1417582 (Refugee)

[2016] AATA 4879

1417582 (Refugee) [2016] AATA 4879 (18 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417582

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Frances Simmons

DATE:18 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2016 at 2:00pm

CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Fear of kidnapping and extortion – Applicant comes from wealthy family – Imputed political opinion – Association with Liberation Tigers of Tamil Eelam – Tamil ethnicity – Witness credibility – Implausible and inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MZYXS v MIAC [2013] FCA 614
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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. The applicant is [(Ms N)], a [citizen] of Sri Lanka. She is of the Tamil ethnicity and Hindu religion and she speaks Tamil, English and Sinhala. Before she travelled to Australia to study in 2009, Ms N lived with her family in [Village 1], which is in North Western Sri Lanka, an area that remained under government control throughout the long-running conflict between the LTTE and the Government of Sri Lanka (GoSL). When Ms N was growing up her family was well-off:  her father was a businessman with several investment properties. She attended a [school] in [a particular location] before completing her studies in [another location]. With the support of her parents, she travelled to Australia: her parents’ expectation was that she would study in Australia and find a job here, or return to Sri Lanka and work in her father’s [business].

2. Ms N first arrived in Australia [in] September 2009 holding a student visa which was valid until [December] 2012. She travelled back to Sri Lanka [in] December 2010 and stayed at her family home before returning to Australia [in] March 2011. [In] October 2012 she travelled to [Country 1] and returned to Australia [in] October 2012. Ms N states that she has now withdrawn from her studies as she no longer has financial support from her parents. Ms N told the Tribunal that she ceased studying in 2012.

3. Ms N applied for a protection visa [in] February 2014 and the delegate refused to grant the visa [in] September 2014. Ms N claims that her parents were abducted in January 2013 by unknown persons and that they are still missing. Ms N claims that her parents began receiving demands for money from about May 2012 and that her [brother] was abducted for ransom in August 2012 and held for a week before being released. Ms N claims that her brother was abducted on two further occasions in 2013. On both occasions he was released.

4. Ms N claims that, if she returns to Sri Lanka, she will be kidnapped or harmed by the same people (their identities are unknown) who she claims have threatened and abducted her brother and her parents. She claims that the authorities will not protect her from the harm that she fears. Ms N claims that, when she was at school in Sri Lanka, she was physically assaulted and interrogated by the authorities on six or more occasions to obtain information about the LTTE. She claims that this happened before she travelled to Australia in 2009.

5. Ms N appeared before the Tribunal on 19 January 2016 to give evidence about her claims and circumstances.[1] Before the Tribunal, she claimed that she didn’t know the whereabouts of her mother, father or brother, and that she was no longer in contact with her grandmother. With respect to her claims that she was questioned about the LTTE before she left Sri Lanka, she referred to one incident in which she claims she was questioned about her father’s involvement with the LTTE and also assaulted.

   [1] On 8 January 2016 Ms N presented a certificate indicating that she visited a doctor complaining of ‘feeling weak’. The certificate did not state that, in the Dr’s opinion, Ms N is unfit to attend a hearing or that she had a medical condition. Ms N also claimed that she only received the hearing invitation on 11 January 2016 and needed more time to prepare. Ms N was advised that there was insufficient evidence before the Tribunal to justify postponing the hearing on medical grounds. However, on 11 January 2016 a Tamil interpreter was unavailable for the scheduled hearing and so it was adjourned until 19 January 2016. Ms N was provided with a copy of the DFAT Country Information Report: Sri Lanka dated 18 December 2014.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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. In this case, the Tribunal has had regard to the DFAT Country Information Assessment report dated 18 December 2015, which was preceded by the DFAT Country Report: Sri Lanka dated 16 February 2015, the DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, dated 3 October 2014.

    CLAIMS AND EVIDENCE

    Evidence before the Department

21. Ms N lodged her protection visa [in] February 2014. On 19 March 2014 she provided the following statement about her claims.

    Have you experienced harm in that country?

    …Yes I have. During my school days, I was detained and interrogated 6 or more times by the authorities and armed forces. During each interrogation, I was physically assaulted by the interrogators with an intention of obtaining information forcibly about the Liberation Tigers of Tamil Elam (LTTE) or similar organisation involving in forming ‘Tamil Elam’ or a separate state. Irrespective of the age or maturity of persons, the authorities brutally treated members of the minority community living in Sri Lanka alike. Because of the ruthless approach taken by the authorities, I was inhumanly and brutally treated, suffering injuries and trauma. I underwent medical treatment subsequent to each incident. Considering cultural barriers, my future and the then circumstances, my parents wanted to keep the details, results of interrogations and my sufferings confidentially …

    What do you fear may happen to you if you go back to that country?

    Nowadays, extortion is commonplace in places where members of the minority residing. The people involve in extortion have gone to the extent of life threatening and killing. I have provided adequate information about the ongoing extortion practice in Sri Lanka, with particular reference to my family members. My brother has had terrible experience from abduction and assault by the unidentified individuals involved in extortion. I strongly believe I will encounter similar treatments [if she returns to Sri Lanka]

    Who do you think may harm/mistreat if you go back?

    It is likely the extortionist and ransom seekers. It is likely that these groups of people with weapons are backed by the leading politicians or ex-service men directly involving in extortions with the support of the authorities.

    Why do you think this will happen to you if go back?

    Apart from the explanation [given above]…I am a female, [age]. I don’t have required level of civil protection which is critically necessary to live independently and peacefully in a country. The escalating problems and issues in Sri Lanka in terms of race, religion and ethnicity constantly increase the fear and threat that will adversely affect my usual life and put me in jeopardy, which I experienced in Sri Lanka a few years ago.

    Do you think the authorities of that country can and will protect you if you go back?

    Given my race, religion, difference of opinion in finding solutions to ongoing political issues in Sri Lanka, hopefully, the authorities cannot and won’t provide necessary protections to me as the government interference is frequent and prevalent. Also, the government’s failure to establish a mechanism to provide necessary protection to minority communities in Sri Lanka is also one of the factors which increases whether I will be given required level of protection. [2]

    [2] Departmental file, folio76-79.

22. Ms N has provided some country information to the Department. [3] In addition to identity documents, Ms N also provided the following documents in support of her claims.

    [3] Departmental file, folios 64-71; 81-89. This country information includes a paper from the Immigration and Refugee Board of Canada on ‘Reports of extortion by the Sri Lankan Army’ dated 24 January 2008. The paper observes that various sources indicate that members of the Sri Lankan Army have been directly or indirectly in extortion, among other human rights abuses and notes reports that, in 2007, the Sri Lankan police arrested a number of current and ex-police and military officers for their suspected involvement in abduction rackets. Ms N also submitted a news report about a hunt to track down a motorcycle rider who is alleged to have shot and seriously injured a business man before getting away with Rs 500, 000 in cash in a location at Puttalam.

    a.   Purported letter from Ms N’s grandmother to the Migration Review Tribunal dated 1 July 2013 entitled ‘information on present family circumstances of Miss [N]’, stating:

    i.    Ms N has been unable to contact her parents since the latter part of January 2013.

    ii.   The present situation in Sri Lanka is deteriorating in terms of the treatment of members of the minority community. 

    iii.  Extortion is a common occurrence particularly in the past 3 or 4 years in areas where members of Tamil ethnicity live.

    iv.  There is clear evidence the extortionist/s operating in Sri Lanka do so with the assistance of the Sri Lankan government’.

    v.   A police report is attached.

    vi.  Her son-in-law and daughter were ‘constantly contacted by unknown persons and forced to settle a large sum of money as extortion.

    vii. Given the ‘possible adverse consequences’, they didn’t approach the authorities 

    viii.   Eventually due to the failure to settle the amount of extortion, they were abducted from their home and detained elsewhere’.

    ix.  As a result of their disappearance, the business was closed. It was not possible for Ms N’s parents to pay her student fees on time.

    x.   It is hard to prove who is involved in extortion and that most people do not report threats of extortion to the authorities.

    xi.  Ms N’s brother was abducted for a week and tortured by extortionists in 2012. He is also a [patient]. He is [currently studying].

    xii. These events have caused Ms N mental agony. Business failures and events in the last six months affected her personal life, education and health.

    b.Purported extract from the Information Book of [Village 1] Police station with English translation, dated [June] 2013.[4] The documentation indicates:

    [4] Departmental file, folios 27-28.

    i.The English translation was obtained in Puttalam, Sri Lanka [in] July 2013.

    ii.[The] complainant, identifies herself as the grandmother of Ms N and her brother, [Mr A].

    iii.About eight months ago ransom seekers began threatening her son in law over the phone and demanding ransom – her daughter also told her several people came and demanded ‘large sums of money’.

    iv.Due to the ‘prevailing political situation’, they tried to settle the issue without police assistance.

    v.‘Ransom seekers’ abducted her ‘daughter and nephew’[5] in latter part of January 2013. She cannot get information about her son-in law and daughter.

    [5] The reference to ‘nephew’ appears to be an error as elsewhere the victims of the abduction are referred to as the son-in law and daughter of the complainant.

    vi.Her son-in law is a businessman and due to the abduction his business activities are at a standstill.

    vii.Due the abduction of her son-in-law the studies of her granddaughter are at stake because there is no one to send money.

    viii.[The applicant’s grandmother] requests the police provide her with any information about the abduction of her daughter in law and her son.

    ix.[Mr A] is ‘boarded in a protected place and educated’.

    c.Purported letter to Ms N from her grandmother dated [March] 2014, stating: [6]

    [6] Departmental file, folio 74-75; 93-94 (submitted twice)

    i.The situation in Sri Lanka is getting worse in terms of the treatment of members of the minority community.

    ii.Given the present situation and its intensity, Ms N’s grandmother cannot protect her from being harmed and threatened by people involved in extortion and ‘similar misconduct’.

    iii.A second police report is attached. This is evidence in assessing the difficulties and problems encountered by Ms N ‘to date and beyond’.

    iv.There are extortionists operating in Sri Lanka with the assistance of the GoSL. To prevent threats, most people who receive extortion threats don’t report such events to the authorities.

    v.Ms N should stay in Australia and contact appropriate authorities who can assist her extending her stay in Australia.

    vi.If the grandmother’s letter is submitted as evidence to any authority it should be treated confidentially to prevent ‘any possible risks and threats from authorities operating locally in Sri Lanka’.[7]

    [7] Departmental file, folio 21-24.

    d.   Purported extract from the information of book of [Village 1] police stated, dated [December] 2013, and a translation thereof.[8]

    [8] Departmental file, folios 72-73; 90-91 (submitted twice).

    i.The translation was done in Puttalam Sri Lanka [in] March 2014

    ii.[The applicant’s grandmother] complains that her daughter, son in law and grandson have been under threat by a ransom seeking group over telephone and her son-in law was abducted.

    iii.After making this complaint her grandson was threatened and assaulted on three occasions. He is suffering from [a medical condition].  As a result of the assault he was depressed and weakened in his studies.

    iv.Ms N is undertaking studies in Australia and is depressed by the events.

    v.The complainant requests that the police not divulge the facts of this complaint due to prevailing political situation.

    vi.The complainant requests the police conduct the inquiry secretly, find her daughter and son-in-law and give security to her grandson and prevent him from being assaulted. [9]

    e.Medical documentation relating to illnesses suffered by Ms N’s brother – these documents are dated in 2004 and relate to the treatment ‘[name deleted]’ received for [a medical condition].[10]

    [9] Departmental file, folio72-73.

    [10] Departmental file, folio 25-26

1. In her written statement Ms N said that she obtained these documents with the assistance of a friend who went to school with her in Sri Lanka. She said that her school friend was able to locate and contact her grandmother who volunteered to provide information evidence to her ‘through him’.[11]

   Interview with the delegate [in] September2 014

   [11] Departmental file, folio 79.

2. I have listened to the interview Ms N attended with the delegate, which was conducted in English. Ms N told the delegate she is afraid that if she returns to Sri Lanka, ‘they’ will kidnap her as they did her parents. Ms N claimed that the police could not protect them and that her brother, who is still in Sri Lanka, has been kidnapped three times.

3. Ms N said that her last contact with her grandmother was three months before the interview with the delegate. When asked why she hadn’t contacted her again, she said she was ‘a bit old’. When asked who she was living with, she said alone with some servants (Ms N hadn’t contacted the servants). Her grandmother contacted her sometimes. Asked whether she wanted to contact her grandmother, Ms N claimed the [Village 1] police advised her not to.

4. Questioned further, Ms N gave evidence that she didn’t ever speak to the police directly, her grandmother had been told by the police to tell Ms N. When asked when she asked about her parents, she said they were still searching; she didn’t know what happened to her parents. The delegate said you have your grandmother’s number and you could call her right? Ms N’s response was not audible.

5. Ms N claimed that, if she returned to Sri Lanka, the same thing that happened to her parents would happen to her, ‘they’ will kidnap her. Asked who ‘they’ were, she said she didn’t know their names, they were ransom seekers. Asked how they made contact to ask for money, she said they called the home phone: this first happened in May 2012. Asked where her brother was, she said he was in Sri Lanka. She has not been in contact with him. The police said they would give him protection, but after that, he was kidnapped three times. She last spoke to her brother in December 2013.

6. Ms N told the delegate that she travelled to [Country 1] because she thought she could make some arrangements for him to live in [Country 1], but it didn’t work, so he stayed in Sri Lanka. She said he was living with her grandmother and that he has ‘[a medical condition]’. She became tearful. She told the delegate he had [a medical condition] since he was [young], now he is [an older age]. He goes to Colombo and stays in hospital. Asked how long he had been in the hospital, she said two years. Asked whether she could contact him in hospital, she said he was treated for two years when he was [younger] then he was sent home. He goes back to the hospital for further check-ups – sometimes this takes a few days. Asked about his current condition, she was tearful and response is largely inaudible. She said his grandmother said he would get ‘too much wounds’.

7. The delegate put to the applicant that assault, kidnapping and extortion was a criminal matter which happened to a lot of groups, not just particular ethnic groups. The delegate noted that she said her family was wealthy and stated that Sri Lankan authorities had said there had been a lot of false threats to try and take money from people. The delegate said that the government had acknowledged that this was a problem and requested that people contact them and make reports. Ms N said they wanted to make complaints to President’s commission, but they are only dealing with claims that happened before the end of the war. The delegate said that this is a crime; it is different.

8. When Ms N was asked whether she had ever had any problems with the Sri Lankan authorities, she said that these days, they are also involved in ransom seeking and crime. The delegate asked whether she ever had any problems with the Sri Lankan authorities. She said yes, at school. The delegate put to her she was not living in areas controlled by the LTTE, she wasn’t sure why anyone would see her as linked to LTTE, she got a passport in 2006 and, if she had any problems during conflict, she didn’t think Ms N would have a problem now. Ms N said they would take people and ask questions about the LTTE. The delegate said the war was over and Ms N left the country in 2009 and returned in 2010.

9. Asked whether she or any member of her family were involved in politics, Ms N  responded, ‘not really’.

10. Ms N told the delegate that she withdrew her student visa application two months ago because she didn’t have anyone to finance her studies. Ms N said all her family collapsed. The delegate put to her that, if she was worried, she would want to go back and help her grandmother and her brother. The delegate put to her that they could relocate somewhere – someone had access to her parents’ money – it wouldn’t be unreasonable for the family to relocate. Ms N said her brother and grandmother don’t have a proper place and her grandmother would not be able to support them both.

11. In response to various comments made by the delegate, Ms N reiterated that her family was targeted. Her old property was damaged and her parents were kidnapped. Someone was focusing on her family. Her Dad travelled to [various locations] for many years for business. When it was put to her that she did still have family in Sri Lanka, she said that her grandmother could not support her. When asked why she couldn’t go back to Sri Lanka and seek a job (she had been to different areas of Sri Lanka and she was well educated), Ms N said she was supported by her parents to go to [school]. She said that if she went back she would be in trouble with the people who already made trouble for them.

    The delegate’s decision

12. The delegate found that Ms N did not meet the criteria for a protection visa under s 36(2)(a) or s 36 (2)(aa) and refused to grant Ms N a protection visa.

13. The delegate did not find Ms N to be a credible witness. While the delegate was prepared to accept that the ‘applicant’s parents may have been subjected to ransom and extortion demands’, she had ‘strong doubts about the veracity of this claim’. The delegate considered that Ms N’s migration history indicates that she applied for a protection visa when she had no other options for remaining in Australia. The delegate also noted that the police reports provided by Ms N were copies and it was not possible to verify their authenticity, particularly as country information indicates that forged documents are easily obtained in Sri Lanka.

14. The delegate concluded that Ms N’s claim that if she were to return to Sri Lanka she would be kidnapped or harmed by unknown persons who had been threatening her brother and her parents with extortion was a criminal matter not related to any of the grounds set out in the Refugees Convention. After noting her ‘concerns about the veracity’ of Ms N’s claims, the delegate concluded that Ms N would be able to access state protection such that there would not be a real risk she would suffer significant harm for the purpose of s.36(2)(aa).

15. The delegate considered that, as a Tamil, Ms N may have been subjected to mistreatment during the years of the conflict, but noted that, since the end of the war in 2009, the situation has improved for Tamils. The delegate noted that Ms N travelled to Australia in 2009 and returned to Sri Lanka for three months in 2010. The delegate did not accept that Ms N had a profile that would bring her to the attention of the Sri Lankan authorities if she returned to Sri Lanka. The delegate observed that Ms N was an educated person who speaks Sinhalese, English and Tamil, and concluded that it would not be unreasonable for her to return to Sri Lanka where her brother and grandmother live.  

    Application for review

    Pre-hearing submission

16. Ms N’s application for review was accompanied by a copy of the delegate’s decision and Ms N’s comments in response to this decision.[12] Ms N complained of feeling bullied and oppressed in the interview with the delegate, alleged that her case had not been properly considered, and complained the delegate had relied on out of date country information because she referred to the UNHCR Guidelines of 2012. She argued that there was a ‘trend’ of violence against minority groups in Sri Lanka and linked this violence to the abduction of her parents. She stated that the GoSL has doubts about whether the LTTE has been completely eradicated and, as a result, there are incidences taking place in areas where the Tamil minority live. She also observed many cases of persecution are not reported.

    [12] Tribunal file, folio 30-35.

17. With respect to her migration history, Ms N notes that before [December] 2012 she applied for a student visa, which was refused. An appeal to the then Migration Review Tribunal (differently constituted) was successful and the matter was remitted to the Department for reconsideration. She claims that notwithstanding this outcome she was unable to continue her studies due to her parents’ disappearance in Sri Lanka (she refers to providing the delegate with bank transfer slips showing her parents funded her studies in Australia). She said she applied for protection because she feared for her safety in Sri Lanka.

    [Organisation 1] report dated [in] January 2016

18. Ms N submitted a report from [Organisation 1], dated [January] 2016 (the [Organisation 1] report). It has been prepared by a counsellor who saw Ms N on 6 occasions between [October] 2015 and [December] 2015.  It contains the following information:

    a.Ms N reported ‘multiple traumas [that] she experienced in Sri Lanka’.

    b.Ms N reported that she first came to Australia as a student in 2009 and was studying [a particular course] in [a particular university] until 2014.

    c.Ms N reported both her father and mother were kidnapped in 2014 and a year before her parents were kidnapped her [brother] was also kidnapped and tortured before being released.

    d.Ms N was unable to return to her studies after she heard her parents were kidnapped as she was shocked and suffered severe depression and anxiety.

    e.Ms N reported she was scared to go back to Sri Lanka as she feared for her own safety.

    f.As a result, Ms N applied for a protection visa by herself in 2014.

    g.Ms N also mentioned that she is worried about her [brother] who is living with his school friend to protect himself from the danger

19. The [Organisation 1] report states that Ms N reported experiencing the symptoms related to depression, anxiety and post-traumatic stress disorder (PTSD), including severe headaches, very tearful, feeling insecure, low confidence, low self-esteem, intrusive memory of past traumatic experiences, poor appetite, emotional withdrawal, low energy, difficulty with attention and concentration, memory problems, feeling very lonely, hyper-vigilance, difficulty trusting others and social isolation.  Her responses to the Harvard Trauma Questionnaire and Hopkins Symptom Checklist were highly symptomatic of PTSD and anxiety and depression. It was recommended that she received ongoing individual counselling treatment.

    Evidence at the hearing on 19 January 2016

20. At the Tribunal hearing Ms N confirmed that before she left Sri Lanka she lived in [Village 1]. She is currently receiving financial assistance from the Red Cross. She [worked] in 2013 for less than year. She said she stopped studying towards the end of 2012; she said she had never worked and her parents supported her financially but in 2012 the problems started she was not able to contact her parents so she did not receive financial support and had to stop her studies.  She went to [Country 1] in October 2012 hoping to help her brother but ultimately her brother did not travel to [Country 1] and she couldn’t organise anything safe for him – at that time in [Country 1] they believed Sri Lankans were terrorists.

21. Ms N told the Tribunal that she completed her protection visa application herself, and it was correct – she had no corrections or additions to make.  During the course of the hearing Ms N was asked about her claims for protection and she was put on notice that the Tribunal was concerned about the credibility of her claims that her family members had been abducted and subject to ransom demands and that she was unable to contact her grandmother and her brother. The Tribunal also discussed with the applicant its concerns about her claims she experienced problems before she left Sri Lanka in 2009, as well as the issue of relocation. Tribunal also discussed with Ms N a range of country information about the situation in Sri Lanka including the DFAT Country Information Assessment: Sri Lanka issued on 18 December 2015. Where relevant Ms N’s evidence and the country information is discussed further below in the assessment of claims and evidence. 

    DFAT Country Information Assessment and country information submitted by Ms N

22. I have considered country information about enforced and involuntary disappearances in Sri Lanka.[13] I have also considered the country information Ms N has provided to the Department and the Tribunal.[14] Some of the reports submitted by Ns N concerns the risks facing Tamils who are abroad and who have actual or perceived links to the LTTE if they return to Sri Lanka, while others contains reports of abductions and disappearances, including a case where a Tamil businessman who filed a case in the Supreme Court alleging he had been illegally detained and tortured by the Sri Lankan authorities. To the extent that the country information provided by Ms N is relevant to her specific claims (that her family members were abducted and that she was questioned by the Sri Lankan authorities about her knowledge of the LTTE and whether her father had any involvement with the LTTE) and her general claims (concerning her ethnicity, gender, status as a failed asylum seeker) and  the other matters dealt with below in the assessment of claims ad evidence I have carefully considered this information.

    [13] DFAT Country Assessment: Sri Lanka, 18 December 2015.

    [14] Tribunal file, folio 81-175; Departmental file, folios 64-71; 81-89; as well as the country information referred to the delegate’s decision and the applicant’s oral testimony. 

23. None of the reports that Ms N has submitted are about her personally or about the situation of her family members. Some of the reports Ms N has provided is simply not relevant to her claims,[15] or concerns situations (such as being in police custody) that, for the reasons that are discussed below, I have concluded there is no real chance that Ms N will encounter if she returns to Sri Lanka. Other information concerns the failure of the GoSL to respond to allegations of human rights violations and the unlawful killings of LTTE cadres and Tamil civilians who surrendered to the Army in the final months of long running conflict between the LTTE and the GoSL and the use of sexual violence by the Sri Lankan military. Where relevant the DFAT country information and the country information provided by Ms N is discussed further below in the assessment of claims and evidence

    [15] For example, reports that Sri Lankan citizens are joining ISIS or reports of conflict between the Sinhala and Muslim communities or shots being fired at the offices of Sri Lankan politicians, reports of police shooting at Sinhala protesters in2013 who demonstrated against the pollution caused by a nearby factory do not have any direct relevance to Ms Ns’ claims, and a news report about an Australian Greens Senator who was detained by immigration officials in Sri Lanka in 2013, reports of military shooting Sinhalese protesters opposed to the pollution causes by a nearby factory, and specific reports about crimes against children.

    ASSESSMENT OF CLAIMS AND EVIDENCE

24. Based on the evidence before me, I accept that Ms N is a citizen of Sri Lanka and that she does not have a right to reside in any other country.

    Capacity issues

25. I have carefully considered whether Ms N was able to meaningfully participate in the review process. When asked if she felt able to participate in the hearing, she said she did. During the hearing I observed Ms N was readily able to understand and respond to my questions. While she was occasionally evasive in answers, when pressed to answer the question directly, she generally did so. She was, from time to time, tearful and the hearing was adjourned at one point so she could compose herself. She was also advised at various points in the hearing that if she needed a break, the Tribunal would provide her with one.

26. In assessing Ms N’s capacity to participate in the hearing, I had regard to the evidence available about Ms N’s mental and emotional state, including the [Organisation 1] report. I note that to the extent that the [Organisation 1] report expresses the view that Ms N displays symptoms of PTSD, depression and anxiety because of her own experience of trauma in Sri Lanka (the nature of which is not detailed in [Organisation 1] report) and the claimed abduction of her family members, those conclusions appear based entirely on Ms N’s self-reporting about what happened to her and to her family members in Sri Lanka. While the [Organisation 1] report indicates that Ms N experienced ‘multiple traumas’ in Sri Lanka, the report doesn’t shed any light on what actually happened to her in Sri Lanka.

27. I am prepared to accept that Ms N has suffered, and continues to suffer, from mental health issues, including anxiety and depression. I have had regard to the fact that author of the [Organisation 1] report considers Ms N presents with symptoms of PTSD, although I note that the [Organisation 1] report does not indicate that Ms N has been formally diagnosed with PTSD. I have been mindful of Ms N’s mental health and emotional state and the fact that she is unrepresented in conducting the review and assessing her evidence. I am not satisfied that the evidence that has been provided about Ms N’s mental health allows any conclusion to be drawn regarding the truth of her claimed circumstances in Sri Lanka, including her own past experiences or the experiences of her family since she left Sri Lanka. Such an assessment can only be made in the context of the totality of the evidence before the Tribunal.

    Credibility assessment

28. In determining whether Ms N is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of Ms N’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[16]  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.[17]

    [16] MIMA v Rajalingam (1999) 93 FCR 220

    [17] 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

29. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

    … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

    The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

1. I have also had regard to the Migration and Review Division’s Guidance on Vulnerable People.

2. After carefully considering all the evidence before me, I have reached the conclusion that Ms N is not a credible witness. At the hearing Ms N was put on notice that the Tribunal had doubts about the credibility of her claims that her family members had been abducted and that she had been questioned by the authorities about her knowledge of the LTTE. For all the reasons that are set out below I have formed the view that her claims are not credible. Her evidence about her claims that her family members have been abducted was at times inconsistent and vague and, at others, implausible. Her evidence that she was questioned on one occasion by plain clothes authorities about her father’s involvement with the LTTE was inconsistent with her written claims that she was detained and interrogated on six occasions and, after each occasion, required medical treatment. While I have carefully considered the available evidence about Ms N’s mental health and emotional state, I do not consider that it overcomes my concerns about the credibility of her evidence.

   Claims that Ms N’s family members have been abducted

3. Ms N claims that while she has been in Australia her mother, her father and her [sibling] have all been kidnapped. She claims that her parents were abducted in January 2013. She claims that she does not know what has happened to them, and the family home in [Village 1] is unoccupied. Before they were abducted her mother told her that they had been the target of ransom demands; someone in Sri Lanka had been demanding money from them, her brother had been kidnapped and the kidnappers asked for money. She gave evidence that after she tried, unsuccessfully, to contact her parents, in around February, her family’s neighbours told her that her parents had been abducted. Asked where her brother was at this time, she said with her parents. Asked where her brother was after her parents were abducted, she said he was with her grandmother. She referred to her claim that her brother had been abducted three times and she also told the Tribunal that he was at a friend’s place but then he was feeling unwell and his grandmother took him back.

4. Ms N told the Tribunal that her grandmother complained to the police about the abductions twice but the police did not do anything. She claimed that her brother has been abducted three times: the first time was in August 2012 (for two weeks), again in March 2013 (for twenty-eight days), and then again in October 2013 (for about a month). She told the Tribunal she didn’t know why he had been released on any of these occasions – with respect to the first occasion, she said her brother didn’t know because his abductors were talking in Sinhala.   She told the Tribunal that she didn’t speak to her brother after he returned to grandmother’s house after the third abduction and that her grandmother told her he was not talking to anyone. Before the Department and the Tribunal she said she believed that the kidnappers were attempting to obtain ransom payments, but to her knowledge no ransom money was ever actually paid.

5. Ms N gave evidence that she believed that the same people were responsible for the abduction of her parents as were responsible for the abductions of her brother. Asked about why she believed this, she said that her brother was very young and he didn’t get involved in anything. She knew that they had been asking for money from her parents and they said if they didn’t get the money, they would harm her parents’ children. She said she thought that the same people that abducted her parents abducted her brother. When asked whether the authorities could protect her from the people who abducted her family members, she said no -- [Village 1] is not a big place like Colombo, it is a small area, When her father was kidnapped,  the authorities could not find him and they couldn’t give protection to her grandmother or to her brother.

6. Ms N claims that her parents were first targeted for abduction in May 2012, after the end of the long running conflict between GoSL and the LTTE. I acknowledge that the country information indicates that disappearances and kidnappings for ransom still occur in Sri Lanka although with less frequency than when the conflict was ongoing.[18] DFAT assesses the number of incidents of extra-judicial killing, disappearances and abductions for ransom, including incidents of violence involving LTTE members, has fallen considerably since the end of the conflict. [19] Most disappearances remain unresolved. According to DFAT, there have been ‘incidents of kidnapping for ransom and incidents of kidnapping that appear to be politically motivated. No particular group has been the target of these attacks and they do not appear to be ethnically based’. [20]

   [18] DAFT Country Assessment Sri Lanka dated 18 December 2015, p.22-23

   [19] DFAT Country Assessment Sri Lanka, 18 December 2015, p22-23 (DFAT notes that following the end of the conflict some of the reported disappearances have related to political activists, while another relates to a Tamil businessman who filed court proceedings challenging his detention and abuse by senior police officers).

   [20] DFAT Country Assessment Sri Lanka, 18 December 2015, p 23.

7. Although Ms N has said that she does not know who is responsible for the abduction of her family members, she has repeatedly claimed that the perpetrators were ‘ransom seekers’: she has said that ransom demands were made before her parents disappeared and in relation to the repeated abduction of her brother. Ms N has consistently said that her father owns a [business] and several investment properties and that her family was well-off.  I acknowledge that there are credible reports of abductions and kidnappings for ransom occurring in Sri Lanka.[21] However, I found Ms N’s evidence that her family had been targeted by ransom seekers and extortionists to be highly improbable. Ms N claimed that her brother was abducted on three occasions but, despite being the subject of ransom demands, he was always released, even though – to Ms N’s knowledge – no ransom was ever paid. With respect to the first occasion her brother was abducted, she said that they asked for a big amount and her father started organising the money but, ultimately, they didn’t pay the ransom and her brother was still released. When Ms N was asked whether, after her parents were abducted, her grandmother or brother received any ransom demands, Ms N said no.

   [21] See, Tribunal file, folio 11 (delegate’s decision, p7 and the country information referred to therein), 

8. While Ms N could not be expected to know what is the mind of the kidnappers, I consider it strains credulity that her brother has been kidnapped three times by ‘ransom seekers’ and then, on each occasion, released without any ransom monies being paid, or any other explanation being offered for his release. Ms N’s evidence was that she believes that the same people are responsible for the kidnapping of her parents and her brother.  She has repeatedly suggested that their motivation is extortion and claimed that her parents were subject to ransom demands before her brother was abducted on the first occasion. But Ms N’s claim that the kidnappers have mercenary motivates is very difficult to accept as plausible when, according to her own evidence, the kidnappers never actually obtained any ransom money but her brother was still released on three separate occasions. When the Tribunal raised these concerns with Ms N, she said she didn’t know why they released him. She said they could have killed him; it was almost like being killed. She also told the Tribunal she didn’t know whether her mother or father were alive or not and then added she didn’t know whether her brother was alive or not.

9. I have considered whether Ms N’s evidence indicates that the kidnappers may have had other motives for kidnapping her family members. During the hearing, Ms N suggested that ‘another reason’ that the kidnappers may have kidnapped her brother again was because her grandmother had been going to the police ‘every day’.  I find this suggestion to be fanciful. Earlier in the hearing Ms N confirmed that her grandmother had made two complaints to the police: in June 2013 and in December 2013. Ms N told the Tribunal that her brother was first abducted in August 2012 before being abducted a second time in March 2013.  According to Ms N’s evidence both of these abductions occurred before her grandmother complained to the police in June 2013 (although curiously the purported extract from the police information book dated [June] 2013 makes no reference to Ms N’s brother being kidnapped on a second occasion in March 2013). According to Ms N’s evidence at the hearing, the third kidnapping occurred in October 2013 and her grandmother made a second police complaint some months later in December 2013.

10. In my assessment, Ms N’s evidence does not provide any basis for concluding that the kidnappers may have had a political motive for kidnapping her parents or for repeatedly kidnapping her brother. Ms N told the Tribunal that her [brother] has battled [a medical condition] since [a young age] and has never been involved in politics. Ms N has not claimed, and there is no evidence before me, that suggests her parents were politically active. When specifically questioned about whether her family had any involvement with the LTTE, Ms N said that to her knowledge they did not.  Ms N has described her father as a well-known businessman and, while she has claimed that he was assaulted by unknown persons in 2008 and that, shortly thereafter, plain clothed authorities questioned her about his involvement in the LTTE, for the reasons given below I do not accept that this claim is credible. To the extent that Ms N could be considered to have implied that her parents and her brother were abducted because her father was suspected of having links with the LTTE, and that the same thing would happen to her, I do not accept this is credible.

11. Ms N’s evidence about how she discovered that her parents were abducted, and her communications with her grandmother was improbable and shifted over time. Ms N told the Tribunal that about a month after her parents were abducted in January 2013 she was told they were abducted by their neighbours in Sri Lanka. Upon discovering this information, she telephoned her grandmother. Asked if she knew why her grandmother or brother didn’t call her to tell her about her parents’ abduction, she said her grandmother was not at her parents’ house at the time the abduction occurred.  Given Ms N has said her grandmother lived only [a short distance] away from her parents and her evidence indicates her brother was living with his parents up until they were abducted, I consider this explanation lacks plausibility.  

12. I was also troubled by the fact that, in her written claims, Ms N states that a school friend advised her electronically about what happened to her parents and then assisted her to find her grandmother and then her grandmother communicated to Ms N ‘through her friend’ from Ms N’s school days. She said she had to ‘totally depend’ on this friend to get the documentary evidence. Her statement says:

    accidentally they were able to contract each other electronically after nearly four years – such renewal of friendship helped me to find out what actually happened to my immediate family members including my parents and my brother. In search of information about my family, one of my school friends was able to locate and contact my grandmother, who volunteered to provide information and evidence to me through him (Departmental file, folio 79).

13. As I put to Ms N, her written claims differed from her evidence to the Tribunal, which was that she found out about her parents’ abduction from her neighbours, called her grandmother and had phone contact with her grandmother until sometime in 2014 at which time she claims her grandmother told her not to contact her anymore. In response Ms N’s evidence shifted, and she told the Tribunal it was her neighbour’s son who helped her get the details. I did not find this explanation to be persuasive: Ms N only claimed that she was assisted by a friend (who, she told the Tribunal, was the son of her neighbours) when asked about the discrepancies in her evidence. Further, Ms N’s evidence was that she always had her grandmother’s phone number so it is unclear why a friend would need to help her to locate her grandmother.  

14. I was also troubled by Ms N’s evidence that she is now unable to contact her grandmother or her brother or her neighbours. Ms N told the Tribunal that she last spoke to her parents in January 2013 before they were abducted; she had not contacted her brother since 2013 and she did not know how to contact him now; the neighbours who first told her that her parents had been abducted told her not to contact them after ‘things became worse’ as they did not want to be involved; she last spoke to grandmother in 2014 and, since then, she has been unable to contact her. Ms N gave evidence that the last time she spoke to her grandmother in 2014, her brother was living with her grandmother, but she had not actually spoken to her brother since 2013. 

15. I found Ms N’s evidence that she is no longer able to contact her grandmother to be inconsistent, evasive, and implausible. At the hearing Ms N was asked three times why she was no longer able to contact her grandmother. On the third occasion, Ms N told the Tribunal that her grandmother said not to contact her because of the problems there; she said her grandmother spoke in a particular manner and after that time her grandmother’s phone didn’t work. When it was put to her that it was not clear why her grandmother would tell her not to contact her or how Ms N speaking to her grandmother would put her brother at risk, she gave evidence that her grandmother instructed her not to call in 2014 because her grandmother was afraid their phone calls would alert the kidnappers to her brother’s movements. She gave evidence that her grandmother did not speak to anyone other than Ms N, and that she had told Ms N about her brother’s movements (for example, when he went to the shops) and her brother was kidnapped when he was away from her grandmother’s house. Ms N suggested that her grandmother was afraid that her phone was being tapped, and that by telling Ms N about her brother’s movements, she was putting him at risk. She also said that once her grandmother said she could hear a little tap noise on the phone. When it was put to Ms N that this explanation about why her grandmother stopped contacting her was different from the one she provided to the department, she said that her grandmother was also instructed by the [Village 1] police not to contact Ms N.

16. I do not accept Ms N has credibly explained why the [Village 1] police would instruct her grandmother not to contact her granddaughter in Australia. The department’s decision record indicates that Ms N told the delegate that the [Village 1] police advised her to limited contact with her grandmother and, when she was asked the date of her contact with the police, Ms N responded that she had never been in contact with police and her grandmother had been told by the police to tell Ms N.  When I put to Ms N that it was unclear why the [Village 1] police would be concerned if her grandmother contacted her granddaughter in Australia, Ms N responded that she felt that the police knew about her, and had her information, and that they thought this information might become available through the phone. I do not accept that Ms N has plausibly explained why the [Village 1] police would instruct her grandmother to cease taking phone calls from Ms N in 2014, over six months after her grandmother first complained to the police in June 2013.  I find Ms N’s evidence about why she stopped contacting her grandmother has changed over time. I do not accept any of the explanations Ms N provided, about why she cannot contact her grandmother, are plausible. I do not accept that she has told the truth about this matter and I consider that this detracts from her credibility.

17. Ms N’s evidence about why she has not spoken to her brother since 2013 was not persuasive. Ms N told the Tribunal that she had not spoken to her brother after he was released by his kidnappers on a third occasion, even though, according to her own evidence, she was still in contact with her grandmother until mid-2014 and her brother was living with her grandmother. Asked about whether she wanted to speak to her brother after he was released by his kidnappers on a third occasion, she said that he didn’t want to speak, that he was wounded and injured, that he couldn’t eat or speak for a few months and he had been beaten a lot. I found her evidence about this matter unconvincing and contrived. I find it strains credulity that Ms N is unable to contact her brother – either electronically or by phone – and that she does not know where he is now. I have considered her evidence that he hardly ever went to school, he was often in hospital, and they did not share the same friends. However, Ms N grew up in a small village in Sri Lanka, she has the means to contact people in Sri Lanka, and I am not persuaded that, if she wanted to do so, she could not find out where her brother is living now.  

18. Overall, I found the  applicant’s evidence that she can no longer contact anyone in Sri Lanka who knows anything about the abduction of her family members (she has said she can no longer contact her grandmother, her brother, and her neighbours in [Village 1]) unconvincing and contrived. At the start of the hearing, Ms N told the Tribunal that she was not in contact with anyone in Sri Lanka; she no longer spoke to the Sri Lankan family she lived when she first arrived in Australia and she doesn’t really speak to the Sri Lankans. However, she then gave evidence that the family with whom she currently lives with in Australia are Sri Lankan and, when asked whether she had facebook account, she gave evidence that she has over 1000 Facebook friends, some of whom are from Sri Lanka.[22] While Ms N told the Tribunal she does not contact anyone from Sri Lanka on Facebook, I consider she has exaggerated the difficulties she has contacting people in Sri Lanka; I am not persuaded that she could not find a way to contact her brother by phone or online.

    [22] When she was asked if she was on Facebook she said she was although she has recently deactivated her account (reactivating the account is easy: Ms N simply logs in again and then deactivates the account again; she did on the day before the hearing)

19. Ms N’s evidence that she has had problems in the past in Sri Lanka lacked credibility and this deepened my concerns about whether she was a reliable witness. When asked whether she had considered going back to Sri Lanka, Ms N gave evidence that, initially, she did, but then her grandmother said she had already experienced problems in Sri Lanka and this was why her parents sent her to Australia and that her grandmother considered that, for her own safety, Ms N should remain in Australia. While it is plausible that if Ms N’s parents had been abducted as she claimed, then Ms N might be apprehensive and frightened about returning to Sri Lanka, her evidence that her past problems in Sri Lanka help explain why she did not return to Sri Lanka after she discovered her parents had been abducted cannot be accepted as credible. Ms N has given vastly different accounts of her past experiences in Sri Lanka: her written claims state she was detained and assaulted on six different occasions requiring medical treatment each time whereas her evidence to the Tribunal was that she held for four or five hours on one occasion, during which time she was assaulted and questioned about her father’s involvement in the LTTE. As noted below, this inconsistency in her evidence has not been adequately explained.  Ms N’s conduct in returning to Sri Lanka voluntarily for three months in 2010 also undermines her claims that she left Sri Lanka because she had experienced ‘some persecution’, and this was one of the reasons her parents decided to send her to Australia after she finished school.  Ms N’s claims about what happened to her in Sri Lanka are discussed further below, and, for the reasons that are set out there, I do not accept Ms N is telling the truth about these matters. In my view, Ms N’s willingness to provide untruthful evidence about her experiences in Sri Lanka reflects poorly on her general credibility as witness and this, in turn, casts further doubt upon her claims that her family members have been abducted and that she is afraid of returning to Sri Lanka. 

1. I was also troubled that Ms N’s explanation for her delay in applying for protection shifted during the hearing. According to Ms N’s evidence, her brother was first kidnapped in August 2012 and then her parents were abducted in January 2013 but, as I put to her, she did not apply for protection until February 2014. Ms N responded that when she heard she was in shock and she didn’t know what to do – that was the reason she took so long. However, as I put discussed with Ms N, at that time she was represented by a registered agent before the Migration Review Tribunal and, during this process, she submitted some of the documents which she has now submitted in support of her protection visa application. Ms N then became tearful and gave evidence her grandmother advised her to pursue her studies and then consider what to do next. She gave evidence that she lodged her application to MRT after her brother was abducted.

2. Other aspects of Ms N’s evidence were also unconvincing. In particular, at various points in time, she has suggested that the Sri Lankan authorities are in league with the extortionists, and that those who complain to the authorities about extortion are at risk of harm. For example, when asked whether the authorities could protect her from the harm she feared, she noted that they had done nothing to protect her brother and then went on to say [Village 1] police have beaten up people who complained. She said someone she knew in [Village 1] went to complain to the police and the next day a van picked them up – she said she found an article on the internet and she has provided this. However, as I put to Ms N, her grandmother had reported her parents’ abduction to the police and she didn’t seem to have had any problems. She said that they didn’t harm her, they didn’t beat her up, they completed the paperwork about the complaint, but they did nothing. While Ms N has presented country information which indicates that, in some cases, the Sri Lankan authorities have been implicated in extortion and abduction, she has not presented any evidence which would support the conclusion that the authorities are responsible for, or implicated in, the alleged abduction of her family members.  While Ms N has suggested that people who make complaints to the authorities have been beaten up, she has not claimed that her grandmother faced any harm as a consequence of making complaints to the [Village 1] police.

3. I have considered whether Ms N is assisted by the fact she has previously referred to the abduction of her parents and her brother before the MRT. I have considered the decision record of the MRT and I do not consider it contains any information that is adverse to Ms N. Relevantly, the Decision Record  notes:

   The applicant’s grandmother provided some documents including an undated statement indicating that her daughter and son-in-law had been abducted for extortion and have disappeared. Further, that they had forwarded funds for the applicant’s studies including [an amount in] June 2012 and [an amount in] October 2012.

   The applicant also claims that her current studies are affected as her parents have been abducted in January 2013 by unknown persons. She claims they are still missing. This follows on demands for money made to her parents from about May 2012 and her claiming that her [brother] was abducted for ransom in August 2012 and held for a week before being released.[23]

   [23] Migration Review Tribunal decision no. 1210891

4. The MRT ultimately accepted Ms N ‘s evidence in relation to difficulties she had enrolling in [a] university and that, while on holidays in Sri Lanka, she fell and injured [a part of her body] resulting in her being unable to return to Australia in time for enrolment as she needed bed rest. It was not necessary for the MRT to make findings about her claims about the abduction of her family members and the MRT did not do so. While I do not consider the information in the MRT’s decision is adverse to Ms N, nor does the fact that Ms N mentioned the abduction of her parents in the course of her review application to the MRT, overcome my concerns about the credibility of these claims.

5. During the hearing, Ms N was asked whether there were any media reports relating to the abduction of her parents. There were not. She was also asked whether, prior to her attendance at [Organisation 1] in October 2015 and her application for a protection visa, she had spoken to a counsellor or a doctor about the abduction of her family members. She had not. She didn’t speak to many people about this; she had spoken to Red Cross about it after she applied for protection and obtained asylum seeker assistance.

6. I have considered the [Organisation 1] report which contains a summary of information Ms N reported to a counsellor between October 2015 and December 2015. There are some variations in the account which Ms N has provided to the Tribunal and the summary contained in the [Organisation 1] report. As I put to Ms N, the report refers to her parents being abducted in 2014, whereas Ms N said that this event occurred in January 2013; the report also states she was worried about her [brother] who was living with a school friend to protect himself from kidnapping whereas Ms N told the Tribunal the last time she spoke to her grandmother her brother was still living at her grandmother’s house. Questioned about whether she knew if her brother was now living somewhere else, Ms N said last she knew her brother was with her grandmother but she mentioned before that he was with his school friends for a while but, because he was unwell, he went back to his grandmother’s house. Ms N also indicated that the [Organisation 1] report mistakenly provides the wrong date for her parents’ abduction – she only got the [Organisation 1] report the night before the hearing.  I am prepared to give Ms N the benefit of the doubt on the issue: I accept a mistake may have been made by the counsellor in summarising the information Ms N provided to [Organisation 1].

7. To the extent that the information contained in the [Organisation 1] report is consistent with the information Ms N has presented in the course of her protection visa application, I consider this can be given little weight, because it reflects information that was reported by Ms N to a counsellor while she was applying to the Tribunal to review the delegate’s decision to refuse her protection visa application.  To the extent that the author of the [Organisation 1] report suggests that Ms N displays symptoms of anxiety, depression and PTSD because of what she says has happened to her and her family in Sri Lanka, I am not satisfied that this is the case. Therefore, while I am prepared to accept that Ms N is depressed and anxious about her immigration status in Australia and the prospect of returning to Sri Lanka and that there may well be other reasons, about which the Tribunal has not be told, that she is depressed and anxious, for all the reasons that are set out above, I am not satisfied she has told the Tribunal the truth about what has happened to her family members in Sri Lanka or her past experiences in Sri Lanka.

8. I have considered whether Ms N is assisted by the documentation which she has provided to support her protection visa application: specifically the purported extracts from the [Village 1] police information book, and the letters which are purportedly from the grandmother. As is apparent from the grandmother’s letter, the police information reports were previously submitted in support of Ms N’s application to the Migration Review Tribunal. The purported extracts from the [Village 1] police information book record what her grandmother told the police; they do not record what the police did in response to these complaints. In my assessment, little weight can be put on these documents. This is because, as I put to Ms N, firstly, the documents she has provided are copies and it is not possible to verify their authenticity; secondly, DFAT indicates it is relatively easy to obtain fraudulent documentation in Sri Lanka.[24] 

   [24] DFAT Country Information Assessment: Sri Lanka, 18 December 2015, p.32

9. Furthermore, while the documents Ms N submitted do contain references to the abduction of her family members their contents are also, in some respects, difficult to reconcile with Ms N’s evidence to the Tribunal about the abduction of her family members. For example, Ms N claims her brother was abducted for a second occasion in March 2013 but the extract from the [Village 1] police book dated 20 June 2013 only mentions her parents’ abduction in January 2013. Ms N’s own evidence on this issue was somewhat confusing: at one stage in the hearing she said her brother was abducted three times after the first police complaint (made in June 2013), at another point in time she told the Tribunal her brother was abducted on a second occasion in March 2013).  Also of concern: the timing of the police reports (in June 2013 and December 2013) does not correspond to when Ms N said the kidnappings occurred (August 2012, January 2013, March 2013, and October 2013). While Ms N has said that her parents did not want to report the matter to police because of threats from the kidnappers and her grandmother was also reluctant to report her parents’ kidnapping to police for similar reasons and so did not approach the police until some months after her parents’ were abducted, I am not persuaded that her grandmother would have waited until June 2013 to report the abduction of her daughter and son-in-law.

   Claims that she was mistreated by the authorities in her school days and interrogated by the authorities about her knowledge of the LTTE

10. Ms N claims that, when she was still at school, she was physically assaulted and interrogated by the authorities to obtain information about the LTTE.  Ms N gave evidence to the Tribunal she never had any association with the LTTE and nor, to her knowledge, did her family. She acknowledged she lived in a government controlled area but she said the country information indicated that there were still problems for Tamils living in this area. Before the Tribunal she gave evidence that there was only one incident, which occurred in 2008, in which she was detained and mistreated for around four or five hours. Ms N told the Tribunal this happened about two months after an incident when unknown assailants came to her house, knocked on the door, and pulled her father out and beat him. She told the Tribunal that, shortly after this incident, she was attacked by assailants who kicked her and pulled her hair and questioned her about whether her father was helping the tigers and providing things to them. She believed that they were the authorities although they were dressed in plain clothes. When Ms N was asked whether the incident she described in 2008 was the only time she experienced harm in Sri Lanka, she said yes. 

11. While it is true that some Tamils in North-Western Sri Lanka have been detained and mistreated by the authorities in relation to their suspected links with the LTTE, I do not accept that Ms N has ever experienced any harm at the hands of the Sri Lankan authorities. Ms N was a teenager in a government controlled area when she claimed she was interrogated. Her evidence about the problems she had before she left Sri Lanka has changed significantly over time. As I put to Ms N her written statement, which she said she prepared herself, said  

    During my school days, I was detained and interrogated 6 or more times by the authorities and armed forces. During each interrogation, I was physically assaulted by the interrogators with an intention of obtaining information forcibly about the Liberation Tigers of Tamil Elam (LTTE) or similar organisation

12. In contrast, she told the Tribunal that there was only one occasion on which she was questioned by the authorities. When questioned about these inconsistencies, Ms N gave evidence she was only taken in and tortured on one occasion but she was questioned on multiple occasions. In my assessment, Ms N’s evidence shifted over the course of the hearing in an attempt to address the discrepancies in her evidence. I consider Ms N’s shifting and inconsistent evidence about her experiences in Sri Lanka detracts from her credibility as a witness. 

13. I do not accept Ms N’s explanation for the significant discrepancy between her written claims and her oral evidence to the Tribunal. Ms N’s written claims, which she said she prepared herself, assert that she was detained and physically assaulted on 6 occasions, and that, on each occasion, she needed medical treatment. These are not minor inconsistencies; they are vastly different accounts of her interactions with the Sri Lankan authorities. Ms N’s written claims do not refer to her subsequent claims, raised before the Tribunal, that in 2008 her father was beaten by unknown assailants or that when Ms N was interrogated in order to find information about the LTTE or a similar organisations, her interrogators asked her about her father’s involvement with the LTTE.

14. I note that when Ms N claimed her interrogators asked her about her father’s involvement with the tigers, I put to her that I didn’t think that she mentioned her father was beaten in 2008 or that she was questioned about her father’s involvement in the LTTE to the delegate. Ms N responded she that she did mention this. Having reviewed her statement of claims and the interview with the delegate, I find Ms N was mistaken – she did not mention that she was questioned about her father’s involvement with the LTTE or that he was beaten in her interview with the delegate. I do, however, note that the delegate did not ask Ms N about her problems in Sri Lanka in any detail, instead observed Ms N had travelled in and out of Sri Lanka and ‘the war was over’.  Because Ms N was not asked any questions about her claimed detention and interrogation by Sri Lankan authorities by the delegate, I do not consider it appropriate to place any adverse weight on the fact that she did not mention being asked about her father’s involvement in the LTTE.

15. In addition to the discrepancies between her written claims and her oral evidence to the Tribunal, there are other reasons to doubt Ms N’s claims that she was ever detained and mistreated by the Sri Lankan authorities or anyone else. Ms N gave evidence that neither she nor her family were ever involved in the LTTE; that she travelled out of Sri Lanka without difficulty on a passport issued in her name; that she returned to Sri Lanka to visit her family for a three month period of time. Ms N’s evidence does not indicate she was frightened of returning to Sri Lanka in 2010 because of any trauma or difficulties she experienced there: she told the Tribunal that she returned to Sri Lanka from Australia to visit her family because she was home-sick. Her own evidence indicates that she left Australia because she was intending to study in Australia: she has said that she did not, at that time, intend to seek asylum. When she left Sri Lanka, her parents expected her to finish her studies in Australia and find a job, or return to Sri Lanka and work in her father’s [business].

16. The UNHCR has advised, and I accept, that persons suspected of with certain links to the LTTE may be at risk of harm on return to Sri Lanka.[25]  However, for the reasons that are discussed above, I do not accept that it is credible that Ms N was ever, or is now, of any interest to the Sri Lankan authorities because of her suspected links to, or knowledge of, the LTTE. In reaching this conclusion, I have considered Ms N’s evidence that in the past she was quite young and all she knew was her father was doing business in the North: they asked her father about his involvement in the LTTE and then they questioned her too.  She also said when she was in Sri Lanka her parents didn’t come to the airport, although exactly what (if anything) she was trying to imply by this statement is unclear as if the authorities wanted to speak to her father, they could have done so at her family home. She also said her brother was young and had never had any involvement with the LTTE: she asked why was he harmed and abducted?  However, on the evidence before me, I am not satisfied that Ms N’s brother has been abducted or that Ms N was ever suspected by the Sri Lankan authorities of having links with, or knowledge of, the LTTE.  Nor am I satisfied that Ms N would be suspected of having any links with the LTTE if she returned to Sri Lanka now. Even if it were to be accepted (which I do not) that she was questioned by authorities in plain clothes in 2008 about whether her father supported the LTTE, her evidence indicates she was released after four or five hours.  Her evidence to the Tribunal does not indicate that she was questioned again or that she had any problems when she voluntarily returned to Sri Lanka in 2010.

    [25] Persons who held senior position, former combatants, former supporters who provided shelter, transport or supplied goods, fundraisers and propaganda activists, family members of the above: UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing Protection needs of Asylum Seekers from Sri Lanka, 21 December 2012.

17. For the reasons set out above, I find that Ms N was not of any interest to the Sri Lankan authorities at the time she left Sri Lanka for any reason. In my view, Ms N’s claims about her past interactions with the Sri Lankan authorities lack consistency over time and her decision to voluntarily return to Sri Lanka in 2010 indicates that she did not, at that time, have any fear of returning to Sri Lanka. I do not accept that she was of any interest to the Sri Lankan authorities in the past and I do not accept she is now of any interest to the Sri Lankan authorities for any reason. Because I do not accept that Ms N was ever detained and interrogated by the Sri Lankan authorities, I do not accept that she was asked about her father’s involvement with the LTTE or that the Sri Lankan authorities have any adverse information about her father or that she is of any adverse interest to any person or group in Sri Lanka. Nor, on the evidence before me, do I accept that the Sri Lankan authorities ever suspected her father of having links to the LTTE.

    Conclusions about whether Ms N and her family have been harmed in the past

18. On the evidence before me and, having regard to my cumulative concerns about Ms N’s evidence, I find that she is not a witness of truth. I accept that Ms N is young woman of the Tamil ethnicity from [Village 1] in Sri Lanka. I accept that her father has worked as a businessman and travelled to areas of Sri Lanka which were once controlled by the LTTE. However, I do not accept that she was ever subject to detention and interrogation by the Sri Lankan authorities (or people who she believed to be the authorities) and asked about her knowledge of the LTTE and/or her father’s involvement with the LTTE.  On the evidence before me, I do not accept that her father was ever of adverse interest to the Sri Lankan authorities because of his involvement with the LTTE or that he was beaten in 2008 for this reason. Nor, on the evidence before me, am I satisfied that Ms N’s family members have been abducted as claimed. While I have had regard to the [Organisation 1] report and the evidence about Ms N’s mental health, I am satisfied that Ms N had the capacity to participate in the hearing and, having considered all the evidence before me, the [Organisation 1] report does not overcome my concerns about the credibility of Ms N’s evidence. 

19. I do not accept that Ms N’s parents or her brother were ever abducted as claimed. While I acknowledge that there are some reports that wealthy businessmen in Sri Lanka have been subject to extortion, on the evidence before me I am not satisfied that Ms N’s family were ever the target of extortionist or ‘ransom seekers’ as claimed. I consider the documents presented by Ms N can be given little weight and, to the extent that they can be said to corroborate Ms N’s claims, they do not overcome my concerns about the credibility of her evidence.  Because I do not accept that Ms N’s family members have been abducted and harmed in the past as claimed, I do not accept that the unknown persons will target Ms N and subject her to extortion or related harassment, or abduct, kill or otherwise harm her because she a member of the family of a wealthy businessman/ or a wealthy Tamil businessman or because her family members have previously been targeted for extortion or abduction or for any other reason. Because I do not accept Ms N’s family members have been abducted or harmed in the past, I do not accept that Ms N’s grandmother ever complained to the [Village 1] police about this matter or that her brother was, or is, in hiding.

1. I do not accept that there is a real chance that, if Ms N returns to Sri Lanka, there is a real chance that she will be subject to criminal activity amounting to serious harm or significant harm for the reasons claimed now or in the reasonably foreseeable future. On the evidence before me, I do not accept that there is a real chance that she would be subjected to extortion or related harassment by any group or persons if she returns to Sri Lanka now, or in the reasonably foreseeable future.

   Whether Ms N’s profile would put her at risk of harm upon return to Sri Lanka

2. I have considered whether Ms N would suffer harm because of her Tamil ethnicity. In the past UNHCR reported that a person’s ethnicity and place of origin alone could be enough for the GoSL to impute to them an adverse LTTE-related profile, and, in 2009, the UNHCR considered that simply being a Tamil male from the northern or eastern provinces was in itself considered enough to arouse suspicion and the perception of an association with the LTTE, and place such a person at risk of harm.[26]  However, as I discussed with Ms N,in its 2010 ‘Eligibility Guidelines’ and then in its December 2012 Guidelines, UNHCR revised its position; there is no longer a presumption of eligibility for protection of Sri Lankans simply on the grounds that they are Tamils[27]. Further, originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.[28]

   [26] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka April 2009, pages 21-23,

   [27] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, UNHCR, 21 December 2012, Section A.1.

   [28] UNHCR ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 21 December 2012, Section A.1.

3. Ms N has said that, even though she lived in a government controlled area, there were a lot of Tamils in her area and her home area appears in a map of Tamil Eelam produced by the LTTE. I  accept this but, as I put to her, the country information available to the Tribunal– including the recent DFAT report and the UNHCR Guidelines -- does not indicate that all Tamils in Sri Lanka are in need of international protection. I put to Ms N that, while there were still problems in Sri Lanka, the situation of Tamils had improved somewhat since the end of the conflict and, more recently, the defeat of President Rajapaksa.  Ms N argued that the belief that President Sirisena will improve the lot of Tamil people in Sri Lanka is misplaced; she said, correctly, that he has been involved in politics for a long time and was closely connected with the policies of President Rajapaksa. She also provided a series of news reports for the Tribunal under the cover of a note titled ‘President Sirisena is not a good man’, however most of these reports do not concern President Sirisena but other events in Sri Lanka, which are not relevant to Ms Ns’ claims.[29] 

   [29] For example, the news reports mostly refer to ongoing tensions between different religious and racial groups in Sri Lanka (particularly campaigns against Muslims by ultra-nationalist Sinhala Buddhist groups). Some of the reports are undated, others pre-date President Sirisena’s election.

4. While I accept Ms N is sceptical about whether President Sirisena will improve the situation of the Tamil people in Sri Lanka, the weight of evidence does not support the conclusion that Tamils in Sri Lanka face a real risk of serious harm of significant harm. In reaching this conclusion I have considered the country information Ms N has provided. Some of the reports concern human rights violations in Sri Lanka in the post-conflict environment including reports that some Tamil returnees have been tortured; others deal with violations that occurred during the conflict between the GoSL and the LTTE. Ms N told the Tribunal that UNHCR says that Tamils were not harmed and things have improved, but there was a report done by them in her village which shows that Tamils are still being persecuted and women have been raped. When I queried whether this was a report by the UNHCR, Ms N said there was a report  by international red cross which said the new President has given promises that Tamils are safe but he has not delivered on any of the promises yet. 

5. The country information provided by Ms N does not contain any reports by the UNHCR or the International Red Cross that would support the conclusion that Tamils or female Tamils are simply by reason of their gender and/or ethnicity at real risk of serious harm or significant harm. In my assessment, the weight of country information, including the reports by the UNCHR and DFAT, support the conclusion that simply being a Tamil does not expose a person to a risk of serious harm or significant harm. The most recent UNHCR Guidelines, which as I explained to Ms N, were issued on 21 December 2012, identify a non-exhaustive list of general risk profiles which may give rise to a need for protection:

   (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[30]

   [30], UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December  2012 p5

6. I note that in assessing whether a person is at risk of harm the UNHCR Guidelines caution that, within the risk profiles, there is still an ethnic and geographic dimension to vulnerability and ‘generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subject to arbitrary detention, abductions, or enforced disappearances’, as well as other human rights issues’.[31]

   [31] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December  2012 p26

7. A February 2014 United Nations document, which is to be read in addition to the UNHCR Guidelines from December 2012, states that  ‘many of the reported human rights abuses in Sri Lanka ‘are carried out against Tamil men and women that are perceived to have, or have had, links with the [the LTTE]. Also rejected asylum seekers and returnees appear to be at risk of torture, if accused of anti-government political activity or of links to the LTTE’.[32] 

   [32] UNHCR, Sri Lanka: Country of Origin Information Relating to the Targeting of Ex-LTTE Members/Combatants, 3 February 2014,  >

   With respect to the risks facing women in Sri Lanka, as I discussed with Ms N the UNHCR only considers women in certain circumstances to be at risk of harm. The UNHCR provided examples, including (but not limited to) women who may be at risk of prostitution or vulnerable to trafficking or former female cadres and war widows, and women who relied upon the security forces for access to family members who were detained. I put to Ms N that she did not appear to fall within any of the risk profiles identified by the UNHCR.

8. The UNHCR have said that people who have or are perceived to have links to the LTTE may be at risk of harm. For the reasons that are set out above, I have found Ms N’s claim that she was questioned about her father’s links to the LTTE in the past is not credible. On the evidence before me, I am not prepared to accept that the Sri Lankan authorities ever suspected Ms N or her father of having links to the LTTE. On the evidence before me, I do not accept that the Sri Lankan authorities have ever suspected Ms N of having any links with, or knowledge of, the LTTE.

9. While I have considered the country information Ms N has provided in support of her claims, I am not persuaded it assists her case. As I explained to her, I need to consider this country information in the context of her particular claims and circumstances and whether there is a real chance that she personally would be harmed if she returned to Sri Lanka.  The country information Ms N has provided is not about her or her family members, and only a small number of reports refer to the issue of extortion and ransom. Some of the country information concerns investigations into the murder of particular individuals, other reports deal with child sexual abuse, sexual violence during the conflict, and a more recent report about a teenager who was brutally raped and murdered in Jaffna, and incidents of violent crime in Sri Lanka.

100.   As noted above, I do not accept that Ms N’s family members were abducted in Sri Lanka in 2012 and 2013. Even if I were to accept these claims (which I do not), as noted below, I consider that Ms N could avoid a real chance of facing serious harm or significant harm at the hands of unknown  criminals in her home village by relocating to another part of Sri Lanka, such as Colombo. I do not accept that, in this event, Ms N would be a victim of crime if she returned to Sri Lanka because of the prevalence of crime in Sri Lanka or because she is a young woman or a young Tamil woman or because of a combination of these factors. I do not accept that there is real chance that Ms N will be the victim of criminal activity amounting to serious harm or significant harm if she returns to Sri Lanka.

101. Ms N travelled to Australia legally on her own passport, which is valid until [2016]. As I put to her, it is difficult to see why the Sri Lankan authorities would identify her as a failed asylum seeker: she left Sri Lanka on a valid passport in her own name which expires [in] 2016. Ms N said people who sought in asylum in Australia and are sent back are caught in the airport or beaten. However, as I put to Ms N, even if the Sri Lankan authorities did assume she sought asylum in Australia (and it was not clear why they would), the country information did not indicate that a person of her profile would be of any interest to Sri Lankan authorities: she might be questioned at the airport, but she would then be free to go. Ms N suggested that after they let her out, they would get her and do something.

102.   I have had regard to a range of country information regarding the treatment of Tamil returnees to Sri Lanka,[33]  including the most recent DFAT report.[34] While I accept that there are reports that some Tamils who have returned to Sri Lanka have been tortured or otherwise harmed, in my view the weight of country information indicates that the cases in which it can be said there is a real chance that this will occur are cases where the returnees have a risk profile of the type described in the UNHCR Guidelines or have attracted the adverse attention of the Sri Lankan authorities because of their political activities or have otherwise been involved criminal activity that means that they are likely to spend a prolonged period in the custody of the Sri Lankan authorities. 

[33] This includes information provided by Ms N and reports by human rights groups: see, for e.g, Human Rights Watch, World Report 2015 - Sri Lanka, 29 January 2015, available at: Freedom from Torture, Tainted Peace - Torture in Sri Lanka since May 2009, August 2015, available at: Department of Immigration and Border Protection, Issue Paper – Sri Lanka: Treatment of Failed Asylum Seekers and Returnees’, December 2015; UNHCR, Sri Lanka: Country of Origin Information Relating to the Targeting of Ex-LTTE Members/Combatants, 3 February 2014,  Bar Human Rights Committee of England and Wales (BHRC) and The International Truth & Justice Project, Sri Lanka, by Yasmin Sooka, (p19); International Truth & Justice Project Sri Lanka, A Still Unfinished War: Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015, July 2015.

[34] DFAT Country Information Report: Sri Lanka, 18 December 2015, p.29-30

103.   I do not accept that there is a real chance that Ms N will face serious harm or significant harm because she is Tamil failed asylum seeker. I have found that Ms N is not now, and never has been, of adverse interest to the Sri Lankan authorities for any reason. Even if it is accepted that the Sri Lankan authorities will assume Ms N has claimed asylum in Australia, I do not accept that there is a real chance Ms N will suffer serious harm or significant harm for this reason. While it is possible that Ms N may be questioned by the authorities, I place weight upon DFAT’s advice about the treatment of returnees, which does not, in my view, indicate that there is a real chance that Tamil returnees will be harmed simply because they have returned to Sri Lanka after seeking asylum.[35]

[35] DFAT Country Information Report: Sri Lanka, 18 December 2015; DFAT Country Information Report: Sri Lanka, 16 February 2015; DFAT Country Information Report: Sri Lanka, 31 July 2013.

104.   Having considered all the evidence before me, I do not consider that there is a real chance Ms N will face harm of any type if she returns to Sri Lanka now or the reasonably foreseeable future. I do not accept that Ms N is a person with the type of profile described in the UNHCR Guidelines. I do not accept that Ms N faces a real chance of serious harm in Sri Lanka because she is of the Tamil ethnicity or because she is a young Tamil woman or because of the crime rate or because she has unsuccessfully sought asylum or because of a combination of these factors, now, or in the reasonably foreseeable future.  I further find that Ms N does not face a real risk of significant harm if returned to Sri Lanka arising from her Tamil race or her age or gender or because of criminal activity or because she has sought asylum abroad or because of a combination of these factors.

Other matters 

105.   For the reasons set out above, I do not accept that Ms N was ever of adverse interest to the Sri Lankan authorities for any reason or that her family members were ever harmed by criminal individuals. Although it is unnecessary to do so, I note that even if Ms N’s claims that her family members were abducted by unknown criminal individuals were accepted (which, for the reasons set out above, they are not), I consider that Ms N could avoid the harm she claims she fears from non-state actors in her home area of [Village 1] (where she claims the abductions occurred) by relocating to another part of Sri Lanka, such as Colombo.

106.   When asked why she couldn’t relocate to Colombo to avoid the harm that she feared, Ms N told the Tribunal she would be killed. It was put to her that she had said she was no longer in contact with her family members and it wasn’t clear why the people who were in contact with her family members would know that she had returned to Sri Lanka or that there was a real chance that she would be targeted by these people if she relocated to Colombo. Ms N reiterated that she believed that, one day, the unknown abductors would find her and she would be killed.

107.   Even if I were to accept that Ms N’s family members were abducted by unknown criminals, (which I do not), her own evidence does not support the conclusion that the Sri Lankan authorities were involved in these abductions. Nor does her evidence suggest that her grandmother, who she claims made complaints to the [Village 1] police, experienced any harm as a consequence of doing so. Nor does the evidence support the conclusion that there is a real chance the unknown criminals would be aware that Ms N has returned to Sri Lanka or that, even if they were, they would be motivated to pursue Ms N in Colombo.

108.   I am satisfied that Ms N, who is an educated woman who speaks Tamil, Sinhalese and English would be able to reside safely in another part of Sri Lanka, such as Colombo, and that it is reasonable for her to relocate.  While Ms N may have to support herself without the assistance of family members, this is what she has done in Australia. Ms N has travelled abroad to [Country 1] alone, lived alone in Australia while undertaking her studies, and [worked]. While I note she presently receives some financial assistance from the Australian Red Cross and is not working, during 2013 she [worked] to support herself. She grew up in Sri Lanka, has studied in [various locations], and still has contacts in Sri Lanka. 

109.   Having considered Ms N’s particular attributes and circumstances and the potential impact of relocation upon her, I consider it would be reasonable, in the sense of practicable, for her to relocate to another part of Sri Lanka, such as Colombo, to avoid the harm she claims she will face in her home village. Accordingly, even if it were to be accepted (which I do not) that Ms Ns’ parents and brother were abducted in [Village 1], which as Ms N has said, is a small village, I consider that it is reasonable for Ms N to relocate to an area of Sri Lanka, where there would not be a real chance that she would be the target of criminal activity amounting to serious harm or significant harm.  I do not accept that there is a real chance that Ms N would face serious harm if she returned Sri Lanka for any other reasons relating to the claimed abduction of her family members, now or in the reasonably foreseeable future.

110. Section 36(2B) of the Act provides that there is taken not to be a real risk if it would be reasonable for Ms N to relocate to an area where there would not be a real risk that he or she would suffer significant harm. For the reasons discussed above, I find that it is reasonable for Ms N to relocate to an area of Sri Lanka away from her family home in the village of [Village 1], to a large city such as Colombo where there would not be a real risk that she will suffer significant harm as a result of being targeted by criminals. The issues which arise when considering the reasonableness of relocation in the refugee context are the same as those which arise in the complementary protection context.[36]Accordingly, I find that it would be reasonable for Ms N to relocate to another part of Sri Lanka where there is not a real risk that she will suffer significant harm. I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of Ms N being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm.

[36] MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013) at [37].

Conclusions

111.   Having regard to all the circumstances and findings above, both individually and cumulatively, I find that there is no real chance that Ms N will be subject to serious harm in Sri Lanka for any of the Convention reasons or for any other reasons now or in the reasonably foreseeable future. Having regard to all of the circumstances and claims and my findings above, I further find that there are not substantial grounds for believing there is a real risk Ms N will suffer significant harm arising from her race or gender or an imputed link with the LTTE or her membership of her family group, or her status as a returnee or a failed asylum seeker or any combination these factors. I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of Ms N being removed from Australia to Sri Lanka, there is a real risk she will suffer significant harm. 

CONCLUSION

112. For the reasons given above, the Tribunal 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).

113. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

114. 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

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

Frances Simmons
Member