regular pattern they just go and check.  When asked how many times he responded 2 to 3 times a month.  He wasn’t home so they harassed his parents. The Tribunal asked again later in the hearing when the last time the police visited him and was told he does not know but when he calls they say the police visited.  The Tribunal asked when was the last time he spoke to his parents and was told yesterday and they were out.  The Tribunal asked about the time before that when he spoke to them and was told by the applicant that the police had stopped coming as they know he is in Australia.  He cannot specifically say when they visited.

2. The applicant also told the Tribunal that an underworld thug is also hassling his parents as he thinks they have guns hidden and he does not want anyone else to have weapons.  He also stated the police are on his side as he is a member of [a certain organisation].

3. The applicant told the Tribunal that his brother was assaulted in 2014 because of him.  He was assaulted by other villagers who heckle him because he is in Australia.  His brother went to [another country] and returned the day the applicant fled.  The applicant claimed it was because he rented the house where the guns were found and also stated it was because they found out he was in Australia and they say he is hiding in Australia making money and they think he is sending it home.  The applicant stated he was the only one in his area to go to Australia.

4. The applicant told the Tribunal that the keeping of weapons is a big offence in Sri Lanka.  The Tribunal put to him that he claims it is a big offence, it is equated to terrorism and he lived in Sri Lanka for nearly 2 years without the police finding him.  He responded that he was at sea most of the time and no-one knew where he was. 

5. Towards the end of the hearing, the Tribunal asked the applicant to confirm when the police visited the house and found the weapons as he has told the Tribunal that it was in 2011 and on another occasion 2010. The applicant responded that it was in 2010.  The Tribunal clarified and confirmed it was in 2010 and was told definitely 2010. 

Findings

1. Based on the inconsistencies and implausibility of the applicant’s evidence, the Tribunal does not accept that the police found guns in the house he was renting to [Tamils] and as a result hold him responsible or are seeking him in connection to those guns and does not accept that the police have visited his home and followed up with his family as to his whereabouts.  The Tribunal does not accept that the applicant is of any interest to the police or CID or Sri Lankan authorities or underworld thug for any reason.  The Tribunal does not accept that the applicant has any criminal charges or warrants issued against him in respect to the guns he claims were found in his house or that the applicant is suspected of being involved in terrorist or LTTE activities because guns were found in his house

2. The applicant has not been consistent when the police searched his house and found the guns.  He initially told the Tribunal that this happened [in] July 2011 which is consistent with his written submission.  However under further questioning he told the Tribunal that he rented the house to the Tamils in 2010.  When questioned further about this date, the applicant told the Tribunal that it definitely happened in 2010.  The Tribunal understand that applicants may have difficulties in remembering timelines, however the applicant claims stem from the time the applicant claims the police found guns in his home.  The Tribunal does not accept as plausible the applicant would fail to remember the time the incident occurred as this was his central/principal reason for seeking protection.  The Tribunal finds that this goes to his credibility.

3. The applicant has not been consistent in his evidence as to the police visiting his parents looking for him.  The Tribunal found that he became evasive when questioned further about his claim the police regularly visit his parents looking for him.  He initially claimed that the police were coming on and off to his house.  When questioned, he told the Tribunal that the police visit 2 to 3 times a month but there is no regular pattern.  When asked when the last time the police visited he stated he did not know.  He then indicated that when he calls his parents which he had earlier told the Tribunal was at least once a week, sometimes more, his parents say the police visit.  When asked again, the applicant indicated that they had stopped coming as they knew he was in Australia and he cannot specifically say when they visited.  The applicant indicated in his written statement dated June 2013 that no-one knew he was in Australia.  At hearing he indicated that everyone in the village knew shortly after he arrived in Australia as it had been on the internet and his neighbour told everyone as he calls his parents through his neighbour.  The Tribunal does not accept that the police have visited his house looking for him as it does not accept that they are interested in him for any reason and he has not been consistent in his evidence as to their visits.

4. The applicant claims that an underworld figure in the village has visited his parents asking for guns as he thinks there are more guns hidden on their property.  The Tribunal does not accept that any underworld thug has visited his parents looking for guns because the Tribunal does not accept guns were found in his house and because the Tribunal does not accept the applicant is a credible witness and finds that he has fabricated this claim for the purposes of his application.  The Tribunal does not accept that the applicant is of any interest to any underworld thug and does not accept that there is a real chance he will face harm from the underworld thug should he return to Sri Lanka now or in the reasonably foreseeable future.

5. The Tribunal does not accept as plausible the applicant would be held responsible for the guns found by the police in a house he rented to [Tamils].  According to his evidence, everyone in the village knew he had rented the house to [Tamils] who were employed on the [project].  The applicant agreed that the local police post would have told the police that he had rented the house to the Tamils.  He had a friend who could support the applicant’s claim that he had rented the property to the [Tamils].  The applicant claims he did not know the identity of the [Tamils] to whom he rented the property.  However, they were employed and paid by the large [firm] and were one of many Tamils living and working in the area.  The Tribunal does not accept that the police could not identify the [people] renting his house.  The Tribunal does not accept the applicant’s claim that because they could not be found he was held responsible.  His evidence clearly indicated that everyone knew he had rented the house to the [Tamils].      

6. The applicant’s evidence was inconsistent as to who told him and what they told him.  He firstly stated it was his brother but told the Tribunal it was his mother and cousin.  When pointed out that he had earlier claimed it was his brother, the applicant stated it was because in Sri Lanka brothers are referred to as cousin brother.   However, he still indicated that his mother contacted him to say the police where there.  He firstly told the Tribunal that his mother told him to find the [Tamils] and later told him not to come home as it is too dangerous. 

7. The Tribunal does not accept as plausible that the applicant would immediately be suspected of being responsible for the guns because the police could not find the [Tamils].   The Tribunal does not accept as plausible that the police would immediately accuse him of being associated with the LTTE or with any other terrorist organisation because they found [guns] in a property he rented to [Tamils].  As discussed with the applicant to which he agreed, if the police could not find the tenants, they would speak to the owner of the property.  The applicant did not own the property but used it to socialise with friends.  The applicant gave evidence that the police searched the property in the morning and he fled in the afternoon.  His evidence was that it was a small village.  The Tribunal does not accept that if the police were genuinely interested in him they would have not found him in the short time before he fled the village, especially as he claims he was looking for the [Tamils]. The applicant claims that he hid for the next 2 years before he departed Sri Lanka and no-one knew where he was.  However he did work during this time, stating he worked on fishing boats and was away at sea for long periods, and the Tribunal does not accept that he could avoid detection for nearly 2 years if he was wanted by the larger Sri Lankan police force as claimed on extremely serious charges as claimed. 

8. The Tribunal does not accept that the applicant’s brother was assaulted in the village because of the applicant.  The Tribunal does not accept that the applicant’s brother was assaulted or the villagers pelted stones at their house or abused the applicant’s family for any reason because the Tribunal does not accept the applicant as a credible witness and finds that he has made these claims to enhance his application for protection.

9. After considering all the applicant’s evidence, and based on the inconsistencies and implausibility as discussed, the Tribunal does not  accept the applicant is a credible witness and finds that he has not been truthful in his reasons for departing Sri Lanka.  The Tribunal finds that the applicant has fabricated his claims that the police found guns in his house for the purposes of his protection application.

10. The Tribunal does not accept on the evidence provided that that the applicant is subject to any outstanding criminal charges or warrants because guns were found in his house or that any guns were found in his house and finds that he is not of any interest to the Sri Lankan authorities, including the police for any reason whatsoever.

11. The Tribunal finds that his return to Sri Lanka the applicant will not be or perceived to be a terrorist, a member or supporter of the LTTE or actively opposed to the current Sri Lankan or suspected of being involved in such activities because guns were found in his house or be of any interest because guns were found in his house, because he departed Sri Lanka illegally, because he has sought asylum in Australia or for any other reason.

12. Accordingly, considering the applicant’s individual circumstances and his profile cumulatively, the Tribunal does not accept that the applicant will face a real chance of serious harm because of an actual or imputed political opinion as a terrorist or supporting the LTTE or opposing the current Sri Lankan government if he returns to Sri Lanka now or in the reasonably foreseeable future.

    Leaving Sri Lanka illegally, failed asylum seeker, returnees who fled Sri Lanka unlawfully

13. The applicant claims in the submissions of his representative as well as in the delegate’s decision that he fears he will suffer serious harm upon return to Sri Lanka for reasons of his unlawful departure and as a failed asylum seeker who had spent time in Australia.

14. The applicant confirmed at hearing he departed Sri Lanka by boat and left from a place other than approved place of departure.  The applicant also confirmed he does not at the moment hold a Sri Lankan passport, having lost his in the tsunami.

15. The country information as to the treatment of returnees to Sri Lanka after failing to seek asylum in another country was put to the applicant as was the country information as to his treatment for departing Sri Lanka illegally. 

16. The applicant told the Tribunal that he was told by the father of a friend who returned to Sri Lanka, somebody who was forced to return, that they were put in prison for 1 year when they got back.  The Tribunal indicated that the country information indicated that those persons with profiles such as political activists or had outstanding criminal charges or warrants would be detained.  The applicant told the Tribunal that he was wanted on charges for the guns and he would be detained when he returned and tortured and killed.   The applicant told the Tribunal that everyone knew he had left Sri Lanka as his arrival in [Australia] was on the [internet].  His village is aware he is in Australia. 

    Findings

17. The Tribunal has already found that the applicant is not of any interest, adverse or otherwise to the Sri Lankan authorities for any criminal or terrorist activities or because he will be imputed to be associated with criminal or terrorist activities or because he will be imputed to be a supporter of the LTTE or due to his political or imputed political activities. The Tribunal has already found that he is not of any interest to the Sri Lankan authorities for any outstanding criminal charges or warrants nor have there ever been any criminal charges or warrants issued against him. The Tribunal therefore does not accept that he will be perceived as being opposed to the Sri Lankan authorities because of any political, terrorist or criminal activities.  Therefore the Tribunal does not accept that his profile on his return to Sri Lanka will be higher than any other returnee resulting in him being treated differently from any other returnee.   

18. The Tribunal accepts that the applicant would be returned to Sri Lanka on a temporary travel document and the Tribunal accepts that the Sri Lankan authorities would assume that he was a failed asylum seeker.  The Tribunal accepts that the authorities may already be aware that he departed Sri Lanka from other than an approved place of departure from news and internet reports of his arrival in [Australia].

19. There is conflicting information as to whether failed asylum seekers are at risk of persecution upon return simply by virtue of the fact that they sought asylum abroad. The applicant’s submission refers to a recent report from the Edmund Rice Centre published in August 2014 indicating that returning failed asylum seekers of a Sinhalese background have been subjected to cruel and degrading treatment on their return, giving details of particular cases. Human Rights Watch, Freedom from Torture and Amnesty International [1] have referred to mistreatment of returnees or failed asylum seekers. Sources such as Freedom from Torture and Human Rights Watch identify a risk of harm in particular to persons with certain links to the LTTE. In November 2011, the UK-based Freedom from Torture published a report entitled Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka, 2009-2011. Freedom from Torture reported that those at particular risk included Tamils who had an actual or perceived association with the LTTE.[2]  In September 2012, Freedom from Torture released a further report on cases of reported torture. The organisation concluded that it was a combination of residence in the UK and an actual or perceived association with the LTTE which placed individuals at risk of torture and inhuman and degrading treatment. It stated that those at particular risk included-Tamils with an actual or perceived association with the LTTE, including those returning from abroad. [3] Human Rights Watch has expressed the view that -Sri Lankan nationals, who have been affiliated with or are considered to be supporters of the Liberation Tigers of Tamil Eelam (LTTE), would be at significant risk of persecution if deported back to Sri Lanka. [4] The applicant is not Tamil and the Tribunal has found that he will not be perceived to be a member or supporter of the LTTE and in these circumstances the Tribunal does not accept that there is a real chance that he would be regarded as being a member or supporting or having an association with the LTTE.

    [1] Amnesty International, Urgent Action: Asylum Seekers at risk of return to Sri Lanka‘, 9 July 2014, < Accessed 29 July 2014 CIS29126

    [2] Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka, 2009 – 2011, 7 November

    [3] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 < Accessed 17 September 2012

    [4] Human Rights Watch 2011, Letter to United Kingdom's Home Secretary Theresa May and Foreign Secretary William Hague on Deportation of Rejected Asylum, 16 June, see also Human Rights Watch 2012, United Kingdom: Document containing cases of Sri Lankan deportees allegedly tortured on return, 15 September, >

    The Tribunal finds that the applicant does not fall within any of the classes of people who might be at risk on return to Sri Lanka. Such as: persons suspected of certain links with the LTTE; certain opposition politicians and political activists; certain journalists and other media professionals; certain human rights activists.  The Tribunal finds that the applicant has not been perceived to be member of these categories and that there is no real chance that he would be perceived to be within any of these categories in the reasonably foreseeable future. 

20. The different sources concur that a failed asylum seeker if identified[5] will be questioned on arrival in Sri Lanka. The DFAT report indicates that this is to confirm a person’s identity and identify whether they have outstanding criminal charges or warrants or have been involved in terrorist activities. The Tribunal has already found that the applicant does not have any outstanding criminal charges or warrants nor has he been involved in or associated with any terrorist activities. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. “DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.”[6] The Tribunal finds that this questioning does not amount serious harm within the meaning of s91R(1)(b) of the Act.

    [5] Voluntary returnees travelling on their own passports my not be identified as failed asylum seekers DFAT report

    [6] DFAT report

21. The Tribunal finds that the applicant would not be imputed with a political opinion of opposing the Sri Lanka authorities as a result of applying for asylum. The Tribunal does not accept that he would be harmed as a result of being a member of the particular social group of failed asylum seekers returned to Sri Lanka. 

22. The Tribunal finds that there is no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of being a failed asylum seeker and any fear of persecution on this basis is not well-founded.

23. The Tribunal accepts that the applicant left Sri Lanka without a valid travel document and left from a place other than approved place of departure which are offences under the Immigrants and Emigrants Act of 1948 (I&E Act).

24. As the Tribunal put to the applicant at the hearing, based on country information before the Tribunal, it finds the applicant is liable to being charged with an offence under the I&E Act upon return to his country.  The Tribunal put to the applicant that country information indicates that he may be detained and held in Negombo prison for a short matter of days before being brought before a magistrate for bail.  The Tribunal also said that country information indicates that he will be granted bail on this own recognisance, that is without the need to actually pay a bail amount at that time, and he will be fined between Rs.5000 and Rs.50,000.   

1. The Tribunal finds that as the applicant departed Sri Lanka by way of people smuggler vessel, he is likely to be charged with an offence under the I&E Act upon his return to Sri Lanka.  The Tribunal considered the country information in respect of this as provided by DFAT and the applicant.  The Tribunal finds based on the country information that the I&E Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity, politics, or other factors. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason.  The Tribunal is satisfied that section 45 of the I&E Act is a law of general application and does not give rise to persecution under the Refugees Convention.

2. Having regard to country information and to the particular claims and circumstances of the applicant, the Tribunal is satisfied there is nothing in the applicant’s circumstances that indicate he would not be granted bail under the I&E Act in Sri Lanka should he return there.  Further, it is satisfied on the evidence before it that it would be reasonable to expect the applicant has family members who could act as a guarantor in this respect.  The applicant gave evidence his mother and [sibling] continue to reside in Sri Lanka.  Further, and in the event the applicant does not have the money to pay for the fine the Tribunal considers will be imposed on the applicant under the I&E Act, the Tribunal finds that the country information indicates the law in Sri Lanka provides for the payment of the fine by instalments.  The applicant has been employed while in Australia and occasionally sends funds home to his family.  Tribunal has found that the applicant has been employed while in Sri Lanka and is satisfied he will be able to find employment on his return and the Tribunal is satisfied in that he will be able to enter into an arrangement to pay the fine by instalment upon resuming employment in Sri Lanka. 

3. It was submitted that the penalties for departing Sri Lanka illegally can include a custodial sentence for up to five years.  The Tribunal finds that the applicant in his particular circumstances only faces a remote chance of ultimately being imprisoned due to his illegal departure.  The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling and therefore there is no reason to suspect he would accused of this and to thereby face possible long term imprisonment.  He has not claimed to have travelled illegally outside the country in the past which might also attract a more adverse penalty.  Despite the applicant’s claims, there is no independent country information that shows that persons in the applicant’s circumstances are being imprisoned.  The DFAT information which the Tribunal prefers to anecdotal comments by a father of a friend is that that they are not given a custodial sentence but are only fined as a deterrent.  This information shows that Magistrates are handing out fines of up to 100,000 LKR and prosecutors would only seek a prison sentence and a fine of 200,000 LKR for people smuggling or facilitating it.  The Tribunal’s findings are also supported by information from a Sri Lankan lawyer cited below who states that persons in the applicant’s position are likely to face a fine of between 50,000 to 100,000 LKR.  The information from DFAT and the Sri Lankan lawyer is very strong evidence that offenders in the applicant’s circumstances do not face both a fine and imprisonment.

4. The Tribunal finds that on the applicant’s return to Sri Lanka he may face a short term detention prior to applying for and obtaining bail and a fine as a result of being charged under the I&E Act.  The Tribunal is satisfied on the country information that any detention is not arbitrary and would be in accordance with the law in Sri Lanka.  The Tribunal considered the country information and submissions from the applicant indicate that the prison conditions which the applicant is likely to experience in Sri Lanka while waiting to appear before a magistrate for the grant of bail are likely to be overcrowded and unpleasant.  However, it is the view of the Tribunal that such treatment in the circumstances of this case does not amount to Convention based persecution because the Tribunal finds that this treatment is not directed at the applicant in a discriminatory way since the treatment and conditions is the same for everyone in Sri Lanka who is held in prison.  The Tribunal finds the treatment does not meet the requirement in s.91R(1)(c) of the Act.  Further, the Tribunal does not find that such treatment, even if it amounts to ‘serious harm’ is not motivated for one or more of the Convention grounds as all returnees are treated in the same manner. 

5. Having regard to the foregoing, the Tribunal concludes that the applicant does not face a real chance of persecution for reasons of being a person who departed Sri Lanka unlawfully. The Tribunal finds the applicant therefore does not satisfy s.91R(1) of the Act.  

   Does the applicant have a well-founded fear of persecution for a Convention reason?

6. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his (actual or imputed) political opinion or his membership of a particular social group (leaving Sri Lanka illegally, failed asylum seeker, returnees who fled Sri Lanka unlawfully or any combination thereof) or for any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a). 

   Assessment of complementary protection claims

7. As the Tribunal has found the applicant does not meet the criteria for the grant of a refugee protection visa under s.36(2)(a) of the Act, it now proceeds to consider whether he meets the criteria for complementary protection under s.36(2)(aa) of the Act.  The applicant meets the criteria for complementary protection if the Tribunal is satisfied that there are 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.

8. For the reasons discussed above, the Tribunal has found that the applicant is not of any interest to the Sri Lankan authorities for any criminal or terrorist activities nor will he be imputed to be involved or associated with any criminal or terrorist activities.  The Tribunal has also found that he is not the subject of any outstanding criminal charges or warrants.  The Tribunal has found he is of no interest to any underworld thugs. Having regard to all of the evidence before it, the Tribunal does not find there is a real risk the death penalty will be carried out on the applicant.  It also does not find there is a real risk the applicant will be tortured since it finds the Sri Lankan authorities do not have an ongoing interest in the applicant such as to want to target him for significant harm.  Similarly, on the evidence before it and considered in the context of the country information, the Tribunal finds there is not a real risk that the applicant will be subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment as a necessary and foreseeable consequence of being removed to Sri Lanka. The Tribunal is also not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life.

9. Therefore and for the reasons as discussed, the Tribunal does not accept that there is a real risk of the applicant suffering any form of significant harm at the hands of individuals or underworld groups or the Sri Lankan government or security forces either because he is considered to be involved in criminal or terrorist activities or a member or supporter or associated with the LTTE because the police found guns in his house. 

10. For the reasons as discussed above, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm on account of being a failed asylum seeker.

11. The applicant is not Tamil and the Tribunal has found he does not have a profile, criminal political or otherwise, which would cause him to be targeted in the prison system. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.

12. The Tribunal has also considered whether the applicant might face significant harm for reasons of the detention and questioning he is likely to face upon his return to Sri Lanka.  As indicated above, the Tribunal accepts that the applicant may be charged and convicted of an offence under the I&E Act.  The Tribunal notes that country information indicates the applicant is likely to be fined an amount of around Rs.50,000.  The Tribunal notes that the applicant has been working in Australia and considers in the absence of evidence to the contrary that the applicant will be able to pay this amount.  If he has difficulty in doing so, the Tribunal is satisfied he will be able to find work in Sri Lanka and enter into an arrangement to pay the fine by instalments.  The Tribunal does not consider a fine such as this to amount to significant harm. 

13. The Tribunal considered whether there is a real risk of the applicant facing significant harm while being detained pending appearance before a Magistrate for the purposes of a charge under the I&E Act.   The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded, that the applicant may suffer discomfort whilst in prison which may not meet international standards.  However, the Tribunal finds that based on credible country information that the applicant will be remanded for a short period, between one night to several nights. The Tribunal does not accept that in the applicant’s case, a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable. 

14. The Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.

15. Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.  Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law.  The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Therefore in relation to the poor prison conditions in Sri Lanka there is no intention on the part of the Sri Lanka authorities to harm the applicant. The Tribunal finds that a period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm within the meaning of s36(2A) or s.5 of the Act.

16. Having regard to all of the evidence before it, and the evidence which indicates that the application of the I&E Act is a law of general application and that all Sri Lankans who depart in a manner contrary to the manners permitted will be detained and prosecuted, the Tribunal does not find that there is an intention by the Si Lankan authorities to inflict cruel or inhuman treatment or punishment or degrading treatment or punishment through the temporary detention of returnees pending the grant of bail.   

17. Having regard to its findings of  fact above and in respect to the specific claims he made as to the factual basis on which he claimed to fear harm as well as considering the applicant’s claims cumulatively, the Tribunal does not accept 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 he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. 

18. Accordingly the Tribunal does not accept 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 he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal is therefore not satisfied he is a person to whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

19. 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).

20. 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).

21. 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

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

    Amanda Goodier
    Member

    ANNEXURE ”A”

    RELEVANT LAW

23. 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.

    Refugee criterion

24. 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).

25. 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.

26. 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.

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

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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

34. 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’).

1. ‘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.

2. 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

3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Reports relevant to this application are DFAT Country Reports on Sri Lanka, 16 February 2015 and Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

   ANNEXURE “B”

   COUNTRY INFORMATION

   Document fraud

4. DFAT commented:

   Document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information.[7]

   [7] DFAT, Country Information Report Sri Lanka, 31 July 2013.

5. Document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information. Government departments continue to keep most records in hard-copy format. Applicants are able to obtain genuine identity documents by submitting forged supporting documents. Counterfeit documents are the primary cause of fraud within the NIC, passport and driver’s licence issuance processes.[8]

   [8] DFAT Country Information Report -  Sri Lanka  -  16 February 2015

6. In making its decision the Tribunal had regard to the United Nations High Commissioner for Refugees, (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 which states:

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

   (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
   (ii) certain opposition politicians and political activists;
   (iii) certain journalists and other media professionals;
   (iv) certain human rights activists;
   (v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
   (vi) women in certain circumstances;
   (vii) children in certain circumstances; and
   (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.

7. In terms of demography, Sinhalese are the largest ethnic grouping in Sri Lanka. According to the census, 74.9 per cent of the population are Sinhalese. Sinhalese are distinguished primarily by their language (Sinhala). The majority are Buddhists[9].

   [9] DFAT Country Information Report -  Sri Lanka  -  16 February 2015

8. The Sri Lankan economy has been growing steadily in recent years. Gross Domestic Product (GDP) in 2013 was estimated to be approximately USD 65 billion–approximately USD 3,100 per capita–putting it ahead of most other South Asian countries. According to the International Monetary Fund (IMF), annual GDP growth averaged around six per cent between 2004-09. Since the end of the conflict, Sri Lanka experienced stronger levels of economic growth of approximately eight per cent in 2010 and 2011, falling back to approximately six per cent in 2012 and 2013. The rate of inflation has varied greatly in recent years, but was almost eight per cent in 2013[10].

   [10] DFAT Country Information Report -  Sri Lanka  -  16 February 2015

   Treatment of returnees

9. DFAT reports[11] that 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 (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).  Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.

   [11] DFAT Country Information Report -  Sri Lanka  -  16 February 2015

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

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

12. The DFAT report states that in terms of experience following a failed asylum seeker’s return to Sri Lanka,  between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil.  The report states that many returnees will have incurred significant expenses to undertake their outward journey and, in some cases, will have incurred debt to do so. Many are apprehensive about finding suitable employment opportunities on return. Those who have skills which are in high demand in the labour market will be best placed to find well-paid employment. Returnees who receive reintegration assistance on their return to Sri Lanka find it easier to resettle.

13. A Sri Lankan lawyer who represents returned asylum seekers has stated this:

    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.[12]

    [12] Sydney Morning Herald, ‘Asylum denied, a penalty awaits at home’, 8 December 2012.

14. 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.[13] Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”.[14] The US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.[15]

    [13] 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.

    [14] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9.11

    [15] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1.