1419597 (Refugee)

[2017] AATA 2464

1419597 (Refugee) [2017] AATA 2464 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419597

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Paxton

DATE:3 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 November 2017 at 2:07pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Irregular Maritime Arrival – Ethnicity – Sinhalese – Social group – Failed asylum seeker – Imputed political opinion – Family association with JVP Party members – Credibility Issues

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

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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] February 2013 and the delegate refused to grant the visa [in] November 2014.

3. The applicant appeared before the Tribunal on 6 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

20. The Tribunal notes that DFAT released a Country Information Report on Sri Lanka in December 2015.[1] This DFAT Report has been updated, the most recent being published in January 2017.[2] In line with its obligations under Direction No. 56, the Tribunal has had regard to the most recent report and carefully considered the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially from the December 2015 report and does not raise any new issues for this assessment.

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

    [2] DFAT, Country Report Sri Lanka, DFAT, 24 January 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. In his Protection visa application, the applicant declares he was born on [date] [in] the Central Province of Sri Lanka; that he is single, of Sinhalese ethnicity, identifies as Catholic and worked as a fisherman in Sri Lanka.[3] The applicant claimed to have departed Sri Lanka illegally [in] June 2012 when he was [age] years old and arrived in Australia by boat as an irregular maritime arrival [in] July 2012.

    [3] DIBP, [File number], ff. 53–77.

22. The applicant’s claims in his statement accompanying his Protection visa application can be summarised as follows:[4]

    ·     The applicant will be targeted for adverse treatment from local opposition party members and Sri Lankan security forces on the basis of his imputed Janatha Vimukthi Peramuna (JVP) political profile through his association with his father and uncle, who were members of the JVP party.

    ·     The applicant’s uncle was killed in 2005 at a JVP meeting and his father disappeared in 2009, presumed killed by opposition supporters. The applicant and his family suffered harassment from people of the opposite party and/or the security forces of Sri Lanka's government.

    [4] DIBP, [File number], ff. 47–49.

23. The applicant was interviewed by a delegate of the Department in connection with his Protection visa application [in] September 2013 and a comprehensive summary of claims made at interview is included in the delegate’s decision record provided to the Tribunal by the applicant. In addition to the claims above, at interview with the delegate the applicant claimed he faces prosecution because he departed Sri Lanka illegally.

24. The delegate’s decision record provided to the Tribunal by the applicant indicates that the delegate was not satisfied the applicant was a reliable witness regarding his father’s political profile. The delegate accepted the applicant’s father is a member of the JVP, but did not accept the applicant’s father had a significant political profile or disappeared as claimed. The delegate did not accept the applicant or his family have been targeted for harm due to his father’s political profile. The delegate found the applicant is not a member of the JVP and does not have a political profile. The delegate found that the applicant and his brother had experienced low level harassment from members of the United People’s Freedom Alliance (UPFA). The delegate also found the applicant may be subject to prosecution if returned to Sri Lanka due to his illegal departure from that country.

25. The decision record provided to the Tribunal by the applicant indicates that, based on the applicant’s circumstances and the country information before her, the delegate found that the applicant does not have a real chance of persecution for a Refugees Convention reason; that the applicant’s fear of persecution is not well founded. The delegate’s decision record also indicates the delegate was not satisfied there are 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 the applicant will be subject to significant harm.

    Country of reference

26. The applicant has claimed to be a citizen of Sri Lanka.  He has submitted copies of his Sri Lankan student performance [record] , a copy of his Sri Lankan birth certificate and a copy of his Sri Lankan identity card dated [March] 2011 that support this claim.  On the basis of this evidence, the Tribunal finds that he is a national of Sri Lanka and that this is also his receiving country.

    Assessment of claims

27. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

28. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[5]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [5] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court, Foster J at [482].

29. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[6]  For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.

    [6] MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169]-[70].

30. At hearing, as discussed in examples below, the Tribunal found the applicant’s evidence vague, limited and inconsistent. Despite encouragement to be more expansive, the applicant usually responded to enquiry in monosyllables and the Tribunal was required to prompt the applicant at every stage of the hearing in order to elicit information about his claims. The applicant’s response to enquiry about his father, uncle and brother’s involvement with the JVP was vague and lacked spontaneity, being provided reluctantly after long pauses. The applicant indicated that he did not want to provide information because it may not accord with information that he had provided before. This led the Tribunal to the view that he did not trust his responses to be consistent with his past responses.  The Tribunal would expect that had the applicant been speaking from his own experience, he would have more confidence in the accuracy of his responses. On a number of occasions, the applicant also asked the Tribunal to advise him what he had said in his statement and in previous evidence, and requested the Tribunal to ask direct questions referring to his previously made claims. As discussed below, the applicant claimed not to be able to recall events of importance to his claims and his evidence contained significant inconsistencies. These matters raised concerns for the Tribunal that the applicant was not a credible witness.

31. The Tribunal raised these concerns with the applicant at the hearing, and the applicant’s representative submitted that the applicant was young at the time of the events he described and that this may explain his inability to recall events and formulate his evidence. The Tribunal accepts that the applicant’s youth explains why the applicant’s understanding and recall of some events from childhood is limited. The Tribunal also accepts that some events relevant to the applicant’s claims were not experienced by him first-hand and that this may limit his ability to provide consistent evidence. The Tribunal further accepts that four years had elapsed between his departure from Sri Lanka and the time he gave his evidence to the Tribunal and that he may have forgotten details of incidents in Sri Lanka in that time. However, the Tribunal takes into account that the applicant was [age] years old when he departed Sri Lanka in 2012, and, at that age, the Tribunal would expect that he would have a strong understanding of events significant to his claimed reasons for departing Sri Lanka such that he could provide them without prompting or reference to his previous statements. The Tribunal formed the view that the applicant’s limited, general and hesitant responses arose because there was not a basis in reality for his claims. Overall, as discussed below, the Tribunal formed the view that the applicant was not a generally credible witness.

    Political opinion (actual or imputed)

32. In considering whether the applicant has a real chance of serious harm or a real risk of significant harm arising from his (imputed) political opinion on return to Sri Lanka, the Tribunal has considered the applicant’s claims he will be targeted for adverse treatment due to his imputed political profile as a supporter of the JVP arising from his father’s/family members’ JVP activities.

33. On the documentary evidence before it and the consistent evidence of the applicant, the Tribunal accepts the applicant was born on [date] [in] the Central Province of Sri Lanka, that he is single, of Sinhalese ethnicity and identifies as Catholic. The Tribunal accepts the applicant worked as a fisherman in Sri Lanka from the age of [age] years. On the same basis, the Tribunal accepts the applicant departed Sri Lanka illegally [in] June 2012 when he was [age] years old and arrived in Australia by boat as an irregular maritime arrival [in] July 2012. 

34. The Tribunal accepts the consistent oral evidence of the applicant that he personally has not ever had any involvement in politics or had any political allegiance, either in Sri Lanka or in Australia.

    Harm to the applicant’s father and uncle from opponents of the JVP

35. At hearing, the applicant did not respond to the Tribunal’s enquiries whether he had fears about return to Sri Lanka. When asked further, he stated that he fears death, but he did not provide a response to further enquiry as to why that was the case. The Tribunal sought to elicit a more specific response by prompting him about his claims related to his father and he stated that if he returns to Sri Lanka he may have issues of the kind his father had. Eventually the applicant stated that, from his knowledge, his “father had issues arising from his work for the JVP”; that his father “did an election” supporting the JVP, although he did not know what the nature of his father’s involvement was.

1. In considering the applicant’s claims that his father was connected to JVP and was targeted for adverse treatment in connection with his affiliation with the JVP, the Tribunal has taken into account country information as set out in the delegate’s decision record provided to the Tribunal by the applicant that the JVP promotes a socialist agenda and is anti-imperialist and anti-capitalist, although it is supportive of a democracy.  As set out in the delegate’s decision record provided to the Tribunal by the applicant, the Tribunal notes the JVP emerged as a Maoist party in the 1960s and led two insurgencies attempting to overthrow the government before entering conventional politics in the mid-1990s. Country information set out in the delegate’s decision provided to the Tribunal by the applicant indicates the JVP has experienced varying degrees of success as a legitimate political party through creating alliances with other political parties. In 2004 the JVP held 39 of the UPFA government’s seats. In the 2010 presidential elections it secured the Democratic National Alliance (DNA) seven seats after forming an alliance with the DNA and the United National Party (UNP) to back non-party candidate Sartah Fonseka. Although the JVP’s political profile has declined in recent years it continues to actively campaign for a socialist system of governance and remains a legitimate political party.[7]

   [7] Lansdorf, T ed., 2012, Political Handbook of the World 2012 – Sri Lanka, CQ Press, 1 March, pp.1345-59, at p.1355, CIS961F9401962.

2. The Tribunal has also taken into account country information set out in the delegate’s decision record provided to the Tribunal by the applicant that the JVP is currently active and continues to contest national and regional elections in Sri Lanka.[8] The JVP contested the 2010 parliamentary elections as part of the DNA and won seven seats;[9] this is a sharp decline from the 39 seats it held in 2004.[10]

   [8] "Sri Lanka Election Commissioner asks IGP to strengthen security in Uva Province", Colombo Page, 27 August 2014, CX325128; "People's Liberation Front JVP, Our Vision Policy Framework", People's Liberation Front JVP, 1 February 2014, CIS2F827D91521.

   [9] "Freedom in the World 2014— Sri Lanka", Freedom House, 8 September 2014, CX1B9ECAB6012.

   [10] ^"People’s Liberation Front – About Us", Undefined, 1 January 2006, CX146461.

3. As set out in the delegate’s decision record provided to the Tribunal by the applicant, there is evidence that some party members have been harmed due to their connection with JVP. In December 2011 two JVP activists disappeared in Jaffna and have not been seen since.[11] Similarly, in June 2012 two JVP members were killed and more than a dozen injured at a campaign meeting in Katuwana.[12] More recently, 14 JVP electoral offices were allegedly attacked by pro-government groups in Uva Province in August 2014;[13] offices of the UNP and Democratic Party (DP) were also attacked.[14]

   [11] DFAT, Country Report, Sri Lanka, 3 October 2014, CIS2F827D91259.

   [12] US Department of State, Sri Lanka – Country Reports on Human Rights Practices February 2013,,27 February 2014, 0G1F18C90164.

   [13] “Sri Lanka Marxist party election offices in Uva Province destroyed allegedly by government supporters", Colombo Page, 25 August 2014, CX325072.

   [14] “Sri Lanka Election Commissioner asks IGP to strengthen security in Uva Province", Colombo Page, 27 August 2014, CX325128.

4. On the basis of the applicant’s consistent, if vague and limited, evidence over the period of his Protection visa application, the Tribunal accepts the applicant’s father supported the JVP political party. On the basis of the country information before it and set out in the delegate’s decision record provided to the Tribunal by the applicant, the Tribunal accepts that the JVP contested political elections from 1999 and that the applicant’s father may have had some involvement in elections as a member of the JVP.

5. However, the Tribunal notes that the applicant was [age] years old when he left Sri Lanka and that he claims to have been harassed because of his father’s political involvement. On this basis, the Tribunal would expect him to have sufficient maturity and level of awareness to have knowledge of the nature of his father’s involvement had it been one of any significance. On the evidence before it, the Tribunal considers the applicant’s father did not have any role in the JVP other than as a low-level member. The Tribunal accepts the applicant’s father had a low-level JVP profile in his local area.   

6. When pressed, the applicant stated that when he was about [age] years old (in 2002) there were political issues in their village where supporters of the JVP were [burnt]. He stated that he and the family remained inside at this time and were not harmed, and that soon after that they moved to [Town 1]. On the consistent evidence of the applicant, the Tribunal accepts that in 2002 some JVP members in his village were harmed in political violence and that his family moved to [Town 1] after this time. However, for the reasons discussed below, the Tribunal does not accept the applicant’s father went into hiding from political opponents, or anyone else, at that time, or that he returned to live with the family in [Town 1] from 2006 to 2008, but went into hiding again, disappeared and was murdered on account of his involvement with the JVP.

7. When the Tribunal drew the attention of the applicant to his written claim that in 2007 and 2009 armed people came a number of times to his home looking for his father, the applicant stated “maybe”, explaining that as a child his parents prevented him from getting involved and as this is a long time ago he can’t recollect these incidents. The applicant also stated that he could not remember what he said in his statement; that he was not able to provide information about the occasions mentioned in his statement, and that he was concerned that he would say something that did not accord with his statement. The Tribunal accepts that these claimed events occurred some time ago, but notes the applicant would have been [age] or [age] years old at the time. The Tribunal also notes the applicant provided some specific description in his statement of claims, i.e. that “They started beating my brother and then pulling my mother’s hair.” Considering the significance of these events and the specificity of previous details, and that the applicant has previously claimed to have witnessed them first hand, the Tribunal would expect the applicant to be able to provide some consistent details in respect of these incidents. The applicant’s failure to do this led the Tribunal to have serious doubts about the applicant’s credibility in respect of claims in respect to the applicant’s father.

8. The applicant did not offer any details about his father’s circumstances at hearing, but when pressed stated his father disappeared around 2009 and he may have passed away because of political issues because he has not come home since then. The applicant told the Tribunal that his family did not find out how or why he died and they had no evidence of his death. He stated that his mother reported his father’s disappearance to police who told them that they would investigate, but the applicant does not think they could do this because they had no information about it. The applicant claimed he therefore believes his father was murdered and that his death was related to political issues although the applicant told the Tribunal that he does not have any idea who was responsible.

9. The Tribunal considers the applicant’s oral evidence in respect of his father’s claimed life in hiding, his disappearance and claimed murder to be vague and limited. The Tribunal notes the reasons the applicant gave for his reluctance to provide any specific details relating to armed people coming to the house over a long period up to 2009, but does not consider these reasons would prevent the applicant from being able to provide some recollection of the claimed incidents had they actually occurred. For these reasons, the Tribunal is not satisfied the applicant is a credible witness in respect of his father’s claimed hiding, disappearance and murder. On this basis, the Tribunal does not accept the applicant’s father went into hiding from political opponents in 2002, returning home occasionally, or that his father went into hiding again from 2006 to 2008, but went into hiding again. On the same basis, the Tribunal does not accept the applicant’s father disappeared or that he was murdered by political opponents. On the evidence before it, the Tribunal does not accept the applicant’s father was of adverse interest to the authorities or local political opponents, or anyone else, on the basis of his membership of the JVP or for any other reason.

10. In his written statement of claims, the applicant refers to his uncle and the Tribunal asked the applicant to discuss his uncle’s circumstances. The applicant stated that his uncle, the applicant’s father’s brother, was also a member of JVP and in 2005 the applicant’s uncle and another person were killed when the army came to the village. The applicant stated that he has been told this occurred because of politics. When the Tribunal asked how his uncle died, the applicant said there was a lake in the village but he could not explain the connection of the lake to his uncle’s death. The Tribunal accepts the applicant was young at the time and that he was not present at this event. However, the Tribunal would expect that, given the significance to this event to his family, the applicant would be aware of how his uncle had died. The Tribunal also notes the applicant has provided various accounts of his uncle’s death; in his statement of claims the applicant states his uncle was killed when gunmen swamped a meeting of the JVP and opened fire; at his interview with the delegate he stated that his uncle was hit and [burnt]; and at hearing with the Tribunal the applicant did not refer to either of these scenarios. While acknowledging that the applicant was young and was not present at the time, the Tribunal would expect the applicant to provide a consistent account of these events. On the evidence before it, the Tribunal formed the view that the applicant’s evidence in respect to his uncle was not reliable. For this reason, the Tribunal does not accept the applicant’s uncle was killed in 2005 because of his involvement with the JVP. 

11. Taking all the findings and reasons above into account, the Tribunal does not accept that the applicant’s father or father’s brother had anything more than low-level JVP profiles or that they were targeted by local opponents of the JVP, the authorities or anyone else as a result of their JVP involvement. On the basis of the country information discussed below and the accepted circumstances of the applicant’s father and father’s brother, the Tribunal finds that the applicant does not face a real chance of persecution now or in the foreseeable future from local villagers, the authorities or anyone else because of his association with his father and father’s brother. For the same reasons, the Tribunal 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.

    Incident in 2010

12. At hearing, with prompting, the applicant stated that in around 2010, in an election campaign, unidentified people came to the home and assaulted his brother throwing him on the ground and injuring him; they broke things and threatened them before they departed saying they should not be involved in politics. The applicant stated that he did not know what party these people represented but he linked this comment to his father’s political profile and said they were angry because the applicant and his brother did not want to support them. The applicant stated that nothing happened to him.

13. The Tribunal considered the applicant’s oral evidence to be vague. This raised serious doubts for the Tribunal about the credibility of applicant’s evidence in respect to this claim. The Tribunal considers that, had this incident occurred as claimed, given the applicant claims to have been present, the applicant could have provided specific details about it. The Tribunal also notes that the applicant has not been consistent in the accounts he has provided about this incident. In his written statement, the applicant claimed his brother was injured in a fight by bullying UPFA supporters using a knife and chopping his brother’s [body] after the UPFA won the election in 2010, while at the Tribunal hearing he stated only that his brother was assaulted by throwing him on the ground and provided no other details. The Tribunal formed the view that the applicant’s evidence in respect of this fight was not based on his actual experience. For this reason, the Tribunal does not accept that in 2010 the applicant’s brother was injured in a fight with local political opponents because he and the applicant were not supporting their opponents’ party.

14. The Tribunal has considered the applicant’s written claim that he and his brother were harassed in 2010 by supporters of the UPFA who wanted their support. In this consideration, the Tribunal notes country information, put to the applicant, that there is violence around elections in Sri Lanka. The Centre for Monitoring Electoral Violence (CMEV) stated that in the 2010 presidential elections there were 619 incidents, 275 classified major and 344 minor.[15]

    [15]

15. However, the Tribunal further notes that, as reported by the CMEV and discussed with the applicant, in contrast to this, there were relatively few incidents of electoral violence at the most recent general election held in August 2015, and the general election was regarded as relatively free and fair.[16] In addition, the CMEV commended the Commissioner for Elections, Mahinda Deshapriya, and the Inspector General of Police, N. K. Illangakoon, and their officers, for both providing and sustaining an enabling environment for a free and fair election, and noted police had implemented speedy action in implementing election laws.[17]

    [16] Centre for Monitoring Electoral Violence Centre for Monitoring Electoral Violence

16. In consideration of this claim, the Tribunal has also taken account of advice from DFAT, put to the applicant, that:

    3.25 Democratic elections have been held on a regular basis since independence in 1948. Elections have not been marred by large-scale violence or rigging but have not always been described as entirely free and fair…

    3.26 The Presidential election on 8 January 2015 was relatively peaceful and orderly and the parliamentary election held on 17 August 2015 was described by the Commonwealth Observer Group as ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.

17. At the hearing, the Tribunal noted in summary the following relevant country information from the February 2015 DFAT report on Sri Lanka:

    3.34 There are currently no banned political parties in Sri Lanka. Political parties are generally free to operate, subject to legal restrictions. This applies both to high-profile elected representatives and office holders and low-profile party members, supporters and volunteers, including people putting up fliers or handing out leaflets. There is no evidence to suggest this differs between representatives of Sinhalese, Tamil, Muslim or other parties.

    3.36 In addition, under the Prevention of Terrorism Act (PTA), certain actions by political parties or groups can be restricted. According to the PTA, any person who “causes or intends to cause commission of acts of violence or religious, racial or communal disharmony…” can be sentenced to a maximum of five years imprisonment.

    3.37 Other than the proscription of banned organisations as outlined above, DFAT assesses that there are no official laws and policies that discriminate on the basis of political opinion nor is there systemic political discrimination against any particular group.

    3.38 Article 14(1) of Sri Lanka’s Constitution guarantees freedom of speech and expression, freedom of peaceful assembly and freedom of association. However, DFAT assesses that tolerance for political dissent in Sri Lanka can be limited. Under the previous Rajapaksa government, active anti-Government critics were often described as ‘LTTE or terrorist sympathisers’ who ‘want to destroy Sri Lanka’ and risked attracting adverse attention by Government authorities, their agents or supporters. This included monitoring, harassment, arrest and detention. However, the Sirisena government has publicly committed to lifting surveillance of NGO workers and journalists and allowing freedom of speech. Activists and journalists have confirmed government pressure has lifted.[18]

    [18] DFAT, Country Report Sri Lanka, February 2015; in all significant respects the same as DFAT, Country Information Report, Sri Lanka, 8 December 2015.

18. As also put to the applicant, the Tribunal considers that CMEV advice indicates that the applicant would obtain protection if he were to experienced political coercion in the electoral context. The CMEV made the comment, put to the applicant, that:

    Whilst there have been reports of violence and malpractice, polling in this General Election has been largely peaceful and without hindrance.  The Police in particular have been vigilant in protecting the integrity of the electoral process and have arrested 50 individuals for violations of election law.[19]

    [19] CMEV, >

    In response to the information cited above, the applicant referred to a YouTube video of an incident in 2015 where elected members are shown assaulting each other in Parliament. The applicant indicated that while there are rules, even in Parliament the rules are not respected such that in 2015 politicians assaulted each other. Even the Rajapaksa family are all in gaol now and they have power and money, implying that even powerful people with money cannot protect themselves, so people without power or money have no protection at all.

19. Taking into account the country information above, and the applicant’s response to this information, the Tribunal accepts that electoral violence has occurred, but that it is isolated and limited. On the basis of the country information above, the Tribunal accepts that the applicant and his brother may have been subject to harassment, such as road blocks, as indicated in the applicant’s written statement, in association with the 2010 election from people who wanted their electoral support.

20. However, looking to the future, the Tribunal has considered the country information, cited above and put to the applicant, and notes that recent elections have been peaceful and orderly and regarded as relatively free and fair. The Tribunal also considers the independent country information indicates that the state under the current government provides effective protection from electoral violence. Based on the applicant’s accepted circumstances, a person with no political involvement whose father and uncle had a low political profile many years ago, and the country information, the Tribunal finds that the applicant does not face a real chance of persecution from electorally related violence now or in the foreseeable future from local supporters of opposition political parties, the authorities or anyone else. 

21. Based on the applicant’s accepted circumstances and the overall weight of the country information, the Tribunal 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 on this basis.

    Incident in 2012

1. At the Tribunal’s prompting to elicit information about an incident referenced in the applicant’s statement of claims in 2012 in [Town 1], the applicant stated that during some festivities in the village, the applicant and his brother were attacked by people he knew in the village because his father and brother were involved in the JVP. At hearing, the applicant could not articulate the reason for this dispute, saying only that “maybe they had issues on their mind”. He gave oral evidence that the assailants in this case did not have any political views themselves, but they did not like the applicant’s brother. He stated that the people in the village appeared to have a dispute with the applicant’s brother but that he did not know the basis for this dispute.

2. When asked for clarification about this incident, the applicant revised his earlier evidence, stating that the dispute had to do with political issues but that he was young and had no idea what the issues were. At the conclusion of the hearing, the applicant stated that this was a big issue arising from his father and brother’s political issues that they had been carrying forward since 2002, 2004 and 2009, and indicated that the villagers would continue to act on their anger that his father and brother were not supporting the party in power but the opposition.

3. The Tribunal considered the oral evidence the applicant first provided to be the most spontaneous, i.e. that in 2012 a dispute arose between his brother and local people but this was not related to a political matter. The Tribunal formed the view that the applicant revised his later evidence to embellish his claims. The shifting nature of the applicant’s claims in this respect led the Tribunal to the view that the applicant was not recounting an actual event.

4. In response to the Tribunal’s further questions about the dispute, the applicant stated that they “attacked each other,’’ and “assaulted each other physically”.  He stated that he was not hurt but his brother was injured and he thinks his brother needed treatment in hospital. His brother’s injuries were serious but he did not know what injuries these were. The Tribunal considered the applicant’s evidence about this incident unconvincing. The Tribunal would expect that, had this incident occurred as claimed, the applicant would know what serious injuries his brother had sustained. Further, the applicant gave evidence that he could not recall what time of year this incident occurred. The Tribunal acknowledges that this incident occurred some years ago, but, given the significance of this incident to his claims – in written claims the applicant indicates this incident prompted his departure from Sri Lanka two months later – the Tribunal expects that if he was recounting the incident from his own experience, he could recall in general terms the time of year this happened.

5. The Tribunal notes that in his written statement the applicant claimed that political opponents set fire to the front of his house after this incident. While given considerable opportunity to put forward this claim at hearing, the applicant failed to do so. The Tribunal acknowledges that applicants may sometimes have difficulty in recollecting details of their claims at hearing. However, in this case the applicant did not raise this matter despite being provided with encouragement and prompting, and the Tribunal formed the view that the applicant failed to raise the matter because it did not occur.  The Tribunal does not accept that political opponents in the village, or anyone else, set fire to the applicant’s home at any time.

6. The Tribunal has considered the applicant has claimed that, as well as being imputed with a political opinion arising from his father’s JVP involvement, he also derives a political profile from his brother’s political activities. He told the Tribunal that his brother, a fisherman, went to sea for periods of two months at a time to support the family and because of election issues. In response to enquiry about the applicant’s brother, the applicant stated that he had no idea about him because he had not been in touch with his brother for over a year. The applicant provided no information about his brother’s claimed political involvement and at hearing the applicant told the Tribunal that his fears arise only from his father’s JVP profile. On the evidence before it, the Tribunal concluded the applicant’s brother is not a member of the JVP and has no political profile, and that he spends long periods at sea because he is a fisherman. 

7. Taking all the evidence into account, the Tribunal does not accept that the applicant’s brother has any real or imputed involvement in the JVP. The Tribunal does not accept that the applicant and his brother were involved in a dispute in 2012 or that this claimed dispute had arisen for reasons of real or imputed political opinion.

   Letter purporting to be from the JVP

8. In its consideration of the applicant’s claim to fear serious or significant harm from local opponents of the JVP, the Tribunal enquired about a letter provided by the applicant purporting to be from the JVP which states that the applicant’s brother and family members have faced harassment since his youth while working as members of the JVP and that eventually the applicant’s father went missing, and that in these circumstances the applicant, unable to cope with increased harassment, went to Australia.[20]

   [20] DIBP, [File number], ff. 45–46.

9. The applicant told the Tribunal that this letter was obtained from a friend of his father and sent to him. The Tribunal suggested that the letter does not appear to be a genuine letter from the JVP because an examination of the letter indicates that an original letter using what appears to be JVP letterhead has been altered and new text has been inserted or overwritten in the body of the letter. At hearing, the applicant’s representative examined the letter and, noting the poor quality of Sri Lanka documents generally, suggested that even the superimposition of the text could be genuine. He suggested that if someone really wanted to fraudulently create this document, they would have at least superimposed material more effectively and that perhaps the printer was askew. The applicant also examined the document and advised that this was obtained by one of his friends, he could get another and he has no idea if it is genuine or not.

10. As the delegate notes in the decision record provided to the Tribunal by the applicant, DFAT advise that document fraud is prevalent in Sri Lanka.[21] Taking into account the apparent fraud in the anomalies in the production of the letter and the country information concerning the prevalence of document fraud in Sri Lanka, the Tribunal assesses this letter to be fraudulent and gives it no weight. The Tribunal is not satisfied, on the basis of this letter, the applicant’s father, brother and family members faced harassment working for the JVP or that the applicant’s father went missing, and the applicant came to Australia for these reasons.

    [21] DFAT, Country Information Report, Sri Lanka, 3 October 2014.

    Incident in 2014

11. At hearing, the applicant stated that because he has not been in Sri Lanka for four years, he does not know how the villagers will feel about him now but he feels people from his village will kill him on his return because of the issues his father has had since 2002. As evidence that the villagers continue to harbour anger against him, he stated that in 2014, after the applicant had arrived in Australia and after his Departmental interview, his mother told him that  [people] came to the home, enquired about the applicant and his brother, smashed things and threatened to kill the applicant. The applicant claimed he has no evidence of this because his mother was told by the people that if she complained to the police, they would kill them.

12. In considering this claim, the Tribunal has taken into account the applicant’s evidence at hearing that he does not know if his mother has experienced any further difficulties from these people, the applicant stated that he does not know because has not spoken with his family for about a year and they could be dead. He claimed he had lost his wallet and phone in Australia and as these contained contact details of his family, he had not been in touch with them. As discussed with the applicant, the Tribunal finds it difficult to believe given the significance of the matter to his claim to fear harm on return to Sri Lanka, that the applicant has not had contact with any family members in relation to this matter in this period for this reason. The Tribunal notes the applicant told the Tribunal that he remains in touch with a friend in the area and considers that if he was concerned about visits from people who want to harm him, he would be able to find contact details for his family through his friend. Taking this into account and also noting the Tribunal’s assessment above that the applicant is not a credible witness, the Tribunal considers formed the view that the applicant’s claim that he has not been in touch with his family for about a year and they could be dead to be embellished and the Tribunal does not accept the applicant is a credible witness in this respect. On this basis, the Tribunal does not accept the applicant does not have contact with his family members.

13. When the Tribunal indicated that this was a new claim and questioned whether the applicant had discussed this incident with anyone, the applicant stated he told his Departmental caseworker about that situation and tried to tell his lawyer about it but was not able to because his English was not good. The Tribunal considered the applicant’s evidence in respect of this claim, as set out above, to be vague and limited. On the evidence before it, including the Departmental file, the applicant has not raised this claim before and the Tribunal finds it difficult to believe given the significance of it that had this occurred, the applicant would not ensure that he brought it to the attention of his lawyer. On this basis, the Tribunal did not consider the applicant’s evidence in respect to threats delivered to his mother in 2014 to be convincing and this led the Tribunal to hold serious concerns about the applicant’s credibility in respect to this claim.

14. On the basis of the Tribunal’s serious concerns about the credibility of the applicant’s evidence in respect to this claim, the Tribunal does not accept that threats against the applicant and his brother were delivered to his mother in 2014 for any reason. The Tribunal finds that the applicant does not face a real chance of persecution now or in the foreseeable future from people who have delivered threats against the applicant and his brother because of his father’s political opinion.  For the same reasons, the Tribunal 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.

15. Taking into account all the findings and reasons above, the Tribunal finds that the applicant does not face a real chance of persecution now or in the foreseeable future from local villagers, the authorities or anyone else for reason of political opinion.  For the same reasons, the Tribunal 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.

    Returnee as a failed asylum seeker/returnee from the West

16. While the applicant has not raised this issue, the Tribunal also accepts the applicant, in the context of his illegal departure and return to Sri Lanka, will be identified on return as a failed asylum seeker returning from the West, and the Tribunal has also considered whether in the applicant’s circumstances as accepted above, as a Singhalese person with no political profile, he has a real chance of serious harm or a real risk of significant harm on this basis.

17. The Tribunal summarised for the applicant its understanding of the situation for those being returned involuntarily to Sri Lanka. With respect to the failed asylum seeker issue, the Tribunal drew on the following country information, discussed with the applicant at the hearing, that indicates that people of Sinhalese ethnicity returning to Sri Lanka are subject to the same entry procedures as any other citizen:

    R1. Returnees are subject to standardised identity and security checks regardless of ethnicity and the circumstances of their departure from Sri Lanka. Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Government of Sri Lanka has standardised re-entry procedures in place at the airport to undertake identity and security checks for all returnees. These processes are applicable to all Sri Lankan returnees regardless of ethnicity and are standard for returnees from all countries regardless of the circumstances around their departure from Sri Lanka (i.e. regardless if the returnee is voluntary or involuntary). ^[22]

    [22] DFAT, Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, 29 November 2012, CX299951.

18. As put to the applicant, DFAT advice indicates that in his circumstances, as a returnee who has departed illegally, he would be considered as having contravened the Immigrants and Emigrants Act and that this would be identified at entry at the airport. The Tribunal has had regard to the country advice prepared by DFAT, put to the applicant, regarding the treatment of failed asylum seekers returning to Sri Lanka.

    5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.

    5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat. If 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, because they have not committed any offence under the I&E Act.

    Entry Procedures

    5.29 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.

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

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

    Offences under the Immigrants and Emigrants Act

    5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

    5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).

    5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.

    Facilitators and organisers

    5.35 The Attorney-General’s Department typically distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.

    5.36 Some returnees from Australia have been charged with immigration offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling. DFAT understands that, in several cases, returnees have been charged and convicted of immigration offences. As of March 2014, at least one charge had been upheld on appeal.

    Conditions for Returnees

    5.37 Since 2008-09, over 1,500 failed Sri Lankan asylum seekers were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to Colombo and other urban areas in the south.

    5.38 Most returnees have incurred significant expenses or debt to undertake their outward journey. Many are apprehensive about finding suitable employment opportunities on return. Those who have skills which are in high demand in the labour market are best placed to find well-paid employment. Returnees who receive reintegration assistance on their return to Sri Lanka find it easier to resettle.[23]

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

1. As discussed with the applicant, the UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankan – particularly Tamil – asylum seekers returned to Sri Lanka following the rejection of asylum claims, but acknowledged that “[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned”.[24]

   [24] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p.8. CIS29707.

2. As discussed with the applicant, the focus of the Sri Lankan authorities is on preventing both the resurgence of the Liberation Tigers of Tamil Eelam (LTTE) or any similar Tamil separatist group, and the revival of the civil war in Sri Lanka. As discussed with the applicant, the UNHCR considers that it is particular groups of people who are targeted by the authorities, including persons linked with the LTTE, certain opposition politicians and political activists, human rights activists or journalists. ^[25] As put to the applicant, in the country guidance case of GJ & Others (post–civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) it was determined that:

   There are no detention facilities at the airport. Only those whose names appear on a stop list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days , see paragraph 356 (6).

   A person whose name appears on a computerised stop list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a stop list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant, see paragraph 356- 7(d).

   The authorities maintain a computerised intelligence-led watch list. A person whose name appears on a watch list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces see paragraph 356-7(9).[26]

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

   [26] UK Home Office Operational Guidance Note, Sri Lanka, July 2013.

3. The Tribunal noted to the applicant that Freedom from Torture, Amnesty International and Human Rights Watch all reported instances of torture for some people who had returned from overseas. These reports identify that the risk of torture is more likely to occur for Tamil failed asylum seekers.

4. As discussed with the applicant, the UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

   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.[27]

   [27] UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p.8, CIS29707.

5. The Tribunal discussed this information with the applicant, including whether he had any fears being harmed while being asked questions about his manner of departure and return to Sri Lanka, that the country information available showed that he would be interviewed by the CID and the SIS on arrival in Sri Lanka. The applicant confirmed that he had no reason to believe he was on an immigration watchlist, and had no past or outstanding criminal charges or involvement in people smuggling. The Tribunal raised that the applicant had claimed to have occasional steered the boat because he had these skills, but on the evidence of the applicant, this assistance did not give him any profile as an organiser/people smuggler. In response to the information cited above, the applicant told the Tribunal that he had no concerns that he will be imputed with any adverse political opinion from the State for any reason and he knows there will be no problems from the State - it is the people in the village that he is concerned about.

6. The applicant said he did not know anything about treatment of returnees at the airport on return to Sri Lanka, or subsequent treatment, because he is returning as a failed asylum seeker from the West. The Tribunal has had regard to the country information cited above and considers that it is particular groups of people, as detailed by the UNHCR, who are targeted by the authorities, including persons linked with the LTTE, certain opposition politicians and political activists, human rights activists or journalists. ^[28]  The UNHCR has stated that this list is not definitive, but these groups have been identified as particularly at risk. The Tribunal has considered the applicant’s profile and his claims, and does not consider that he is a person in whom the authorities would have any interest. He has not been charged at any time in the past, and the Tribunal does not consider that on the applicant’s accepted circumstances, there is any reason why the authorities would have any interest in him on return to Sri Lanka. The applicant stated that he has not been involved in any political activity in Sri Lanka or Australia, and the Tribunal assesses that the applicant will not be considered a person who may destabilise the government. The Tribunal finds that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival in Sri Lanka, other than the standard questioning procedures described by DFAT. The Tribunal finds that the applicant has no profile for any reason and on the basis of the country information before it the Tribunal finds that he will not be harmed during the questioning process at the airport on return to Sri Lanka for this reason.

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

7. The Tribunal accepts the Sri Lankan authorities will assume the applicant has sought asylum in Australia, having regard to his unlawful departure by boat and the context and circumstances in which he would likely be returned. The Tribunal does not accept, given the confidentiality of the process, that the applicant’s individual claims will be known. Having regard to the applicant’s accepted circumstances and country information before it, the Tribunal does not accept the authorities will be concerned by the applicant's imputed asylum claim, such that there is any real chance any State actor will be motivated to harm him at any stage of the re-entry and return process; or the charge, remand and bail process; or in the process of imposing legal penalties for his illegal departure, because he sought asylum in Australia/the West either individually or cumulatively.

8. The Tribunal accepts country information, including Freedom from Torture, which report cases of certain returnee failed asylum seekers being specifically targeted and harmed by the Sri Lankan authorities. However, the Tribunal does not accept that the applicant faces a real chance of such harm as a failed asylum seeker in his circumstances. Having regard to the applicant’s accepted profile, the Tribunal does not accept that the weight of the evidence before it supports the view that there is any real chance the government will detain, harm, torture or kill the applicant personally due to any assumption that he has criticised the government in the course of seeking asylum, or otherwise arising from seeking asylum.  

9. The Tribunal accepts, on the basis of the country information provided to the applicant, that he will be questioned by Sri Lankan authorities (including airport immigration officials or CID) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and his return, but as above finds that give the applicant’s accepted circumstances this questioning itself will not result in harm to the applicant. Having regard to his accepted circumstances, the Tribunal does not accept the applicant faces any real chance of being detained for questioning or otherwise targeted for harm – at the airport or in his home area – due to his identification as a failed asylum seeker, or any adverse real or imputed political opinion either arising from his own circumstances or as a returning asylum seeker from the West, or because of his illegal departure from Sri Lanka, individually or cumulatively.  Further, on the basis of the country information cited above and put to the applicant, the Tribunal does not accept that there will be any imputed anti-Government political opinion arising out of his departing Sri Lanka.

10. Having regard to the applicant’s circumstances, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home area. While he may be required to report to the authorities on return to his home area, the Tribunal does not accept that this will lead to any harm to the applicant, given that there is no reason for the authorities to be concerned about the applicant, a Sinhalese man of no adverse interest.

11. Were the applicant to be questioned or monitored briefly at the airport or in his home region by the authorities due to his illegal departure, the Tribunal does not accept this itself amounts to serious or significant harm as defined in s.91R(2) and s.36(2A). The Tribunal does not accept that the applicant would be of ongoing or recurrent interest, or that he faces a real chance of serious harm in this context.  The Tribunal does not accept that the applicant faces a real risk of significant harm on return to Sri Lanka on this basis. The Tribunal does not find the weight of evidence before it supports that view.

12. For these reasons, the Tribunal finds the applicant faces no real chance of serious harm as a Singhalese Sri Lankan returning as a failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of being a man who departed Sri Lanka illegally. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.

13. Having determined that the applicant does not face a real chance of the applicant being harmed for this reason, 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 on this basis.

    Illegal departure from Sri Lanka

14. On the evidence before it, the Tribunal accepts that the applicant has illegally departed Sri Lanka, departing by boat and travelling to Australia in 2012. At the hearing, as above, the applicant stated that he has no concerns about his treatment from the State on return to Sri Lanka. However, the Tribunal has considered the claim that he could be jailed if returned to Sri Lanka because he left Sri Lanka illegally, as made to the delegate.

15. At the hearing, the Tribunal discussed with the applicant the DFAT country information cited above setting out the process on return to Sri Lanka. The Tribunal noted that the Department of Emigration and Immigration (DIE) would interview the applicant on return to Sri Lanka and that it is likely that the applicant’s unlawful departure will be identified by DIE and that the applicant may be charged due to the manner of his departure. The Tribunal raised this country information with the applicant for comment, including that he would face charges that any person who left Sri Lanka in a manner that is prescribed by Sri Lankan legislation would face. The applicant told the Tribunal that he paid about [amount] rupees though his savings and all the arrangements and payment were made by his brother. He stated that he had never been involved in people smuggling, nor had he previously been convicted for any reason. On the basis of the country information set out earlier, and summarised for the applicant, the Tribunal finds that the applicant will be identified as someone who departed illegally and will be charged, potentially remanded in prison, bailed, convicted and subject to penalties. The Tribunal has therefore considered his circumstances in this light.

16. The Tribunal noted at hearing that punishment, if convicted, could be up to five years’ imprisonment and up to a 200,000 rupee fine but country information from DFAT indicated that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. This information indicates that fines that have been handed out are between 5,000 and 50,000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats. The Tribunal noted that this may lead it to conclude that the fine the applicant would have to pay would be similar or not much higher. On this basis, the Tribunal finds that the applicant will be fined between 5,000 and 50,000 rupees.

17. Country information indicates that people are released on personal bail. People who have been involved in people smuggling or had previous convictions and not complied with bail conditions may not be released on bail. The Tribunal finds that the applicant will be held for a short period on arrival for questioning, and is likely to be charged with an offence under the Immigrants & Emigrants Act. However, having regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in 36(2A) of the Act, the Tribunal finds that this does not constitute either serious harm or significant harm to the applicant. The Tribunal also finds that given the applicant has no profile of any kind, he will be released on bail and may have reporting conditions attached to him, but that such reporting conditions will not lead to him being seriously or significantly harmed.

18. The Tribunal accepts the applicant will be charged under Sri Lankan law due to his unlawful departure from Sri Lanka. The Tribunal finds that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most up to fourteen days) on remand, then bailed pending hearing, and then face a financial penalty (and not a custodial sentence).  The Tribunal finds that the Immigrants & Emigrants Act applies generally to those who breach the provisions and is not discriminatory on its face or its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal finds that the laws are not selectively enforced. Accordingly, the Tribunal finds that the Immigrants & Emigrants Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act.  Taking into account earlier findings that the applicant does not have an anti-government profile or is of ongoing adverse interest to the authorities for any reason, for refugee purposes, the Tribunal is satisfied any questioning, charge, conviction or penalty to which the applicant may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that is different to how it would be applied to any other Sri Lankan citizen.

19. The Tribunal finds that the applicant's brief remand by the authorities for questioning, charging awaiting a bail hearing and any conviction and penalty will be the result of the non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and discriminatory conduct.

20. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal noted that in early discussion at hearing the applicant stated that he currently had no savings, but when asked if he and his family would have the resources to meet any fine or bail requirements, he did not dispute that he and his family would have such resources. On the evidence before it, the Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure and, therefore, that there is no real chance or real risk he will face serious or significant harm in the foreseeable future deriving from any legal penalty being imposed.

21. The Tribunal has considered whether a conviction for illegal departure under the Immigrants & Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departed Sri Lanka. As accepted above, the Tribunal is satisfied the applicant would have the resources at his disposal and would pay any financial penalty imposed under Sri Lankan law for departing Sri Lanka illegally. For this reason, the Tribunal does not consider the imposition of a fine, or the process of being questioned, charged and possibly convicted, constitutes significant harm.

22. Having regard to the applicant's background, his ability to readily establish his identity (as he has done in the course of the protection visa application) and noting the Immigrants & Emigrants Act bail provisions encompass bail on personal recognisance and without requirement of financial surety, the Tribunal finds the chances remote that the applicant will spend more than a very short period (of hours or at most days, to a fortnight) remanded in custody awaiting bail after his return to Sri Lanka. The Tribunal also notes the presence of the applicant’s family in Sri Lanka and while the Tribunal accepts the applicant’s evidence that he is not frequently in touch with family members, on the evidence before it the Tribunal finds the applicant’s family will help the applicant to meet these identity and bail requirements if needed.

23. Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka,[29] taking into account the applicant’s profile as accepted, the Tribunal finds the chances remote that the applicant will be targeted and harmed for any reason in the context of a very brief stay in remand pending bail. The Tribunal finds that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand, and finds it speculative and the chances remote that he will face serious harm in this context.

    [29] DFAT, Country Information Report, Sri Lanka, 18 December 2015, at [5.13]-[5.14].

1. The Tribunal has had particular regard to the country information in relation to torture or mistreatment of returnees. As discussed with the applicant, DFAT states:

   Torture or mistreatment of returnees

   4.22 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports. Verification is complicated by the fact that many allegations are made anonymously, often to third parties.

   4.23 There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous Rajapaksa government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes, including terrorism offences. This was due mostly to the greater exposure these returnees had to authorities on their return which generally includes extended periods of pre-trial detention. While overall monitoring has reduced under the Sirisena government and general fears about mistreatment have reduced, it is difficult to verify if the intent to improve general conditions has yet led to a lower risk of torture or mistreatment of returnees.[30]

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

   The Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. The Tribunal notes the guidelines of the relevant Departmental PAM3 in this respect, including the discussion of prison conditions.  While the applicant may be placed in overcrowded and poor conditions for a short period of time, the Tribunal does not accept that the authorities are intentionally seeking to harm the applicant by placing him in these conditions for the short period he would be detained. Further, on the evidence before it, the Tribunal considers that the poor prison conditions were due to a lack of resources rather than any intention by the Sri Lankan government to inflict such harm.

100.   Given the short-term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, the Tribunal finds that the risk the applicant will be subject to torture or any other form of significant harm is remote. Furthermore, based on the country information, the Tribunal finds that any possible consequences for the applicant in light of charges that the applicant may face upon return to Sri Lanka, including any questioning, awaiting a bail hearing, conviction, penalty, fine, detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c), this is taken not to be a real risk that the applicant will suffer significant harm.

101.   Taking into account the Tribunal’s earlier reasons and findings, that the applicant will be of no adverse interest to the authorities on return to Sri Lanka, the Tribunal does not accept that the applicant will be singled out or intentionally harmed by the authorities in these circumstances while on remand. The Tribunal does not accept that there is any intention on behalf of the authorities to significantly harm the applicant while being detained.  The Tribunal finds that there is no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. The Tribunal also does not consider that the applicant’s detention in these conditions for a short period of time constitutes significant harm. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.

102.   On the evidence of the applicant and the country information before it, the Tribunal finds the applicant does not have a real chance of serious harm now or in the foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, taking all the evidence into account, the Tribunal finds 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 would suffer significant harm on this basis.

Economic issues

103.   At conclusion of the hearing, the applicant stated that if he has to go back to Sri Lanka he will be more destitute than now because he has not spoken with his family for a long time. He implied that because he has not been in touch with his family recently, he may not be able to rely on them for support. The Tribunal acknowledges that the applicant has been away from Sri Lanka for more than five years. The Tribunal acknowledges that the applicant’s relationship with his family may have weakened over this time. However, on the accepted circumstances of the applicant, and taking into account the Tribunal’s findings above that the applicant has embellished his claim concerning the frequency of his contact with the family, the Tribunal does not accept that the applicant will not receive basic assistance, accommodation and support from his family on return to Sri Lanka. The Tribunal finds the applicant’s family will provide the applicant with basic support. Taking the applicant’s circumstances as accepted, the Tribunal finds there is not a real chance the applicant faces serious harm for this reason. On this basis, the applicant’s fear of persecution is not well-founded.

104.   The Tribunal also considers that the applicant has skills and experience as a fisherman in Sri Lanka and that he will be able to find work as a fisherman on return to his region. The Tribunal also notes that on the evidence of the applicant at hearing his brother continues to be a fisherman. The Tribunal considers while the applicant’s ties to his brother may not be as strong as previously, the applicant could obtain assistance in finding employment from his brother if this was needed. On this basis, the Tribunal finds the applicant will find employment on return to Sri Lanka. Having regard to the definition of significant harm in s.36(2) of the Act, the Tribunal finds that any economic difficulties the applicant may experience on return to Sri Lanka do not constitute significant harm as exhaustively defined. The applicant’s fear of persecution is not well-founded on this basis.

Cumulative assessment

105.   Considering the applicant’s individual circumstances and the independent country information cumulatively, the Tribunal finds that he does not face a real chance of persecution in the foreseeable future for any reason.  The Tribunal finds that the applicant does not have a well-founded fear of persecution.

106.   Considering the applicant’s individual circumstances and the independent country information cumulatively, the Tribunal 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.

State protection/relocation

107.   The Tribunal has found above that the applicant does not face a real chance of serious harm now or in the foreseeable future and that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Sri Lanka. For this reason, the Tribunal has not addressed the applicant’s claims in respect of state protection or relocation to another part of Sri Lanka. 

Conclusions

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

109.   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).

110.   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

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

Amanda Paxton
Member