1419664 (Refugee)

1419664 (Refugee) [2015] AATA 3151 (9 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419664
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Carolyn Wilson
DATE:9 July 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 July 2015 at 3:15pm
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

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).
The applicant who claims to be a citizen of Sri Lanka applied for the visa [in] August 2012 and the delegate refused to grant the visa [in] January 2013.
This is a matter remitted by the Federal Circuit Court by consent order of Judge Brown dated [November] 2014. It was remitted on the basis that there was inadequate interpreting services provided at the hearing before a differently constituted tribunal, such that the applicant did not have an effective opportunity to give evidence and present arguments pursuant to s425 of the Act.
The applicant appeared before the Tribunal on 1 April 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. The representative attended the Tribunal hearing.
RELEVANT LAW
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant arrived in Australia in May 2012 as an unauthorised maritime arrival.
The applicant is a [age] year old single man from the Puttalam District in Sri Lanka. He is of Tamil ethnicity and on arrival in Australia declared he was an adherent of the Hindu religion.
The applicant made the following claims in a written statement attached to his protection visa application:
‘I was living in [Village 1] which is a Muslim dominated area. After I left school I was being beaten on a daily basis by Muslim youth in our area. They were beating me because I am a Hindu Tamil in the area…I went to Colombo to escape from the problems. ..After I returned from Colombo I was travelling on the road some Muslims community members stopped me when I was walking and I was bashed up. At the time I was studying in the Temple doing religious studies. On special occasions we used to take the statue and do processions…from my village to another village and we had to travel through Muslim area. During our procession I was beaten by Muslims…After this I went to Negombo where I stayed for approximately 2 years but the work was very difficult with very low wages so I returned back to [Village 1] and I was working with Sinhalese and could not speak their language so it was very difficult for me.
‘In 2011 a Muslim came on pushbike and asked me to stop and he beat me up. When he beat me after I returned back home he brought a group of Muslims to my home. They were armed and they threatened me and my family. They told us if we were walking through the area with Hindu temple statue they would kill….We are facing ongoing harassment and beatings by the Muslim people. I have been beaten on three or four occasions by the Muslim people in the past four years. ..
‘After the incident in 2011 when they came to my house and threatened me with the guy I went to the police to make a complaint against the Muslim community they would not listen to us and would not assist us with our complaint. The police are supporting Muslim groups in the area…
‘I moved from [Village 1] to [Town 2] in July 2011 because of the ongoing problems we were facing with the Muslim community. ..
‘Someone put a mask on and came to my house in [Town 2] and asked my father if he was involved in LTTE. This happened approximately August 2011…My father was taken into custody for one day. After that he was released and then my father told me to return back to [Village 1]…
‘On [date]/01/2012 I was at the Hindu temple and the volunteers (approximately 30 people) were having a meeting. A gang of Muslim youths entered the temple and said they are going to wipe out all the Tamils from the area. They threatened to kill all of us especially me. They damaged the temple statues…One of the volunteers Yoganathan (teacher) was injured in the attack…We managed to escape from the temple. ..
‘I was threatened by the Muslims and told me they are going to kill me so I am afraid for my life. After the incident at the temple I went to the police and made a complaint. They Muslims were very angry with me for making this complaint. The gang of youths came to my house and threatened me and told me to withdraw the complaint…I called the police and complained and the police came to my house and the Muslims ran away. One man was arrested by the police...
‘The man who was arrested by the police came to my house and he asked me to withdraw the complaint about the incident…I went to the police station and they asked me if I was going to withdraw the case and I withdrew the case.
‘In addition to these problems with the Muslims we also had other problems with them. My father and I were working in a fishing business and the Muslim would come and cut our nets…They stole our fishing equipment…
‘I was very afraid for my safety and feared that the Muslim people in my area would kill me…I was at home indoors and I was not going around on the roads because I was afraid of the Muslim gangs…My father arranged the money for me to leave Sri Lanka…
“Three days before today my brother was beaten by the Muslims in the area…This attacks are happening all the time to Hindu Tamils in our area…
‘If I return to Sri Lanka I fear that I will be killed [by Muslims]…
‘If I return to Sri Lanka I will also be in trouble from the authorities because I left Sri Lanka illegally. I will be interrogated and investigated about my departure and why I left Sri Lanka and I will be detained for long period (many years) without charges and then when I am released and they return me back to my area I will be killed by the Muslims’.
Delegate’s decision
The delegate accepted the applicant was from [Village 1] and accepted the applicnat’s claim that it was a Muslim dominated area. The delegate accepted the applicant had been beaten by local Muslim gangs because of the applicant’s Hindu religion. The delegate accepted it was plausible the applicant was forced to withdraw complaints made to the police. The delegate accepted it was plausible his father was arrested on suspicion of involvement in the LTTE after being away from [Town 2] for so long.
The delegate could not find any country information regarding the harassment and beating of Tamil Hindus by Muslims. However, having accepted the applicant was beaten in the past the delegate considered the chance of harm from Muslims should he return to [Village 1] was more than remote. The delegate found however the applicant’s fear of harm was localised to [Village 1] and that he could relocate in Sri Lanka to avoid the harm. As a single man who had moved around Sri Lanka in the past the delegate considered relocation was reasonable in the circumstances.
First Tribunal decision
The previous Tribunal, constituted by a different Member, found the applicant was not a credible witness. They formed this conclusion after noting inconsistencies in his claims. The previous Tribunal did not accept he was beaten on a number of occasions by Muslims or that he faced ongoing harassment from Muslims.
The previous Tribunal accepted there may be a level of tension between Hindus and Muslims in [Village 1] and that there may have been some violence directed at Hindus by Muslims. The previous Tribunal proceeded on the basis that there may be a real chance of the applicant facing serious harm in his home village from Muslims. However, the Tribunal considered relocation was reasonable and that the applicant would not face persecution for reason of his religion if he relocated to Colombo or Negombo.
The previous Tribunal relied on country information to find the applicant did not have a well-founded fear of harm for reason of his ethnicity at a Tamil or for having left Sri Lanka illegally.
Current application for review
In submissions provided prior to the hearing, the representative submitted the applicant had a well-founded fear of persecution in Sri Lanka for the following reasons:
·His religion, as a Hindu living in a Muslim dominated area.
·His race and ethnicity as a Tamil.
·Imputed political opinion as someone linked to the LTTE because of his father’s arrest.
·Membership of a particular social group of persons having links to the LTTE.
At the hearing the Tribunal indicated to the applicant that it had received and read a copy of a transcript of his previous tribunal hearings, prepared for the lawyers assisting him in his application for judicial review. This document was prepared at the applicant’s instruction by a qualified interpreter to show and correct the errors in interpretation at his previous hearings. The Tribunal indicated therefore that it now had the transcript showing a corrected interpretation of what he was trying to tell the previous Tribunal.
At the hearing the applicant said he had been baptised Catholic in 2014. He claimed to continue to fear harm from Muslims, but now as a Catholic. The applicant said his parents are still living in [Town 2], and there aren’t many Muslims there. He confirmed his father has not been detained or questioned about suspected LTTE links since the one incident in 2011 when he was detained for a day. The applicant raised for the first time at the hearing that his parents had told him a few weeks prior that the Sri Lankan Army had been enquiring about his whereabouts.
The applicant confirmed his brother in [Village 1] had no ongoing problems with Muslims and had never been detained or questioned for suspected LTTE links. However the applicant said this was because his brother is married and lives with his wife, not with their father like the applicant did. He also said his brother didn’t go to the temple to study as much as he did. He said his brother had problems with Muslims in [Village 1] once since the applicant left. His brother has not had problems to the same extent as the applicant did because his brother was not as active at the temple.
Following the hearing the representative provided further written submissions, which the Tribunal has had regard to.
Consideration of claims
Religion
The applicant claims his home town of [Village 1] in Puttalam, north-west Sri Lanka, has a majority Muslim population.
The US Department of State in its International Religious Freedom Report – Sri Lanka (2013) reports the following religious demography in Sri Lanka:
The U.S. government estimates the total population at 21.7 million (July 2013 estimate). Approximately 70 percent is Buddhist, 15 percent Hindu, 8 percent Christian, and 7 percent Muslim. Christians tend to be concentrated in the west and Muslims in the east; the north is predominantly Hindu.
The US report details reports of societal discrimination and violence toward religious minorities, but contained no examples of Muslim attacks on Hindus. As per the DFAT report below, the Muslim minority were victims of religiously motivated violence.
DFAT provide the following information in the Country Report – Sri Lanka (16 February 2015) on religion in Sri Lanka:
3.13   The Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism a ‘foremost place’. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment.
…
3.16   DFAT assesses there is little official discrimination on the basis of religion. There are no official laws or policies that discriminate on the basis of religion.
3.17   Religious tension rose after mid-2012, although the new Sirisena government has publicly said it is committed to ethnic and religious reconciliation. In a 2013 report, the Centre of Policy Alternatives (CPA) listed 65 cases of attacks on places of worship throughout the country between May 2009 and January 2013. The majority of cases reported by CPA were against evangelical Christian churches. The majority of incidents, where perpetrators were identified, were instances of Sinhala Buddhist attacks on other religious places of worship.
3.18   According to the SLMC, the largest Muslim political party in Sri Lanka, there were at least 241 anti-Muslim attacks and 69 anti-Christian attacks during 2013, some of which involved physical violence or the destruction of property. While charges have been laid in some cases and other cases have been settled between the parties, many attacks were not investigated. In April 2014, the former Government established a special police unit to investigate ‘complaints relating to religious matters’. In the latter part of 2014, there was a drop in reported anti-Muslim attacks.
3.19   DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith unmolested. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion.
…
3.22   Although most Muslims sided with the Sinhalese Government forces during the civil conflict, there has been a recent rise in religious tensions between Muslims and the Sinhala-speaking Buddhist majority, including with nationalist groups such as Sihala Ravaya (Sinhalese Roar) and Bodu Bala Sena (Buddhist Power Force).
3.23   For example, in early 2013, Sinhalese Buddhist nationalist groups called for the removal of Halal certification of food produced in Sri Lanka, which they objected to on religious and economic grounds. The apex religious body of Muslims in Sri Lanka, the All Ceylon Jamiyyathul Ulama (ACJU) agreed in March 2013 to stop issuing Halal certification, other than for products produced for export to Islamic countries.
3.24   There have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses. For example, in March 2013, a Buddhist mob attacked the warehouse of a Muslim-owned business at Pepiliyana near Colombo. The alleged perpetrators were released without charge. In August 2013, Buddhist monks attacked a new mosque at Grandpass in Colombo, resulting in several injuries. The attack came as a result of the establishment of the new mosque to replace an older mosque nearby which had been scheduled for demolition for development purposes. The issue was resolved with an agreement to remove the new mosque and rescind the decision to demolish the old mosque, which would instead be expanded.
3.25   Violent civil unrest between Buddhists and Muslims in several towns in the Kalutara District in Sri Lanka’s Western Province in June 2014 resulted in four deaths and more than 80 injuries. Three of those killed were Muslims, the fourth was a Tamil security guard at a Muslim-owned farm. Following the riots, police imposed a two-day curfew and acted to prevent further protests in the area.
The delegate was unable to find independent country information on the targeting of Hindus by Muslims in [Village 1]. The applicant did not provide any such country information to the Department or the Tribunal.
The Tribunal notes [Village 1] is a village in the north-west of Sri Lanka, Based on the information provided in the US report, it appear surprising that Muslims would dominate in that area. However, the Tribunal accepts there are Muslims in the applicant’s home area.
There has been a significant change in the applicant’s circumstances since he lodged the Protection visa application, and since he appeared before the previous Tribunal in 2013: that is, the applicant has changed his religion from Hindu to Catholic. He provided two statements from people in Australia who confirmed the applicant had converted to Catholicism in Australia. The Tribunal accepts the applicant now identifies as Catholic. As put to the applicant at hearing, this means he will likely no longer be attending the Hindu temple in his home town should he return. He agreed he would not be attending to the extent he had in the past, but said he might occasionally attend. The Tribunal accepts he may occasionally attend the Hindu temple but finds he will not be an active participant as he was in the past.
The applicant claims to have been targeted in his home town because he was Hindu. He claims to have been attacked whilst attending a meeting at the Hindu temple and attacked at other times for reason of his involvement with the temple and their processions, where they carry Hindu statues through the town. The applicant is no longer Hindu. Should he return to Sri Lanka in the reasonably foreseeable future he will no longer be participating in religious activities at the Hindu temple as he previously did.

The Tribunal finds the chance of the applicant being targeted by Muslim gangs in his home area for his religious beliefs in [Village 1] is too remote to amount to a real chance. The Tribunal makes this finding based on the applicant’s change of religion. The applicant claims he was targeted as a Hindu, and was harmed at the temple and also for reason of his active involvement with the temple. However he is no longer an adherent of the Hindu religion and will not be associated with the temple on return. The applicant has not provided any information to indicate Muslims were also attacking Catholics or Christians in the area. The applicant’s own brother has not been targeted, and the applicant says this was because his brother was not active in the Hindu temple like he was. His brother continues to live in [Village 1] without problems. There is also a lack of independent country information supporting a claim that Hindus or Catholics are being targeted by Muslims in the north-west of Sri Lanka or Sri Lanka generally. In fact, the country information provides more instances of Muslims, as a minority group, facing harassment and physical assault. For all these reasons, the Tribunal finds the chance of the applicant being targeted in [Village 1] for reason of his religion, now Catholic, is too remote to amount to a real chance.
The Tribunal considers it highly unlikley that Muslims in [Village 1] would have any ongoing interest in harassing the applicant. The Tribunal finds the chance of the applicant being targeted for reason of his past involvement with the Hindu temple, or his past complaints to the police, which he subsequently withdrew. Is remote. The Tribunal finds however that if it is wrong on this issue, that is, if there is someone in his home area still holding a grudge and looking to harm him upon return, then the applicant can relocate to avoid the harm. The reasonableness of relocation is discussed in greater detail below.
Imputed political opinion and suspected LTTE association
The applicant has claimed he’ll be suspected of involvement with the LTTE because of his father’s arrest in 2011.
The applicant acknowledges that there have been no allegations or questioning or detention of his father since the incident in 2011. His brother in Sri Lanka has never been questioned or detained for reason of the father’s one-off detention or suspected of having any LTTE links himself. The applicant said his father is not of interest to the authorities because he is an old man. He said his brother is not of interest because he is married and lives with his wife, and not with their father.
The applicant’s father was detained for one day after the family moved to [Town 2]. The alleged reason was that he had been away from the area for so long that it was suspected he had been involved with the LTTE. The Tribunal considers the release of his father the next day, and the lack of any further interest in the father or his sons, are strong indications that the suspicion of involvement with the LTTE was deemed to be unfounded.
The Tribunal considers that what has happened to the applicant’s father and brother since the one-off detention in 2011, is relevant to what may happen to the applicant should he return to Sri Lanka in the reasonably foreseeable future. That is, nothing has happened, and there is nothing to indicate anything is likely to happen. The Tribunal finds the family is not of interest to the authorities and are not suspected of links to the LTTE. The Tribunal therefore finds the applicant is not and will not be suspected of links to the LTTE, and will not be targeted for reason of an imputed political opinion as someone linked to the LTTE because of his father’s arrest in 2011 or for membership of a particular social group of persons having links to the LTTE.
At hearing the applicant raised for the first time that officials from the Sri Lankan Army had visited his parents’ home asking about him. In post hearing written submissions it was claimed in March 2015 the applicant’s father told him Sri Lankan Army officials had visited their house in [Town 2] to enquire about him. The officials are reported to have said ‘where is your son? Your son has connections with the LTTE and that is why you are hiding him’. Because of this incident his father told him he should not come back to [Town 2] because officials from the Army will arrest him.
The Tribunal does not accept the claimed event ever occurred. The applicant did not live in [Town 2] with his parents. He moved there briefly in 2011, relocating with his parents, but then the applicant returned to [Village 1]. The Tribunal does not accept the Army would be looking for him in [Town 2] since it was not his home. In any event the Tribunal considers that were he a person of interest they would already know he had left the country. The applicant did not tell his representative before the hearing about the phone call from his parents and raised it only for the first time at the hearing. He did not raise it early in the hearing when the Tribunal asked him if anything had changed or happened to him or his family in the last 2 years since the last tribunal hearing. The Tribunal considers such an event, if it occurred, would have been told to his representative in the preparation for the hearing and would have been raised with the Tribunal when he was asked if anything had happened to him or his family in the last 2 years. He only raised it after the Tribunal was questioning why he says he would be imputed with a link to the LTTE for association with his father when his father was not facing any such allegation. The Tribunal considers the applicant has fabricated the visit from Army officials to his parents’ home in order to strengthen his claims, and also as an answer to any suggestion that he could safely and reasonably relocate to [Town 2] with his parents.
Ethnicity
The Tribunal has considered the claim the applicant is generally at risk of serious harm for reason of being Tamil. The Tribunal accepts that prior to May 2009 some Tamils were at risk of persecution, particularly Tamils in the Northern and Eastern provinces due to perceived support of the LTTE. However, according to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’. The 2012 UNHCR guidelines reinforced this assessment, though it does caution that an assessment based in individual circumstances is still necessary and being Tamil can increase the vulnerability of persons within other ‘risk profiles’.
The Tribunal has found the applicant will not be imputed with links to the LTTE. The Tribunal finds the applicant does not fall within any of the risk profiles identified by the UNHCR[1] and finds there is no basis in his individual circumstances to find as an ordinary Tamil he faces a real chance of persecution for reason of his ethnicity.
Illegal Departure from Sri Lanka
[1] (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
The applicant has claimed he fears harm for having left Sri Lanka illegally.
The DFAT Country Report – Sri Lanka provides the following information on the treatment of returnees:
5.22   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 (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).
…
5.24   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 Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process 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. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
…
5.26   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, among other things, 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 Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
5.27   Most Sri Lankan returnees 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 international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court 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 are held at the nearby Negombo Prison.
5.28   DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.
The Tribunal accepts the applicant will be questioned as per the standard procedures referred to above upon return at the airport and may be detained for up to a few days. The Tribunal accepts he will likely have to pay a fine. However, these procedures are part of a law of general application relating to illegal departures from Sri Lanka. The Tribunal accepts DFAT’s assessment that all Sri Lankans, regardless of ethnicity, are treated according to standard procedures.
The Tribunal has not accepted the applicant’s claim that he will be imputed with a political opinion of being associated with the LTTE because his father was questioned and detained once in 2011. The Tribunal finds the applicant is an ordinary young Tamil man who left Sri Lanka illegally and will be processed upon return according to standard procedures that relate to a law of general application with the legitimate aim of managing the proper exit and entry of persons from Sri Lanka. The Tribunal does not accept he has a well-founded fear of harm for reason of leaving Sri Lanka illegally.
Relocation
The Tribunal acknowledges the applicant has consistently claimed, since first arriving in Australia, that he had been beaten by Muslim gangs in his home area, and that both the delegate and previous Tribunal accepted this may have occurred.
The Tribunal found above that the chance of the applicant being targeted by Muslims in his home area, for reason of past religious beliefs and practices or having made complaints to the police, was too remote to amount to a real chance. However, should there be any chance a Muslim or Muslims in [Village 1] remember and still want to harm the applicant, then the Tribunal considers he could relocate.
The applicant claims it is not reasonable for him to relocate. He says he tried relocating before, but his lack of Sinhalese language made it difficult for him to get work and he suffered discrimination as a Tamil. He says [Town 2] is not safe for him because of his father’s arrest there and because the Army are looking for him.
For the reasons given above, the Tribunal does not accept the applicant will be targeted in [Town 2] for suspected links to the LTTE. Also for reasons given above, the Tribunal does not accept his religion or ethnicity would give rise to a real chance of persecution in Sri Lanka. The applicant has obtained work before in Colombo and Negombo and does not accept his lack of Sinhalese will prevent him from finding work.
The Tribunal finds the applicant is a capable young man who has shown flexibility and resourcefulness In relocating in the past, it is reasonable for him to relocate to [Town 2] or Colombo or Negombo, or in fact anywhere he chooses in Sri Lanka, should he want to avoid anyone who many have harmed him in the past in [Village 1].
Complementary protection
The applicant claims he faces a real risk of significant harm if returned to Sri Lanka because he left illegally and because of imputed links to the LTTE.
For the reasons given above, the Tribunal does not accept the applicant is or will be suspected of having links to the LTTE. The Tribunal also does not accept the processing he will go through on return, for reason of having left illegally, will give rise to a real risk of significant harm. The Tribunal does not accept being questioned, detained for up to a few days, and fined, can amount to significant harm as defined by the Act. There is nothing to indicate there is a real risk the applicant could be deprived of his life, suffer torture, or be subjected to cruel and inhuman treatment of degrading treatment or punishment. The Tribunal finds the questioning, possible short period of detention and fine may cause inconvenience or discomfort but this does not amount to significant harm
Even considered cumulatively, the Tribunal is 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 he will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).
Conclusion
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Carolyn Wilson
Member

(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations
seeking justice;
(vi) women in certain circumstances;
(vii) children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain

circumstances.

[2015] AATA 3151

9 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction