1419662 (Refugee)

[2015] AATA 3164

1419662 (Refugee) [2015] AATA 3164 (21 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419662

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Mara Moustafine

DATE:21 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2015 at 4:23pm

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], , is a [age] years old citizen of Sri Lanka, born in [Killinochchi] district in the Northern Province. He is of Tamil ethnicity, Hindu by religion and married with [children]. His wife and family remain in Sri Lanka, as does his mother and [siblings]. Prior to leaving Sri Lanka he worked as a farmer.

3. The applicant arrived in Australia as an unauthorised maritime arrival [in] August 2012. He applied for a Protection visa [in] December 2012. A delegate of the Minister for Immigration refused to grant the visa [in] August 2013. The applicant applied to the Tribunal for a review of that decision on 30 August 2013, providing a copy of the delegate’s decision.  A summary of the relevant law is set out at Appendix A.   

4. On 30 May 2014, the Tribunal, differently constituted, affirmed the Department's decision. This decision was quashed by the Court [in] December 2014 and the applicant's review application remitted to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal on 15 July 2015 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. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

6. The issues in this review are whether the applicant’s claims are credible; whether he has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   Materials before the Tribunal

7. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal, including those set out in Appendix B.  At the start of the hearing before the Tribunal the applicant affirmed that his evidence to date was true and correct.

8. The Tribunal has also had regard to a range of independent country information about Sri Lanka, including that referred to in the delegate’s decision and provided by the applicant’s representative. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka?

   Applicant’s claims

9. As proof of his identity, the applicant provided a National identity card, the bio data page of a Sri Lankan passport, issued [in] 2010 and an untranslated copy of his birth certificate.

10. Based on his statutory declaration and protection visa application, the applicant’s claims can be summarised as below.

    a.After getting married in 1999, he moved to [a location] which was then under LTTE control.

    b.From 2000 to 2002 he worked in one of the LTTE [offices][details of work deleted]. In that office there were some [number] LTTE and [number] civilians.

    c.While working with the LTTE and up to 2008, he partook in festivities, encouraging  Tamils to object to the discrimination of the Sri Lankan government and attended rallies.

    d.He left the job in 2002 as the office moved further away from his home and took up farming.

    e.In May 2009 he and his family fled their area and were displaced for one month. Eventually they were taken in by the army and placed into the camp. When someone reported to the army that he had worked for the LTTE, he was taken away to a separate camp where he was detained for a month, beaten and tortured and interrogated about his work with the LTTE.

    f.Eventually an officer named [Mr A] asked the applicant to work for him and he agreed to do so to stop the beatings. He was later asked by an officer named [Mr B] to identify those he knew of being LTTE supporters. He agreed, but managed to avoid doing so.

    g.After he was resettled in his home in 2010, the CID questioned the applicant about his work with the LTTE and asked him to identify other LTTE members. He was able to avoid answering their questions by telling them to see [Mr A].

    h.In 2012, the army was recruiting former LTTE workers but the applicant refused to work for them. Even though his work with the LTTE was a civilian role, the CID and army considered him to be in possession of important information about the LTTE.

    i.In early 2012 the applicant’s former [colleague]was taken by the CID for questioning and has not been seen since and he suspects he was taken to the 4th floor where [Mr A] is a head officer. Following this, the applicant feared that [Mr A] would no longer protect him but demand that he work for him again, which he did not want to do; and that he would be killed if he refused.

    j.The army kept coming on a regular basis to check where the applicant was and what he was doing; and would threaten him and say he should work for them. He would also be questioned about his involvement in the rallies against the government, information that was reported by other Tamils to seek favour with the army. Fearing that he would soon be abducted because of the regular pressure from the army and CID, the applicant decided to leave Sri Lanka.

    k.He is certain that if he returns to Sri Lanka he will be killed as his illegal departure from Sri Lanka would have confirmed in the mind of the army and CID that he was not just a civilian, but an active LTTE member.

    l.He cannot relocate to other parts of Sri Lanka as he would have to register his details and this would become known to the CID and army, who are everywhere with access to all information.

11. Based on the recording of the applicant’s hearing before the first Tribunal, key relevant points were:

    a.The applicant was not involved in any political activities against the Sri Lankan government in Australia.

    b.From 2000 to 2002, he worked in an [office] run by the LTTE, which was the government in the region. However, only his boss was from the LTTE. It was a low level job and he did not meet people from the LTTE.

    c.The applicant was not a member of the LTTE and was not required to do training. Apart from working in the office for two years, he had no other association with the LTTE.

    d.Between [May] 2006 and 2009 after the Sri Lankan army captured [them], he lived in an Internally Displaced Persons (IDP) [camp], where he was interrogated, tortured and beaten. He was asked to identify LTTE members but said he did not know where they were and was unable to identify people.

    e.After a person named [Mr C] was taken by the CID in 2010 and did not return, the applicant was afraid that it was not safe for him to remain so he decided to go overseas and obtained a passport in [2010] but did not travel on it as he heard that people who worked for the LTTE were being targeted and shot so he decided to leave illegally.

    f.He was scared when people from the CID and Army came to his house but no one actually threatened him and nothing happened to him between 2010 and 2012.

12. Ahead of his hearing before the second Tribunal, the applicant’s representative provided a submission dated 18 June 2015 positing that the applicant has a well-founded fear of persecution arising from his imputed political opinion as a result of his LTTE links, his Tamil ethnicity and his membership of a particular social group of failed asylum seekers who departed Sri Lanka illegally. Her submission elaborated on these issues, including references to country information regarding the situation in Sri Lanka.

13. Key points from the representative’s submission were:

    a.The applicant was not a member of the LTTE but, at the administration office where he worked, he received regular training in administration work from a high-ranking LTTE member; his superior was a high-ranking LTTE member; and he attended yearly conferences officiated by high-ranking LTTE administration members.

    b.The applicant believes he will be detained, tortured and interrogated about his past association with the LTTE and Sri Lankan authorities will not make a distinction as to whether he was a high or low-grade officer in the administration, but will treat him as a person with LTTE links, a risk profile identified by the UNHCR.

    c.As a young Tamil from the North of Sri Lanka imputed with ties to the LTTE, he will face significant risks of arrest, interrogation, torture and inhuman conditions if he is returned to Sri Lanka. His situation is compounded by his illegal departure; which will confirm in the mind of the authorities that he was not a civilian but an LTTE Member/supporter/ sympathiser.

    d.The army assaulted the applicant’s wife two months prior to his protection visa application. Since his departure to Australia, the army has visited his home several times to find out his whereabouts. Most recently, a CID officer got his Australian mobile number from his wife and the applicant received a call from the CID asking why he left Sri Lanka. The applicant was afraid and disconnected the line.

    e.The applicant will be questioned at Colombo airport upon his arrival and interrogated about his past involvement with the LTTE. There will be records to show that he was a former LTTE employee and was previously detained for a month by the Sri Lankan authorities.

    f.The applicant’s long absence from Sri Lanka since 2012 will expose him to a real chance of serious or significant harm in light of his past connection with the LTTE. Sri Lankan authorities are very suspicious of Tamils who have travelled to Western countries and suspect them of close connections to the Tiger Diaspora network; and as the applicant lived with Tamils who had fled persecution from Sri Lanka in Australia, he will be branded as an LTTE supporter/sympathizer if questioned on this issue.

    g.The applicant will face a real risk of persecution and ill treatment at the hands of the Sri Lankan authorities if returned to Sri Lanka in the reasonably foreseeable future, whether on arrival at the airport or after departing the airport, within hours or at a much later date.

14. Relevant points from the applicant’s hearing before the Tribunal were as follows:

    a.He was born in [Killinochchi] District in[year].

    b.His wife, [children], mother and [siblings] were still living in Killinochchi. His wife and mother had problems with the CID, who came to ask and phoned about the  applicant’s whereabouts and how he left for Australia, most recently [in] May 2015.  

    c.The CID knew the applicant went to Australia because his wife told them in 2012.  They got his phone number in Australia from his wife and spoke to him [in] May 2015. The person who called said he was the CID and asked the applicant how he went to Australia. The applicant hung up.

    d.Before he left Sri Lanka the applicant was working as a [farmer] on leased [land]. Between 2009 and 2011, he was rebuilding houses. He completed [number] years of education, achieving his O level in[year]. He then moved to [a location] and worked as an [occupation] in a [organisation] providing [a certain service] for four years. When he got married, he moved to his wife’s native [place].  

    e.Between 2000 and 2002, the applicant worked in an LTTE office[details of work deleted].  His work involved[details deleted]. He described his role as[details deleted].

    f.The Tribunal expressed surprise that all this documentation was necessary for[his work]. The applicant said the LTTE wanted to [details deleted].[Details of work deleted]. The applicant then said that he worked under [a specific] wing, while administration was under [another] wing.

    g.Asked how he got such a job, the applicant said through an interview selection process after he responded to an advertisement about a job in the ‘[name] office’, though it did not mention that it was under [a specific] wing. It was a salaried job and he was [age] years old at the time. Asked whether there were any administrative jobs in the area at the time that were not[a certain job], the applicant said no, and that, at that time, there was no other option than working for the LTTE.

    h.Asked what qualified him to work in such an [specific] job and whether he was required to be an LTTE member, the applicant said he got the job because he had an O level and he did not need to be an LTTE member because he was married. He worked in a small office of [number] [people]. Of the [number] people in the department, only the [head]was an LTTE member. All other staff were civilians, although many LTTE cadres would come to the office to check information about families.

    i.Asked if he had decision-making authority, the applicant said he had been trained by the head of the [operation]. He said he would [details of work deleted]. The Tribunal expressed surprise that a [age] year old, who was not an LTTE member would have, or give up, such a role in [a specific] wing of the LTTE administration. The applicant said he quit the job when transferred to areas far from his family and then worked as a [farmer] on land he leased in his wife’s area. 

    j.Neither the applicant, nor anyone in his family was ever involved with the LTTE. Asked how he managed to avoid this while living in the Northern Province, the applicant did not respond directly but said he was on very good terms with [the] head of the operation, and told him the places were too far for him, so was released from his job. The LTTE never tried to recruit him or anyone else in his family into their fighting force as everyone got married and were expecting babies.

    k.Asked if the authorities ever questioned him about LTTE links or other political activities, the applicant said he was questioned by two CID people in 2009 when he was in the [an] IDP [camp]. He was taken to this camp like everyone else after the war ended in 2009 and stayed there for a year, before being resettled in 2010.

    l.There were [number] people at the camp and they were separated between those who were LTTE members and those who worked for the LTTE. The applicant, who was in the latter group, was interrogated, beaten, tortured and accused of being an LTTE member because he worked for LTTE [specific wing]; but was then handed over to [Mr A], who was in charge. Asked why he was not sent to a rehabilitation camp, the applicant said it was because he agreed to identify LTTE cadres. He told them he had been working in [specific wing] and they thought he would have come across LTTE people.

    m.The Tribunal expressed surprise that the authorities would a) need him to help identify LTTE members when by his own evidence, they had already divided the people in the camp between LTTE cadres and fighters and those who were ordinary workers the civilian administration; and b) that he would have been trusted and escaped being sent to a rehabilitation camp after telling the authorities that he had worked in the LTTE [specific]  wing. The applicant responded that, at the time, the CID were only sending LTTE cadres to rehabilitation; while almost everyone living in LTTE-controlled areas had worked for the LTTE.

    n.Asked if he was arrested or detained by police or security at any other time, apart from at the IDP camp, the applicant said that after being resettled in his village in 2010, the authorities sometimes visited him and took him for questioning. However, when he told them he worked for [Mr A] or gave his phone number, he was left alone and not arrested or detained by police or security. 

    o.The applicant was never involved in anti-government activities in Sri Lanka or Australia and had no outstanding criminal matters.

    p.He left Sri Lanka in July 2012 after [Mr C], an employee in the main LTTE office and not the same section as the applicant, was taken for questioning by the CID and not released. Fearing that the CID would also target him, the applicant decided to leave Sri Lanka. He confirmed that no one had warned or threatened that he would be so targeted. He just thought that his life was in danger and the same might happen to him because people were taken for questioning and went missing or were killed. 

    q.Asked if anything happened after he left Sri Lanka in July 2012, the applicant said no. Asked about his family, the applicant said that, after some time, the authorities came asking about his whereabouts and his wife went to live at his mother’s place and was moving around.

    r.Asked what he thought might happen if he returned to Sri Lanka now, the applicant said his life would be in danger if [Mr A] found out he was back because he did not tell him he was leaving. Asked if [Mr A] had made any contact with his family, the applicant said no, only CID officers. He said [Mr A] was now in charge of the 4^th floor of the CID in Colombo. He knew this because [Mr B] had told him this when he introduced him to [Mr A] at the [camp] in 2009. The Tribunal expressed surprise that [Mr A] held this position at the time when he was allegedly working at the camp; or that the authorities would tell the applicant who he was, if as he claimed, an LTTE suspect. Asked how he knew that [Mr A] was currently head of the 4^th floor is position after all this time, the applicant said he did not know, but that when [Mr B] beat him, he threatened to hand him over to ‘the big guy in charge of the 4^th floor’ and introduced him to [Mr A], who had two pistols in his trousers.

    s.Asked why [Mr A] would still be interested in him, the applicant did not answer directly, but said that when he was accused of being member of the LTTE, he explained he was only a worker and that he was ready to work for him and could identify LTTE members; to which [Mr A] agreed and said he would take care of the applicant and that he did not think he would have any more problems. However, he became fearful after the CID started following people up and some people disappeared.

    t.The applicant also feared that the CID officer who rang him in Australia after his wife gave him his number may be angry that he just hung up on him. Asked about his wife’s welfare, the applicant said she had gone to live with other relatives in Killinochchi and nothing has happened to her since then.

    u.Asked if there were any other reasons the applicant feared returning, he said he feared that, after being in Australia for so long, the authorities might think he worked against the government overseas, especially as he had departed illegally.

    Consideration of applicant’s claims

15. On the basis of the applicant’s identity documents and, in the absence of evidence to the contrary, the Tribunal accepts that he is a Sri Lankan national from the Northern province and Tamil by ethnicity, as claimed, and that Sri Lanka is his country of reference and receiving country.

1. In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material, including the latest information from the Department of Foreign Affairs and Trade (DFAT), as well as that referred to in the delegate’s decision and in submissions from the applicant’s representative, relating to the situation of Tamils in Sri Lanka, as well as the treatment of failed asylum seekers who departed Sri Lanka illegally[1].

   Applicant’s experiences in Sri Lanka prior to his departure in July 2012

   [1] DFAT, Country Report Sri Lanka, 16 February 2015; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012; DFAT, DFAT Thematic Report: people with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); US Department of State 2014, Country Report on Human Rights Practices 2013 – Sri Lanka, 27 February 2014.

2. For the reasons outlined below, the Tribunal did not find the applicant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he fears persecution there. The applicant’s evidence about central aspects of his claims, including that he will be persecuted as a suspected LTTE supporter because he worked in an LTTE administration office between 2000 and 2002; was detained and tortured as a suspected LTTE member after the end of the civil war in 2009; and left Sri Lanka without the knowledge of a senior CID officer for whom he worked identifying LTTE members – was inconsistent, vague, implausible and unsupported, including by country information from independent sources.

3. As discussed with the applicant, his evidence regarding the LTTE office where he worked was inconsistent between his statement of claims and his two Tribunal hearings. In his statement of claims the applicant said there were some [number] LTTE members and [number] civilians in that office (paragraph 10.b). However, he told the first and second Tribunals among the [number] or so workers, only the boss was LTTE, while the rest were civilians (paragraphs 11.b and 14.h). When asked about this inconsistency, the applicant claimed that what he said was that he came across [number] LTTE members throughout his employment. The Tribunal finds this disingenuous. Further, while he told the first Tribunal that he did not meet people from LTTE in his work, the applicant told this Tribunal that many LTTE cadres came to the office; and, according to his representative’s submission, he attended yearly conferences officiated by high-ranking LTTE administration members (paragraph 13.a).      

   Significantly, the applicant’s description of his role in the LTTE office shifted during the course of his protection visa application process. Initially, the applicant referred to [doing a certain job] in the [office] (statement of claims at paragraph 10.b), which he described in his first hearing as ‘low level’ (paragraph 11.b). By contrast, in his hearing before this Tribunal, the applicant described a much more authoritative [role] and said he worked under the [specific] wing of the LTTE. As discussed with the applicant, the Tribunal finds implausible the applicant’s convoluted explanation of what his job entailed. Further, the Tribunal does not find credible that he would have been employed in such a sensitive role under the LTTE [specific] wing, purely on the basis of his response to an advertisement and his O levels and that he did not need to be an LTTE member simply because he was married (paragraphs 13.g – 13.i).  

4. Further, as discussed with the applicant, the Tribunal does not find it plausible that, if he told the Sri Lankan authorities at the end of the civil war that he worked under the LTTE [specific] wing, as claimed, he would have been able to escape being sent to rehabilitation camp. It is generally acknowledged, including by the applicant, that almost everyone living in LTTE-controlled had some level of involvement with the LTTE at the time. However, in the Tribunal’s view, by identifying himself in this way to authorities, the applicant would have raised his profile above an ordinary worker in the civilian administration at the very time that they were identifying suspected LTTE members and sending them to rehabilitation camps. In light of the above and the multiple inconsistencies in the applicant’s evidence regarding his alleged employment for the LTTE, the Tribunal is not satisfied that the applicant ever worked in the LTTE administration or under its [specific] wing, as claimed, nor that he was asked to work with the CID to identify LTTE members on the basis of this work experience, thereby gaining protection from further targeting. 

5. As discussed with the applicant, the Tribunal is concerned about inconsistencies in his evidence regarding the time he spent in the IDP camp. In his statement of claims the applicant claimed that he and his family fled his home in May 2009 after an unexploded shell dropped on his house, were displaced for one month and were eventually taken into the camp by the Army. Similarly, he told this Tribunal that they were taken to the camp in 2009 and remained there for one year before being released in 2010. By contrast he told the first Tribunal that he was in an IDP [camp] from [May] 2006-till 2009. The applicant sought to explain this inconsistency by saying that his family was displaced and started moving from place to place in 2006 and went into the IDP camp in 2009. However, this is undermined by evidence in his protection visa application form, which indicates that he lived in [his wife’s native place] from 1999 till Feb 2008; then [location] until July 2009; and was in [another location] where the camp was located, for seven months from July 2009 to February 2010.

6. The Tribunal is not satisfied that the applicant has been truthful about his experiences in displacement and in the IDP camp and considers disingenuous his comment that all these villages are next to each other and that they finally ended up in the camp. However, on the basis of country information that many Tamils living in the Northern Province were taken into IDP camps in the closing stages of the war, the Tribunal is prepared to accept that the applicant and his family spent seven months in the IDP camp in 2009 before being released and resettled in early 2010. By his own evidence at paragraph 11.f, apart from questioning by the authorities, nothing untoward happened to the applicant and his family between this time and his departure in 2012. 

7. The applicant claims that the reason he left Sri Lanka in July 2012 was his fear that, he would be taken for questioning and never return, like his fellow worker at the LTTE office, variously identified as [his former colleague] (statement of claims) in 2012; [Mr C] in 2010 (at the first Tribunal hearing) and [Mr C] in 2012 (to this Tribunal). However, by his own evidence, this vague fear was purely speculative and not evidence based (paragraph 14.p).

8. In view of the multiple inconsistencies and concerns addressed above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Sri Lanka and the reasons he fears returning to that country; or that any of his evidence can be relied upon.

9. The Tribunal is not satisfied that the applicant ever worked in one of the LTTE offices of the civilian administration or under its [specifc] wing, as claimed; nor that he was reported to the army in 2009 for having worked for the LTTE, detained in a separate camp for a month, beaten, tortured and interrogated about his alleged LTTE work; nor that he was asked by any CID or Army officers to work with them to identify LTTE members on the basis of this work experience, thereby gaining protection from further targeting at any time while living in Sri Lanka. In the Tribunal’s view, the applicant concocted and embellished his evidence in an attempt to establish that he had significant LTTE links, which would make him of interest to the Sri Lankan authorities.

10. The Tribunal is not satisfied that since the applicant’s departure from Sri Lanka, his wife has been assaulted by the Army in October 2012, a claim noted in the representative’s submission but not mentioned in the statement of claims submitted with his protection visa application, nor at any of his hearings. The Tribunal does not find it credible, given the applicant’s evidence that his wife told them he had gone to Australia in 2012 (paragraph 14.c), that the authorities continued to come to question his family about his whereabouts or how he left Sri Lanka, most recently in May 2015 (paragraph 14.c). Nor is the Tribunal satisfied, in light of its concerns about the applicant’s overall credibility, the applicant recently received a call from a CID officer asking why he left Sri Lanka. As the Tribunal has not accepted that the applicant worked for the LTTE in its civilian administration or [specific] wing, it finds it dubious that he would be of such interest to the authorities.

11. As the Tribunal does not accept that the applicant was of interest to the Sri Lankan security authorities at the time he left Sri Lanka in July 2012, it follows that the Tribunal is not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face serious harm, including being arrested, detained, interrogated, beaten, tortured, subjected to inhuman conditions and killed by the Sri Lankan authorities, including the CID and the army, because of his past association with the LTTE or for any other reason. In the Tribunal’s view, the applicant fabricated his account in order to achieve a migration outcome.

    The applicant’s Tamil race/ethnicity and political profile

12. The applicant’s representative has claimed that, as a young Tamil male from the Northern Province, a former LTTE-controlled area, who once worked for the LTTE in its civilian administration office, the applicant has a well-founded fear of persecution arising from his ethnicity and his imputed political opinion as a suspected supporter of the LTTE; and that the applicant’s illegal departure will compound his situation by confirming in the mind of the authorities that the applicant was not a civilian, but an LTTE member/supporter/sympathiser.

13. The Tribunal has had regard to the submission by the applicant’s adviser highlighting the continued targeting, harassment and systematic abuse by the authorities of Tamils suspected of being LTTE sympathisers, as well as the particular vulnerability of Tamils in the militarised north and east of Sri Lanka and their inability to access effective state protection in this area. 

14. As discussed with the applicant at hearing, the Tribunal accepts that, at least up to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils, especially those living in the LTTE-dominated Northern Province, were at risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. However, there is general consensus among independent sources, including UNHCR, the United Kingdom’s Upper Tribunal on Immigration and Asylum (UK Upper Tribunal) and DFAT[2] that since then, the security situation has changed considerably such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced. As noted in the UNHCR Eligibility Guidelines ‘originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection’, although depending on the specifics of the individual case, people ‘with more elaborate links to the LTTE’[3], may require protection.

    [2] UNHCR, UNHCR Eligibility Guidelines, 21 December 2012; Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); DFAT, DFAT Country Information Report Sri Lanka, 31 July 2013, which is consistent with the latest DFAT Country Report Sri Lanka, 16 February 2015.

    [3] The risk profiles include persons who held senior positions with considerable authority in the LTTE civilian administration.

15. The Tribunal accepts that, like most of the population in the Northern Province, the applicant would have had interactions with the LTTE in the course of his daily life; and, at the end of the civil war in 2009, may have been investigated by the security authorities for possible LTTE links. By the applicant’s own evidence, neither he nor any of his family members were ever LTTE members. The Tribunal has not accepted above that the applicant worked for the LTTE civilian administration or in its [specific] wing, as claimed; or that he was detained in a separate camp for a month, beaten, tortured and interrogated about his alleged LTTE work after being reported to the army in 2009 for having worked for the LTTE. While the Tribunal has accepted that the applicant may have been questioned and investigated in terms of any LTTE links, it notes that in his protection visa application, the applicant indicated that he left [the location] where the IDP camp was located after seven months in February 2010 and by his own evidence, did not encounter any difficulties beyond questioning by the authorities up until the time he left Sri Lanka in July 2010. The Tribunal does not, therefore, accept that the applicant has the risk profile identified by the UNHCR, as claimed by his representative at paragraph 13.b.

16. The Tribunal notes that the guidance decision of UK Upper Tribunal[4] identifies persons at risk in Sri Lanka today to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism. The Upper Tribunal report also indicates that the Sri Lankan authorities are aware that everyone in the Northern Province had some level of involvement with the LTTE during the civil war; and found that, in post conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government. By his own evidence, the applicant has never been involved in activities against the Sri Lankan government or the Sri Lankan state while living in Sri Lanka or Australia (paragraph 14.o). The Tribunal is not satisfied that the applicant has a profile that would put him at risk of harm in Sri Lanka today.

    The applicant’s illegal departure from Sri Lanka and his status as a failed asylum seeker

    [4] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

17. The applicant fears harm in Sri Lanka because he left the country illegally and sought protection in Australia. He claims Sri Lankan authorities know that he is in Australia because his wife told them this in 2012 and that the authorities might think he worked against the government overseas, especially as he had departed illegally.

18. The applicant’s representative has claimed that the applicant has a well-founded fear of persecution in Sri Lanka as a member of a particular social group as a failed asylum seeker from a Western country; and that his illegal departure and long absence from Sri Lanka will compound the adverse situation he faces as a former LTTE employee, as authorities suspect Tamils who have travelled to Western countries of close connections to the Tiger Diaspora network and will brand him as an LTTE supporter.

19. The Tribunal has had regard to the submissions from the applicant’s representative regarding the torture and other ill treatment of returnees, based on reports from several non-government organisations. The Tribunal accepts that there is some evidence of returnees suffering such harm. However the weight of the evidence indicates that such cases usually involve persons who have had, or are suspected of having, links with the LTTE. The information from DFAT also indicates that allegations of mistreatment of returnees without such links have not been substantiated[5]. Further, information in the Canadian Immigration and Refugee Board report referred to by the representative was that the treatment of people at the airport did not depend on their ethnicity but on their political activities[6].

    [5] DFAT 2013 Country Information Report Sri Lanka, 31 July paragraphs 3.4, 3.64

    [6] Immigration and Refugee Board of Canada 2013, ‘Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants, 12 February, LKA104245.E.

20. The Upper Tribunal report also indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants, and found that in post conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government. The Tribunal does not accept, as claimed by the representative, that the length of time spent by Sri Lankan citizens outside their country is of any relevance to their risk profile.

21. The information before the Tribunal, including from DFAT, the Upper Tribunal and UNHCR also indicates that standardised procedures apply to all cases, regardless of a person’s ethnicity or circumstances in which they left the country. Returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person's name in immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person were of security interest or if there were evidence of involvement in people smuggling.

22. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of immigration laws are arrested at the airport and brought before a court to apply for bail. Bail is routinely given. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available.

23. The Tribunal also accepts that DFAT and various other groups have reported that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. The Tribunal is not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.[7]

    [7]DFAT 2014, Sri Lanka: Country Report, 3 October 2014.

24. The information before the Tribunal indicates that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is considered to be an organiser of people smuggling[8]. The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging from 50,000 to 200,000 LKR. However, DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and the fines levied by the Magistrates Court in Colombo are typically about 5,000 Sri Lankan Rupees (around AUD 40)[9]. The evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine. 

    [8] DFAT Sri Lanka: RRT Country Information Request – LKA40999, 19 October 2012, CX29741; DFAT Country Information Report NO.12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31 July 2013, paragraphs 3.73, 3.75, 3.77, 3.79.

    [9] DFAT 2014, Country Report Sri Lanka, 3 October at 5.28 to 5.29.

1. The Tribunal accepts that the applicant departed Sri Lanka unlawfully and that it will be known upon his return that he has unsuccessfully sought asylum in a Western country.  The Tribunal accepts on the basis of the information discussed above that the applicant would be subjected to such processes on return. The Tribunal has found that the applicant did not have any adverse political profile before he departed Sri Lanka. By his own evidence at paragraph 14.o, the applicant does not have any outstanding criminal matters that might make him a person of interest to the authorities.

2. Having considered the evidence as set out above, the Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country.

3. The Tribunal accepts that the applicant will face questioning at the airport, may be placed in remand for a short period and charged because he left Sri Lanka illegally. There is a possibility he will be held for a limited period in remand while awaiting bail in conditions that can be poor due to overcrowding and unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or applied for asylum overseas or singled out or treated differently because he is a member of a particular social group of failed asylum seekers. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors that apply to the general population. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).

4. Having considered the independent evidence and the applicant's personal circumstances, the Tribunal is not satisfied that there is a real chance that he will suffer serious harm amounting to persecution in Sri Lanka for a Convention reason, including his Tamil race, his imputed political opinion of support for the LTTE, or his membership of the particular social group of failed asylum seekers returning to Sri Lanka from a Western country.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there is a real risk that he will suffer significant harm?

5. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The applicant’s representative has submitted that the applicant satisfies the Complementary Protection criterion because there are substantial grounds for believing that there is a real risk he will suffer significant harm if refouled from Australia, namely deprivation of his life and liberty.

6. The Tribunal has found above that it is not satisfied the applicant would suffer harm for reasons of his race or ethnicity, imputed political opinion or being a failed asylum seeker. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any LTTE connections or adverse political profile such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a Tamil who departed Sri Lanka illegally.

   Nevertheless, the Tribunal has accepted that the applicant departed the country illegally, an offence under the Immigration and Emigration Act of Sri Lanka. The Tribunal, therefore, accepts that it is likely that the applicant would face questioning at the airport, arrest on charges of illegal departure, that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal accepts that the applicant may spend up to a fortnight in jail on remand[10], in conditions that are cramped, uncomfortable and unsanitary.

   However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia.

   The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

   Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[11] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

   Accordingly, the Tribunal is not satisfied that 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 he will suffer significant harm when he is questioned at the airport; during any period which he may spend in jail on remand; or upon return to his hometown, or indeed, elsewhere in Sri Lanka. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

   Having considered these circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

   [10] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

   [11] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

   CONCLUSIONS

7. 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).

8. 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).

9. 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

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

    Mara Moustafine
    Member

    
    

    APPENDIX A: Relevant law

11. 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.

12. 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).

13. 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.

14. 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’).

15. 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.

    Credibility

    APPENDIX B: MATERIALS BEFORE THE TRIBUNAL

16. The Tribunal has had regard to the following materials:

    ·     The applicant’s Protection visa application dated 19 December 2012 and accompanying papers, including the applicant’s statutory declaration dated 30 November 2012;

    ·     The application for review and accompanying papers submitted on 30 August 2013, including a copy of the delegate’s decision record dated 23 August 2013;

    ·     The recording of the applicant’s hearing before the first Tribunal held on 6 May 2014;

    ·     The decision of the first Tribunal dated 30 May 2014;

    ·     A pre-hearing submission from the applicant’s representatives dated 18 June 2015;

    ·     The oral evidence of the applicant at the Tribunal hearing on 15 July 2015;