1416533 (Refugee)

[2016] AATA 4695

1416533 (Refugee) [2016] AATA 4695 (8 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416533

COUNTRY OF REFERENCE:                 Sri Lanka

MEMBER:Chris Thwaites

DATE:8 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 November 2016 at 11:14am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] September 2014.

3. On 3 October 2014 the applicant applied to the Tribunal for review of that decision.

   RELEVANT 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.

   Refugee criterion

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. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provide to the Tribunal by the applicant.

20. The applicant’s initial written reasons for claiming protection are contained in a statutory declaration dated [in] November 2012 which he provided to the Department as an attachment to his visa application forms. The applicant also provided a further statutory declaration dated [in] September 2013 after his interview with the delegate [in] August 2013.

21. In summary the applicant declares that he was born in [Town 1] in the Puttalam district and is a Sri Lankan citizen, and an ethnic Sri Lankan Tamil Muslim and a Sunni. Due to the war many Tamils from the North East of Sri Lankan settled in Puttalam district. The applicant became friends with [Tamil] boys who originated from [a certain] area and attended the same school as the applicant. These [Tamil] boys had relatives who were associated with the LTTE.

22. The applicant declares that sometime in December 2007 his [Tamil] friends were taken in for questioning by the Sri Lankan police. They were taken to the [police] station for three days on grounds of suspicion of being LTTE members. They were released after one of their relative signed a bail document.

23. The applicant declares that during this period it was common for Tamils and Tamil Muslims to be questioned and taken in for questioning by the Sri Lankan police as they suspected all Tamils residing in [Town 1] and other Tamil areas to be LTTE members or LTTE supporters, as several Tamils who originated from the LTTE controlled areas at the time sought refuge in [Town 1] and other Tamil areas.

24. The applicant declares that sometime in February 2008 his friends told him they were travelling [overseas] because of the situation in Sri Lanka.

25. The applicant declares that [in] August 2008 he was travelling to a nearby [shop] situated close to his residence and was abducted by men in a van. The applicant resisted but they beat him and blindfolded him. When the van stopped the applicant was interrogated by men who spoke the Tamil dialect of Tamils from the North. The men punched the applicant’s shoulder and began interrogating him about his [Tamil] friends and where they were. The applicant told them what he knew. The applicant’s abductors told him they were LTTE members who were after his [friends] who were also LTTE members. The applicant was not provided with food for two days and only given droplets of water to drink, and remained blindfolded and did not know his location. On the third day a slice of bread was provided and his blindfold was removed. He realised he was being held in an unknown jungle area. The men continued to interrogate and beat the applicant for a few more days. The applicant was then taken back to a bus stop close to his residence. The men threatened him not to report the incident to the police or any other government authority or the Red Cross. They said that they have informers who work inside various government organisations.

26. The applicant declares that since he was released by the persons claiming to be LTTE members he lived in fear as it was not clear to him who his abductors were, and that they stated they had informers working inside various governor and organisations. The situation at the time had deteriorated and several Tamils including Tamil Muslims like the applicant was specifically targeted by the Sri Lankan authorities and various Tamil paramilitary groups for the reason of being LTTE members or suspected LTTE members.

27. The applicant declares that [in] January 2009 armed men in a vehicle approached his shop and ordered him to get inside. The applicant was blindfolded and the men who spoke Tamil did not identify themselves. The applicant was driven for approximately 3 hours and taken to an unknown location were his hands were tied. The applicant was asked about where his [friends’] families were, and the applicant told them what he knew. The applicant was struck hard with the butt of a gun and has suffered severe [injuries] as a result of this incident and continues to experience pain. The applicant was beaten and interrogated over a number of days, and was shown identity cards with his friends names and the LTTE logo. The applicant’s interrogators did not believe him when he told them his [friends] had left Sri Lanka in 2008 and insisted the applicant knew where they were hiding in Sri Lanka. The applicant’s abductors presented him with another identity card, with the applicant’s name and photograph and the LTTE logo. The applicant was shocked and terrified when he saw this identity card. The men said that they could easily produce such an identity card quite easily and brand him as an LTTE member if he did not reveal his friend’s whereabouts. The applicant managed to escape after three days.

28. The applicant declares that he had heard his abductors speak Sinhala and believed the men were CID officers who initially pretended to be LTTE members. The applicant did not report the incident to the police as he feared his abductors had links to the Sri Lankan authorities.

29. After this incident the applicant did not stay at home and moved to his [relative]’s residence and remained in hiding from [January] 2009 until [March] 2009. [In] March 2009 the applicant went to visit his mother by bicycle and felt that he was being followed by a van. He returned his [relative]’s house and did not visit his mother.

30. [In] March 2009 the applicant fled Sri Lanka by boat and arrived on [location] [in] April 2009.

31. The applicant declares that in Australia he was given a Sinhala interpreter by immigration and that he feels that he was treated unfairly by those who decided his application. The applicant disputes the findings that he spoke little Tamil and considers the fact that he was perceived to be a Sinhala speaker who spoke little Tamil adversely affected his application which was founded on a wrong assumption.

32. The applicant also declares that at the independent merits review interview the independent assessor stated that the applicant did not look Tamil. This did not make any sense to the applicant, and he believes this incorrect assumption led the decision maker to conclude that he did not require protection in Australia in spite of having used a Tamil interpreter during the independent merits review interview.

33. The applicant declares that in October 2009 he wrote a complaint to the Ombudsman, and his case was reviewed and the original decisions were affirmed. Approximately one month later the applicant was informed by the Department that he would be removed from Australia the next day and he was issued with the Sri Lankan travel document which he declares he did not sign. The applicant was returned to Sri Lanka [in] March 2010.

34. The applicant declares that while he was in Australia he learnt that the CID had taken his brother for questioning to the [police] station, and that his brother was interrogated for one day and was beaten when he did not divulge the applicant’s whereabouts.

35. The applicant declares that [in] August 2009 three CID officers came to his family home and ordered his mother to hand over his passport and his national identity card. On the same day three CID officers went to his brother’s residence and beat and tortured his brother, [details deleted], and he was released at the end of 2009.  In February 2010 CID officers came to the family home and forcibly took the applicant’s drivers licence and his personal computer.

36. The applicant declares that [in] March 2010 when he arrived in Sri Lanka at 10pm he was detained until approximately 7:30am the next day. He was questioned by officers of the Terrorist Investigation Department, National Investigations Bureau, and CID. He was interrogated by officers who suspected he was an LTTE member or a person who had links to the LTTE. They accused the applicant of fleeing Sri Lanka illegally for this reason. The applicant’s finger prints and photographs were taken. He was eventually released on the condition that he would report weekly to the [police] station and would make himself available as and when he was required for questioning.

37. The applicant declares that he reported weekly to the [police] station and signed a register. Police officers at the station threatened to press false charges if he did not provide them with money and favours. Therefore he paid regular bribes and gave alcohol to the police. On one occasion he was slapped on the face when he did not bring any money or alcohol.

38. The applicant declares that although he was reporting to the police station on a weekly basis, police officers often came to his residence.

39. [In] October 2010 six CID officers blindfolded the applicant and forced him into a vehicle and took into an unknown location. He was placed in a darkroom. He was severely [tortured]. He had [details deleted]. The CID officers extracted blood and threatened to kill him by removing his organs. During the interrogation the officers accused him of being an LTTE member.

40. The applicant declares [in] January 2011 sometime just after midnight there was a fire in the building he was being held and he was able to escape. When he got outside the building he realised he was being held close to [name] jail. The applicant declares he fled to a relative’s house and then to [another relative]’s home in [location]. He remained hiding in his [relative]’s home from [date] January 2011 until [date] January 2011.

41. The applicant declares he fled his [relative]’s home when he learned that CID and some Sinhalese men had burnt down his house. The applicant believes this act was committed by the CID or persons who were against his brother who continues to support the opposition party UNP.

42. The applicant declares that [in] January 2011 he boarded a boat to travel to Australia. However, the boat was intercepted by the Sri Lankan Navy and he was taken to a navy camp [and] was held for two days. He was then transferred to [the district jail] where he was held from [date] February 2011 to [date] February 2011. He was then transferred to the CID office situated in Colombo, to the fourth floor.

43. The applicant declares that while on the fourth floor he was beaten and interrogated as the CID officers suspected he was an LTTE member attempting to flee the country. The officers issued a notice titled “[title]”, which the applicant provided to the Department with his application, which stated that there are reasons to suspect that he was attempting to go abroad in an illegal manner and was aiding and abetting reorganisation of the LTTE organisation and has assisted LTTE members.

44. The applicant declares he was held on the fourth floor from [date] February 2011 until [date] March 2011. He was then produced in court [in] March 2011 and was subsequently remanded until [date] March 2011 for having fled Sri Lanka illegally.

45. The applicant declared that after he was released he travelled to his [relative]’s residence in [location] and remained in hiding until [date] March 2012. [In] March 2012 CID officers came to his [relative]’s residence. Fortunately the applicant was at the rear of the house and was alerted. The applicant immediately fled to another [relative]’s residence and remained in hiding until he fled Sri Lanka by boat [in] April 2012.

1. The applicant declares that while he was in hiding at his [relative]’s residence, his mother and [family members] fled to [country] when the CID came in search of him [in] April 2012.

2. The applicant declares that he believes he is at risk of being harmed and possibly killed by the CID for the following reasons:

   he has previously been targeted on grounds of suspicion of being an LTTE member or a Tamil Muslim who has links with the terrorist organisation;

   he fled Sri Lanka illegally on two occasions in the past and attempted to flee Sri Lanka more recently and was suspected by the CID of having aided and abetted reorganisation of the LTTE organisation and has assisted LTTE members.

3. The applicant declares that it is the authorities who have come after him and continue to suspect him of being an LTTE member or a person who has links with the LTTE. Therefore he does not believe the State would protect him as they are focused on eliminating anyone including Tamil Muslims who have links with the LTTE, as the government fears a resurgence. The applicant declares it is not possible to remain safe in spite of having relocated to various places in the recent past. He believes no matter where he moved to in Sri Lanka he would be at risk of being targeted by the Sri Lankan authorities especially the CID.

4. In the applicant’s second statutory declaration dated [in] September 2013 he provides further information to clarify issues that were raised in the protection interview held [in] August 2013.

5. The applicant also provided a number of documents in support of his protection visa application to the Department, including a newspaper article dated [in] 2011 reporting navy operations and the capture of a vessel carrying illegal immigrants, a document and its English translation headed ‘[title]’ dated [in] March 2011,  a copy of a letter from [Organisation 1] dated [in] June 2013 with the heading ‘[title]’, noting that according to its records the applicant was detained by the CID and [Prison] between [date] March 2011 and [date] March 2011 and was released [in] March 2011 from the [Prison]. The applicant also provided two documents head ‘[title]’ and their English translations, a photograph of the applicant behind bars with writing indicating the photograph was taken in the [district] jail. The applicant also provided a copy of a Lankasri news article dated 10 October 2012 in relation to a failed asylum seeker returned from Canada being detain and tortured by the CID. The applicant also provided a report from his clinical [psychologist] dated [in] April 2014. The representative also provided written submissions to the delegate.

6. As noted above, [in] September 2014 the delegate refused to grant the applicant a protection visa. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates the delegate did not accept the applicant had told the truth in relation to a number of his claims. The delegate considered the applicant was a Muslim or Moore and not Tamil. After considering information provided by the Australian government representative in Sri Lanka at the time the applicant was returned, in relation to the processing of returnees at Colombo airport, the delegate did not accept the applicant was targeted or assaulted or abused by authorities at the airport as claimed. The delegate did not accept the applicant had no identification documents in Sri Lanka as claimed or that he was in hiding from March 2011 until his departure in April 2012. While the delegate indicated he had no reason to believe the [letter] from [Organisation 1] was not genuine, the delegate noted the document did not give a reason for the detention, and while the dates on the document coincided with the applicants claims that he was detained for attempting to leave Sri Lanka illegally, the delegate did not accept the document indicated the applicant was suspected of LTTE membership. Given country information in relation to the process and delivery of court summons in Sri Lanka, the delegate did not accept the ‘message form’ documents provided by the applicant were genuine.

7. The delegate concluded that the applicant does not have a profile or is of any interest to the authorities due to an imputed linked to the LTTE for being friends with people who are suspected of LTTE links, or for any other reason. While the delegate accepted the applicant had breached Sri Lankan laws in leaving the country unlawfully, and may be punished in accordance with the laws of Sri Lanka if he returned, the delegate concluded there is no indication that the laws target any specific person only or that the punishment for breaking the law would be more severe for the applicant as opposed to others, or that any form of penalty for breaching law would be convention based. The delegate was not satisfied that the applicant had a well-founded fear of persecution. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not satisfy s.36(2)(a) of the Act. The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk the applicant will suffer significant harm. Therefore the applicant did not satisfy s.36(2)(aa) of the Act. Therefore the delegate refused to grant the applicant a protection visa

8. As noted above, [in] October 2014 the applicant applied to the Tribunal for review of that decision.

9. The applicant appeared before the Tribunal on 15 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

10. During the hearing the applicant provided a number of copies of documents previously provided to the Department as well as some new documents in support of the application, including medical reports from [a doctor] dated [in] August 2016 indicating the applicant has multiple medical conditions including [mental health issues]. The applicant also provided a copy of a document and its English translation headed ‘Certificate of confirmation in relation to being in remand prison’ dated [in] March 2011, and a number of country information reports and articles from Amnesty International, and Freedom from Torture, as well as a number of documents indicating the applicant has undertaken [training] and received a certificate of appreciation from [another agency] in relation to voluntarily contributing his time to education at [their facility].

11. At the conclusion of the hearing the Tribunal granted the applicant 14 days to provide any further material or country information or submissions in support of his application.

12. On 26 August 2016 the representative provided a written submission to the Tribunal summarising the applicant’s claims and referring to country information in relation to returnees suspected of links with the LTTE. The representative also provided a copy of a Psychological Report from [Consultant] Clinical [Psychologist] dated [in] August 2016.

    FINDINGS AND REASONS

    Nationality

13. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and ethnicity and religion and citizenship of Sri Lanka, and the copy of the applicant’s National Identity Card provided to the Department, the Tribunal finds that the applicant is a Tamil Muslim and a citizen of Sri Lanka.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Sri Lanka.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Sri Lanka, the Tribunal also finds that Sri Lanka is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Refugee Criterion: s.36(2)(a)

14. During the hearing the Tribunal discussed with the applicant his background in Sri Lanka as well as his travel history, the reasons he left Sri Lanka and his fears of returning.

15. The Tribunal discussed with the applicant in detail his fears of returning to Sri Lanka. The Tribunal discussed with the applicant his initial arrival in Australia in 2009 and his claims in his first protection visa application, as well as his involuntary return to Sri Lanka in 2010 and his experiences as a returnee. The Tribunal questioned the applicant in detail about his experience with the authorities since returning to Sri Lanka and his attempt to leave Sri Lanka again in 2010 and his detention and court appearance and bail in relation to illegal departure. The Tribunal also discussed with the applicant his experiences after his release on bail and the reasons he left Sri Lanka and his fears of returning. While the Tribunal has taken into consideration the delegate’s concerns about the applicant’s credibility, the Tribunal notes the applicant’s claims have remained consistent since his first application in 2009, and now also include fears that he has departed from Sri Lanka illegally three times, and has breached his bail reporting conditions and failed to return to court.

16. The Tribunal notes the applicant’s claims of being detained by the navy are supported by the media article provided to the Department. His claims to having been detained by the CID and delivered to the Magistrate’s Court and held on remand in March 2011 are supported by the letter from [Organisation 1] which states its records indicate the applicant was detained by the CID and [name] Prison between [date] March 2011 and [date] March 2011 and was released [in] March 2011 from the [Prison].

17. The Tribunal accepts the applicant left Sri Lanka in breach of the Sri Lankan Immigrants and Emigrants Act (I&E Act) when he first travelled to Australia in 2009 and on his return to Sri Lanka he was interviewed at the airport and was later visited by the CID at his home and was also required to report to his local police station. This finding is consistent with and supported by country information.

18. The Tribunal accepts the applicant left Sri Lanka by boat [in] January 2011 and was detained by the navy and then the CID and was bought before a Magistrates’ Court [in] March 2011 and was remanded to the [Prison] and then released on bail. This finding is consistent with and supported by the letter from [Organisation 1] and the documents provided by the applicant in relation to his detention which the Tribunal accepts as genuine.

19. The Tribunal also accepts the applicant departed Sri Lanka in breach of the the I&E Act when he last left Sri Lanka in 2012 and travelled by boat to Australia.

20. The Tribunal accept the applicant will be questioned by the authorities on his return to Sri Lanka and the Tribunal accepts that there is a real chance the authorities will become aware the applicant has left Sri Lanka illegally three times, and was held by the CID and then at the [Prison] last time he was detained for this offence. The Tribunal also accepts there is a real chance the authorities will become aware the applicant has breached his bail conditions and therefore has an outstanding matter before the courts.

21. The Tribunal accepts there is a real chance the applicant will be arrested and charged for breaching the I&E Act, and given his history, he will not be granted bail prior to the matter being heard. While the Tribunal considers this will be the non-discriminatory application of a law of general application, the Tribunal also accepts that in these circumstances there is more than a remote chance the applicant will also be interrogated about his attempts to leave Sri Lanka and possible links to the LTTE. 

22. The Tribunal has considered the country information and reports referred to by the representative including the Human Rigths Watch Annual Report 2016, the Amnesty International Report 2015/16, and the International Crisis Group report from August 2015. The Tribunal has also taken into consideration the Department of Foreign Affairs and Trade Country Information Report on Sri Lanka dated 18 December 2016 (DFAT report).

23. While the country information indicates the security situation in Sri Lanka has changed dramatically since the end of the conflict in 2009, and the current government has adopted a number of reconciliation policies and has reduced the check points and military presence in the North and East of the country, the country information also indicates the government still remains sensitive to the potential re-emergence of the LTTE  and to Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan State. Given the applicant’s history of leaving Sri Lanka illegally and his previous detention, and that he breached his last bail reporting requirements and did not attend court, and again left the country in breach of the I&E Act, the Tribunal accepts there is a real chance the applicant will be suspected of having links to the LTTE and of being a Tamil activist working for Tamil separatism or of having links to those who do.

24. The Tribunal accepts the DFAT report assessment that there have been credible reports of torture carried out by the Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including civilians detained in relation to suspected LTTE connections. DFAT assesses that torture has been used in some cases to extract information or confessions from suspects. While the DFAT report indicates that the risk of torture has reduced since the election of President Sirisena, the Tribunal accepts, in the applicant’s particular circumstances, there is a real chance he will suffer serious harm including being tortured and physically abused and beaten by the Sri Lankan security forces if returned to Sri Lanka.

25. The Tribunal finds there is a real chance the applicant will suffer persecution from the Sri Lankan security forces due to his suspected links with the LTTE, if returned to Sri Lanka now or in the reasonably foreseeable future.

26. For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.

27. The Tribunal is satisfied the applicant’s imputed political opinion is the essential and significant reasons for the persecution as required by paragraph 91R(1)(a) of the Act. The Tribunal finds that the harm the applicant fears involves ‘serious harm’ as defined by paragraph 91R(2) and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

28. The issue of whether it would be reasonable to expect an applicant to relocate within their country only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide. The Tribunal finds the applicant fears persecution from a State authority, the security forces, and the feared persecution is not localised and relocation inside Sri Lanka is not an option in these circumstances

29. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

30. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Chris Thwaites
    Member  8 November 2016