1416756 (Refugee)

[2016] AATA 3877

1416756 (Refugee) [2016] AATA 3877 (12 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416756

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Belinda Mericourt

DATE:12 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 May 2016 at 3:52pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 17 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   BACKGROUND

4. The applicant completed the following information on his application form. The applicant was born in [year] in [Town 1], Batticaloa District, Eastern Province, Sri Lanka.  He is Tamil, speaks, reads and writes Tamil and speaks [other languages].  His religion is Hinduism. He is married and has a [child] born in [year] and a [child] born in [year].  His parents are deceased.  At the time of application his wife, children and [his siblings] were residing in Sri Lanka.  On his application form he stated he completed year [grade] at school and worked in Sri Lanka as [Occupation 1] until 2006 and during the periods after that when he lived in Sri Lanka.  From 2006 to 2012 the applicant worked in [Country 1] as [Occupation 2] and [another occupation].  During this period he returned to Sri Lanka on three occasions in 2007/08, 2010 and 2012.

5. [In] April 2013 the applicant arrived on the Australian mainland without a passport or a valid visa on a [boat]. He was granted a bridging visa E [in] June 2013 and lodged an application for a protection visa [in] July 2013.  [In] August 2014 he was interviewed by delegate of the Department.  This visa application was refused [in] September 2014.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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

11. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

13. The Tribunal has before it the Department’s file relating to the applicant, which includes the written record of the applicant’s IMA Induction interview dated [May] 2013, the applicant’s written application for a protection visa including a statutory declaration dated 3 July 2013, the audio recording of his interview by the delegate [in] August 2014 and a copy of the delegate’s decision record.  The Tribunal also has before it a copy of the Department’s decision dated [September] 2014. The Tribunal has also referred to relevant country information as cited in this decision.

    Claims made by the applicant during his IMA induction interview with the Department [in] May 2013

14. The applicant stated that he departed Sri Lanka because in 2009 the Sri Lankan Army took him and forced him to confess that he was a member of the LTTE.  They suspected he was a member of the LTTE because when he was very young the LTTE forced him to join them after ’torturing’ him in 2001.  His [relative] arranged for him to be released in 2001.  He was only `[age] or [age] years at the time.  He did not work for the LTTE, but once he was asked to take [items] for them in 2005.  He was threatened “with his life” so he did this just for one day in [location].  In 2007, Karuna people buried a bomb in front of the gate of his house in Batticaloa and he was blamed for putting the bomb there. Karuna people came at night and took the bomb.  They beat him and then the CID took him in for investigation.  Because of this incident he went to [Country 1] in 2008 to work.  When he returned to Sri Lanka he had problems with the CID who took him and forced him to accept that he is LTTE.  If he did not accept he had to pay money but he did not have any money and did not pay.  He went home and fled to [Town 2] and stayed at his [sibling’s] house for one and a half months.  He then took his wife and children to Colombo.  He departed Sri Lanka from Colombo in February 2013.

    Claims made by the applicant in his written statement to the Department

15. The following is a summary of the applicant’s claims made in his statutory declaration dated 3 July 2013;

    ·sometime in 1990 his father was shot and killed by the Sri Lankan Army who believed he was a member of the LTTE.  As far as the applicant is aware his father was not a member of the LTTE.  His mother told him that several other males in the village were targeted by the Sri Lankan Army at the same time;

    ·sometime in the 1990s he and his family were forced to flee their village (known as [Town 1]) due to the war and they moved to [Town 3] in the Batticaloa district;

    ·on a few occasions he was used by the LTTE to collect parcels which he believed contained [items] from various places in [Town 3] to deliver to LTTE cadres at night.  He also collected a few [other items] for LTTE cadres.  He feared the LTTE would harm, kill or abduct him if he refused.  He continued to be troubled by the LTTE even after his marriage in 2003;

    ·the situation gradually got worse and he decided to travel to [Country 1] in 2005.  Upon arrival he realised he did not have the correct visa and returned to Sri Lanka;

    ·from 2005 to 2006 was a relatively peaceful period in Batticaloa;

    ·in 2006 he travelled to [Country 1] for employment;

    ·he had a vacation in Sri Lanka in 2007/08 for a few months

    ·when the applicant was on vacation in Sri Lanka in 2008, four armed members of the Karuna group came to his residence and, after digging close to the gate of his house, found an explosive device.  He was forcibly taken to the Karuna office in [location] and then transferred to the Karuna office in [Town 3] as he was suspected of placing the bomb;

    ·he was detained for approximately 2 hours and during this period he was interrogated and severely beaten;

    ·he was released after his wife and children came to the office and pleaded with the Karuna group members to release him.  He was released on condition he signed a document which stated he would make himself available when required;

    ·three days later two Karuna group members came to his home and asked to report at the [office].  He was told that they would close his case if he paid them Rs.[amount]. He pawned his wife’s gold wedding chain and was able to raise Rs.[amount] which he paid to the Karuna group members.  He then returned to [Country 1] sometime in 2007/08 after spending a few months in Sri Lanka;

    ·he returned to Sri Lanka in 2010 for a vacation for a few months.  He did not report any incidents during this period;

    ·when his work contract expired in [Country 1] he returned to Sri Lanka sometime in January 2012.  Although he did not have any problems when arriving in Sri Lanka the situation gradually deteriorated;

    ·sometime in August 2012 he learnt that CID officers together with Karuna group members were abducting Tamil males and females secretly at night and threatening to harm such persons who may or may not have had previous LTTE connections if money was not paid;

    ·the applicant was afraid it was a matter of time before he too would be abducted, harmed or killed by the CID and/or Karuna group members as he had been forced to help transport goods and [items] for the LTTE and had previously come to the adverse attention of Karuna group members.  He believes they have a list of people who used to work for the LTTE. For these reasons he decided to flee Sri Lanka in February 2013;

    ·the applicant believes that if he returns to Sri Lanka he is a risk of being persecuted by the Sri Lankan authorities and Tamil paramilitary groups due to:

    (a)  his known association and forced transport of goods including [items] for the LTTE;

    (b)  the previous adverse attention of the Karuna group who work closely with the Sri Lankan government;

    (c)  because his family owns large amounts of land and he had travelled to [Country 1] several times he believes he is at risk of being targeted by the CID and Karuna as they perceive him to be wealthy; and finally,

    (d)  he is at risk because he fled Sri Lanka illegally and claimed asylum in Australia;

    ·he believes the authorities could not protect him because they are the perpetrators who specifically target persons like himself.

    Claims made by the applicant in his interview with the delegate [in] August 2014

16. The applicant made the same claims in his interview with the delegate.  In addition he claimed he was asked for money in 2010 by the authorities but he did not have any so they left him alone after that. He also stated that CID came to his house about six months ago to ask his wife about where he was and “tortured” her (no details provided). She told them that he was in Australia. Then a few days before the interview they asked his wife for his phone number. One of the men then phoned the applicant in Australia saying he was from the CID and that he had information about him and asked him for his email address and ID number.  He then hung up. His wife is too frightened to sleep at their home and slept at a house a few doors away.

    Claims made by the applicant at the Tribunal hearing

17. The applicant told the Tribunal that the LTTE took him from his family for a year in 2001 when he was in [at school].  His [relative] arranged for his release a year later by paying some money to the LTTE.  During the period of his capture he had some education but no training.

18. After his release in 2002 the LTTE took him to their office and accused him of escaping from the camp and he was beaten and kicked in the leg.  He was forced to confess to escaping and then to smuggle goods for them from one place to another as he was able to cross the camp borders.

19. The applicant’s mother advised him to get married as that would stop the LTTE pursuing him.  At [a young age] he married in January 2003.  However this did not stop the LTTE who continued to force him to smuggle goods. In 2005 they forced him to transport [items] by threatening to shoot him if he did not do so.

20. The Tribunal put to the applicant that he had not mentioned any specific incidents of physical mistreatment in 2002 in previous interviews with the Department or in his written application.  The applicant responded stating that he only carried some goods in a bag walking across the border.  However in 2005 there was “the major incident” when he was threatened.  He then decided to go to [Country 1] in 2005.  An agent organised his visa but when he got there he discovered it was incorrect and he had to return to Sri Lanka after only eight days.  He returned to Sri Lanka for about a year.  During that time he worked in a [workplace] and occasionally worked [in the family business].  The LTTE would ask him to come to the office from time to time but he did not have any major problems.

21. In 2006 the applicant obtained employment as a [Occupation 2] in [Country 1].  Every two years or so he was able to return to Sri Lanka for a vacation for a few months.  He returned to Sri Lanka in 2007/08.  One day he was cutting the grass outside his gate and saw what looked like a lid of a bomb.  He reported it to Karuna at their [office].  They came and defused the bomb and took it away.  They also took the applicant to their office to question him.  They accused him of being an LTTE member and that he put the bomb there himself. He was beaten by about three people.  He was there for about three hours.  His wife and children had followed him and begged for him to be released and he was eventually released and sent home.  Two or three days later 3 or 4 Karuna people approached him and offered to “solve the problem of the bomb” if he paid them [amount] lakh.  He did not have the money so he pawned his wife’s [jewellery] for Rs.[amount] and paid them that amount.  He then returned to [Country 1] to work.

22. The applicant next returned to Sri Lanka in 2010.  The CID came to his house again to ask for more money.  He didn’t have any money and could not pay them so he ran away.  He was not physically harmed, nor were members of his family harmed.  He returned to [Country 1].

23. In 2012, the applicant thought it would be safe to return to Sri Lanka as the war had ended.  He cancelled his work visa in [Country 1] and returned to Sri Lanka in January 2012 to work [in the family business].  He thought he could make a good income from his [occupation] as he had done so in the past. He said that after his return the CID and the Karuna group “tortured” him.  When the Tribunal asked him what he meant by torture he said that they continued to come to his house to ask about the bomb that they had found in 2008.  They came when he was not at home so nothing happened to him.  Nothing happened to his wife either except that she was questioned and told that she should inform them when he returned to his home and that he should report to the camp where he would be questioned.  He acknowledged that he was not physically harmed or mistreated between his arrival in Sri Lanka in January 2012 and his departure in February 2013.  However, he claimed that he was threatened with harm in his absence.

24. Although nothing happened to him personally the “white van” abductions were happening to people who had former LTTE connections and he was very worried that this would also happen to him, due to his known/imputed connections with the LTTE.  He decided to leave his wife with the neighbours and go to his [sibling’s] house in [Town 2].  The applicant initially said that he went to [Town 2] 4 to 5 months after his arrival in Sri Lanka in January 2012.  The Tribunal put to him that he had previously stated to the Department that he remained at home for about 10 months before going to his [sibling]’s home.  The applicant agreed it would have been about 9 to 10 months.

25. While the applicant was at his [sibling]’s home the CID continued to question his wife asking where he was and threatening to shoot her if she didn’t tell them.  They even asked his children and [one of them] told them he was in [Town 2].  He then moved to [a temporary location] in Colombo so that his [sibling] would not be in trouble.  He stayed with his [sibling] for about 1½ months and in Colombo for about three months before he departed for Australia.

26. The applicant said that he paid a people smuggler [amount] lakhs for his passage on the boat.  He was just a passenger.  He did not bring his passport or documents as he was concerned they would be lost or water-damaged during the trip.

27. Some time after his arrival in Australia in August 2014 the applicant claimed that CID personnel from Colombo came to his house on a motorbike to talk to his wife.  They showed their IDs to her and said they knew that the applicant had gone to Australia.  They showed her documents in relation to the applicant so that she was clear they had identified him.  They said they wanted the applicant to return to Sri Lanka within 10 days to answer many “complaints” they had against him and suggested that as a bomb had been found outside his front gate he might be hiding more weapons or bombs.  They did not search the house or garden and they did not harm his wife or children.  Soon afterwards CID police from [Town 3] came a second time to the house to ask the same things of his wife.  His wife has been very disturbed and upset about these visits.  He has provided the number plate of the motorbike to the Department so that they can verify that they were members of the CID.

1. The applicant told the Tribunal that he thinks if he returns to Sri Lanka he will be arrested, detained in jail and beaten by the CID and he may lose his life.  In 2015 about 20 people have been abducted and people who protested about this to David Cameron in the UK have also been abducted.  The “white vans” are still operating and he fears that he would be abducted and killed.

2. The applicant’s wife and children continue to live in the family home in [village], [Town 1], [Batticaloa] District.  They have not been harmed or threatened with harm.  The applicant’s [business] is currently being [operated] by his [relative]. His [sibling’s] family also live in the same village, but in a different household.  [One sibling] went to [Country 1] to work two years ago after which he was also detained by the CID.  The applicant no longer speaks with his older [this sibling] as [they] blamed him for the problems [they] had with the CID.  [Another sibling] and [family] continue to live in [Town 2].

3. The Tribunal asked the applicant if he had any further claims for protection and he said no.  The Tribunal put to him that he had previously made a claim that he would be targeted as he was would be perceived to be a person of wealth.  He said that was correct.  The Tribunal asked him what harm he may suffer if he were perceived to be wealthy when he returns to Sri Lanka.  The applicant described the incident with the bomb as the reason for being targeted, not because he would be perceived to be wealthy.

4. The Tribunal put to the applicant he had made a previous claim that he would suffer significant harm if he returned to Sri Lanka as a failed asylum seeker and someone who departed Sri Lanka illegally.  The applicant said that he still wished to make this claim but the reason that he would suffer harm was due to his imputed association with the LTTE in the bomb incident.  He did not think he would suffer harm because he had departed Sri Lanka illegally.

5. The applicant told the Tribunal that he did not think he could relocate to another part of Sri Lanka as he only spoke Tamil and he could not speak Sinhalese.  In addition, if he went somewhere such as Colombo he would have to register and then the authorities would know where he was and continue to pursue him.

6. The applicant does not believe the relevant authorities could provide him with protection as they are the ones causing him to fear that he would suffer significant harm.

   FINDINGS AND REASONS

   Nationality

7. The applicant claims that he is a citizen of Sri Lanka, that he does not hold any other citizenship and that he is not a national of any other country. He claims that he is of Tamil ethnicity and spoke of the Tamil language at his Departmental interview and at the Tribunal hearing. The applicant has been consistent with his place of birth and citizenship throughout the application process. He has provided a copy of his passport pages issued by the Sri Lankan government [in] 2013. Therefore, as there is no evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and his country of reference for the purpose of assessing protection obligations under the Refugees Convention. The Tribunal is also satisfied that Sri Lanka is the applicant’s receiving country as defined in section 5 of the Migration Act, for the purpose of assessing complementary protection criteria.

   Credibility

8. 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 Pam 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.

9. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

10. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

11. The applicant claims  are that he fears persecution for the following Convention reasons;

    (a)his imputed political opinions, that is, his perceived association and his activities of transporting [items] for the LTTE in the past; and the incident where a bomb was found just outside his front gate by Karuna.

12. At the Tribunal hearing the applicant did not claim that he would be persecuted for reasons of;

    (b)his Tamil ethnicity;

    (c)his perceived status as a wealthy person; or

    (d) his membership of a particular social group, that is, failed Sri Lankan asylum seekers who left Sri Lanka illegally and who return to Sri Lanka from Australia.

13. Nevertheless, the Tribunal gave consideration to these issues as part of claims he had made earlier to the Department.

14. The applicant claims he will be tortured, jailed or killed if he returns to Sri Lanka. The Tribunal is satisfied that the harm the applicant fears is ‘serious harm’ having regard to the definition in section 91R(2) of the Migration Act.

15. A fear of being persecuted is ‘well-founded’ if there is a ‘real chance’ that an applicant may suffer serious harm. Although a real chance may be below a 50% chance it is not a remote or far-fetched chance and is be based on both subjective and objective elements: Chan v MIEA (1989) 169 CLR379.

    Claims related to imputed political opinion and activities with the LTTE

16. The Tribunal accepts the applicant’s evidence that his father was shot and killed by the Sri Lankan army in 1990 and that he and his family were forced to flee their village due to the war. The applicant was [age] years old at the time. As far as he was aware his father was not a member of the LTTE.

17. The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm or that there is a real chance that he will suffer significant harm now or in the foreseeable future as the result of being a family member of a person who was shot and killed by the Sri Lankan army.

18. The Tribunal accepts the applicant’s evidence that on a few occasions between 2002 and 2005 he was used by the LTTE to collect parcels which he believed contained [items] and to transport [other items] by the LTTE. He did as he was instructed as he was fearful of the consequence of not doing so. However, he was not a member of the LTTE himself.

19. The Tribunal accepts the applicant’s evidence that on his return to Sri Lanka from [Country 1] in 2005 after his failed attempt to obtain a work visa he did not have any major problems with the LTTE and he departed Sri Lanka again in 2006 to obtain work in [Country 1].

20. The Tribunal accepts the applicant’s evidence regarding the incident in 2007/08 related to the bomb found outside the gate of his [property], including that he was detained, interrogated and beaten by members of Karuna who accused him of being a member of the LTTE. The Tribunal accepts the applicant’s evidence that he was extorted for money a few days later which he paid by selling his wife’s gold [jewellery]. He was then able to depart Sri Lanka for [Country 1] after a few months’ vacation.

21. In his written statement dated 3 July 2013 the applicant said he had no problems when he returned to Sri Lanka for vacation for a few months in 2010. At his interview by the delegate [in] August 2014 he claimed he was asked for money by the authorities in 2010 but he did not have any so they left him alone. At the Tribunal hearing he said he was asked for money but he didn’t have any so he “ran away”. However, he was not pursued or approached again, and neither he nor any members of his family were harmed. Based on this evidence the Tribunal is satisfied that when he returned to Sri Lanka in 2010 for a vacation of a few months he had no major problems with the CID.

22. The Tribunal accepts the applicant’s evidence that he returned to Sri Lanka in January 2012 when he thought the war was over and he would be able to earn a living [in his business].

23. The Tribunal accepts that there were local media reports regarding incidents relating to abduction of people and ‘white vans’ in 2012.[1] The Tribunal accepts the applicant’s evidence that he was fearful he may also be abducted due to his previous activities with the LTTE, but that nothing actually happened to him personally, and he was not approached for questioning by anyone during the period he remained in his own home between returning in January 2012 and going to [his sibling’s] house in August 2012.

    [1] BBC News Asia, 14 March 2012, Sri Lanka’s sinister white van abductions”

24. The Tribunal does find the applicant’s evidence credible that in 2012 it was only after he left his home and went to his [sibling]’s home that the CID came to his house and threatened to shoot his wife if she didn’t tell them where he was, given he had been in his own home for 8 to 9 months in 2012 and during this time he claimed the CID came to his home to question him about the bomb incident and although he was absent his wife was only questioned and told he should report to the camp for questioning.

25. The Tribunal does not accept the applicant’s evidence that after he arrived in Australia the CID went to his house and questioned his wife about his whereabouts demanding that he return to Sri Lanka as they thought he might be hiding more weapons after finding the bomb outside his front gate in 2007/08. The Tribunal considers that if the applicant had been suspected of hiding weapons, this accusation would not have been made more than five years after the bomb had been found. Furthermore, if the army was concerned that he was hiding weapons the Tribunal considers it would have been reasonable that they would have searched the house in his absence.

26. The applicant has not claimed he actually has anti-government or pro-LTTE opinions. His claims are based on imputed political opinion as a result of his activities between 2002 and 2005 transporting [items] for the LTTE under duress and because a bomb was found outside the gate of his [property] in 2007/08.

27. The Tribunal has had regard to the most recent DFAT country report on Sri Lanka which states;

    Liberation Tigers of Tamil Eelam (LTTE)

    3.32 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants and maintained an intelligence wing and a political wing, supported by an extensive administrative structure based in its de-facto capital in Kilinochchi in Sri Lanka’s north. The mostly-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE’s military and civil administration as a matter of course. The LTTE supported its administration through foreign funding and both voluntary and forced recruitment of Tamils.

    3.33 Towards the end of the conflict, a large number of LTTE members were arrested and detained by Government security forces following their surrender or capture. According to a 2010 report by the International Commission of Jurists, any association with the LTTE at that time was grounds for arrest. The majority of those arrested were sent to Government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. In addition to those arrested, many civilians were also questioned or monitored towards the end of the conflict.

    3.34 DFAT assesses that, as of October 2015, the LTTE no longer exists as an organised force. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad.[2]

    [2] Department of Foreign Affairs and Trade (DFAT) Country Information Report Sri Lanka, 18 December 2015

28. The DFAT report refers to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012). UNHCR draws attention to:

    … previous (real or perceived) links that go beyond prior residency within an area controlled

    by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

    1) persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
    2) former LTTE combatants or ‘cadres’;
    3) former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
    4) former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
    5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

    6) persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

29. The Tribunal has accepted the applicant’s evidence that he was involved in low level delivery of [items] and, on one occasion, [another item] for the LTTE between 2002 and 2005 but that he was not actually an LTTE supporter as he was acting under duress at the time

30. In the most recent Country Information Report DFAT refers to both high and low profile members of LTTE as follows:

    High-profile former LTTE members

    3.39 Those at highest risk of monitoring, arrest, detention or prosecution include the LTTE’s former leadership, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s military, political and administrative leadership were killed during the conflict, a number either surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see also ‘Former LTTE members living outside of Sri Lanka’, below). In addition to the LTTE’s former leadership, a number of other former members were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE.

    3.40 On 11 April 2014 the military killed three suspected LTTE members in Vavuniya district, following a manhunt. It was a government response to the alleged posting of pro-LTTE flyers in Kilinochchi. No evidence or investigation results related to the case were publically released.

    3.41 DFAT assesses that these high-profile (‘high risk’ or ‘hardcore’) former members would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts, often following a period of detention in a rehabilitation centre. Although many high-profile members may have already been released following their detention and prosecution, any other high-profile members who remain at large or return to Sri Lanka would likely be arrested, detained and prosecuted in this way. Following their release from rehabilitation or prison, high-profile former LTTE members are likely to be intensely monitored by Sri Lankan authorities.

    Low-profile former LTTE members

    3.42 In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this includeS former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.

    3.43 DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.[3]

    [3] DFAT Country Information Report Sri Lanka, 18 December 2015

31. The Tribunal has considered the evidence of the applicant in respect of his claim of an imputed political opinion. The applicant had a very low level of association with the LTTE as a result of transporting [items] and some [items] for the LTTE when he was aged between [age] and [age] years old. A bomb was found buried outside his front gate in early 2008 and he was detained, questioned and beaten at the time by members of Karuna.  The applicant has had no involvement with any Tamil separatist groups, either in Sri Lanka, or more recently in Australia. The Tribunal does not accept that anything in the applicant’s background, including his race, age, gender, ethnicity or location in Sri Lanka would lead to an imputed anti-Government opinion. The UNHCR guidelines encourage that each particular individual’s circumstances should be considered, as done here[4].

    [4] UNHCR Eligibility Guidelines, 2012

32. Taking the applicant’s evidence into consideration both individually and cumulatively, together with the above country information, the Tribunal does not consider that the applicant is a person whom the authorities will be interested in, for the reasons specified individually or cumulatively, for any imputed anti-Government or pro-LTTE political opinion.

33. Recent country information shows that Tamils who are perceived to be a threat because of senior or combatant roles and responsibilities that they may have had in the LTTE, or a relationship to someone with such a role or responsibility, LTTE fundraisers and propaganda activists or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm[5].

    [5] Department of Foreign Affairs and Trade (DFAT) Country Information Report to Sri Lanka, 18 December 2015, p.13

34. The Tribunal discussed this country information with the applicant, who insisted as CID had questioned his wife after his departure alleging that he is a person of interest because of the bomb found outside his [property] in 2008 and their concern that he may be harbouring weapons and arms, that he would be perceived to be a threat and was of adverse interest to the authorities.

35. Based on the applicant’s own account of events, the Tribunal accepts that he may have been of adverse interest to the authorities and to members of Karuna in 2008 after the bomb was discovered outside the gate of his home. The applicant told the Tribunal that in 2012 he feared harm from the CID or members of Karuna as a result of  his previous connection with the LTTE in 2002-2005 and the bomb incident, however, he was not detained or harmed for the 8-9 months he lived in his home upon his return from [Country 1] in 2012. He claims he and his wife were questioned during this period but nothing happened to him. In August 2012 he heard about other people who were abducted and hurt or killed and he feared this may happen to him also.

36. Based on the applicant’s evidence and the country information cited above, the Tribunal is not satisfied that the applicant is of any adverse interest to Sri Lankan authorities, including the Sri Lankan army, CID or former members of Karuna, now or in the foreseeable future, for any imputed or actual activities with the LTTE that he undertook between 2002 and 2005 or for reasons related to a bomb being found outside the gate of his property in 2007/08.

1. Consequently, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would suffer significant or serious harm as a result of his imputed political opinions and / or his previous activities with the LTTE if he were to return to Sri Lanka now or in the foreseeable future.

2. For the sake of completeness, the Tribunal considered the applicant’s previous claims made to the Department related to his Tamil ethnicity, the perception that he would return from Australia as a wealthy person and his membership of a particular social group, that is, failed Sri Lankan asylum seekers returning to Sri Lanka from Australia.

   Claims related to the applicant’s Tamil ethnicity, and as a person who left Sri Lanka illegally and who returns as a failed asylum seeker

3. The Tribunal accepts that the independent evidence indicates, at least until the end of the civil war in 2009, that Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities in what was a lengthy, brutal and bloody war. The evidence indicates that the LTTE was formed in 1976 with the main aim of establishing an independent Tamil state and they pursued this aim through a military campaign against the Sri Lankan government which lasted, apart from a ceasefire from 2002 to 2006, until May 2009.[6]  The Tribunal accepts there is evidence of continuing atrocities against some Tamils even since the end of the war.[7]  However, balanced against this country information is information which suggests that it is Tamils with particular profiles who are targeted rather than all Tamils in Sri Lanka.  DFAT has assessed that as of October 2014 the LTTE does not exist as an organised force and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on civilians or those returning from abroad.  It has also reported that since the civil war ended in May 2009 there has been considerable change in the security situation such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.[8]  As discussed with the applicant, the DFAT Thematic Report concludes:

   DFAT assesses that those Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted. [9]

   [6] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; DFAT Country Report on Sri Lanka, 3 October 2014.

   [7] A July 2014 report by Amnesty International also indicates that persistent surveillance, intimidation and monitoring of former LTTE members by the security forces continues to restrict their freedom of movement and association - see Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA 37/011/2014, September, p. 11.

   [8] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; DFAT Country Report on Sri Lanka,18 December 2015.

   [9] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

4. Whilst the Tribunal accepts that there continues to be persecution of persons with certain profiles, such as persons who had certain LTTE profiles, the Tribunal does not accept that the applicant has any particular profile such that there is a real chance that he will suffer serious harm for reason of his ethnicity as a Tamil. Accordingly, the Tribunal is not satisfied that the applicant had, or has, any anti-government political profile (imputed or otherwise) or that there is a real chance he will be subjected to serious harm because he is a Tamil and/or a Tamil man.

5. The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities.

6. It has been stated in the submissions that Tamils suffered longstanding systematic discrimination, in education, employment and other matters controlled by the government. The Tribunal notes that the East is an area that is presently predominantly Tamil in nature, though there are some Sinhalese moving into the region. The Tribunal does not accept that systematic discrimination that could be described as serious or significant harm occurs in this region of Sri Lanka, and does not accept that the applicant has faced such discrimination in the past. As stated by the applicant, he [owns property] and worked as [Occupation 1] in the past. The Tribunal considers that the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason.

7. The Tribunal accepts that the applicant would be likely to be identified by the Sri Lankan authorities as a failed asylum seeker and that he left Sri Lanka illegally.  The Tribunal accepts that some reports suggest that there remains a real risk of serious harm for returnees who are suspected of, or known to have, LTTE connections.  As discussed above, the Tribunal is not satisfied that the applicant has a pro-LTTE profile in Sri Lanka.  He has not claimed to be involved in any political activities or pro-LTTE activities while here in Australia. 

8. The Tribunal accepts that there are some reports that Sri Lankan Tamils who returned from overseas suffered abuse and that some may be monitored. However, the cases in relation to returnees suffering abuse overwhelmingly involve persons who have had some reasonable level of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections. The information from DFAT also indicates that allegations of mistreatment of returnees (including failed asylum seekers) without such links have not been substantiated.[10] 

   [10] DFAT Country Information Report Sri Lanka, 18 December 2015, pp.29-30

9. DFAT’s Country Information Report on Sri Lanka dated December 2015 states:

   3.3 Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.

   3.7 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees.

   3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.

   3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.[11]

   [11] Ibid pp.9-10

10. The Tribunal accepts that persons with particular profiles may be subjected to serious harm if they are returned to Sri Lanka and that persons who left illegally are likely to be detained for a short period.  However, there is no credible information before the Tribunal to support a finding that failed asylum seekers (including those who are also Tamils and those returning from western countries such as Australia) are, for those reasons alone, imputed with a pro-LTTE opinion, or suspected to have been involved, previously or currently, in supporting the LTTE. Independent information from a range of sources supports this conclusion.[12] 

    [12] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; UNHCR Eligibility Guidelines, 2012

11. The Tribunal has accepted that the applicant departed Sri Lanka illegally. The Tribunal has, therefore, accepted that it is likely that he would face questioning at the airport, arrest on charges of illegal departure, that there is a possibility he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal has also accepted there is some possibility that the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary. The applicant told the Tribunal that he has a number of [assets] which is one reason he would be perceived to be wealthy. The Tribunal is satisfied on the basis of his evidence that he would be able to pay bail and be released from remand.

12. Section 91R(2) of the Migration Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Given these examples, the The Tribunal does not consider that a relatively short detention in remand or monitoring constitute “serious harm”.

13. The Tribunal considers that the weight of evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport there is a real risk that the applicant will suffer significant harm. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’.[13] The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

    [13] See SZTKF v MIBP [2014] FCCA 282, 4 December 2014, in which Manousaridis J found that the intentionally placing the applicant, a Tamil citizen in remand whilst awaiting sentence did not establish that the harm was intentional such that it was significant harm. In an earlier decision, the Federal Circuit Court found that mere negligence without more, was not capable of amounting to intentional infliction of pain or suffering – see SZSPE v MIBP [2013] FCCA 1989.

14. There is country information to suggest that there may be some follow up by authorities or agencies when returnees return to their local area.  Information suggests that some Tamils may be monitored upon return to their home area but unless they have a particular profile the risk of them being detained or prosecuted is low.  For example, DFAT has assessed that “Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile”.[14]  However, it concludes that “Tamil civilians who were not members of the LTTE … are at a low risk of being detained or prosecuted”.[15]  This is consistent with the findings of the UNHCR when they monitored returnees to Sri Lanka and found that about 75% of returnees were contacted in their home area by the military or police (some on more than one occasion) but the UNHCR does not report any further harm occurring to those returnees and has not included returnees from western countries as a group requiring international protection.[16]  This is also consistent with the information referred to above which suggests that returnees who are subjected to serious harm, including at the airport, in remand and in their home area, are those with a particular profile.

    [14] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014

    [15] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014

    [16] UNHCR UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Sri Lanka, 21 December 2012.

15. In light of the applicant’s lack of a pro-LTTE or anti-government profile, the Tribunal is not satisfied on the basis of the evidence before it that there is a real risk that the applicant will suffer serious harm or a real chance that the applicant will be subjected to serious harm at the airport, on remand or in his home area as a failed asylum seeker who departed Sri Lanka illegally, including from a western country such as Australia.

    Claims related to being perceived as wealthy

16. In his written statement for protection the applicant claimed that because his family have a significant amount of [assets] and he has travelled to and worked in [Country 1] several times has been in Australia for three years he will be perceived as wealthy and therefore targeted by the authorities. He did not pursue these claims in his interview with the delegate or at the Tribunal hearing.

17. The applicant has not provided any evidence of his [assets]. He told the Tribunal that his [business] is currently being [operated] by his [relative] and did not make any claims that his [relative] has been the subject of persecution or harassment. The applicant also told the Tribunal that when members of Karuna extorted him for money when the bomb was discovered outside the gate of his [property] they demanded [amount] lakh which he was unable to pay despite his work in [Country 1]. He sold his wife’s gold [jewellery] for rs.[amount] he paid to the Karuna members and apparently accepted. When he returned to Sri Lanka in 2010 he was again asked for money which he could not pay. He claims he “ran away” but was not physically harmed and nor were members of his family despite his staying there a few months. No demands for money were made for the 9 months he lived in his own home in 2012.

18. Based on the applicant’s evidence above, the Tribunal does not accept that he is perceived to be wealthy as a result of his family land-holdings or his work in [Country 1].

19. The Tribunal accepts that it is possible some people may think the applicant has more money than he actually has as a result of living in Australia for three years. However, there is no independent evidence before the Tribunal that indicates that despite the large numbers of returned asylum seekers from countries such as Australia, that they are targeted for reasons of perceived wealth or that there is a real chance or real risk they would suffer serious or significant harm.

20. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm as a result of any of the individual claims discussed above or as a result of a combination of any of the factors discussed above, including his race, imputed political opinion or membership of a particular social group.

    Complementary protection

21. 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).

22. On the basis of the country information discussed above and for the reasons discussed above, the Tribunal is not satisfied that the evidence before it supports a finding that there is a real risk that the applicant will suffer significant harm because of his imputed political opinion as a result of transporting [items] for the LTTE between 2002 and 2005 or because a bomb was found buried outside his gate in 2008; or because he is perceived to hold a pro-LTTE or anti-government political opinion; or because of his ethnicity as a Tamil, a returnee or a failed asylum seeker who departed Sri Lanka illegally at the airport, on remand or upon return to his home area.  The Tribunal is not satisfied that the applicant has a profile that would put him at real risk of significant harm arising from his race, actual or imputed political opinion or being a young Tamil male if removed from Australia to Sri Lanka.  The Tribunal is not satisfied that there is a real risk that the applicant will face significant harm because he left Sri Lanka illegally and has sought asylum in Australia. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as a result of  a combination of any of the above factors, including his ethnicity, imputed political opinion or membership of a particular social group.

23. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it has 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 for the reasons he has claimed.  Nor is the Tribunal satisfied that the applicant would suffer significant harm for any other reason. 

    CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Belinda Mericourt
    Member