1418371 (Refugee)

[2016] AATA 3891

1418371 (Refugee) [2016] AATA 3891 (30 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418371

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rachel Homan

DATE:30 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2016 at 11:05am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The applicant appeared before the Tribunal on 24 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Sri Lanka for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

5. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

    Visa application

11. According to information provided in his visa application forms, the applicant is [an age]-year-old born in [his home district], Jaffna in the Northern province of Sri Lanka. The applicant stated that he could read, write and speak Tamil and English. The applicant identified as belonging to the Tamil ethnic group and Hindu religion.

12. The applicant stated that he was married in India [in] July 2008 and provided details of his wife and [children], all of whom were identified as presently residing in India. The applicant stated that his father was deceased and that his mother and [sibling] also resided in India.

13. The applicant completed his [education] in Sri Lanka then left in October 1990, by sea, and travelled to India. Between October 1990 and June 2012, the applicant resided at a Sri Lankan Refugee Camp in [a location in] Tamil Nadu. The applicant completed [further`] education to Year [grade] at [a college in] India. Between 2006 and 2011, the applicant completed an apprenticeship, then worked as [an occupation]. Between 2011 and June 2012, the applicant was employed in casual jobs as [two different occupations]. The applicant arrived in Australia as an Unauthorised Maritime Arrival [in] June 2012.

    Statutory declaration –[September] 2012

14. The applicant’s claims for protection were set out in a statutory declaration prepared with the assistance of a Tamil interpreter [in] September 2012. According to his declaration, the applicant is a national of Sri Lanka and has no right to enter and reside in any other country.

15. The applicant stated that he left Sri Lanka with his mother and [sibling] in 1990 when he was approximately [age] years old. The applicant understood from his mother that they fled because of the war and violence against Tamils in the North of Sri Lanka. The applicant claimed that, as he had not been in Sri Lanka for many years, he did not have first-hand knowledge of the situation in that country but had read about Tamil people being arrested, tortured and killed and feared that the same would happen to him. The applicant claimed to fear the Sri Lankan government and Sri Lankan authorities including the Army. The applicant claimed that as a young Tamil man he may be at risk of serious harm simply because of his ethnicity.

16. The applicant also expressed the belief that he may be seen as an LTTE supporter member. The applicant claimed that [his] [Relative As] joined the LTTE after his family left Sri Lanka. Whilst the applicant remained in the camp in India, [Relative As] visited several times, most recently in 2008. They told the applicant and his family that they came to do some work for the LTTE but did not say exactly what they were involved in. The [Relative As] told the applicant that the rest of the family had left Sri Lanka and they were the only ones remaining in the country. The applicant said he had not heard from these [Relative As] since they last visited and believed that they were probably killed in 2009. The applicant stated that it was well known in the refugee camps that his [Relative As] were in the LTTE and were visiting them. The applicant expressed the belief that the Sri Lankan government would be aware of this and that the applicant would be suspected of being an LTTE member or supporter if he returned to Sri Lanka.

17. The applicant also claimed that during the final phase of the war in 2009, he learned about the abuse of Tamil people in Sri Lanka and decided to take action to raise awareness about this. The applicant attended protest meetings and put up posters in the streets outside the camp. The applicant helped in any way he could, for example, by putting out chairs for meetings. These activities were not organised by any particular group and most people in the camps were involved and had the support of some local Tamils.

18. Members of [the] Indian police spoke to people who attended these meetings. The applicant claimed he was questioned about six or seven times - the first time being in about April 2009. The applicant was asked whether he was an LTTE supporter. The applicant responded that he did not support the LTTE but just wanted to protest against the abuse of Tamils. They were warned to stop these activities or they would be gaoled. The applicant continued to protest against the abuses but they tried to keep their activities secret. The applicant stated that he was questioned another five or six times over the next two or three months. The applicant was continuously threatened with gaol if the activities continued and some people were assaulted by the police, although the applicant himself was never gaoled or assaulted. The applicant stopped attending protests and, after a while, the protests stopped altogether. The applicant expressed the belief that the Sri Lankan authorities would know about his activities if he returned to Sri Lanka and that he would face problems because of this.

19. The applicant claimed that he had no relatives in Sri Lanka and nobody to support him. Apart from his birth certificate, he had no documents at all. The applicant claimed there would be no one to help him if he returned to Sri Lanka and he would be particularly vulnerable.

    Representative’s submissions – 25 September 2013

20. The application was accompanied by a written submission, dated 25 September 2013, prepared by the applicant’s legal advisers. According to the submission, the applicant is a Sri Lankan citizen by birth. The submission notes that the applicant had provided copies of his birth certificate and refugee documents issued by the Indian authorities to the Department previously.

21. The applicant’s representative stated that the applicant feared persecution at the hands of security services and/or affiliated paramilitary organisations owing to his Tamil ethnicity, past association with LTTE members, and his involvement in protests against the Sri Lankan government in 2009. In addition, the applicant had fled Sri Lanka illegally and applied for asylum in Australia and feared that these additional circumstances would heighten his risk of serious mistreatment on return to Sri Lanka. In support of the contention that the applicant’s fears of harm were well-founded, the submission contained extracts and analysis of relevant country information.

    Additional evidence

22. Contained on the Department’s file are a photograph of the applicant with his wife and [children]; untranslated birth certificates issued by the government of Tamil Nadu; untranslated Sri Lankan birth certificates; a Sri Lanka Refugees Identity Card and an untranslated written statement. A file note in the English language purports to translate the written statement and indicates that the applicant feared being tortured by the CID if he returned to Sri Lanka as he has no ID may be regarded as part of the LTTE due to his escape to India. The applicant claimed to have travelled to Australia to protect his family and his life.

23. Also contained on the Department’s file is a record of the applicant’s entry interview. According to that record, when asked why he left India, the applicant responded that he had lived there for [number] years and was subject to restrictions, including having to sign a register every time he left and returned to the camp and attend checks. The applicant claimed that he had no freedom and had not been granted citizenship. The applicant indicated that he had difficulty finding work as a Sri Lankan national and was only able to do basic labour work for low wages. The applicant stated that if he remained in India his life would not improve. The applicant now had children and wished to improve their life. The applicant stated that he and his family left Sri Lanka in 1990. The applicant stated that his [relatives] were there but he did not know if he had a house. The applicant stated that the authorities would ask the applicant where he had been all these years and what he was doing.

    Protection visa interview – [September] 2014

24. The applicant was interviewed by an officer of the Department [in] September 2014 and the Tribunal has listened to a recording of that interview. During the interview, the copies of the applicant’s identity documents were translated. The applicant provided evidence in relation to his personal circumstances and family composition that was consistent with the other information provided with the application.

25. The applicant stated that his father died in [an incident] in 1990. That same year, the applicant went by boat to India as a refugee. The applicant described life in the refugee camps in India including the restrictions on his movement.

26. The applicant was asked about the [Relative As] mentioned in his statutory declaration. The applicant initially described them as “[description]”. The applicant said they were involved with the LTTE and, in 2008, visited the camp in India. The applicant said he thought they were killed in 2009. Asked to explain how he was related to them, the applicant stated that they were his [details deleted]. The applicant later agreed that they were his [Relative As]. The applicant provided their names and ages around the time they visited India. The applicant stated that they lived in Jaffna near where the applicant grew up. The applicant told the officer that he knew the [Relative As] when he was young. The applicant said he had contact with the [Relative As] on two or three occasions whilst in India but only on the last occasion did they reveal their support for the LTTE. The applicant stated that, on that occasion, they stayed only a couple of hours before leaving. The applicant said that the [Relative As] did not reveal much information about their support for the LTTE but everyone in the camp knew of it.

27. Asked why the applicant had not mentioned his [Relative As] during his arrival interview, the applicant suggested that he had been asked to respond to the interviewer’s questions in a few words. He had expressed the view that he could not go back to Sri Lanka and would have the best life if he could settle in Australia.

28. The applicant stated that he had attended protests in support of the Tamil people whilst in the refugee camp in India and had been questioned by [officers], then released. The applicant stated that if he heard there was a meeting or protest he would go along help out, for example, by arranging the chairs. The applicant stated that meetings were held supporting the Tamils, during which they would talk about the Tamils’ problems. The meetings occurred in different locations. The applicant stated that he had attended many such meetings but was not sure of the actual number. The applicant stated that he had no political intentions and left Sri Lanka when he was really young. By listening to the news and people talking he heard about what was going on with the Tamils. When he heard there was a meeting, he would go along to support them.

29. The applicant gave evidence that the [officers] found out about the meetings and protests. About five or six times, the applicant was given warnings by an [officer] named [name] and asked whether he supported the LTTE. After the last warning, he stopped attending meetings or protests. The applicant stated he was never detained or harmed.

    Review application

30. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. No further evidence was submitted prior to the Tribunal hearing.

    Tribunal hearing

31. The applicant confirmed that he was born in Jaffna in Northern Sri Lanka and stated that he could communicate in Tamil and some English. The applicant confirmed that his wife and [children], mother and [sibling] continue reside in refugee camps in India. The applicant stated that he had no relatives in Sri Lanka. The Tribunal noted that the applicant had stated that [he] had relatives still living in Sri Lanka in his arrival interview. The applicant responded that there had been relatives there. He had [Relative As] who used to come and visit them in the camp in India. The [Relative As] last visited in 2008 and told them there was no one left in Sri Lanka. The Tribunal asked the applicant whether his mother had any siblings living in Sri Lanka. The applicant said there may have been but they might have died during the war. The applicant said he had no contact with them. The applicant confirmed that his father died in 1990 in [an incident].

32. The applicant told the Tribunal that his birth certificate said he was a Sri Lankan national. The applicant said he had never been given residence or citizenship in India and was just a refugee there. Asked whether he could enter and reside in India now, the applicant said that, after having left India for Australia, his refugee registration may have been cancelled. If he tried to re-enter India he could be put in prison.

33. The applicant gave evidence that around the time of his family’s departure from Sri Lanka there was heavy fighting. As the security situation deteriorated, his mother decided to take them to India. The Tribunal asked the applicant whether any member of his family had any involvement with the LTTE. The applicant told the Tribunal that his [relatives], specifically [his Relative As], were the only members of the family he knew to have been involved in the LTTE. The applicant’s mother used to give them food and the applicant was close to them as a child and regarded them as brothers. The applicant left Sri Lanka when he was [age] years old.

34. The applicant told the Tribunal that he saw these [Relative As] in India around six or seven times. The final occasion was in 2008. They would not usually stay with the applicant but simply came at night, had some food and then left. The [Relative As] had told the applicant that they were working for the LTTE and had come to purchase commodities but the applicant was not aware of what specifically they had come to India to acquire. They applicant said he had received no further news of the [Relative As] since 2008 and speculated that they may have died in the hostilities in 2009. The applicant told the Tribunal they he could be perceived as having helped the [Relative As] as they had visited him in the camp. The Tribunal asked how anyone in Sri Lanka would know that these [Relative As] had visited the applicant in India. The applicant responded that this was well-known in the camp. The Tribunal asked how the people in the camp knew this if the [Relative As] were only coming at night, staying for a short while and were reluctant to tell even the applicant much information about their activities. The applicant said he used to tell people that his [Relative As] were in the movement. The Tribunal put to the applicant that it had difficulty understanding why he would, even playfully, tell anyone that his [Relative As] were in the movement, given the risk to him and them. The applicant said he only ever told other young people. The neighbours used to ask who these people were and he said they were his [Relative As] from Sri Lanka. The applicant told the Tribunal that the [Relative As] only ever visited him in the [camp]. After he was married, he moved to a different camp in Chennai.

35. The Tribunal put to the applicant that his evidence had indicated that there were restrictions on movements in and out of the refugee camp. In those circumstances, the Tribunal wondered how the [Relative As] were able to come in and out of the camp without coming to the authorities’ attention. The applicant responded that there were fewer restrictions in the [camp]. The requirement to sign upon departure and re-entry applied at the Chennai camp. The Tribunal noted that country information referred to in the delegate’s decision indicated that Indian intelligence were present in refugee camps and monitored movements. In these circumstances, it seemed somewhat surprising that the applicant’s [Relative As] were able to come and go undetected.  The applicant said they appeared like any other person in the camp. There was nothing unusual about their appearance.

1. The Tribunal also noted that the applicant had not mentioned any fears in relation to his [Relative As] at his entry interview. The applicant said he had not known what he should say. The applicant had just talked about wanting a better life for his family. By a “better life” he had meant he wanted safety for himself and them.

2. The Tribunal asked the applicant about his interactions with the [police officers] whilst in India. The applicant said that many people in the camp did not directly support the LTTE but wanted to protest against the treatment of Tamils. The applicant used to go for meetings and put up posters. The [authorities] called the applicant for investigations about six or seven times. They would ask the applicant whether he was an LTTE supporter and he would deny this but said he just wanted to support the cause of the Tamil people. He was threatened that he would be put in prison. The applicant was worried about the impact on his family if he was arrested so stopped his involvement. The applicant said there were [number]-[number] people involved in this type of activity in the camp. The Tribunal asked the applicant whether he thought there was any risk to him now, if he returned to Sri Lanka, as a result of his activities in the camp. The applicant speculated that the Sri Lankan authorities may have been provided with this information and he had nobody in Sri Lanka to bail him out if he were locked up.

3. The Tribunal put to the applicant that country information before the Tribunal indicated that the [police officers] had been quite active in the Sri Lankan refugee camps and arrested people who were suspected of supporting or working for the LTTE. For example, a 2008 article in The Hindu newspaper had reported that, in the last 12 months, 11 LTTE volunteers and 92 supporters had been arrested. The Tribunal put to the applicant that in view of this information and what the applicant said he had told the officers questioning him, if they had any real suspicion the applicant supported the LTTE, they would have arrested him. The Tribunal also expressed difficulty in seeing how the Sri Lankan authorities would infer any actual involvement with the LTTE even if they knew about the applicant’s participation in protests at the refugee camp. The applicant said he had told the officers that he did not support the LTTE just the Tamil people.

4. The Tribunal asked the applicant what he thought might happen if he were returned to Sri Lanka. The applicant said he had no support in Sri Lanka, if he were locked up on arrival there would be no one to inform his family, or vouch for him. The applicant’s only ID was his birth certificate. They would know the applicant had been gone from Sri Lanka for many years and this would generate suspicion. There would be no one to substantiate the applicant’s claims and no one for the authorities to be accountable to.

5. The Tribunal put to the applicant that the information before the Tribunal indicated that the Sri Lankan authorities were willing to provide identification documents to Tamils who were born in or residing in refugee camps in India. The Tribunal indicated that the information before it suggested that the applicant would be able to establish that he was a Sri Lankan citizen who had been living in a refugee camp in India and would be provided with relevant documentation by the Sri Lankan authorities. The information further suggested that some 300,000 Tamils had fled to Tamil Nadu during the civil war. About 200,000 of those refugees had now returned to Sri Lanka with about 100,000 still remaining in Tamil Nadu. About 90,000 refugees had returned through the UNHCR voluntary repatriation program. UNCHR had indicated in 2014 that they were ‘encouraged’ by the Sri Lankan authorities’ positive attitude towards the returning refugees. The Tribunal put to the applicant that he seemed to be in a similar situation to thousands of refugees and it was not apparent that he would be imputed with LTTE connections or support simply because of the time he had spent in India. The applicant responded that he said seen a news article which said that anyone suspected of any association with the LTTE faced serious consequences upon returning to Sri Lanka.

6. The Tribunal also put to the applicant that the current UNHCR eligibility guidelines indicated that simply being of Tamil ethnicity and originating from the North no longer gave rise to a presumption of eligibility as a refugee.  The UNHCR had identified certain categories of person who may, depending on their circumstances, require protection including persons with certain types of connection to the LTTE. The Tribunal noted that the applicant’s only connection appeared to be his [Relative As], who were somewhat distantly related to him. Since his departure from Sri Lanka, the applicant’s only claimed contact with them had been 6 or 7 brief visits to India and the applicant’s evidence suggested that the Indian authorities were not aware of their visits. The applicant had claimed that other people in the camp knew of the visits and there may be Karuna spies in the camp but the Tribunal had some difficulty with this claim given that the visits were brief and at night. The Tribunal also had some difficulty believing that the applicant would have told others he had relatives in the LTTE visiting him given the risk to him and his [Relative As]. The applicant responded that he was fearful of returning to Sri Lanka and did not know what they would do to him.

7. The Tribunal noted that the applicant’s previous representative had suggested that his asylum application and the period of time he had spent in Australia may place him at additional risk and asked whether he wished to elaborate on this claim. The applicant told the Tribunal that he could no longer return to India and did not know what might happen to him if he returned to Sri Lanka.

8. The applicant confirmed that when he was [age] years old, he and his family had departed Sri Lanka illegally by boat. The Tribunal discussed with the applicant information contained in the DFAT Country Report for Sri Lanka about the process undertaken in relation to involuntary returnees upon their arrival at the airport in Sri Lanka, and the process that follows for those who have departed Sri Lanka illegally. The Tribunal put to the applicant there was some doubt as to whether the applicant would be charged or penalised for having departed Sri Lanka illegally, given that he was a minor at the time.  The applicant stated that if he was charged, there would be no one to bail him and he might remain in prison indefinitely.

9. The Tribunal also discussed with the applicant information from the DFAT report indicating that thousands of asylum seekers had returned to Sri Lanka since 2009 with relatively few allegations of torture or mistreatment. DFAT had assessed that the risk of asylum seekers suffering torture or mistreatment was overall low except for those accused of having committed serious criminal or terrorist offences.  The applicant responded that most people who went back would have had family members assist them and bail them. The applicant doubted that in his circumstances he would be released given his lack of family support.  

10. The applicant stated that because he was very young when he left Sri Lanka he would find it difficult to resettle in Sri Lanka. His mother, wife and children would remain in India and his future would be very uncertain. The Tribunal noted that reintegration assistance packages were available to returnees through the IOM. The Tribunal also noted that the applicant had completed an apprenticeship in India and found work in India [in two occupations]. In these circumstances, it appeared the applicant would have access to resources to enable him to find employment and support himself financially.

    Country information

11. The DFAT Country Report for Sri Lanka indicates that Tamils are the second largest ethnic group, representing 15.4% of the population. Sri Lankan Tamils are characterised by their Tamil language and the majority of Tamils are Hindus. According to the 2012 Census, 43% of Sri Lankan Tamils resided in the Northern province where they constitute 93% of the residents.[1]

    [1] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.5 and 3.4

12. The Sri Lankan Constitution provides that no citizen should be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds[2]. Although most Sri Lankans live alongside members of their own ethnic groups, in major urban areas, ethnic groups live in close proximity to each other. Colombo is highly integrated with roughly equal populations of Sinhalese, Tamils and Muslims.[3] Overall, DFAT assesses that there are no official laws or policies that discriminate on the basis of ethnicity or language including in relation to access to education, employment or housing. DFAT further assesses that there is only a low level of discrimination in the implementation of laws and policies. There is a moderate level of discrimination between particular ethnic groups, largely as a result of the civil conflict.[4]

    [2] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.1

    [3] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.3

    [4] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.3

13. DFAT reports that, partly as a result of recent public investment in infrastructure, the formal unemployment rate in Sri Lanka fell from 5.9 per cent in 2009 to 4.2 per cent in 2013[5]. Public health care is generally free. There is a high life expectancy and low infant mortality rate, comparable to the rates in developed countries[6]. The security situation has generally improved since the end of the conflict. No terrorist or large scale military attacks have occurred since the end of the conflict. Sri Lankan military, intelligence and police forces exercise effective control over the entire country[7].

    [5] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.20

    [6] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.16

    [7] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.33

14. The security and humanitarian situation in the north has greatly improved since the end of the conflict. The main highway has been repaired and railway and ports link the north to the rest of the country. This in turn has helped reduce the cost of transport and basic goods. The military and security forces maintain a significant presence in the Northern Province. The number of military personnel has, however, been reduced by 30% and the government has commenced discussions on progressively reducing High Security Zones.[8]

    [8] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.37-2.39

15. During the civil conflict between the Government and LTTE, which began in 1983 and lasted until May 2009, more Tamils were detained under emergency regulations and the Prevention of Terrorism Act 1979 than any other ethnic group[9]. LTTE support was, at times, imputed on the basis of Tamil ethnicity. Forced registration of Tamils has, however, now ceased, suggesting that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.[10]

    [9] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.7

    [10] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.8

16. According to the 2010 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines[11], due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’. The 2012 Eligibility Guidelines[12] state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons.[13]

    [11] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, HRC/EG/SLK/10/03, available at: 24 July 2015]

    [12] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015]

    [13] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015] at p. 26

17. The DFAT Country Report states that Sri Lanka’s Constitution entitles any citizen to the freedom to return to Sri Lanka[14]. Under the Immigrants and Emigrants Act, it is an offence to depart other than via an official port of entry or exit. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to 5 years and a fine of up to 200,000 Sri Lankan Rupees (around AUD$2000).[15] Returnees are generally considered to have committed an offence if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport.[16]

    [14] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.27

    [15] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.27

    [16] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.28

18. Upon arrival in Sri Lanka, involuntary returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service and Airport Criminal Investigations Department.[17] Officers check travel document and identity information and returnees are checked against intelligence databases.[18] Most Sri Lankan returnees from Australia are questioned by police on return and where an illegal departure is suspected, are charged under the I&E Act. In most cases, these individuals are arrested by police at Colombo International Airport. In July 2015, DFAT was informed by Sri Lanka’s Attorney General’s Department that no returnee had been given a custodial sentence for departing Sri Lanka illegally but fines had been issued to act as a deterrent towards boat ventures in the future.[19]

    [17] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.29

    [18] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.30

    [19] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.33

19. The DFAT Country Report states that a small number of allegations of torture or mistreatment have been made by asylum seekers who have been returned to Sri Lanka. Verifying the allegations is complicated by the fact that they may have been made anonymously, often to third parties. However, there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of torture or mistreatment. DFAT assesses that the risk of torture or mistreatment of returnees was greater for those who are suspected of committing serious crimes, including people smuggling or terrorism offences, because of their greater exposure to authorities on their return[20].

    [20] DFAT Country Report – Sri Lanka, 18 December 2015 at 4.22 - 4.23

20. The country guidance case decided by the United Kingdom Upper Tribunal in GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (5 July 2013), which was upheld by the Court of Appeal, found that the Sri Lankan government was trying to identify Tamil activists in the diaspora who were working for Tamil separatism and to destabilise the unitary Sri Lankan state. The Tribunal did not accept that all Tamils were at risk on return to Sri Lanka (paragraph 337).

21. Frontline India reported in October 2015 that about 300,000 Tamils fled Sri Lanka and took refuge in Tamil Nadu in four phases following the anti-Tamil violence in 1983. More than 200,000 refugees have gone back. In a letter to Prime Minister Narendra Modi in January 2015, O. Panneerselvam, who was Chief Minister then, said there were 102,055 refugees belonging to 34,524 families in Tamil Nadu[21].

    [21] CXBD6A0DE15133: "Now here and nowhere", Frontline (India), 28 October 2015, >

    The government announced in 2011 that refugees returning from Tamil Nadu, including children born in refugee camps would be given Sri Lankan nationality and relevant identification documentation upon return.[22] In May 2016, The Hindu reported that Sri Lanka’s Prime Minister Ranil Wickremesinghe had reiterated that it is the policy of his government to encourage the return of Sri Lankan Tamil refugees living in India by removing legal and other hurdles.[23]

    [22] CX275629: "Citizenship for Lankan refugees - Karuna", Sunday Leader, The, 30 October 2011, "Colombo to encourage return of refugees living in India", Hindu, The, 05 May 2016, CX6A26A6E3831

22. All returnees from India under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations. UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return. [24]

    [24] "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka", UN High Commissioner for Refugees, 21 December 2012, UNB0183EA8

23. A press release issued by UNHCR in May 2014, states “UNHCR is encouraged by the positive outlook of the Government of Sri Lanka towards the refugee returnees and is ready to extend our fullest cooperation in addressing refugee returnee related matters.” The press release indicates that UNHCR staff meet refugee returnees at the airport and facilitate their immigration, security and customs formalities. In addition, UNHCR in cooperation with the Bank of Ceylon deposits a reintegration grant and monetized NFI assistance intended for initial reintegration, such as purchasing household goods or repairing damaged housing, etc. on returnees’ newly opened bank accounts. All returning refugees are also provided with a transport grant to help them to travel from the airport to their areas of origin in dignity. Once settled, returnees are advised to register with the UNHCR field offices for monitoring and referral purposes. UNHCR refers persons with special needs (e.g. persons with disabilities and elderly persons) to specialized institutions. Similarly, UNHCR refers those in need of legal counselling, civil documentation support, livelihood and education assistance to the relevant government authorities or other organizations that can provide targeted assistance. UNHCR have assisted more than 92,000 Sri Lankan refugee returnees since the inception of its voluntary repatriation programme in 1987. Thus far most refugees have been returning to the Northern District of Mannar, followed by, Vavuniya, and Jaffna in the Northern Province and Trincomalee District in the Eastern Province of Sri Lanka. [25]

    [25] "Ministry of Resettlement, Reconstruction and Hindu Affairs and UNHCR welcome Sri Lankan refugee returnees from India", UNHCR Sri Lanka, 13 May 2015, CISEC96CF1877 

1. UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.

2. The International Organisation for Migration (IOM) assists and facilitates the voluntary return of Sri Lankans – failed asylum seekers, stranded and irregular migrants – from the European Union, Australia and en route countries. IOM offers a wide range of services including:

   ·     Pre-departure logistical arrangements: information outreach, assistance with travel arrangements, escort assistance to vulnerable returnees and transit support,

   ·    On arrival assistance: airport assistance, onward transportation and medical escort, and

   ·     Reintegration assistance: Training including business development, vocational and on the job, small scale business set up, job placement and referral services.

   In addition, the programme also supports community infrastructure development in selected returnee receiving areas.[26]

   [26] International Organization for Migration 2013, Sri Lanka – International Organization for Migration, November, p.6 < Accessed 28 August 2014 <CIS29741>

   Findings

3. The Tribunal accepts, on the basis of the oral evidence and the identity documents contained on the Department’s file, that the applicant is a Sri Lankan national. For this reason, the Tribunal finds that the country of reference for the purposes of both ss.36(2)(a) and 36(2)(aa) is Sri Lanka.

4. The Tribunal accepts that the applicant is a man of Tamil ethnicity who was born in Jaffna in the Northern Province of Sri Lanka. The Tribunal is satisfied that the applicant travelled to India with his mother and [sibling] in 1990, when he was approximately [age] years old due to a deteriorating security situation in the applicant’s home area in Sri Lanka at the time. The Tribunal accepts that the applicant remained in India, residing in refugee camps, until the time of his departure for Australia in June 2012. The Tribunal accepts that the applicant’s father is deceased and that his mother and [sibling] continue to reside in India. The Tribunal also accepts that the applicant now has a wife and [children] who continue to reside in a refugee camp in India.

5. The Tribunal has considerable difficulty with the applicant’s claim to have been visited in one of the refugee camps in India by [Relative As] who were affiliated with the LTTE. As noted in the delegate’s decision and at the Tribunal hearing, this claim was not mentioned during the applicant’s entry interview but was raised for the first time in the protection visa application. The Tribunal does, not, however, place significant weight upon this circumstance given that the applicant was unrepresented at the time and having regard to the nature and purpose of such interviews.

6. The Tribunal also notes that there has been some discrepancy in the applicant’s evidence with regard to the frequency of his contact with these [Relative As]. During his protection visa interview, the applicant stated that he had contact with the [Relative As] on two or three occasions whilst in India but only on the last occasion did they reveal their support for the LTTE. At the Tribunal hearing, the applicant told the Tribunal that he saw these [Relative As] in India around six or seven times. Having regard to the significant passage of time since the events in question, and the fact that the applicant’s evidence on this issue has been consistently opaque, the Tribunal does not, however, consider it safe to place weight on this relatively minor discrepancy.

7. The Tribunal is more troubled by the applicant’s evidence as to how the [Relative As] entered the camp and how their visits became known. The Tribunal has difficulty accepting the applicant’s claim that the [Relative As] were able to enter the camp on multiple occasions. The applicant has given evidence about the tight restrictions on entry to and exit from the refugee camps, although at hearing he suggested that there were fewer restrictions at the camp at which he was visited by his [Relative As]. As put to the applicant at hearing, the country information before the Tribunal indicates that Indian intelligence officers were present in refugee camps at the relevant time and monitored movements. The country information also indicates that the [police officers] were actively arresting suspected LTTE volunteers and supporters. Although the applicant has claimed that his [Relative As] looked like anyone else residing in the camp, entered the camp at night, and only stayed for a short period, the applicant’s claim that the [Relative As] were able to enter the camp on up to 7 occasions lacks credibility in this context.

8. Even if the Tribunal were to accept that the [Relative As] were able to enter the refugee camp as claimed, the Tribunal is not satisfied that it was well-known that the [Relative As] were associated with the LTTE. The applicant’s own evidence at hearing was that the [Relative As] were reluctant to tell even the applicant much information about their activities. Later in the hearing, the applicant claimed that he himself had been telling other residents in the camp about his [Relative As] LTTE activities. As suggested to the applicant at hearing, given the potential risk to the applicant and his [Relative As] were this information to become known, the Tribunal finds this claim to be lacking in credibility. The applicant’s response that he only told young people does not overcome the Tribunal’s concerns.

9. For the reasons above, the Tribunal remains unsatisfied that the applicant was ever visited in India by [Relative As] who were affiliated with the LTTE. Nor is the Tribunal satisfied that it was well-known by others in the camp that the applicant was being visited by [Relative As] with LTTE connections.

10. Even if the Tribunal is wrong in these conclusions and, as suggested by the applicant, there were Karuna spies in the refugee camp such that his familial connection with the LTTE could have been communicated to the Sri Lankan authorities through this or some other source, the Tribunal is not satisfied that there is now, or in the reasonably foreseeable future, a real chance or risk of the applicant being seriously or significantly harmed as a result. The applicant’s evidence is that he had no contact with the [Relative As] after 2008. The applicant said he suspects that the [Relative As] died in 2009. The applicant also denied that any other member of his family had any actual involvement with the LTTE. From 1990 onwards, the applicant’s contact with these relatives was minimal. The UNHCR Eligibility Guidelines referred to above do suggest that persons who are close family members of persons with certain links to the LTTE may be subject to risks requiring particular careful examination. However, the country information referred to by the United Kingdom Upper Tribunal in GJ & Others indicates that the Sri Lankan government is now primarily concerned with identifying those in the diaspora working for Tamil separatism and trying to destabilise the unitary Sri Lankan state. In the circumstances described above, and given the applicant’s relatively distant relationship to his [Relative As], the Tribunal is not satisfied that the familial links to the LTTE described by the applicant would be of any interest to the Sri Lankan authorities.

11. The Tribunal has also considered the applicant’s claim to have been involved in pro-Tamil activities whilst in India. The activities described by the applicant did not suggest that he had expressed or shown support for the LTTE but rather that he was involved in general meetings and protests about the ill-treatment of Tamils. The Tribunal is prepared to accept that the applicant attended such meetings and engaged in associated activities including, putting up posters or setting out chairs. The Tribunal is prepared to accept that the applicant had some interactions with [authorities] as a consequence of these activities and was warned to stop his involvement. The Tribunal accepts the applicant’s evidence that he did in fact cease his involvement with the protests owing to a fear of the impact upon his family were he to be arrested. The Tribunal accepts the applicant’s evidence that he was one of many people involved in this type of activity in the camp.

12. As discussed with the applicant at hearing, the country information available to the Tribunal indicates that the [police officers] were active in refugee camps, arresting people who were suspected of supporting or working for the LTTE. The Tribunal considers that if the [officers] who had questioned the applicant had genuinely suspected that he supported the LTTE, they would have arrested him. Similarly, the Tribunal is not satisfied that the Sri Lankan authorities, if they were aware of the applicant’s activities in the camp, would impute the applicant with any LTTE connection or opinion which could be viewed as a threat to Sri Lankan security or stability, given the nature of the meetings and the applicant’s low level involvement with their organisation. The Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm as a consequence of his activities in the refugee camp in India. The applicant has not claimed, and the Tribunal is not satisfied that, he has a desire to engage in any political activity should he return to Sri Lanka.

13. The Tribunal has considered whether anything else in the applicant’s profile, considered individually or cumulatively, in light of the factual findings above, would lead to a real chance or risk of the applicant suffering serious or significant harm were he to return to Sri Lanka, either immediately upon his arrival or at some later point in time. The Tribunal accepts that the applicant is a young, Tamil, male, whose family originated from the North, and whose family fled Sri Lanka during the conflict and have remained in India in refugee camps. The Tribunal accepts that it may become known that the applicant has sought asylum in Australia and that he would be returning to Sri Lanka without the support of any immediate family members and limited forms of identification.

14. The Tribunal accepts as credible, information from UNHCR that simply being of Tamil ethnicity and originating from an area formerly controlled by the LTTE no longer, of itself, gives rise to a need for protection. The information indicates that thousands of Tamils left Sri Lanka in the course of the conflict and some 100,000 Sri Lankan refugees have remained in India for a variety of reasons. The country information suggests that thousands of Sri Lankan refugees have safely returned to Sri Lanka from India, a large number of them to the area from which the applicant’s family originated, and that their return is actively encouraged and facilitated by the Sri Lankan government. There is no independent information before the Tribunal to support the applicant’s claim that he would be viewed as a LTTE supporter simply by virtue of having fled to India during the conflict. Similarly, thousands of asylum seekers have returned to Sri Lanka from Australia since 2009, with only a few allegations of torture of mistreatment. The Tribunal finds that the applicant is in possession of sufficient documentation to help him establish his identity and past movements.

15. The Tribunal accepts that upon return to Sri Lanka, the applicant would be questioned and checked at the airport in a process that could take several hours. The Tribunal is not satisfied on the information before it that there is a real chance or risk that the applicant would be charged with having departed Sri Lanka illegally, given that he departed Sri Lanka as an [age] year old child. In this regard, the Tribunal notes that DFAT advised the Refugee Review Tribunal in 2013 that minors were not charged with offences under the Immigrants and Emmigrants Act[27]. The Tribunal is not satisfied on the information before it that there is a real chance or risk that the applicant would be suspected of or charged with any other criminal offence upon arrival in Sri Lanka.

    [27] Department of Foreign Affairs and Trade 2013, Country Information Request No: LKA15326: Personal surety, 18 December <CX316873>. See also DFAT Country Report – Sri Lanka, 18 December 2015 at 5.33.

16. As discussed with the applicant at hearing, the country information indicates that in the course of processing at the airport, returnees are treated in the same way regardless of their ethnicity or religion are not generally subject to mistreatment. The Tribunal is not satisfied on the information before it that being subjected to this type of questioning and checks upon arrival in Sri Lanka gives rise to a real risk or chance of the applicant suffering discriminatory or intentional mistreatment amounting to serious or significant harm. Similarly, the Tribunal is not satisfied on the information before it that there is a real chance or risk of the applicant suffering serious or significant harm in the course of any continued monitoring or registration after his arrival. The Tribunal is not satisfied that the applicant has a profile that would lead to a real chance or risk of him suffering serious or significant harm in Sri Lanka now or in the reasonably foreseeable future.

17. The Tribunal does accept that the applicant may be unwilling to resettle in Sri Lanka and may experience some difficulty establishing himself in that country as a consequence of having been absent from the country since he was a child and his lack of family support. The Tribunal finds, however, that the applicant is a relatively young person of working age who completed an apprenticeship and found work as [an occupation] whilst in India. The applicant speaks the Tamil language, which is the only language spoken by a significant proportion of the Sri Lankan population. The country information suggests that there is only a low level of societal or official discrimination against Tamils. Having regard to the general country information regarding the economic and security situation in Sri Lanka, as well as the evidence that substantial assistance is provided to returnees by the IOM and UNHCR, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering any difficulties in establishing himself, or continuing to live in Sri Lanka, which would amount to serious or significant harm.

18. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  The applicant does not satisfy the criterion set out in s.36(2)(a).

19. The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

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

    Rachel Homan
    Member