1414464 (Refugee)

[2016] AATA 3371

1414464 (Refugee) [2016] AATA 3371 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414464

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Josephine Kelly

DATE:8 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2016 at 3:35pm

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 claims to be a citizen of Sri Lanka.  He applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 1 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

   SUMMARY OF THE LAW

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

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

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

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

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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal 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 THE CLAIMS AND EVIDENCE, AND FINDINGS

   The issues in this case

9. The issues in this case are whether the  Tribunal accepts the applicant’s claims about what has happened to him and his family as a consequence of his and his father’s political activities and whether alone or together with those claims, the applicant’s illegal departure from Sri Lanka and return as a failed asylum seeker satisfy either of the refugee or complementary protection criteria.

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

    Background

11. Following are findings that are uncontentious.  The applicant is a citizen and national of Sri Lanka. He holds a Sri Lankan passport.  He was born [on] May 1986 in [town 1], [City 1] in North Central Province, Sri Lanka.  He is of Sinhalese ethnicity and of the Buddhist faith.  He married [in] January 2011 at [City 2], but does not have children.  His wife is living in [town 2] with her parents. His parents and two single brothers live in [Town 3] Sri Lanka.

12. The applicant attended primary school in [Town 3] [Town 3], [city 1] from [year] to [year] and then [town 4] National High School from [year] to [year]. The applicant speaks, read and writes Tamil and English.

13. He lived at [Town 4], [Village 1] from [year] to [year], in [City 3] from [year] until he married in [year] and thereafter in [Town 2].

14. Before coming to Australia, the applicant was a barman at two restaurants in [City 3] from [year] to about [year].

15. The applicant arrived by boat in Australia [in] August 2012.  He is in contact with relatives overseas by telephone and email.

    The applicant’s claims for protection

16. The applicant made claims to fear harm in Sri Lanka because of his political opinion and because he will be a failed asylum seeker who left Sri Lanka illegally.

    The visa application

17. He made the following claims in his visa application.

18. When he was a child, the applicant’s father supported the applicant’s [relative], [Mr A], who was a member of parliament in the United National Party (UNP) which was in power in 1991.  His [relative] represented the family’s home town of [Town 3] In 1999, his [relative] lost his position in Parliament and quit politics. The applicant’s father helped with campaigning and his MP’s duties.  Organising campaigning would sometimes occur at the family home. 

19. In 2002 there was a change of government and his family started facing a lot of problems.  People knew his family supported the UNP because of his father’s work.

20. The family owned four to five plots of land in the area.  All but two plots were forcibly taken by members/supporters of the new Government, the Sri Lankan Freedom Party (SLFP) in revenge for his family’s support of the UNP and given to prominent members/supporters of the SLFP through a series of forged property transfer documents.

21. His family suffered regular threats and intimidation at the hands of SLFP supporters.  His parents feared for the safety of the applicant and his elder brother and sent them away to Kandy in 2002 to complete their education.

22. A presidential election was held in 2005. His family received a lot of threats and abuse in the lead up to the election because of their perceived support for the UNP. At that time, his [family] were inside the rear of the family home in [Town 3] when SLFP supporters bombed it. Only the front of the house was damaged.

23. In 2005 the applicant was due to sit his A level exams but was able to do so because of the stress, anxiety and trauma he was experiencing due to the attacks on his family. He sat the exam is a year later.

24. In 2007 the applicant went to [City 3] to [study].

25. His parents continued to be victimised by members of the SLFP because of their political opinions. He visited his family in [Town 3] occasionally but did not stay for a prolonged period of time.

26. A presidential election was held in 2010. The visa applicant went back to [Town 3] to vote.  On election day he was travelling on motorbike with a friend to cast his vote when a jeep cut them off, causing them to crash. His friend was seriously injured and suffered [injuries] and was hospitalised. The applicant went to the local police station by himself to report the incident. The police refused to take a statement from him or take a report of the incident. That incident stopped him from casting his vote and he was very upset. He subsequently returned to [City 3] to work.

27. By 2010 his family had lost most of their assets and quality of life. Mentally and physically they were all suffering. The local authorities would not assist his parents in their attempts to regain their land or assist them in dealing with the threats and intimidation they faced from opposing political groups on a regular basis.

28. In [year] when he married he was unable to do so in his home town because of his family’s problems. That is why they married in [City 2].  After about two weeks he moved to his wife’s village in [Town 2].

29. In [year] the applicant received an invitation to an interview for a job at [certain] airport. He thought the interview went well. He was asked to stay back from a few minutes. While he was waiting, the Minister in [charge] came to him, abused him, and told him he would not get the job as they knew about his [relative] and his family’s political history.

30. The applicant was unhappy because that injustice. He decided that he would become active in politics aiming to promote youth involvement in the political process and bring attention of the wider population to the injustices faced by the youth of Sri Lanka. Most days after work he would spend two hours doing work in support of his political objectives.

31. In [year] local government elections were held and the applicant supported the UNP and promoted the benefits of that party to other youth. He did fear reprisal from SLFP supporters and so kept a low profile just distributed political material and attended youth meetings where he could.

32. However his political activities did come to the notice of the authorities. He started to receive threatening phone calls from SL FP members. They told him they would kidnap him and cause him harm. One week after the elections he went to the police station in [Town 2] to report the threatening phone calls. They took a statement from him but no further action.

33. After that, unknown men whom he believed to be linked with the local authorities started coming looking for him at his home with his wife. They threatened his wife and told her she better report to them when he came home. Luckily he was not at home at the time and therefore avoided being kidnapped.

34. Because of the risk to their lives, his wife applied to come to Australia on a skilled visa. She was successful but did not come as she was too scared to leave him alone in Sri Lanka.

35. From that time he lived in fear of kidnap and abduction and kept as low a profile as he could while still maintaining a basic living.

36. In [2012] the opportunity came to leave Sri Lanka and travel by boat to Australia to seek protection. He knew it was a risky journey but thought it was better to take that risk than remain suffering in Sri Lanka where he has no future.

37. During his time in Australia, numerous people have come to his wife’s house looking for him and demanding to know his whereabouts. This is because the North Western province council elections are coming soon. His wife has learned that there is a group of youth called [name] which is responsible for the attacks and threats on him and other political opponents of the government. That group is associated with the ruling government. They have told his wife that they will kill him. His wife has told them that he has left the area and does not know his whereabouts. He has told her not to make a police entry about those threats as that will only cause her more problems. Her health is deteriorating as a result and she is now on medication for high blood pressure.

38. The applicant fears that he will be arrested and interrogated, tortured and imprisoned by the government authorities and/or its agents.  He will live in constant fear of arrest and detention.

39. Officials and supporters of the Sri Lankan government, SLFP, as well as members of the Blue Regiment who are agents for the government will harm him.

40. He will be attacked if he returns because he has a profile as a young male with links to the opposition UNP.

41. When he returns officials will know that he has sought asylum in Australia and consider that as evidence that he does not support the government but does support the UNP. Then he will be put in gaol and tortured and otherwise mistreated because of his political opposition to the government.

42. He cannot relocate or hide anywhere in Sri Lanka. Wherever he is the authorities can find him, detained and tortured him. He has already left the village where he was born, gone to another place to work, and then another place to live with his wife. He has lived in five or six places in Sri Lanka with no protection from the authorities. Wherever he has lived he has encountered persecution at the hand of the government and/or its agents.

    The entry interview

43. The applicant made the following different or additional claims during the entry interview held [in] October 2012. In 2011, he wrote to the Lankadeepa newspaper and provided information regarding killings, bribes and corruption. 

    The departmental interview

44. The departmental interview was held [in] February 2014. 

    Documents supporting the applicant’s claims

45. The applicant provided to the Department copies of the following documents in support of the application:

    ·     An original and a translation of a letter from the wife of [Mr A].  She stated that a husband was paralysed and that the applicant’s father’s [sibling] is married to her husband’s [sibling]. She said that the applicant’s father had a very close contact with them and was an active helper in her husband’s election campaign party. After the change of government and the downfall of her husband’s political career the applicant’s father was undergoing threats from the current government gangsters and lost their properties. Even now it is happening and they are unable to do anything and will not get any fairness in the matter.

    ·     A letter dated [in year] from the General Secretary UNP certifying that the applicant of an [Town 3] address has been known to him for a considerable period of time and has been involved in party youth activities in the [town 2] Electorate and gave the membership number.

46. The applicant provided to the Tribunal copies of the following documents not previously provided to the Department:

    ·     A copy of an Extract from the book of [town 2] Police station about a report made on [year] in Sinhala.

    ·     A media report about the death of former Minister [name] dated [in] December 2015.

    ·     Several media reports about violent incidents occurring around election times  [dates].

    ·     A report undated except for a reference to [June], about a member of parliament claiming to have met a journalist on a recent trip to [Certain Country].  The journalist had disappeared on his way home in Colombo [in] January 2010, two days before a presidential election.

    ·     Page 4 of nine pages of electoral results for the 2015 general election, including for the [Town 5] area which was underlined and the votes for two UPFA candidates in that area marked.

    ·     A report about violence during a protest by fishermen in [Town 2] dated   [February 2012].

    Submissions

47. The representative provided to nine page submission dated for September 2013 which included a claim that the applicant was member of the UNP.

    Consideration of claims and evidence, and findings

48. There are two bases for the applicant’s claims for protection relating to political opinion.  First, is his father’s involvement in politics as an active supporter of the UNP up until today, and until 1999 his active work with his relative who was a UNP member of parliament. The applicant claimed that he was targeted in the 2010 bike accident by political opponents of his father who were seeking revenge against him by injuring his son, the applicant. Secondly, the applicant claimed to have become active in youth activities of the UNP in [Town 2] from May 2011.  Thereafter, he and his wife were threatened by his political opponents.

49. The letter dated [in]  August 2012 from the General Secretary, UNP, does not mention any threats of harm or danger posed to the applicant by his political opponents.  It does not say when the applicant began his involvement in UNP youth activities in the [Town 2] Electorate, although on the applicant’s evidence it could not have been before January 2011 when he married and moved there.  It does not provide any details of the nature of his activities.  Although mentioning the applicant’s family, there is no information about the father’s long-term and ongoing activities in support of the UNP or any of the difficulties the family has suffered as a consequence claimed by the applicant. It also refers to the applicant’s family home address in [Town 3] and not an address in [Town 2] where he had been living since January 2011.

50. A translation and copy of the original of the letter from the wife of [Mr A] was provided to the Department [in] March 2014 by the applicant’s representative.  The writer explained that her husband is paralysed and sets out the relationship between her husband and the applicant’s father.  She says that the latter was a “very active helper in my husband’s election campaign party”.  “After the change of the Government and the downfall of my husband’s political carrier (sic) he too was undergoing the threats of the current Government gangsters and lost their properties.  Even now it is being happening and they are unable to do anything and will not be able to get any fairness in this matter”. She claimed “I do personally aware of about these matters”.

51. The press report of the death of [Mr A] says that he entered parliament in [year] and as a senior member of the UNP government held many portfolios.  The applicant’s consistent evidence was that [Mr A] left politics in 1999.

52. I accept that the applicant’s father actively assisted [Mr A] and may have suffered some retribution when the MP’s government fell.  However, I do not accept that those difficulties continue until today for the following reasons. I do not accept that the applicant’s family home in [Town 3] was bombed in 2005. If it had happened, it was a very serious incident which given her claimed personal knowledge of the circumstances of the applicant’s father, the wife of [Mr A] would have mentioned. The applicant’s father may have lost some land in the past but I do not accept that there is an ongoing issue in relation to it.  The applicant clearly said that his father has earned his living from cultivation for many years, since at least 1996, and is currently assisted by the applicant’s younger brother.  I give no weight to the generalised statement in the letter that “Even now it is being happening and they are unable to do anything and will not be able to get any fairness in this matters” or to the claim that she was personally aware of those matters.  There is no detail of what is happening and based on the applicant’s evidence, I do not accept that anything has happened to his family because of his father’s past political activities since about 2000 for reasons set out above and below.

53. That the applicant’s parents and younger brother continue to live in the family home until today is inconsistent with their fearing ongoing threats of serious or significant harm and with their family home being bombed in 2005.  The applicant did not claim to have been present at the time of the bombing.  He said that when he went home the damage had been repaired to a certain point.     

54. At the hearing the applicant claimed that his father had sent him to school in [City 4] in 2002 for his safety.   [City 4] is about 125 kilometres from [Town 3].[1]  In his application he claimed that both he and his older brother had been sent to [City 4] in 2002 for their safety.  At the hearing, the said that his older brother went to school in [City 1] and that his younger brother went to school in their home area. 

    [1] Google maps: 3],+North+Central+Province,+Sri+Lanka/[City 4],+Central+Province,+Sri+Lanka/@7.7089762,80.2197755,10z/data=!3m1!4b1!4m13!4m12!1m5!1m1!1s0x3afcec56c4549d21:0x72c906d7a90e37f8!2m2!1d80.4048306!2d8.1455972!1m5!1m1!1s0x3ae366266498acd3:0x411a3818a1e03c35!2m2!1d80.6337262!2d7.2905715?hl=en

1. The report of the death of [Mr A] says that he “hailed from [certain village] in the [City 1] District”.  [Town 3] is about 28 kilometres south of [City 1].[2] The applicant’s evidence about where his elder [sibling] went to school was inconsistent.  Sending his elder brother to school within 30 kilometres of their home and in the district from which the MP came whom the applicant’s father had supported so fervently and which was the cause of claimed threats, is not consistent with sending the elder son away to school from their home area for his safety.  

   [2] Google maps: 3],+North+Central+Province,+Sri+Lanka/[City 1],+Sri+Lanka/@8.2440699,80.3112694,12z/data=!3m1!4b1!4m13!4m12!1m5!1m1!1s0x3afcec56c4549d21:0x72c906d7a90e37f8!2m2!1d80.4048306!2d8.1455972!1m5!1m1!1s0x3afcf4f99360e159:0xc111fe9ebc6dcf0e!2m2!1d80.3881333!2d8.3451852?hl=en

2. That his younger brother went to school in their home area is inconsistent with there being an ongoing threat to his father and family in that area.  The applicant said that his younger [sibling] is now 23 years of age.  He was born in 1993.

3. I therefore do not accept that the 2010 motor bike incident that the applicant claimed occurred in [Town 3] during a presidential election was a deliberate revenge attack on him by his father’s political opponents, if any accident occurred at all.  There is no documentary evidence supporting the applicant’s claim that there was such an incident, although he claimed to have been treated at hospital and returned two or three times.  Further, it is implausible that his father identified the person as having previously threatened his family. The applicant did not identify the people in the jeep.  It did not stop. He said that he could not remember the exact number of people in the vehicle. He said that he was in shock.  His father was not present.

4. The letter from the wife of [Mr A] does not support the applicant’s claim that his father has continued his political activities since that gentleman left politics in 1999.

5. For those reasons, I do not accept that the applicant’s evidence about his father’s ongoing political activities after 1999, or that he was sent away to school for his safety or that their home was bombed in 2005 or that his family has received ongoing threats.  That evidence is not credible.  I do not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm in the future because of his father’s past political activities if he returns to Sri Lanka.

6. When I asked why he got married if he was at risk of losing his life, the applicant said that he risk increased by a third after he married.  It was only after that that he became involved in politics because of murders and corruption and the discrimination he faced.   He talked about applying for a [position] at [certain] airport in May 2011. It was a government job and a better salary.  He had an interview but did not get the job because they checked his family background which was supporting the opposition party.  He claimed that he had all the qualifications for the job and said that people who did not meet the height requirement got the job.  He did meet that requirement. I pointed out that he had no experience. I do not accept that his lack of success in applying for the job was attributable to his family’s political background.  The applicant did not mention at the hearing his claim in his application that the Minister in charge of Civil Aviation came to  him and abused him after the interview and told him he would not get the job because they knew about his [relative] and  his family’s political history.  Such an incident would have been memorable.  That he did not mention it at the hearing is inconsistent with it being true.

7. The applicant said that he continued to work in [City 3] after he moved to live with his wife after their marriage in January 2011.  He said that initially they lived with her family but later rented another residence.  Since he left, his wife has returned to live with her parents. He travelled by bus between [City 3] and [Town 2], a one hour journey.  He worked from 1 pm to 1 am, so he left [Town 2] at least by 12 noon and returned no earlier than 2 am.  He had a maximum of ten hours in [Town 2] to sleep and see his wife. 

8. He claimed that when he returned from [City 3] to [Town 2] at 2 am in the morning, he then went to carry out his political activities. I find it implausible that after working for 12 hours and travelling for two hours, he would go to do his political work at 2 am in the morning.  As pointed out above the letter from the General Secretary of the UNP provided no detail about those activities and did not support the applicant’s claim about the danger he faced as a consequence.  The letter was written after the applicant had arrived in Australia by boat.

9. When I asked the applicant why he got on the boat to come to Australia, he said because Alliance had power in his area.  Because of his party’s work, the Alliance’s wards started to decrease considerably.  They found out about his involvement in the activities and started threatening him to stop.  He reported the threats to the police station. 

10. The applicant provided no translation of the police report dated 1 August 2011 referred to above. The printed parts of the form were in three different scripts, one of which was English. I could read the dates in the report and asked the applicant about them.  He said that the date of his marriage was provided to show his residency in [Town 2]. The date 23 July 2011 was the date of the election.  He made the report on 1 August 2011 because although there were threats before the election, they increased after the election.  The threats were made over the telephone. The threats were to stop his activities or he would be killed.  He could not identify the person or people who made the threats.  The original document the applicant had showed that the name of the police station was in a purple coloured stamp.  The interpreter confirmed that it said [Town 2].  

11. The police report was not provided until the hearing in 2016.  The applicant said that he did not have a lawyer and did not know he should provide it.  The applicant was represented when he made the application in 2013 and when he appeared at the departmental interview.  I do not accept his explanation for the failure to provide the report previously.  I give the report no weight.

12. I find on the applicant’s evidence that he continued to work in [City 3] and live in [Town 2] from August 2011 until not long before he left Sri Lanka in July 2012.  That he suffered no serious or significant harm in that period with such a regular routine of work and travel which would have been readily found out by following him, is inconsistent with the applicant’s being of interest to his political opponents.  I have also taken into account the applicant’s claims that after the 23 July 2011 and before he left in July 2012, some people came to his house and threatened his wife asking where he was.  He said people came twice.  One of the times was serious.  He conceded that he continued to live at that house until he left Sri Lanka.  After a break, the applicant said that seven people went to his wife’s parents' house on 8 May 2013 and asked his wife where he was and had shown her a gun and told her that they were going to kill him.  

13. I do not accept that those incidents occurred. If his political opponents knew where he lived, they could have easily followed him to and from work in [City 3] from July 2011 when he claims there were the telephone threats, and seriously or significantly harmed him, including killing him.  They did not.

14. I give no weight to the letter from the General Secretary of the UNP.  He says that the applicant is from an [Town 3] address.  [Town 3] is about two hours by car from [Town 2] and three hours by car from [City 3], which is south of [Town 2].[3]  According to the applicant he has not lived in [Town 3] since he went to [City 3] in 2007.  He then married and moved to [Town 2] in January 2011. Giving the [Town 3] address demonstrates a lack of knowledge of the applicant’s circumstances.  I do not accept that the General Secretary had known the applicant “for a considerable period of time” or had any knowledge of the applicant’s unspecified “party youth activities” in [Town 2].

    [3] >

    I do not accept that the applicant carried out party youth activities in [Town 2] or will in the future.  I do not accept that he or his wife has received any threats from his political opponents or will in the future. 

15. At the beginning of the hearing, I asked the applicant if there was any scope for advancement in his restaurant work.  The applicant told the Tribunal that he worked in the restaurants in [City 3] to get experience so that he could get a student visa to come to Australia.  He was planning those things for one year after he married and before he left Sri Lanka.  He did not actually apply.  Later at the hearing, when I commented that it was easier to get on a boat to come to Australia than pursue a student visa, the applicant said that he left because of the threat to his life and was seeking protection. Australia provided that protection. He denied that he was seeking to improve his economic circumstances by coming to Australia following his marriage and the prospect of having children. He said that he had managed to organise everything for the student visa.  When I pointed out that he had not applied, the applicant said that he had to look into protection as well. I do not accept that reason for not having applied for the student visa if he had arranged everything, including the money for the student visa.

16. For the above reasons, I do not accept that the applicant’s evidence about his activities in [Town 2] and their consequences, is credible. 

17. I have taken into account the applicant’s claims based on the media reports he provided.  He claimed to be a friend of [Mr B], a supporter of Opposition [candidate], the current President of Sri Lanka.  [Mr B] was killed during the post January 2015 election period.  The incident occurred in [Town 2].  The report said that “these attacks were led by regional politicians of both parties in a bid to display their show of strength”.[4]  I infer that [Mr B] was such a politician. I accept that there is violence in Sri Lankan politics.  However, I do not accept that he was involved in politics in [Town 2] or that he will be  in the future.   

    [4] Ceylon Today 13 January 2015

18. One of the reports was dated 18 December 1999 and referred to violence around the presidential election at that time, including an incident where it was alleged that supporters of People’s Alliance threw hand grenades in the “midst of a UNP open-air public meeting at [Town 3]” in which two people died “on the spot” including a school boy returning home from class, another died later in hospital and 50 people were seriously injured. I accept such an incident occurred.  The applicant did not claim that any of his family members were present at the time.

19. The applicant provided the first of a four page report on Election violence during the Presidential election of 2010 in Sri Lanka by the Center for Monitoring Election Violence.  He had underlined the name [Mr C] (UPFA).  That gentleman was reported to be a North Western Provincial Councillor who on 16 January 2010 claimed that UNP supporters had shot at UPFA supporters in front of the UNP party office in front of a private hospital in [Town 5] District resulting in the death of a UPFA supporter and the admission to hospital of four other people.  He also provided page four of nine of voting results from the 2015 general elections that showed that [Mr C] had stood for UPFA in the [Town 5] district and received 68,240 votes.  He had also marked the name of another UPFA candidate in that district, [Mr D] who received 59,352 votes.

20. The report dated 16 February 2012 about a fisherman dying and three being critically injured in [Town 2] related to a protest by fishermen.  I accept that incident occurred but it does not support the applicant’s claims.

21. The applicant provided two reports about the shooting of Shantha Dodangoda, a supporter of President Sirisena, on 5 January 2015 in Nivithigala and the consequent arrest of Power and Energy Deputy Minister Premalal Gunasekera.  The victim was among a group setting up a stage for a propaganda meeting of Sirisena. 

22. The applicant accepted that the January 2015 election of Sirisena as President and the appointment of UNP leader Wickremesinghe as Prime Minister and the election of 106 UNP members of parliament in August 2015 was a change in Sri Lankan politics but said that the people who threatened him were still in power and when you see his history, he will get involved in political activities and another election might change things.  For the reasons set out above, I do not accept that he has been threatened as he claimed.

23. Taking all the above information into account does not change my view that the applicant has not suffered any serious or significant harm in Sri Lanka because of his or his father’s political opinion or activities and there is not a real chance the he will suffer serious harm or a real risk that he will suffer significant harm for either or both of those reasons in the future in Sri Lanka. 

24. I accept that the applicant has left Sri Lanka illegally and the consequences are as set out in the Department of Foreign Affairs and Trade Country Information Report on Sri Lanka.  I summarised to the applicant the content of paragraphs [5.27] to [5.38] of that report and asked him if he wished to comment. 

25. The applicant said that a relative’s brother had been sent back forcibly to Sri Lanka.  He was interrogated by CID and they have beaten him up.  It was close to [Town 2].  Whatever the report says, they have to find their own security.  If the applicant had been sent back before the 2015 election he might be dead.  He knows that his political opponents will take revenge. For the reasons given above, I do not accept that he has political opponents.  I am considering his circumstances.  There is no independent information about the person he talked about.  Given that I have not found the applicant’s claims for protection credible, I do not accept his uncorroborated evidence about “a relative’s brother”.

26. The applicant expressed no concern about the procedures that would be followed if he returned to Sri Lanka as a failed asylum seeker who had left illegally, including being charged with a criminal offence, being detained for a few days and being fined.  He maintained his claim that he would be harmed because of his political opinion, which I do not accept.

27. Based on the evidence about the applicant’s circumstances that I do accept, information provided in the DFAT Country report referred to above and the information in the sections Complementary Protection Claims, and Detention and Prison, I make the following findings.

28. The penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.

29. As a returnee, it is likely that the applicant will be considered to have committed an offence under Sri Lankan law for departing Sri Lanka irregularly by boat.

30. Upon arrival in Sri Lanka, he will be processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. The processing of arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.

31. During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.

32. For returnees travelling on temporary travel documents, which is likely in the case of the applicant, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. The applicant has not claimed to have a criminal record. Returnees are treated according to these standard procedures, regardless of their ethnicity and religion. Detainees are not subject to mistreatment during their processing at the airport.

33. As a returnees, the applicant will be questioned by police on return and because he will be suspected of an illegal departure from Sri Lanka, will be charged under the I&E Act. He will be arrested by the police at Colombo’s Bandaranaike International Airport, have his  fingerprints taken and be photographed. He will be 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 what happens next.   He can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before then, for example, because of a weekend or public holiday, he may be held at a nearby prison.

34. I find that he was merely a passenger on a smuggling venture. DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis.  I find that the applicant will not be given a custodial sentence but will be fined which he can pay by instalment. If he pleads guilty, he will be fined and then free to go. I find that is the likely outcome for the applicant who has no apparent defence.  If he pleaded not guilty, which I think is unlikely because he has no apparent defence, he would be granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor.  The applicant did not claim any financial difficulty in paying a fine.  Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. He would only need to return to court when the case against him was being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There will be no general requirement to report to police or police stations between hearings.

35. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act. While credible, DFAT cannot verify this claim. There is no information before me to indicate that there is any risk or chance of the applicant being charged under that Act.

1. Taking all those matters into account, I do not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm in the reasonably foreseeable future if he returns to Sri Lanka because he is a failed asylum seeker who left Sri Lanka illegally.  In making that finding, I have taken into account the conditions in detention and prison but do not consider detention by the police or in a prison for two or three days will involve a real chance of serious harm or a real risk of significant harm.

2. Taking into account his claims singly or cumulatively, about the threats posed to him from his and his father’s political opponents and his returning to Sri Lanka as a failed asylum seeker, I am not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka.  

3. I am not satisfied that he had a well-founded fear of persecution for a Convention reason.

4. For the reasons given above, I am 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).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have to consider the alternative criterion in s.36(2)(aa).

6. For the reasons set out above, I do not accept as credible the applicant’s claims about ongoing threats to his father and his family, including the applicant, from his father’s political opponents or the applicant’s claims about threats from his political opponents arising from his activities in [Town 2].  For the reason given above, I do not accept that there is a real risk that the applicant will suffer significant harm because he will return as a failed asylum seeker who left Sri Lanka illegally.

7. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

8. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. 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

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

Josephine Kelly
Senior Member