1413965 (Refugee)

[2016] AATA 3295

1413965 (Refugee) [2016] AATA 3295 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413965

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:8 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2016 at 12:32pm

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

3. The applicant appeared before the Tribunal on 24 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted 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.  A summary of the relevant law is attached. 

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

7. The Tribunal notes that the Department of Foreign Affairs and Trade (DFAT) released an updated country information report on Sri Lanka on 18 December 2015, after the hearing, which the Tribunal has had regard to in reaching its decision where relevant, as set out below.  This report replaces the previous DFAT report released on Sri Lanka, published on 16 February 2015, and the October 2014 DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (LTTE).  At hearing the Tribunal discussed with the applicant relevant information contained in the previous report with regard to his claims related to his failed asylum seeker profile and illegal departure.  The information contained in the new report on these matters is reasonably consistent and confirms the information contained in the previous report. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

8. Although the applicant did not provide any original documents to the Department as proof of his identity, he did provide a copy of his national ID card (among other matters) and spoke fluent Sinhalese at the Departmental interview. On this basis, and given the fact that the applicant was able to answer questions at length about his nationality, the delegate accepted that the applicant was Sri Lankan.  The Tribunal also finds that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly.

   Refugee assessment

9. The applicant – a [age] year old widower from [City 1], Colombo District, Western Province in Sri Lanka – fears serious harm from supporters of the Sri Lankan Freedom Party (SLFP) (previously the People’s Alliance (PA)) on return to Sri Lanka because of his political opinion in support of the United National Party (UNP).  It has also been submitted on the applicant’s behalf that he faces a real chance of persecution on return as a member of the particular social group of ‘failed asylum seekers’.  The Tribunal has also considered whether the applicant faces a real chance of persecution from the authorities on return to Sri Lanka because he departed Sri Lanka illegally.

   UNP supporter

10. The applicant initially described his involvement with the UNP and problems that occurred as a result in his statutory declaration[1] he provided to the Department as follows:

    [1] Dated [December] 2012

    Why I left that country

    In 2004, I was a supporter of the UNP.  I canvassed for the chief organiser of UNP, [Ms A], in [City 1] area.  [Ms A] and I distributed leaflet ‘vote for UNP’ to all houses in [City 1] area.  [Ms A] would speak to the locals about UNP candidate and when the next candidate speech would be.  I canvassed with [Ms A] about 3-4 days a week for about 6 months before the parliamentary election date.

    During the last few weeks before the election date, 3 males came to my house and threatened me, saying words to the effect, ‘Stop supporting UNP; otherwise, you would be in trouble.’  They had a body guard appearance but I did not know which party  those persons belonged to.  I suspected they were from the People’s Alliance, the opposition party to the UNP.

    I was scared of the threat, and therefore, I moved my family to [City 2], a few days before the election date.  I moved my family as a precautionary just in case if that UNP candidate lost in that election.

    That UNP candidate did lost in that election.

    During 2004 to 2007 while I was living in [City 2], there was twice that PA members come to my house and threatened me not to resume my continue supporting the UNP.  I told them I no longer supporting the UNP, but they still came back to harass me.

    I moved to [City 3] to avoid being harassed by PA members who suspected my continue support of UNP.

    Since I had no problem from those political harassment in [City 3], it led me to believe that the locals would forget  about my UNP involvement in 2004, I moved family back to 2010, but I continue working and living in [City 3].

    My wife passed away on [date/2011 from[cause of death].  After the funeral, I quitted my job in [City 3] and moved back to live in [City 2] to look after my children.

    However, that was not the case.  While I was living in [City 2], another group of PA members started threatening and harassing me again. This time the threat was getting worse than before, they threatened to hurt my family as well as myself. I moved my family back to [City 1] in December 2011, but I went back to live in [City 3].  I visited my family in [City 1] twice a week. I chose not to live in either [City 2] or [City 1] to avoid continue harassment from PA members related to my political involvement in 2004 UNP election. 

    What I fear may happen to me if I return to Sri Lanka

    I would continue receiving death threats from PA members towards me and my family because of my previous involvement in 2004 UNP election.

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

    Those PA members also threatened us not to report those death threats to the police; otherwise, I would face more severe penalties. 

    Furthermore, the police was under the government party, People Alliance party.  The police would not give me any protection because I was the supporter of the opposition party, UNP party.

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

    People Alliance party members in which I believe have continue harassed me I the past 8 years cover in all areas of Sri Lanka.  I could not relocate to live peacefully in Sri Lanka because of my previous political activity in 2004 election.

11. The applicant described his involvement with the UNP in Sri Lanka and problems that arose as a result at the Tribunal hearing.  He told the Tribunal that he first started supporting the UNP prior to the 2004 parliamentary general elections by helping the chief organiser in the [City 1] area –[Ms A] – organise ‘pocket’ meetings and distribute pamphlets and leaflets.  He started around six months prior to the election.  He was unable to recall the date of the election, but thought it was toward the end of 2004.

12. The applicant told the Tribunal he supported the UNP because they wanted a better government to cater for all people alike, and they helped poor people.  Asked if he could recall any UNP policy in particular, the applicant replied the main one was to treat all people in the same manner.  

13. The applicant said he began to experience problems about three weeks prior to the (2004) election.  Around that time three people came to his house one night and told him to stop his involvement in politics and threatened that if he did not, he would see the consequences.  He did not know them but thinks they were supporters of the opposition party, the SLFP.  The applicant told [Ms A] about the visit and threats and she told him not to be scared and that she would look after him.  The applicant was still scared however, particularly given he had a wife and children, and decided to move his family to another part of Colombo (“[City 2]”), where his wife’s family lived.  He said he has not been involved in politics since that time.

14. The applicant said he did not experience any problems on election day, but noted that he avoided [City 1] area.  He said he was threatened later, in July 2007.  Specifically whilst at his in-law’s house in [City 2] some people came to the house, two persons came inside and called his name then told him not to do politics anymore.

15. The applicant said he and his family moved to [City 3] (Puttalam District, North Western Province) in August 2007 where he worked as [occupation] (and his children attended school). He did not experience any problems whilst there.  In early 2010 his wife and children returned to live with his in-laws in[City 2], primarily because he was struggling to pay rent and had limited income.   The applicant said he moved to [City 2] in  [month] 2011 to support his children after his wife died [suddenly]. He stayed there until December 2011 when he returned to live in [City 3] (his children moved to live with his siblings in [City 1]). 

16. The applicant said in November 2011, whilst he was residing at his in-laws in the period after his wife’s death, he was threatened again.  As had occurred previously, three people came to the house, told him that he would not be able to live there if he started to do politics and then left.  That was the last time he was threatened. 

17. The Tribunal accepts the applicant’s evidence about his family composition, the nature of his work and the places he lived in Sri Lanka in the past. 

18. The Tribunal has some concerns about the applicant’s claims to have supported the UNP in the past, because he demonstrated limited knowledge about the UNP during the Tribunal hearing and the Tribunal found his reasons for supporting the party were fairly vague and lacked details.  For example, asked if he could recall any UNP policy in particular, the applicant replied in general terms that the main one was to treat all people in the same manner.  In answer to why he supported the party he stated in general terms that they wanted a better government to cater for all people alike, and they helped poor people.  The Tribunal also found it concerning that the applicant could not remember the actual day or month of the election and notes that his evidence that he thought it took place in late 2004 is not supported by country information which indicates that the election took place in [another month in] 2004.[2]   Despite these concerns the Tribunal acknowledges that a person such as the applicant can offer support to an individual’s election campaign in ways described by the applicant – for example organising meetings and distributing pamphlets and leaflets – without requiring a detailed knowledge of the party.  The Tribunal has had regard to the representative’s submission in this respect, specifically that the applicant showed an appropriate level of knowledge about events in his local area.  The Tribunal has also taken into account the representative’s submission that the applicant’s lack of recall about the detail of UNP policy or broader outcome of election results is consistent with his withdrawal from political activity from the 2004 elections (and submission that the applicant’s evidence about the politician that he supported –[Ms A] – was accurate, citing relevant country information).  The Tribunal has also had regard to the applicant’s assertion in an undated statutory declaration to the Department provided [in] December 2013 that he finds it difficult to keep track of time and dates and appreciates that it can be difficult to remember events where some time has passed.

    [2][Information deleted].

19. Taking into account these considerations the Tribunal is willing to accept that the applicant assisted a UNP politician -[Ms A] – in the manner described for around six months prior to the 2004 election. The Tribunal also accepts that in the context of the pre-election activities the applicant was threatened by people he presumes were opposition supporters to cease his support to the UNP.  However, for the following reasons the Tribunal does not accept the applicant’s claims that he was threatened or harmed by supporters opposed to the UNP following this incident as claimed.

20. First, the applicant provided inconsistent evidence in a key respect about the alleged threats he received after the election in his statutory declaration provided to the Department and his oral evidence to the Tribunal.  Specifically, in his statutory declaration he states that he was threatened three times after the election (twice at his home between 2004 and 2007 and once after his wife died in [month] 2011) however he told the Tribunal that he was only threatened twice in this period, as set out above.

21. Second, the Tribunal finds it implausible that the PA and/or SLFP supporters who purportedly threatened the applicant not to continue his support to the UNP three weeks prior to the elections would wait until July 2007 – around three years later – to threaten the applicant again, and the third time in November 2011; around seven years after the election.  At hearing the applicant speculated that perhaps those people from [City 1], having searched for him for a long time, only found him after around three years.  The Tribunal does not find this explanation persuasive, and notes that on the applicant’s own evidence he and his family did not move away from the Colombo area until August 2007, after the alleged visit in July 2007.

22. Third, the Tribunal notes that according to the applicant’s oral evidence his (now adult) children have lived in the Colombo area since early 2010 yet the applicant has not claimed that they were ever approached by PA or SLFP supporters looking for their father, or experienced any problems as a result of their father’s support to the UNP leading up to the 2004 elections, which indicates that he was not of ongoing adverse interest.  At hearing the applicant claimed that[one of his children], who joined the army in [2012], was refused entry to an army training camp when [he/she] returned from leave about a year after the applicant came to Australia - he suspects because of his political activities.  The Tribunal is willing to accept that the applicant’s [child] may have been turned away from the army in the manner described; however there is nothing to indicate – apart from the applicant’s speculation – that the army did so because of the applicant’s claimed involvement in elections supporting the UNP in 2004, almost nine years prior.  At the hearing the applicant said in Sri Lanka even on the day of the election people are killed on the spot, without any reason, and that the rules are different, especially when orders come from top officers.  The representative stated at hearing that there is no objective information about why the army treated the applicant’s [child] that way, but noted country information suggests a lack of governance within the security forces (referring in particular to a Transparency International 2014 report as detailed in his written submission).  In his written submission the Tribunal received after the hearing the representative asserts that this supports the claim that the applicant’s [child] did not receive an explanation for [his/her] treatment and submits that, in the absence of any other known reasons, it is open for the Tribunal to  conclude that [he/she] was discriminated against due to the applicant’s profile with the authorities.  The Tribunal accepts that there are transparency and accountability concerns in relation to the security forces in Sri Lanka, but considers it speculative only that the applicant’s [child]’s rejection by the army was linked to the applicant’s political opinion (actual or perceived) or past political activities or profile.

23. Fourth, the Tribunal notes that some of the information contained in a letter the applicant provided to the Department purportedly from [Ms A], Leader of Opposition, Municipal [Council] dated [August] 2012[3] is inconsistent with the applicant’s oral evidence to the Tribunal about key matters, which casts doubts about the veracity of his claims to have been threatened and harassed as a result of his political activities.  For example, it is stated in the letter that the applicant’s entire family have been supporting her political party (UNP); that this family faces political harassment after every election and many members of this family have left the country due to this problem; that since after the last local government election held in [2011] the applicant faces very heavy harassments due to defeat of their political party; that his life in danger, he lives with great fear; and that he lives in hiding in friends’ houses changing residence from time to time.  However the applicant has not claimed that any of his family members supported the UNP or have faced harassment as a result (apart from his claims that his [child] was rejected from the army because of his support to the UNP, which for reasons above the Tribunal has not accepted.) For these reasons the Tribunal gives this letter from [Ms A] little weight.

    [3] At hearing the applicant said his children obtained this letter, by visiting her office.   

24. The Tribunal has had regard to the representative’s submission that the applicant’s perceived political opinion in support of the UNP is another reason why he fears serious harm from political opponents on return to Sri Lanka and that less prominent activists are targeted in Sri Lanka and someone such as the applicant who is a low-level activist for a period of time but continued to receive threats is at risk[4].  Also that the applicant’s considerable work for the UNP in 2004 over six months would have been sufficient to develop a profile that was known to supporters of the opposition party and that the ongoing threats could have occurred whenever those supporters became aware of the applicant’s local presence. The Tribunal notes further the provision of copies of a number of newspaper articles[5] to the Tribunal after the hearing, which illustrate, it is submitted, the continuing friction between UNP and UPFA[6] and the continuing level of violence.  In such a context, it is argued, the applicant remains at risk of serious harm from supporters of the UPFA due to his political opinion.    However, for reasons set out above whilst the Tribunal accepted that the applicant may have assisted[Ms A]’s election campaign for a period of time in 2004, on his own evidence he ceased political activities thereafter and the Tribunal has not accepted that he received threats following the election as claimed.  The Tribunal is not satisfied that the applicant has been of ongoing adverse interest by supporters who oppose the UNP, or anyone in Sri Lanka. 

    [4] Citing a differently constituted Tribunal decision (No. 1311850)

    [5] Daily Mirror, November 11, 16 and 23, 2015

    [6] United People’s Freedom Alliance, made up of a number of parties including the SLFP

1. For the reasons above, whilst the Tribunal accepts that the applicant supported a UNP candidate in the lead up to the 2004 election in [City 1] and was threatened on one occasion around three weeks prior to the election in a bid to cease his support, it does not accept that the applicant was threatened by PA and/or SLFP supporters thereafter: that is in July 2007 or in November 2011.  The Tribunal finds the threat prior to the election took place in the context of an election campaign, over 11 years ago, and that there was no follow up.  For these reasons the Tribunal finds remote the chance that the applicant would be seriously harmed by opposition supporters on account of his support to a UNP candidate in the 2004 election on return to Sri Lanka now or in the reasonably foreseeable future.  

2. The Tribunal has considered if the applicant would engage in political activities if he returned to Sri Lanka in the future.  The Tribunal accepts that the applicant supported a UNP candidate in the lead up to the election in 2004 in [City 1] and was threatened on one occasion a few weeks prior. However the Tribunal does not accept that he was threatened thereafter.  It follows that the Tribunal also does not accept that the reason the applicant was not involved in politics after 2004 was due to ongoing threats and considers it was more likely because of lack of interest.  For these reasons the Tribunal considers it unlikely that the applicant would engage in political activities on return to Sri Lanka in the future.  Even if he did, the Tribunal considers he would do so as he did in the past, in terms of helping out around election time through organising meetings and distributing leaflets for example, and finds remote the chance that in performing such a role he would be seriously harmed by opposition supporters or anyone else for reasons of his political opinion or any other Convention reason in the reasonably foreseeable future.   

   Failed asylum seeker

3. It is submitted that the applicant faces a real risk of serious harm on return to Sri Lanka as a failed asylum seeker.  In his written submission to the Tribunal the representative submits that the applicant is a member of a particular social group of ‘failed asylum seekers’.  He refers to country information from a variety of sources[7] to support his contention that failed asylum seekers have a well-founded fear of persecution (noting that the delegate failed to consider some relevant country information).  In a post-hearing submission the representative argues that the country information extends the risk profile to include a broader category of persons at risk from the authorities, and goes into some detail about the level of harm that could occur.  It is submitted therefore that the applicant, as a person returning on a Certificate of Identity document, would still be at risk of serious harm from the authorities. 

   [7] Citing a Special Broadcasting Service (SBS) broadcast on 30 September 2014 , ‘Dateline, Turned Back to Torture?’; Human Rights Law Centre, Background Brief Sri Lankan returnees, September 2014; Bar Human Rights Committee of England and Wales and the International Truth & Justice Project, Sri Lanka, March 2014, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 – 2014’

4. The Tribunal has had regard to these submissions and relevant country information and acknowledges the concerns articulated about what might happen to returnees such as the applicant. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka and the Tribunal also accepts that he will not return to Sri Lanka voluntarily.

5. As discussed with the applicant at the hearing, the UK Home Office reports that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[8]   It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

   [8] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

6. The Tribunal accepts that when the applicant returns to his home in Colombo, his arrival will be noted and he may be questioned by the Sri Lankan authorities.  However given the Tribunal’s findings above that he has not been politically active or anti-government since his departure from Sri Lanka, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he is someone who has sought asylum in Australia.

   Illegal departure

7. The Tribunal has also considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka because he departed the country illegally.

8. The Tribunal accepts that the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing the Tribunal discussed with the applicant DFAT’s advice that persons charged with such offences are transported to the Magistrate’s Court in Negombo at the first available opportunity.  The Tribunal noted DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s office that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally and that in most cases they have been granted bail immediately, or had a short period of remand, and later fined[9].  The applicant did not indicate that he or his family would not have the means to pay the fine.  The Tribunal notes that the applicant’s [adult] children currently reside in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him if required. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country constitutes serious harm amounting to persecution. 

   [9] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.32 – 5.33

9. At the Tribunal hearing when asked if he has any fears on return to Sri Lanka on the basis of his illegal departure and/or as a failed asylum seeker the applicant replied “no”. He said he came to Australia to protect his life and did not know anything about those laws when he left.  Even if he did, he would have come to protect his life.  He added that what is written in such reports are ‘lawful things’ but there are a lot of unlawful things happening in Sri Lanka, which he sees from the internet. 

10. As discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application and that detainees are not subject to mistreatment during their processing at the airport.[10]  The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  The evidence before the Tribunal does not indicate that the law is being applied selectively or in a discriminatory manner for a Convention reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and persecutory conduct pursuant to s.91R(1)(c).

    [10] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.31

11. In this case the Tribunal has found, for the reasons set out above, that although the applicant has been threatened on one occasion by opposition supporters 11 years ago in the context of an election campaign, he does not face a real chance of serious harm on the basis of an imputed or actual (pro-UNP) political opinion and therefore finds remote the chance that the applicant will be targeted or harmed for any reason in the context of a very brief stay in remand pending bail.  As discussed, the Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand.  The Tribunal finds the chances remote that he will face serious harm in this context. 

12. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant who has departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when he is later dealt with by the courts, or when he returns to his home area, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

    Conclusion – Refugee grounds

13. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

14. 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).

    Complementary protection assessment

15. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

16. It is submitted that 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 in the form of torture, and cruel or inhuman treatment or punishment, or degrading treatment or punishment, or arbitrary deprivation of life. 

17. The Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his actual or imputed political opinion or his membership of a particular social group of ‘failed asylum seekers’ .  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[11]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

18. In terms of real risk of significant harm on return to Sri Lanka on account of his illegal departure from the country, for the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing.  The Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand.  The Tribunal considers that the applicant will be granted bail on his own recognisance or with family members as guarantor and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine.  The Tribunal does not accept that the applicant will be unable to pay such a fine if it is imposed upon him, given he has family members in Sri Lanka.  Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing. 

19. The Tribunal finds that any short term detention, questioning or imposition of a fine does not account 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. 

20. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes the discussion of prison conditions in the relevant PAM3 provisions.  Whilst the applicant may be placed in overcrowded and poor prison conditions for a short period of time, the Tribunal does not accept that the authorities are intentionally seeking to harm him – that is inflict pain, suffering or extreme humiliation - by placing him in these conditions for the short period he would be detained. 

21. As well, the Tribunal does not consider the applicant, a person of no adverse profile and no interest to the authorities, would face a real risk of significant harm while on remand.  

22. Having considered the applicant’s claims individually and cumulatively, for these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Other matters:-

23. The Tribunal notes at hearing the applicant submitted a reference from his current employer who considers him an asset.  In his letter the director also states that he has spoken to the applicant about his current situation in Sri Lanka and states that he can see that he is genuinely fearful about the thought of returning there.  The Tribunal accepts the applicant is a valued employee and that his employer considers his fears about returning to Sri Lanka are genuine.  Nonetheless, the character reference does not alter the Tribunal’s findings as set out above that the applicant does not invoke Australia’s protection obligations. 

    CONCLUSION

24. 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).

25. 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).

26. 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

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

    Nicole Burns
    Member

    
    

    Attachment – Summary of 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.

    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.

    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’).

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