1414325 (Refugee)

[2016] AATA 4965

1414325 (Refugee) [2016] AATA 4965 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414325

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:27 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2016 at 9:22am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – activities with the United National Party – parliamentary election work – involved in a brawl with People’s Alliance members – falsely accused of possessing bombs – imprisoned and tortured – fear of harm – former employer’s disappearance and alleged association with the LTTE – illegal departure – failed asylum seeker – credibility issues – tribunal does not accept claims of illiteracy – abandonment as a child – memory impairment – no substantive evidence – decision under review affirmed

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

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 19 November 2012 and the delegate refused to grant the visa on 24 July 2014.

3. The applicant appeared before the Tribunal on 27 May 2016 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.

   RELEVANT LAW

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

   Refugee criterion

6. 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).

7. 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.

8. 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.

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

10. 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.

11.  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.

12.  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.

13.  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.

14.  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.

15.  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

16. 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’).

17. ‘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.

18. 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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

20.  The applicant claims to be a citizen of Sri Lanka who was born in [Town 1], Puttalam district in the north western province of Sri Lanka on [date]. According to his protection visa application, he lived in various houses [in] Puttalam district between [date] and mid-2012. He completed his O levels and is fluent in Sinhalese and Tamil. He described his occupation before coming to Australia as [a certain occupation] and fishing. He worked as a fisherman for a [named person] from 1989 to 2011 and [worked] for [Mr A] from 2002 to 2012. The applicant departed Sri Lanka illegally on [date] May 2012. The applicant’s wife, [children], father, mother, [siblings] and mother-in-law are residing in Sri Lanka.

21.  The applicant presented his claims in his protection visa application on 19 November 2012 (folios 15 to 23 and 33 to 47 of the Department file [number 1]), a Departmental interview he attended on 24 June 2013 (folio 193 of the Department file [number 1]), submissions from the applicant’s adviser to both the Department and the Tribunal including a post hearing submission received on 22 June 2016, and at his Tribunal hearing on 27 May 2016. The following is the statutory declaration made by the applicant attached to his protection visa application:

1.I was born in [Town 1], Puttalam, North Western Province, Sri Lanka, in [year].

2.I am a Singhalese and Christian.

3.I fear that if I was forced to return to Sri Lanka I would be at risk of being harmed because of my activities with the United National Party (UNP). I also fear harm because I have been detained before and left Sri Lanka while on bail and under reporting requirements; and because I would return to Sri Lanka as a failed asylum seeker from Australia who left illegally.

4.My memory is very bad so some of these incidents may be mixed up. I sustained a serious head injury after being beaten in the head with guns by the military/police. I was in hospital for three weeks and then recovering at home with traditional medicine for 5 months. Since this incident, my memory has been very bad.

5.I am also illiterate and have never had any education.

My family background

6.I grew up [in a location], When I was around [age] years old, my parents left that place. My father and mother decided to move back to my father's [village]. I don't know why they left.

7.An aunt living close by then looked after me. I was the only child to stay there. I never saw the rest of my family again. I grew up with my aunt and her husband and their children.

8.I didn't even have a birth certificate at that time so I was not able to go to school. There was nobody able to help me. I worked from a young age, fishing with my cousin from age [years old].

9.My childhood was very unhappy. Once I tried to commit suicide around [age]. I was depressed.

Activities with the UNP

10.I joined the UNP when I was about [age] years old. Some of my friends were involved in this party so they suggested it to me. Since I had no siblings, my friends were very influential to me, so I did what they suggested.

11.I would go canvassing from house to house promoting the party, handing out leaflets. I would also paste posters of the party around the town.

12.I worked for the parliamentary elections to support MPs and also for provincial council elections.

13.I worked for [Mr B] for a general election. At that time he was with UNP and now he is with the People's Alliance, which is the ruling party. He is an MP I guess. I used to occasionally go to small meetings that were held so people could go and talk about their problems with these MPs. I met [Mr B].

14.Then later [Mr C] came along. He was going for Provincial Council elections. We helped him with his campaign.

15.My wife was not supportive of my political activities. She has filed a divorce against me. We don't talk anymore. For a few months before I came to Australia we did not live together.

Arrested and mistreated for a brawl with members of the People's Alliance

16.My wife's uncle was in the People's Alliance. Lots of people were moving to the People's Alliance from the UNP at this time but me and my friends refused to move. We were loyal.

17.About four years ago, I was involved in a brawl. Members of the ruling party, the People's Alliance, began a fight with a group of us from the UNP. This was in [another town], which is not far from where I lived.

18.One of my friends cut a person from the other side. We were all arrested in a group. Only the UNP members were taken.

19.We were detained for 14 days. We went to court and eventually the judge said I was not guilty and released me.

20.After being released, about 2 months later, these people started fighting with us again. We went to the police to make a complaint, but they did not accept it.

Arrested again

21.11 of us were arrested again. We were told it was because of a grenade that the police had found, but this was a false charge. We were not doing anything wrong when we were arrested. We all supported [Mr C].

22.I think the police were paid by my wife's uncle and also a provincial council member, who both support the ruling party — to make these charges against us. They did not like the UNP.

23.About 20 police took nine of us in cars. I was taken from inside a shop. We were taken to the police station and when we got there we had our clothes removed and were beaten and thrown in cells. I was detained there for about 2 days.

24.After that I was sent to [Prison 1] and then [Prison 2] for about 1.5 years split between the two prisons. After about one year in prison, I began to be taken to court about every 2 weeks.

25. 8 months later, I was released on bail. 50,000 Rupees was paid as bail and I had 3 guarantors, The bail was paid by [Mr C]. He organised lawyers for all of us. My three guarantors were all arranged. One person was my aunt's son, one was his wife and the other two were organised by [Mr C].   

26.I was released on my birthday, [but] I can't remember which year. This was before the war ended. (The applicant thinks this was 2 years before the war ended 2009 -2008 – handwritten)

27.  I had to report to the police every week after I was released.

28.This case against me is ongoing but the police cannot prove who had the bomb out of the 11 people. There is still an investigation underway. My guarantors cannot do anything now.

29. I think there are some warrants against me. Since coming to Australia, when I spoke to my sister, she told me that some letters had been sent to my wife's house for me.

Work with [Mr A]

30. From about 2002, I worked [in a certain role] for a man called [Mr A]. He was married to a Tamil lady. We [caught] fish to sell for people's fish tanks. I did this in the low season when other fishing was low.

31. We sometimes had problems getting our [licence] from the navy. Lots of Tamil people were training under [Mr A]. Later his son told me that he was accused of training the LTTE [a certain skill], but I was not aware of this at the time.

32. About 2.5 or three years ago, [Mr A] was arrested by the CID and accused for support for the LTTE. They thought he was training LTTE [fighters]. I heard this from his son. [Mr A] has now disappeared.

33. I did not mention [Mr A] in my first interview in Australia as I just answered what I was asked. Also I was worried mentioning it might make people think I did have connections with LTTE. Other Sri Lankans had told me this would be bad for my case.

I am kidnapped

34. In January 2012 the navy kidnapped me. Two police were also there. I was having lunch with my friend [and] I was suddenly taken and blindfolded and put in a van. There were about 8 people. I was taken to a big building in an isolated place. (He didn’t realise the police were present until after – handwritten)

35. The building was like an abandoned warehouse with birds roosting in it. They strapped me to a chair and beat me. I was hit heavily around my head with guns and was told they would kill me and finish me. I cannot recall what else they were saying to me, as I was unconscious for a lot of it and, as I said, my memory is poor now.

36.I think I was taken by them because of my association with [Mr A]. (it may also have also been because of his UNP activities, he is not sure – handwritten)

37.After 2 days I was released. They threw me near [a] bridge. I was unconscious and only found out later about this, Several people found me there and called an ambulance.

38.I was in hospital for about 3 weeks. I was told I had some fractures to my skull. The doctors wanted me to stay longer but my siblings preferred that I go home and have eastern medicine treatment. I also wanted to stay longer in hospital.

39.While I was in hospital, the police took a statement from me about the assault on me by the navy. Those police and the doctors suggested that I file a complaint against the navy who did that to me, but my siblings advised me not to. They thought I had already been through too much having the ongoing investigation against me and also having the divorce that my wife initiated against me.

40.My siblings tried to get my medical records from the hospital but they were not given to them.

41.I went home and began to recover and had traditional medicine for about 5 months.

42.I decided to come to Australia because my brother [who] was already intending to travel by boat and my sister told me to join him. I only came to know that the boat was coming to Australia 3 hours before the boat actually left Sri Lanka.

43.[My brother] is still detained in [Australian city 1] as he was [in a particular role] and I think he is being questioned. We had a fight on the boat on the way here and we don't talk now. (He has been in contact with his brother in Australia recently – handwritten)

What I fear would happen if I was forced to return to Sri Lanka

44.I fear that I would be detained, and beaten or even killed if I was returned to Sri Lanka. There is nowhere safe for me in Sri Lanka as I am known for my UNP activities. I was supposed to be reporting regularly as I am on bail but I didn't. I left Sri Lanka illegally.

45.For all of the above reasons, I ask the Australian government to protect me and not send me back to Sri Lanka.

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

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

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

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

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

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

With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

1. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including his national identity card and Certificate of Residence and Character issued by the Grama Niladhari. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

27.  For the reasons discussed below, the Tribunal has serious concerns about the credibility of the applicant’s claims regarding his fear of returning to Sri Lanka, namely because of his association with a former employer who was allegedly accused of supporting the LTTE and because of his support of the UNP.

1. It has been submitted by both the applicant and his adviser that the applicant has a bad memory due to head injuries he allegedly sustained when he was abducted. The Tribunal does not accept on the evidence before it that the applicant has memory problems as a result of the alleged serious head injury he sustained when he was beaten in the head with guns by the military/police, as he claimed in his statutory declaration. The Tribunal has taken into consideration the medical evidence that was submitted by the applicant’s previous adviser to the Department, as evidence of the significant head injuries he allegedly received during his abduction and the resulting difficulties he claims to have with his memory. As the Tribunal put to the applicant in the hearing, the records do not indicate that he suffered any such head injuries or any difficulty with his memory, either because of the injury to his head or for any other reason. What the records do refer to are issues with the applicant’s knee which was exacerbated by his engagement in [sports] [while] in detention. [Sentence deleted]. While the applicant’s adviser submitted, in the post hearing submission, that one of the medical reports indicated the likely cause of this knee injury was due to a previous beating that the applicant had reported, the Tribunal places little weight on this in light of the fact that this was self-reported and its concerns with the applicant’s credibility, as discussed below.  

2. It has also had regard to the adviser’s submission regarding the applicant’s lack of education and illiteracy and how this has a significant impact on how the applicant understands events, his ability to recall events and how he communicates his experiences to the Tribunal. The Tribunal has taken into consideration the various studies on illiteracy referred to by the applicant’s adviser in his post hearing submission. However, the Tribunal does not accept on the evidence before it that the applicant has never been to school or that he is illiterate. The Tribunal has serious doubts about the applicant’s claims that he was abandoned by his family when he was [age] years old and as such was unable to go to school. The Tribunal notes in the hearing the applicant claimed that he did not have a proper place to live after he was [age] years old and lived with many. When asked if his parents left him with anyone in particular, he stated no-one really looked after him after he was [age] years old. However, as the Tribunal put to the applicant in the hearing, this was not what he claimed in his statutory declaration attached to his protection visa application, where he stated that his aunt living close by looked after him when his parents decided to move back to his father’s [village]. He claimed that he grew up with his aunt and her husband and their children. Yet, the applicant insisted in the hearing that there was no one place he lived and that there were many who looked after him, including an elderly person who he used to call aunt. The Tribunal has also taken into consideration the independent information which provides that school education is compulsory in Sri Lanka from the age of 5 to 13/14 years old and also free. When the Tribunal put this to the applicant and questioned how it was possible, in light of this information, that he never went to school, the applicant stated that his first priority was to survive and feed himself. In contrast, in his statutory declaration he claimed he was not able to go to school because he did not have a birth certificate.  Based on the above, the Tribunal does not accept that the applicant is illiterate or that he never went to school in Sri Lanka.

3. The applicant claimed in the hearing when asked why he fears returning to Sri Lanka, that his employer, [Mr A], had been accused of supporting the LTTE and had been taken into custody and there was no further news of him. The applicant claimed that he fears the Sri Lankan Army because he was [Mr A]’s staunchest supporter, so he could face a threat from there.

4. The Tribunal does not accept the applicant’s claims regarding his employer [Mr A] allegedly being accused of being involved with the LTTE and having been taken into custody and not being heard from since. The Tribunal notes the applicant was unable to remember when [Mr A] was taken into custody. He stated he could not recollect the date or time period. When asked if it was shortly before he left Sri Lanka or many years before he departed the country, the applicant claimed that it may have been 2 or 3 years before he left.

5. However, more importantly, the Tribunal found the applicant’s evidence in relation to [Mr A]’s alleged detention to be vague, and confusing. When asked how he learnt that [Mr A] had been taken into custody, the applicant stated that he knew [Mr A]’s sons and had a close association with them. In response to the Tribunal’s query as to whether [Mr A]’s sons told him about their father being taken into custody, the applicant neither confirmed or denied this but instead claimed that 20 to 25 people worked for [Mr A] so when he was taken into custody they went and searched for him. The Tribunal asked the applicant again how he knew that [Mr A] had been taken into custody. He stated that [Mr A] had family members who worked for the Sri Lanka forces and through them he was taken into custody. He subsequently stated that [Mr A] was invited by his family members to “go and share” and that was how they got to know he was taken into police custody and went to the police in search of him. When the Tribunal noted that it was still unclear how he personally got to know about [Mr A] being taken into custody and questioned whether it was through [Mr A]’s family members, the applicant evaded answering the question and instead stated that his wife was a young girl of [age] and he was being kept by [Mr A] and he had children. Later in the hearing the applicant claimed that about a week after [Mr A] went missing, relatives of [Mr A] working for the Sri Lankan army told [Mr A]’s sons that their father was involved in a lot of LTTE activities and he got to know through them. The Tribunal has taken into account the following from the post hearing submission which was provided to clarify the applicant’s evidence:

   At the Hearing, [the applicant] responded by indicating he had no idea about [Mr A]'s LTTE involvement until after he disappeared. He explained that he only found out when [Mr A]'s wife (from a second marriage) and his son went to the police station to report his disappearance and there was speculation that he had been involved with the LTTE. [Mr A]'s son confirmed to [the applicant] that [Mr A] had been taken away. They had found out through other relatives in the army why he had been taken. We note that this is consistent with previous evidence he has given in his Statutory Declaration insofar as he found out about this information from [Mr A]'s son and information given at the Interview.

   Despite the applicant’s adviser’s assertion that the applicant’s subsequent explanation is  consistent with the applicant’s earlier evidence in his statutory declaration, the Tribunal finds the above is not consistent with the information provided in the hearing by the applicant, as detailed, and therefore places no weight on this.  

6. The Tribunal also finds the applicant’s evidence in the hearing regarding what happened to [Mr A] to be internally inconsistent.  While initially claiming that it was [Mr A]’s family members working for the Sri Lankan Forces who invited [Mr A] to come and share information with them, the applicant later explained that when he and the other fishermen working for [Mr A] had returned from fishing, [Mr A]’s family had come and informed them that a few friends (as opposed to relatives or family members) had come and taken him and he had been gone for 10 to 12 hours which was unusual. The applicant also claimed that it was after being informed of this by [Mr A]’s family that 20 to 25 people, including [Mr A]’s family, went to the police station. As discussed above, the applicant had previously claimed that 20 to 25 of [Mr A]’s employees had gone searching for him once he had been taken into custody. Additionally, in regard to what he did when he learnt that [Mr A] was taken into custody or had been gone for some time, the Tribunal notes that while the applicant had claimed to have gone searching for him with 20 to 25 of [Mr A]’s employees (and family members), he subsequently told the Tribunal that he was saddened by the news but did not do anything.

7. Further, the Tribunal notes that when it asked the applicant what [Mr A] was accused of doing for the LTTE, the applicant claimed he had no idea. However, as the Tribunal put to the applicant in the hearing, he had specifically claimed in his statutory declaration attached to his protection visa application that [Mr A]’s son had told him that his father had been accused of training LTTE fighters [a certain skill]. The Tribunal asked the applicant several times during the hearing about [Mr A]’s alleged support of the LTTE and he was unable to provide any information about how [Mr A] had allegedly assisted the LTTE. Given the applicant had previously provided such detail in his statutory declaration, the Tribunal does not consider it unreasonable that the applicant should be able to provide some detail about these alleged accusations. The Tribunal has also taken into consideration the post hearing submission in which the applicant’s adviser noted that at the interview with the Department it was explained that the applicant was not even aware if [Mr A] knew he was assisting LTTE members by teaching them [ a certain skill]. The Tribunal does not find that this addresses its concern regarding the applicant’s inability to articulate in the hearing, as he had previously done so in his statutory declaration, what [Mr A] allegedly had been accused of doing to support the LTTE.

8. Considering the vague and contradictory nature of the applicant’s evidence regarding [Mr A]’s alleged disappearance and the allegations that he was supportive of the LTTE, the Tribunal does not accept the applicant’s claims in respect of [Mr A] are credible.

9. As the Tribunal does not accept that the applicant’s employer [Mr A] was suspected or accused of being involved with the LTTE as the applicant claimed, the Tribunal does not accept that the applicant was kidnapped, assaulted by unknown persons who he assumes were the forces and left under a bridge, two years after [Mr A] allegedly went missing.

10. The Tribunal has also taken into consideration a number of discrepancies between the applicant’s evidence in the hearing regarding his alleged abduction, as compared to what he claimed in his statutory declaration attached to his protection visa application. In the hearing the applicant claimed that he was taken from the junction in [a location]. He explained that he was talking to a friend who lived in the junction, over this person’s fence, while waiting for the bus to go home and a van came, he was blindfolded and taken in the van. The applicant stated that he could not recall how many people got out of the van because he was blindfolded immediately and he did not see the people who took him or at any stage while he was being held because his face was covered. His evidence was that he did not know how many people were in the van but he felt that there were about 6 to 7 people.  In contrast, in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that he was having lunch with his friend when he was suddenly taken and blindfolded. He also specifically claimed that it was the navy who kidnapped him in January 2012, as well as two police officers, which he only realised later, and that there were about 8 people. The Tribunal has taken into consideration the applicant’s adviser’s suggestion, in the post-hearing submission, that the applicant had provided relatively consistent evidence regarding his abduction in his interview with the Department and at his hearing. However, the Tribunal finds that this does not address or alleviate its concern regarding the level of detail he provided in his statutory declaration, as compared to in the hearing.

11. The applicant claimed in the hearing he was driven in the van for 3 to 4 hours and did not know where he was taken but confirmed that he had to climb some stairs. However, in the applicant’s statutory declaration he provided specific detail about the place he was taken, describing it as a building like an abandoned warehouse with birds roosting in it. In relation to what happened once he was at this building, the applicant stated that he was assaulted. When asked what he meant when he said that he was assaulted, the applicant stated he could not recall but felt the butt of a pistol on his head and felt the trigger being pulled a few times. Yet, in his statutory declaration he claimed that he was strapped to a chair and beaten, including being hit heavily around his head with a gun. The Tribunal has difficulty accepting that if the applicant had been beaten, including with a gun to his head, that the applicant would not be able to recall this in the hearing. Further, the Tribunal notes that the applicant made no mention in his statutory declaration of having a gun held to his head and having the trigger being pulled numerous times, which the Tribunal finds to be a significant event.  

12. In the hearing the applicant claimed that he left Sri Lanka three months after this alleged incident. However, according to the applicant’s statutory declaration he claimed after he left hospital he went home and began to recover and had traditional medicine for about 5 months. The Tribunal also notes, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had provided evidence suggesting that he had been [fishing] in Jaffna in the three months before his departure from the country, which the Tribunal finds somewhat implausible if the applicant had sustained the alleged injuries that he claimed in the hearing as a result of the assault on him during his abduction, including his leg being crushed, a broken arm and three areas of his head cracked. The Tribunal has had regard to the applicant’s adviser’s post hearing submissions on these points and his contention that little weight should be given to these discrepancies because of the applicant’s lack of education. As discussed above, the Tribunal does not accept the applicant’s claim that he is illiterate or uneducated.

13. Taking into consideration the concerns discussed above, the Tribunal is further satisfied that the applicant was not kidnapped or abducted by the navy, the police or any other authorities, for any reason including [Mr A]’s alleged association with the LTTE or by his wife’s family, as the applicant also suggested during the hearing, or because of his UNP activities, which he suggested in his statutory declaration may have been a reason, although he was not sure.

14. The Tribunal notes in the hearing the applicant was asked if there was any other reason why he fears returning to Sri Lanka and he stated initially he had a few political issues but now that the government in power is the United National Party (UNP), he is not frightened of that. The applicant confirmed that he has no fear of either being seriously harmed or significantly harmed if he returned to Sri Lanka because of his alleged support of the UNP.

15. Despite the applicant’s assertions that he has no fear of harm for reason of his alleged political opinion, the Tribunal has considered the applicant’s claims relating to his support of the UNP. The Tribunal does not accept that the applicant was an active supporter of the UNP based on a number of concerns it has in relation to his evidence in the hearing regarding his political opinion. Firstly, the Tribunal found the applicant’s evidence in the hearing regarding how he came to support the UNP to be somewhat different to what he originally claimed in his statutory declaration. In the hearing, when asked what made him become interested in politics, the applicant claimed that he had no enthusiasm but that “they” came to his village and he and others were basically gathered and taken. However, in the applicant’s statutory declaration attached to his protection visa application, the applicant had claimed that some of his friends were involved in the UNP and they suggested it to him and since he had no siblings, and his friends were very influential, he did what they suggested. The Tribunal notes in the post hearing submission from the applicant’s adviser, the applicant clarified that that his friends in the village were joining the UNP and this made him interested when UNP politicians later came to his village and when he heard the UNP politicians speak, their statements appealed to him because they were supportive of the poor and the vulnerable. While the adviser submitted that there was no change to the reason for the reason why the applicant joined the UNP but rather he placed a different emphasis on different aspects of his involvement at hearing as compared to when he prepared his statutory declaration, the Tribunal does not accept that the discrepancy in the applicant’s evidence is the result of a different emphasis. Rather it finds that it is inconsistent.

1. The Tribunal also notes when asked in the hearing if the UNP was in power when he started supporting the party, the applicant stated that he was not sure if they were in power or not, but he could recall that he worked for [Mr B] in 2002 during parliamentary elections, by pasting posters. The Tribunal notes that independent information confirms that the UNP were in power in 2002. The Tribunal finds it difficult to accept that if the applicant started actively supporting the UNP in 2002 as he claimed, pasting posters for the UNP candidate during an elections campaign during that particular year, that the applicant would not be aware that the UNP were in government at that time. While the applicant subsequently claimed that the UNP were in power, the Tribunal notes that this was only after it had put this information to the applicant. Further, the Tribunal notes that there was no parliamentary election in 2002 as the applicant claimed, which raises significant doubts about the applicant’s claim that he actively supported the UNP, and particularly [Mr B] , in 2002 as he claimed. The Tribunal has had regard to the applicant’s response that it could have been 2000, 2001, 2002 or 2003 and he could not recall. The Tribunal does not accept that the applicant would not be able to remember at least the year in which he allegedly first actively participated during an election by supporting a particular candidate. Nor does the Tribunal accept the adviser’s submission in his post hearing submission that the applicant was broadly correct in his evidence on these issues. The Tribunal also does not accept, for the reasons provided above, that illiteracy or general difficulties recalling dates is the reason for the deficiencies in the applicant’s evidence.  As such, the Tribunal has serious doubts that the applicant supported the UNP as claimed and that he participated in three election campaigns, in 2002, 2006 and 2010, by engaging in activities such as pasting posters and handing out pamphlets when canvassing.

2. However, even if the Tribunal accepts that the applicant may have engaged in these low level and limited activities during three elections spread over a period of many years, the Tribunal does not accept that the applicant experienced any problems as a result of his support of the UNP. The Tribunal notes in the hearing the applicant claimed that in 2004 he was falsely accused of possessing bombs, along with 7 or 8 other people, and was taken into custody. He claimed that he was kept in [Prison 1] for one and a half years, before being released on bail. When asked if he had experienced any problems because of his political activities prior to these false charges being laid against him, the applicant stated no.

3. Yet, the Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that prior to being arrested on false charges, he had been involved in a brawl with members of the opposition party, the People’s Alliance, and one of his friends had cut a person from the other side and they were all arrested. The applicant claimed they were all detained for 14 days and went to court and he was eventually found not guilty and released. The Tribunal notes the applicant made no mention at all during the hearing about this particular incident.  While the applicant claimed in the hearing that he was not responsible for that incident so he thought it was not important, when the Tribunal put this omission in his evidence to him, the Tribunal finds this explanation for his failure to raise this particular incident unconvincing given that he considered it significant enough to detail in his statutory declaration outlining the reasons why he fears returning to Sri Lanka. The Tribunal has also taken into consideration the applicant’s adviser’s submission made in his post hearing submission that the applicant did not realise the Tribunal considered this incident to be relevant and he understood the Tribunal would raise this point if it considered it necessary. The Tribunal does not accept this explanation as it is not for the Tribunal to make the applicant’s case. The Tribunal finds the applicant’s omission of this alleged incident raises serious doubts that he experienced any problems in Sri Lanka because of his alleged support of the UNP, including this altercation with opposition members which resulted in him being detained for a period of two weeks and bought before the court.

4. The Tribunal also notes that according to the applicant’s evidence in the statutory declaration attached to his protection visa application, this alleged incident when he was detained for 14 days occurred prior to the applicant being arrested again on false charges. The Tribunal notes the heading “arrested again” and the applicant’s evidence that 11 of them were arrested again because a grenade had been found by the police. However, the Tribunal also refers to the fact that the applicant claimed that this arrest, as a result of the altercation with opposition members, occurred four years ago, which would have been in 2008 given the applicant’s statutory declaration was made on 6 November 2012. In contrast, the applicant’s evidence in the hearing was that the false charges made against him and others occurred in 2004, which was four years before 2008. Even if the Tribunal accepted the applicant has difficulty remembering particular dates, it finds it implausible that he would not be able to recall that these alleged events occurred in the few years before he departed the country and not some 8 years before he left.

5. The Tribunal has taken into consideration the applicant’s adviser’s post hearing submission regarding the timing of the incident relating to these alleged false charges being laid. The following extract was provided by the adviser to purportedly demonstrate that these events may have taken place in 2004, as claimed by the applicant in the hearing (as opposed to what he had claimed earlier in his statutory declaration) and indicates the applicant’s inability to recall events due to his illiteracy and memory problems:

   We note that the timeframe given in the Statutory Declaration is also not clear. In paragraph 17 of his Statutory Declaration, he indicates he was charged after another event, a brawl, that [the applicant] said occurred four years prior to preparing the Statutory Declaration (signed in 2012), which suggests that the brawl took place in 2008. At the interview with the Minister's delegate on 24 June 2013 (the Interview), before he was questioned about this, [the applicant] clarified that he was released from prison some 1.5 years after he was arrested a second time and believes he was released about two years before the end of the war, which ended in March 2009. If [the applicant] had been released before the end of the war and had spent approximately 1.5 years in prison, he would have been detained in late 2007 at the earliest. He also indicated that the second period of detention occurred sometime after he was involved in the brawl, which suggests this occurred much earlier than 2007. At the Interview, it was indicated that [the applicant] believed he was released on his birthday about 2 years before the war ended, which would mean in around [date] and that he was arrested in mid-2005.

   The Tribunal does not accept the applicant’s adviser’s explanation addresses the inconsistency in the applicant’s evidence regarding when he was allegedly falsely charged, as included in his statutory declaration and claimed later during the processing of his application. The Tribunal also does not accept that the inconsistencies in the applicant’s evidence are due to memory or illiteracy or education issues, for the reasons discussed above.

6. Further, the Tribunal notes a number of other discrepancies regarding this particular incident between the applicant’s evidence in the hearing as compared to his evidence in his statutory declaration attached to his protection visa application. Firstly, the applicant claimed in the hearing that 7 or 8 people were arrested with him on these false charges, yet in his statutory declaration he claimed that there were 11 of them arrested. He also claimed that 9 of them were taken in cars by about 20 police. Further, the delegate’s decision, a copy of which was provided to the Tribunal, refers to the applicant stating that 15 of them were arrested on these false charges. The applicant also stated in the hearing that he was outside a church in [a specific location] when he was arrested by the police. However, in his statutory declaration he claimed that he was taken from inside a shop. The Tribunal has taken into account the applicant’s subsequent explanation in the post hearing submission that at the time of the police raid, 14-15 people were gathered when the police came and stripped people there and around seven people were stripped and beaten and later arrested and taken away and later, more people were arrested in relation to the same matter, bringing the total number of people to 11 and these four people were not part of the initial 15 people who were gathered but were charged as part of the same process. The Tribunal finds that this does not explain the discrepancy in his evidence, as discussed above, but rather raises further concerns. The Tribunal has also considered the adviser ‘s submission regarding the applicant’s educational background and basic understanding of procedures, which was contended accounted for the applicant’s lack of specificity in explaining how many people were involved at each stage of the process. However, the Tribunal does not accept this given the evidence provided by the applicant was about the number of people arrested with him at a specific point in time and not about any subsequent legal processes and procedures. 

7. The applicant stated in the hearing that he was held in [Prison 1], after being remanded at the police station for a couple of days and in the custody of the fiscal services in Puttalam for three days. When asked how long he was in [Prison 1], the applicant stated one and a half years. However, according to the applicant’s statutory declaration attached to his protection visa application, he was sent to [Prison 1] and [Prison 2] for about 1.5 years split between the two prisons. When this inconsistency in his evidence was put to the applicant, he claimed to not only have been held at [Prison 1] and [Prison 2] but also [Prison 3]. Further, the Tribunal notes, as put to the applicant in the hearing, in the medical documents that were submitted to the Department by the applicant’s previous adviser as evidence of his alleged head injuries, there is reference in the documents to the applicant claiming to have been arrested and detained, however it states that the applicant claimed to have been in jail for a period of 6 months, which is inconsistent with his evidence that he was detained for a period of a year and a half. The Tribunal is not only concerned by the applicant’s failure to raise in the hearing the fact that he had been held in [Prison 2], as he had previously claimed, but also that he claimed for the first time to have been held in a third [prison]. In the post hearing submission it was stated that the applicant had subsequently explained that he was detained in [Prison 3] only prior to being taken to court. He explained that he was taken from [one area] to [another] and then taken to [Prison 2] for 6-7 months. The Tribunal finds this to be further inconsistent with the applicant’s previous evidence. The Tribunal has also considered the applicant’s adviser’s submission that the applicant was not specifically asked about [Prison 2] and he did not understand the Tribunal’s question. The Tribunal does not accept this explanation given that it simply asked the applicant about where he was detained and would expect him to disclose all prisons he was detained in without prompting.

8. Thirdly, the applicant claimed in the hearing that after about 6 months of being imprisoned he was taken to court. Yet, in the applicant’s statutory declaration attached to his protection visa application he claimed that it was after about one year in prison that he began to be taken to court, about every two weeks. The Tribunal has considered the applicant’s adviser’s submission that the Tribunal should take into consideration the applicant’s level of education and difficulty recalling dates. However, for the reasons discussed above, the Tribunal does not accept that the applicant is illiterate or uneducated or that he has memory problems.

9. Fourthly, the applicant claimed in the hearing that he was not sure who had paid the 50,000 rupees bail, yet according to his statutory declaration attached to his protection visa application, he claimed that it was [Mr C’s alias] (or [Mr C] as written in the applicant’s statutory declaration) [Mr C] who paid this money and three other people acted as guarantor. In contrast, in the delegate’s decision, a copy of which was provided to the Tribunal, it states that the applicant claimed that his wife paid the 50,000 rupees. While the applicant responded in the hearing, stating that he really did not know who paid the money, the Tribunal finds the applicant’s evidence does not reflect this assertion given that he has specifically indicated different people who were allegedly responsible for paying his bail. The Tribunal does not accept the applicant’s adviser’s submission post hearing that the differences in the applicant’s evidence is the result of the applicant emphasising different aspects of his understanding of how bail was paid for him and can be explained by his level of education affecting how he presents evidence. For the reasons provided above, the Tribunal does not accept that the applicant is illiterate or uneducated and as such it does not accept this explanation.

10. Lastly, the Tribunal notes in the hearing the applicant claimed that a condition of his bail was that he was required to report once a month. However, in the statutory declaration attached to his protection visa application he claimed that he was required to report every week. The Tribunal notes the applicant’s query that it had to be once a month because if he was required to report once a week how could he do a job.  The Tribunal does not accept that this explains the discrepancy in the applicant’s evidence. Nor does it accept the applicant’s contention that more regular reporting would have impacted on his ability to maintain his employment thereby making weekly reporting impossible. The Tribunal has considered the applicant’s adviser’s post hearing submission that the reference to once a week in the applicant’s statutory declaration could be due to an interpreting error or the applicant’s difficulty in understanding dates or timeframes or another reason and it is a minor inconsistency which should carry little weight in considering his evidence. The Tribunal finds the suggestion of an interpreting error to be speculative and does not accept, for the reasons above, that the applicant has problems with understanding dates or timeframes due to illiteracy or memory problems. While the Tribunal recognises this is a minor inconsistency, when taken into account with the numerous other inconsistencies and deficiencies in the applicant’s evidence, it places some weight on it.

11. Based on the numerous discrepancies and inconsistencies in the applicant’s evidence, as discussed above, the Tribunal does not accept that the applicant was a supporter of the UNP or that he experienced any problems in the past in Sri Lanka because of his alleged political opinion including being detained for 14 days in relation to an altercation between opposing party members or being falsely charged and imprisoned. As such, the Tribunal does not accept that the case against the applicant regarding the false grenade/bomb charges is ongoing or that investigation is underway. It therefore follows that the Tribunal does not accept that there are any warrants against the applicant, as he claimed to believe in his statutory declaration.

12. The Tribunal has considered the applicant’s suggestion that the interpreter is responsible for the deficiencies in his evidence by misinterpreting everything he said. The applicant has not elaborated any further as to which interpreter had not told his story right or how exactly it had been misinterpreted. Considering the many and varied discrepancies in the applicant’s evidence, as discussed above, at various stages of the process, the Tribunal does not accept that these inconsistencies were the result of any misinterpretation by the interpreter or that the interpreter is to blame, as contended by the applicant. Further, the Tribunal notes the applicant’s statutory declaration has been signed by him as true and correct, therefore in those circumstances the Tribunal does not accept that if there were so many alleged errors, some quite significant, that the applicant would not have rectified this at the time that his statutory declaration was prepared with the assistance of an adviser. The Tribunal does not accept the applicant’s suggestion that maybe he did not understand what was interpreted to him and just signed it.

13. Considering all the above, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that the applicant has provided inconsistent and unreliable evidence regarding most aspect of his claims, including his marital status. Despite claiming in the hearing that he is still married to his wife and that she had never filed for a divorce, the Tribunal notes the repeated reference in the applicant’s statutory declaration attached to his protection visa application that his wife had filed for divorce against him and that they do not talk anymore and they had been living separately for a few months before he came to Australia.  

14. The Tribunal has had regard to the Certificate of Character and Residence that the applicant submitted to the Department however places little weight on this document. As noted in the delegate’s decision, and as the Tribunal put to the applicant in the hearing, there appears to be some deficiencies in the translation of this document and inconsistency with the applicant’s own evidence. Particularly, the Tribunal notes that the document states that the applicant had been convicted by a court of law, however the applicant’s evidence was that he was not charged, let alone convicted. The Tribunal notes the post hearing submission in which the applicant instructed that the information in the certificate was incorrect and was completed by a local official who he believes misunderstood his legal situation. The Tribunal also refers to the independent information it put to the applicant in the hearing regarding the prevalence of document fraud in Sri Lanka and the ease in which such official documentation can be obtained. In light of this information, the Tribunal’s concerns as discussed above regarding the translation and contents of the document and the applicant’s subsequent submission that the certificate is incorrect, the Tribunal places no weight on this document. 

15. For the reasons outlined, the Tribunal does not accept that the applicant’s employer, [Mr A], was arrested and accused of supporting the LTTE or that the applicant was kidnapped a few years later, beaten and questioned by the navy, the police or anyone else because of his association with [Mr A]. The Tribunal therefore does not accept the applicant faces a threat from the Sri Lankan Army, the navy, the police, the Criminal Investigation Bureau or any other authorities because he was [Mr A]’s staunchest supporter and will be imputed as having involvement or an association with the LTTE.

16. Nor does the Tribunal accept that the applicant joined the UNP as he claimed in his statutory declaration or that he was an active supporter of the UNP during any elections, handing out pamphlets or pasting posters. For the reasons discussed above, the Tribunal does not accept that the applicant was involved in any brawl with opposition party members which resulted in him being arrested and detained for 14 days or that the applicant was arrested and imprisoned, without charge, on false charges of possessing a bomb or grenade and released on bail with reporting conditions. As such the Tribunal does not accept that there is still a case against the applicant or that there are any warrants against him. Given that the Tribunal does not find the applicant’s claims regarding his political opinion are credible, the Tribunal does not accept that the applicant will be detained and beaten or even killed if he returns to Sri Lanka because he is known for his UNP activities or because of any outstanding case against him. As such, the Tribunal does not accept that if the applicant returns to Sri Lanka, he faces a real chance of serious harm, now or in the reasonably foreseeable future because of his alleged political opinion.

1. The Tribunal has considered the applicant’s illegal departure from Sri Lanka and whether he faces a real chance of serious harm for this reason. When asked what problems he may experience because he departed Sri Lanka illegally, the applicant claimed he may be taken for possessing bombs and taken into custody. As discussed above, the Tribunal does not accept that any accusations were made against the applicant in relation to having bombs or grenades or that the applicant has been of any interest to the authorities in the past in Sri Lanka, for any reason.

2. The Tribunal notes the applicant claimed in his statutory declaration that his brother was detained in [Australian city 1] as he [played a particular role]on the boat he arrived in Australia on and the adviser’s post hearing submission in which it was stated that the applicant had indicated his brother was responsible for organising the trip to Australia. Based on the Tribunal’s concerns regarding the applicant’s credibility generally, the Tribunal does not accept that the applicant’s brother [did a particular role]. As such, the Tribunal does not accept that the applicant will come to any greater suspicion based on his association with his brother and finds that he will be treated as just another passenger on the boat. 

3. The Tribunal accepts that there is a real chance that the applicant will be questioned at the airport on his arrival in Sri Lanka in relation to his illegal departure from the country. The Tribunal notes the information it put to the applicant in the hearing from the DFAT report on Sri Lanka, dated 18 December 2015, which provides that people who departed Sri Lanka irregularly are questioned by police at the airport and are photographed. They are transported by police to the closest Magistrates court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time – for example, because of a weekend or public holiday –those charged may be held at a nearby prison.  DFAT was informed in July 2015 by Sri Lanka’s Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts can vary on a case-by-case basis and can be paid by instalments. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. Looking at the applicant’s particular circumstances, if there was any such requirement, he has his mother, father and siblings in Sri Lanka who he claims to have had contact with, who can stand as guarantor for him and there is nothing to suggest that they would not do so. The Tribunal also finds that there is nothing to suggest that the applicant would be unable to pay any fine which may be imposed on him as penalty for departing Sri Lanka illegally.

4. Taking into consideration the information discussed above, in addition to the applicant’s particular profile, the Tribunal accepts that the applicant may be questioned on his arrival in Sri Lanka however, the Tribunal does not accept that the process of questioning amounts to serious harm as required by s.91R(1) of the Act. The Tribunal also finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. The Tribunal does not accept on the information before it that the applicant would face mistreatment from the authorities during initial airport checks or whilst he is held in remand given that he does not have an adverse profile. Nor does the Tribunal accept any short period of time the applicant may be held in remand in prison, where conditions may be poor, will result in serious harm to him for a Convention reason, based on the Tribunal’s findings regarding the applicant’s profile.

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

6. 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, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution.  Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally. 

7. The Tribunal notes that the applicant also referred to his profile as a failed asylum seeker in his statutory declaration and  the submissions made by his adviser that he faces harm for this reason on his return to Sri Lanka. When asked what he fears may happen to him as a failed asylum seeker, the applicant claimed that he assumes he may have a problem with the army and that if the government takes something against him they may have to punish him.

8. The Tribunal notes the country information it put to the applicant in the hearing from DFAT’s Country Information Report on Sri Lanka, dated 18 December 2015, that thousands of asylum seekers have been returned to Sri Lanka since 2009 including from Australia, Canada, US, UK and other European countries but there have been relatively few allegations of torture or mistreatment. DFAT assessed the risk of torture or mistreatment for the great majority of returnees is low including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes including people smuggling or terrorism offences. It was reported that for returnees, police do undertake an investigative process to confirm a person’s identity which would address whether someone is trying to conceal their identity in relation to a criminal or terrorist background or to avoid amongst other things, court orders or arrest warrants. A person is questioned during this period at the airport while their identity is checked and returnees are treated according to these standard procedures regardless of their ethnicity or their religion and those persons without an adverse profile are released at the airport without further interest. They have further assessed that people are not subjected to mistreatment during this processing at the airport.

67.  While the Tribunal accepts that there are some reports by human rights organisations such as Amnesty and Human Rights Watch, suggesting some examples of serious harm to returnees, as the Tribunal put to the applicant, these appear to be isolated examples where individuals have had particular adverse profiles. As the Tribunal has discussed above, it does not accept that the applicant has ever been arrested, detained or bailed. It does not accept that the applicant has been of any interest to the authorities in Sri Lanka for any reason including because of any real or imputed political opinion.

68.  The Tribunal therefore does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities. Considering the information put to the applicant in the hearing, and the applicant’s profile as someone who was of no interest to the authorities, including on suspicion of having links with the LTTE through his association with his employer [Mr A] or because he has any outstanding case to answer in relation to the possession of grenades/bombs, the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future as a failed asylum seeker or failed asylum seeker who illegally departed the country.

1. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the Sri Lankan government or its authorities including the navy, the army, the CIB or CID, the police or any other authorities generally or anyone else because of his support of the UNP or an imputed political opinion of supporting the LTTE based on his association with his Sinhalese employer who was allegedly accused of assisting the LTTE. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka or for reasons of his membership of a particular social group of failed asylum seekers or failed asylum seekers who departed the country illegally. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

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

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

4. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. . As discussed above, the Tribunal does not accept that the applicant’s claims regarding his association with the UNP are credible or that the applicant was ever detained, including on false charges, because of his alleged support of the UNP. Nor does the Tribunal accept the applicant’s claims regarding his employer [Mr A] being accused of involvement with the LTTE are credible or that the applicant was kidnapped and assaulted because of his association with [Mr A]. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the authorities including the military, the navy, the CID or CIB, the police or anyone else because of his alleged political opinion as a supporter of the UNP, because he was allegedly on bail when he departed the country or an imputed political opinion of support based on his association with his employer [Mr A].

5. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail if he pleads guilty and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, and also having regard to the its findings regarding the applicant’s profile as a person who is of no interest to the authorities for any reason, the Tribunal does not accept that this would constitute significant harm.

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

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

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

77. 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).

78. 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).

79. 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

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

Sydelle Muling
Member