1419686 (Refugee)

[2016] AATA 3067

1419686 (Refugee) [2016] AATA 3067 (8 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419686

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:8 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 January 2016 at 12:11pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] September 2012 and the delegate refused to grant the visa [in] January 2013.

3. The Tribunal, differently constituted, affirmed the decision of the delegate on 15 July 2013.  The applicant sought judicial review of that decision and the case was remitted to the Tribunal by consent order of [Judge] of the Federal Circuit Court of Australia dated [in] November 2014 on the following basis: ‘...the second respondent failed to consider the applicant’s claim to face a real risk of significant harm on return to Sri Lanka for breaches of the Immigrants and Emigrants Act’. 

4. The applicant appeared before the Tribunal on 8 September 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.

5. The applicant was represented in relation to the review by his registered migration agent. The representative participated in the Tribunal hearing via telephone.

6. The issue in this case is whether the applicant has a well-founded fear of persecution for reasons of his (Tamil) race, political opinion, membership of a particular social group or status as a failed asylum seeker who departed the country illegally if he returns to Sri Lanka, or otherwise meets complementary protection requirements. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

8. The Tribunal notes that in his written submission to the Tribunal the representative requested the Tribunal set aside the delegate’s decision and substitute a new decision to grant the applicant a protection visa (if remitted), in order to avoid the consequence of the applicant’s permanent protection visa application being converted to a temporary one.  However, the Tribunal does not have power to grant visas and therefore is unable to meet this request.

   RELEVANT LAW

9. 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.

10. 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).

11. 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.

12. 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’).

13. 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

    Country of Nationality

14. The applicant provided to the Department a copy of his Sri Lankan passport, identity card, birth certificate, and school certificates (from a school in [Town 1]).  On this basis the Tribunal is satisfied that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly. 

    Refugee assessment

15. The applicant’s primary claim for protection centres on the murder of a police officer in [Town 1] in [2011] purportedly by [an employee] of a local Muslim MP, which the applicant claims he witnessed.  As such, he fears that he will be seriously harmed and/or killed by the authorities (the police, Criminal Investigation Department (CID) and/or the army) who want to question him for his knowledge of the perpetrators, or otherwise detain him in relation to the murder.  He claims the authorities would have imputed to him anti-government views and Liberation Tigers of Tamil Eelam (LTTE) connections because he is Tamil and evaded contact with the police.  The risks associated with this adverse profile, it is argued, will be elevated by his illegal departure from Sri Lanka and his Tamil ethnicity, as well as his status as a failed asylum seeker.

16. The applicant also claims to fear serious harm from a Muslim MP based in [Town 1] because one of his [employees] murdered the police officer in the incident witnessed by the applicant.  He fears if he tells the police that information and has to identify the [employee] in court, he will be harmed by the MP or his associates, or the [employee] in question. At the Tribunal hearing the applicant said this MP is ‘mafia’ too, although did not elaborate.

17. The applicant’s initial claims for protection are detailed in a statutory declaration[1]  he submitted to the Department, accurately summarised by the first Tribunal in their decision record as follows:

    According to a detailed written statement to the Department, the applicant says he is a Tamil of Hindu religion, born in [year] in [location], [Town 2] in [a] District, North Western province, Sri Lanka.  He says tension and fear were high in [Town 1] in [2011] following a spate of grease devil (or grease men) sightings and attacks, where the Tamil and Muslim public were targeted and perceived the authorities were enabling or protecting the assailants.  In this context, he claims he witnessed the [murder] of a policeman – in revenge for the police injuring some villagers with gunfire – during an incident over grease devils in [2011], when he was a student living with his aunt in [Town 1].

    The applicant wrote that he was a bystander watching everything going on when the police started hitting him in the back and he ran away.  Anyone who had witnessed the incident was harassed by police – some people were detained and taken away.  Two days later, he was at school when the police came looking for him at his aunt’s house.  They detained all Tamil and Muslim boys who had witnessed the incident and questioned them.  When he returned, his aunt told him the police were looking for him so he went to stay at his parents’ house.  The police asked for him again, and the aunt gave his address under threat of her life, then warned the applicant by phone.  He relocated to his uncle’s house in [village] and stayed in hiding there for 4 to 5 months – he heard other Tamil boys who had been taken for questioning after the incident had never returned.  His family decided it was no longer safe for him in Sri Lanka as the police continued to look for him, and if found, he would be detained, tortured and maybe killed by the police/SLA/CID.  He could not relocate because the authorities have a very good communication network – wherever he registered they would track him down.  He cannot return – because he fled, the authorities will say he has something to hide.  Tamils who flee are taken straight from the airport when they arrive to be questioned and tortured. The authorities will know his name and find him and punish him in a cruel way because he tried to flee.

    [1] Dated [in] September 2012

18. Further information about this incident (among other matters) was set out in a written submission from the applicant’s representative provided to the first Tribunal[2] and another written submission provided to the current Tribunal.[3] In the submission to the current Tribunal further detail in relation to the incident of the murder of the police officer is provided as follows:

    [2] Dated 18 June 2013

    [3] Dated 28 August 2015

    a.In or around [month] 2011 the applicant witnessed a Tamil Muslim male attack a policeman with an [implement];

    b.The applicant could identify the Tamil Muslim male who attacked the policeman as the [employee] of a “powerful local Tamil Muslim MP” known as [Mr A] (the applicant is unable to recall the MP’s full name);

    c.The majority of individuals involved in the riot against the Police and/or Greasdevils were Tamil Muslims;

    d.Following the murder of the policeman the local MP and the Muslim Tamil community banded together and refused to cooperate with the authorities to protect the murderer (a Tamil Muslim and supporter of the MP), in particular because they believed the authorities were protecting the Grease devils;

    e.A couple of days later “the applicant returned home from school...[and] his aunt told him that about [number] Tamil and Muslim boys who had witnessed the incident had been detained by the police for questioning and that the police were now looking for the applicant”.  The applicant would like to clarify this statement indicating that the correct number of arrests included approximately [number] men (he cannot be certain of the exact number but provided numbers when prompted in his earlier interview);

    f.Those arrested included his neighbours (who he had developed a close relationship with) and also the Tamil Muslim who was responsible for the crime;

    g.Approximately two days later the applicant’s aunt advised that her neighbours (some of whom had been arrested) had disclosed the applicant’s details to the authorities.  More specifically, the authorities had asked them if they had seen or knew anyone who had seen the murders and they had advised that the applicant was close to the scene so could provide further information.  The applicant’s aunt was told this information by the parents of the arrested neighbours who had spoken with them at the police station;

    h.Rather than report to the authorities, the applicant fled and began hiding.  The applicant was compelled to flee given that he was brought up during the Sri Lankan civil war where any contact with the authorities was likely to lead to torture.  The applicant fears that this increases the authorities suspicion that he was involved in the murder as they would suspect he is running out of guilt;

    i.Shortly thereafter and whilst remaining in detention, the applicant’s neighbours discovered that the Tamil Muslims taken advantage of the applicant’s absence in order to prescribe him with the responsibility of the murder.  The applicant’s neighbours subsequently told their parents at the police station during visits and this was then disclosed to the applicant’s aunty;

    j.Therefore the applicant believes the police were seeking him because:

    (i)His neighbours indicated to the authorities that he would have further information in relation to the murder; and

    (ii)The Tamils and Muslim boys who had been arrested have advised the Police that the murderer was the applicant.  The applicant believes these individuals would prefer to blame the applicant as they were connected together by their faith whilst the applicant was one of the few non Muslim Tamils involved during the incident;

    (iii)Should the applicant speak to the authorities and testify against the individual who had committed the murder (the applicant can identify the individual as the [employee] of the local Tamil MP) he fears that the local Tamil MP and his supporters will take revenge against him.  This is due to the influence of the Tamil MP and the fact that any actions committed by his associates (including his [employee]) will reflect poorly on him;

    (iv)The applicant’s family have confirmed that the individuals who were detained in relation to the murder have since been released by the authorities.  Although the applicant has been unable to contact the authorities to confirm the reason for their release due to his fear of persecution, he believes that this indicates:

    (i)The authorities did not  possess sufficient evidence to charge those individuals detained and/or

    (ii)The authorities suspect the applicant is the killer. In either scenario the authorities are compelled to continue seeking the applicant;

    (v)In around August 2012 the applicant’s father was arrested and beaten by the Sri Lankan authorities due to his relationship with the applicant demonstrating further that:

    (i)The authorities did not  possess sufficient evidence to charge those individuals detained and/or

    (ii)The authorities suspect the applicant is the killer. In either scenario the authorities are compelled to continue seeking the applicant;

    (vi)The severity of the assault of the applicant’s father is expected given that the police are seeking revenge for the murder of their own and are known to be oppressive and violent (referencing a BBC news article about police brutality dated 29 October 2009);

    (vii)Since the assault the applicant’s father has had his details recorded by the authorities who continue to contact the applicant’s father on an approximately monthly basis to report and provide further information on the applicant’s whereabouts.  To this date the applicant’s father has revealed that the applicant resides in Australia but indicated that he does not know the exact location or expected return to Sri Lanka.  The routine follow-ups demonstrate to the applicant that the authorities will seek to detain him should he return to Sri Lanka.

19. The applicant gave oral evidence to the Tribunal about the purported murder of the police officer and the events that followed.  He said that he was studying at his aunt’s house one night in [2011], around 9pm when he heard a lot of noise that sounded like people fighting.  He followed the noise to an open ground – which he and friends used regularly for [sport] – and saw about [number] Muslim men from the neighbourhood hitting a ‘grease devil’ who had purportedly attacked a Muslim woman in a nearby house.  Not long after the applicant arrived at the scene a policeman on a motor bike arrived and started shooting the people who were holding the grease devil before putting him on the back of his motorbike and fleeing.  The applicant told the Tribunal he saw the policeman shoot [number] of the men: [number] near their [vital organ] (he presumes they died), one on his [limb] and the other on his [limb].  He said he was the only one present when the policeman started shooting the men – other people came from the neighbourhood after they heard gunshots.  

20. Angry, the applicant’s neighbours started to search for the policeman and the grease devil on foot (the applicant joined them).  They located the policeman on his motorbike in a street about a kilometre away, talking on his radio (the grease devil had vanished).  [Number] men approached the policeman from behind and started hitting him, asking him why he took the grease devil.  The applicant watched from a few metres away.  Whilst the policeman was being hit a man arrived in a vehicle, walked up to the men and asked what was going on.  When they told him what had happened this man – whom the applicant said he recognised as the [employee] for a Muslim MP in [Town 1] called ‘[Mr A]’ – told the others to kill him quickly because he had tried to kill them. The [employee] then went to his car and brought back [an implement], hit the policeman on the head, then got back in his car and drove away.  The Muslim men who were attacking the policeman ran away, leaving only the applicant at the scene.  The applicant said he does not know why he stayed, but noted that he was just watching the body and was young.   Not long after a truck filled with army personnel (holding shields and wearing riot gear) arrived.  After seeing the body the army personnel started chasing the applicant (as well as ordinary people on the streets).  They hit him with a stick but he managed to outrun them and hid in a mosque until the noises died down and he walked back to his aunt’s house through the bush.  He told his aunt what had happened and she told him not to tell anyone.

21. The next day the applicant said he sat an [exam] from [time]am to [time]pm.  During that time police went door to door in the area ([location]) asking residents about the incident, including the applicant’s aunt who told them there were no men in her house (her husband was working overseas at the time).  They took about [number] Muslims from the neighbourhood.  On return to his aunt’s house after his exam, the applicant’s aunt told him about the police visit, said she was worried they would find him, and said she knows Muslim culture wherein they will not expose one another.  She therefore suggested that he return to his parents’ house in [Town 2], which he did that night by train.  (The applicant told the Tribunal that his aunt, married to a Muslim and a Muslim convert, lived in a predominantly Muslim area in [Town 1].)

22. The applicant said his aunt called his [sibling] two days after the incident and said that police had visited her again and showed her a piece of paper with the applicant’s name on it.  The police told his aunt that they were looking for the applicant and that they had heard he was living with her.  His aunt said he was not there and she did not know his whereabouts.  They left without threatening or harming his aunt however they returned later that day and his aunt gave them the applicant’s parents address after they threatened her.  The applicant said when his [sibling] told him this news after he returned home (from fishing) he did not initially care and went to play [sport].  However whilst he was at [sport] two police officers visited his home and spoke to his [sibling] and purportedly showed [his sibling] the same note as they had shown his aunt with his name on it.  His [sibling] told the police that [the] brother was out, that [he/she] did not know when he would return but that [he/she] would tell him to go the police station whenever he did.  When the applicant arrived home shortly after his [sibling] told him to leave.  His uncle was visiting at the time so the applicant went with him and stayed at his [place] located about [number] kilometres away, until he departed Sri Lanka in May 2012.  The applicant clarified later in the hearing that the police first came looking for him at his family’s home in [Town 2] about a month after the incident (not two days).

1. The applicant was asked if the police returned to his house to look for him after he moved to his uncle’s house.  He replied “a couple of times”.  The last time – in around August 2012 (after the applicant had left the country) - the officers became angry so the applicant’s [sibling] telephoned their father who returned home and the police took his father to the police station, where he was beaten.

2. Asked what happened to the [Muslim] men who were arrested by the police immediately following the murder, the applicant said they were all released without charge.  He said he did not know that was the case at the first Tribunal hearing.  He said he heard this news from his aunt, who told him that they told the police about him (being a witness).  Asked about the current status of the case, the applicant said the men have been released and the police know that he knows who killed the policeman.  Therefore until he returns to Sri Lanka, his father is required to sign at the police station every month.  When he goes they question him about when the applicant is due to return.  The case is still pending.

3. The representative clarified the name of the Muslim MP as “[Mr B] in a post-hearing submission[4] to the Tribunal, noting that the applicant’s previous submissions to the Department and Tribunal spelt the name as ‘[Mr A]’ due to translation errors.  The representative advised further that [Mr B] is a Sri Lankan politician and member of [Party 3], not [Party 4] as incorrectly advised by the applicant at the hearing (he provided references to electoral information confirming his status).  The representative also clarified the name of the specific location where the murder occurred was in the [area] in [Town 1].  He also submitted two articles provided by the applicant in support of his claims: one in English about MP [Mr B] and the other and undated article translated from Tamil about the investigation of the murder of a police officer in [Town 1].

   [4] Dated 12 September 2015

4. The Tribunal accepts the occurrence of the ‘grease devil’ phenomena in the [Town 1] area around mid-2011, which led to community fear and dissatisfaction with the government’s poor response to addressing the problem (and alleged complicity).  The Tribunal accepts that a clash between the public and police (and possibly the army) occurred in [2011] in [Town 1] following a grease devil incident and police attempts to protect him from community outrage.  The Tribunal accepts that a police man was killed in the affray that ensued. 

5. However, for the reasons that follow the Tribunal does not accept that the police officer was killed by the [employee] of a Muslim MP called [Mr B] as claimed by the applicant, nor that the applicant knows the identity of the killer.  That is because the applicant failed to mention that was the case at his entry interview, in his initial statutory declaration that accompanied his protection visa application and at his interview with the delegate. In the representative’s submission to the first Tribunal he argues that the applicant was reluctant to reveal this information earlier because he was fearful of the MP and his supporters. At the Tribunal hearing the applicant said he did not tell the Department because he was scared to tell everything out of fear they would let the Sri Lankan authorities know.  Also, he was young and did not know what he needed to tell.  Even if the Tribunal accepts that was the case, the applicant’s earlier description of the murder taking place during the course of a riot differed to his oral account to the Tribunal that the murder took place prior to the arrival of security forces and the ensuing riot.  Specifically, he told the Tribunal that when he arrived at the scene a few Muslim men were hitting the police officer and the applicant was the only bystander; the police officer was then killed by the MP’s [employee] with an [implement] he took from the boot of his car; and it was only after the police man died (and the [employee] and all the other Muslim men vanished) that the army arrived in riot gear.  In contrast, in his statutory declaration provided to the Department the applicant stated that people started hitting a policeman who had arrived and started shooting into the crowd following a grease devil incident; that the SLA and more police arrived with helmets, guns and batons and “it was a big fight”; and a policeman got killed in the fight with an [implement].  The Tribunal notes further that the representative’s submission to the first Tribunal describes the death of the police officer taking place during a riot. 

6. Another concern the Tribunal has is that key details about the alleged murderer of the policeman has changed over time since the applicant indicated that he actually knew his identity.  Specifically, in the representative’s submission to the Tribunal it is stated that he was the [employee] to a Tamil MP yet at hearing the applicant said he was the [employee in a different role] to a Muslim MP called “[Mr A]”.  The Tribunal is willing to accept that may have been a minor mistake and also notes in his submission the representative variously described the MP as a ‘Tamil Muslim MP’ and a ‘Tamil MP’.  (On this last point, the Tribunal notes at hearing that the applicant confirmed that he means Tamil-speaking Muslims and acknowledged that Tamils and Muslims are distinct groups in Sri Lanka.)  However the Tribunal also notes that the applicant mistakenly called the MP ‘[Mr A]’ instead of ‘[Mr B]’.  This mistake was attributed to translation errors in the representative’s post-hearing submission provided to the Tribunal.  However whilst that may account for written translation errors, it does not explain why the applicant clearly stated in his oral evidence to the Tribunal a number of times that the MP was called ‘[Mr A]’.  The applicant also told the Tribunal that [Mr A] was a member of [Party 4] political party however in the post-hearing submission the representative said he actually worked for [Party 3] and argued that this was a reasonable mistake as the applicant had assumed [Mr B]’s party membership based on his knowledge that he was close to members of [Party 4] and the significant overlap between [Party 4] and [Party 3] at the time (reference is made to an article[5] on the matter).  The Tribunal does not find this explanation persuasive, noting that [Party 3] – [details deleted] – is clearly distinct from [Party 4].  Taking into account these concerns - in particular the late introduction of a core claim to have witnessed the murder of a policeman by the [employee] of a [Town 1] MP - the Tribunal is of the view that the applicant fabricated this aspect of his claims.  It does accept that he was involved in a clash with police and the public in [Town 1] in [2011] and may have witnessed the murder of a police officer during that time.  The Tribunal has given some weight to a letter from [name], Attorney, [Town 1] (dated July 2012) provided by the applicant to the Department who states, among other things, that the applicant saw a police officer being killed in [Town 1] in 2011.  However for the reasons above the Tribunal does not accept that the applicant knows the identity of the murderer. 

   [5] [Information deleted].

7. Given this finding the Tribunal does not accept that the applicant faces a real chance of serious harm from a Muslim MP based in [Town 1] called [Mr B] or his [employee] or any of his associates on return to Sri Lanka in the foreseeable future.  His fears of persecution on this basis are not well-founded.

8. The Tribunal has considered if the applicant would be of continued interest to the authorities in relation to witnessing the murder of a police officer in [Town 1] over four years ago and the chance of him being seriously harmed for a Convention reason on return as a result. 

9. It has been submitted that the police sought to question the applicant over the incident via his aunt in [Town 1] and his family members in [Town 2] numerous times before and after the applicant left Australia. The applicant claims his father was beaten by police on one occasion (in August 2012) and is still required to report to the police, until the applicant returns.

10. The Tribunal accepts the police visited the applicant’s aunt around three times (twice on one day) asking the applicant’s whereabouts, and his parents’ house in [Town 2] once before the applicant hid at his uncle’s house and a “couple of times” after as claimed in his oral evidence to the Tribunal.  However, the Tribunal does not accept  the applicant’s claims that his father was taken to the police station in August 2012, detained and beaten (the applicant told the Tribunal his father was hit numerous times [and suffered injuries]) primarily because of the late introduction of that claim.   The applicant submits that his father did not tell him about this incident until April 2013 because he did not wish to make the applicant believe he was suffering which would compel him to return to Sri Lanka and hand himself in; he told the applicant in April 2013 because the applicant had indicated that his asylum case was facing difficulties without supporting information.  The Tribunal is not persuaded by this explanation. 

11. The Tribunal has other concerns set out below about the applicant’s evidence in this regard, including inconsistencies with some aspects of his evidence.  For example, in his oral evidence to the Tribunal he said that his father was detained for a day and that the applicant’s uncle came to the police station and then took him to the hospital where he stayed for two days.  However in his written submission to the first Tribunal the representative stated that the applicant’s father was arrested by the SLA in August 2012, taken to police station and beaten, and only went to hospital (for two days) for injuries sustained [in] April 2013 (a handwritten letter from a doctor was provided), which is almost 8 months later.  The Tribunal also finds it odd that if the police were interested in taking evidence from the applicant as asserted in relation to the killing of a police officer in [2011], they would wait almost a year – until August 2012 – to harm the applicant’s father in a bid to provide information about the applicant’s whereabouts or compel him to contact the police.  Given these concerns the Tribunal does not accept the applicant's claims that his father was beaten by the police and sustained injuries in August 2012 in relation to the applicant, or for any reason.  In reaching this conclusion the Tribunal has had regard to a medical certificate the applicant provided dated [in] June 2015 purportedly related to his father’s [health].  However as there is no indication on the certificate as to the cause of the injuries and is dated almost three years after the alleged beating, the Tribunal gives it little weight.  The Tribunal notes that in a handwritten letter purportedly from a doctor at [Town 2] hospital dated April 2013 that the applicant provided to the first Tribunal it is stated that following a hit on the head area the applicant’s father had [health conditions]. However the Tribunal attaches little weight to this letter, as the causes of the harm are self-reported by the applicant’s father about six months after the alleged attack by the police officers. 

12. The Tribunal also notes that the applicant’s evidence about who exactly was arrested and what happened to them after the murder of the police officer was somewhat confused and has changed in some respects during the course of the application and review.  This makes it unclear how the police would have personally identified the applicant in relation to the murder. In his written claims to the Department the applicant stated that anyone who had witnessed the incident was harassed by police; some people were detained and taken away; they detained all the Tamil and Muslim boys who had witnessed the incident and questioned them; and that he heard that some of the other Tamil boys who had been taken for questioning had never returned.  However, according to the delegate’s decision record, the applicant told the delegate at interview that two of his close friends from the area were arrested and they told the police about him.  The applicant told the first Tribunal that [number] people were arrested in late 2011 in relation to the murder.  The applicant told the current Tribunal that he cannot recall the exact number but thinks it was between [number] and [number] Muslims were taken by the police the next day after the incident however they were subsequently released, submitting that he did not know that was the case at the time of the delegate’s interview or first Tribunal hearing.  He said he heard this news from his aunt, who told him that they told the police about him (being a witness).  However the applicant was vague about when his aunt actually told him this news.  The representative submitted in his written submission that the applicant has been unable to confirm the status of the case because he fears contacting the authorities but thinks their release implies they were not convicted (either for lack of evidence and/or because they accused the applicant), arguing therefore that it is plausible for the authorities to seek out the applicant.  Even if the Tribunal accepts the applicant’s evidence that he was unaware that these men were released at the time of the delegate’s interview and first Tribunal hearing, the fact that his account as to who was arrested has changed; that is from [number] of his close friends, to [number] people, to [number] to [number] Muslims.

13. Despite these concerns, it is plausible that some people from the local area where the applicant’s aunt lived in [Town 1] were arrested following the murder of the police officer in [2011] and may have identified the applicant as a witness to the murder.  However the Tribunal does not accept the applicant’s claim that these people pointed the finger at him and blamed him for the murder, noting that in the applicant’s oral evidence to the Tribunal he indicated that the [number] to [number] Muslim men had told the police about the applicant in terms of witnessing the murder, not as the perpetrator.  Also, the Tribunal doubts that the police would have been so sporadic and haphazard with regards to trying to locate the applicant whilst he was still in Sri Lanka if he was a suspect in the case, even taking into account the submission that court processes in Sri Lanka are notoriously slow.  Further, the Tribunal notes that the applicant did not experience any problems obtaining a passport in his own name after the incident, which indicates that he was not a suspect in the murder and not on any particular alert list. 

14. Taking into account the evidence before it and for the reasons set out above, the Tribunal therefore accepts that the applicant was a witness, along with others, of a murder of a policeman during a clash with the public who were protesting the ‘grease men’ phenomena in the [Town 1] area in [2011]. It accepts that the police may have wanted to question him in relation to that incident and whilst the Tribunal does not accept that his father was beaten by police allegedly looking for the applicant as claimed for reasons set out above, accepts his oral evidence to the Tribunal that the police visited his aunt on two occasions looking for the applicant and his parents’ house a number of times (he was unable to provide exact dates.) For reasons above the Tribunal does not accept that the applicant knows the identity of the murderer or that he is wanted by police as a suspect in the murder case.

15. Given this finding, the Tribunal has gone on to consider if there is a real chance that the applicant would be persecuted by the authorities for any Convention related reason if he returns to Sri Lanka now or in the reasonably foreseeable future.

16. It is submitted the applicant faces a real chance of serious harm by the authorities on return to Sri Lanka because he will be imputed with an anti-government and/or pro-LTTE political opinion because of his refusal to cooperate with the authorities regarding the murder of a policeman.  It is submitted further that the risk to the applicant in this regard would be compounded by the fact that he is Tamil, departed Sri Lanka illegally and would return as a failed asylum seeker.  The representative has referred to country information from a variety of sources in his written submissions to the Tribunal to support his contention in this regard.  Specifically, he argues that the applicant has a well-founded fear based on his imputed political opinion of supporting the LTTE and/or being involved in Tamil separatism based on the following risk factors:

    a.He is a Tamil male of combatant age at the time of the civil war.

    b.The Sri Lankan authorities were searching for the applicant immediately before his departure given their belief that the applicant was involved in killing a police officer/being a witness in the killing of a police officer (i.e. an attack against the authorities by a Tamil male) which will prescribe him with an association with the LTTE or other separatist factions;

    c.He departed from Sri Lanka illegally;

    d.The Sri Lankan authorities have come in search of the applicant since his departure demonstrating there is ongoing interest in his whereabouts and subsequently assailed his father who is still required to report to them;

    e.He has resided in Australia (a nation with a large Tamil diaspora) for a significant period of time;

    f.He would be classed as a failed asylum seeker if forcibly returned to Sri Lanka; and

    g.The authorities will charge him with killing a police man, or withholding information about the killing of a policeman (i.e. an attack against the authorities by a Tamil male) which will prescribe him with an association with the LTTE or separatist Tamil factions.

17. At the Tribunal hearing the representative argued that there are several angles to the applicant’s fears about returning to Sri Lanka: that is he does have some identity with the Sri Lankan authorities given he witnessed the murder of a police officer, and that this has continued given his father is required to report to the police until the applicant returns.  On this latter point, whilst the Tribunal does not accept that the applicant’s father was beaten by police officers as claimed for reasons set out above, it is willing to accept his claims that his father is regularly required to report to the police.  The representative submitted at hearing that given this, not only will the applicant be subject to the routine processes returnees must face when they return to Sri Lanka; that it is more than likely that he will be detained; and given his identity he is likely to be detained for a longer period than usual and during that time faces a real chance of serious harm.

18. The Tribunal has carefully considered the representative’s submissions and the applicant’s evidence about his fears on return to Sri Lanka.  In isolation, the Tribunal finds remote the chance that the applicant would be imputed with a pro-LTTE/anti-government political opinion and seriously harmed as a result by the authorities on return to Sri Lanka simply because he evaded questioning about the murder of a police officer that he witnessed as a bystander in [Town 1], around four years ago.  However, when combined with other aspects of the applicant’s profile, and taking into account relevant country information as follows, the Tribunal is of the view that the applicant faces more than a remote risk of being seriously harmed on return by the authorities for reasons of his imputed political opinion. 

19. The Tribunal, having regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent advice about the treatment of returnees who departed Sri Lanka illegally[6], considers that it is likely the applicant will be questioned on return and during that standard questioning at the airport there is a risk – which the Tribunal considers is more than remote – that the applicant’s witnessing of the murder of a police officer in [Town 1] in [2011] and subsequent evasion of police may result in him being perceived to hold anti-government views and/or have an association with the LTTE which may cause him to be targeted by the authorities.  His risk in this regard may be elevated by the fact that he is Tamil.  Although the matter could be regarded as a criminal one, the Tribunal notes that the murder did take place in the context of primarily Tamils and Muslims protesting against the grease men phenomena at the time (with  alleged security forces complicity).  Country information (discussed further below) indicates that whilst the situation has improved dramatically since the end of the war, it is not out of the question that the applicant could attract the adverse attention of the authorities during this process.  In such a context his history as someone who witnessed the killing of a police officer in the post-war period where suspicions about LTTE links were high and evaded police questioning about the incident may manifest and, in the Tribunal’s view, makes the chance for further mistreatment for reasons of his imputed political opinion become real. 

    [6] DFAT Country Report Sri Lanka, 18 December 2015 at 5.27 – 5.38

1. For these reasons, and when considering all aspects of the applicant’s case, the Tribunal accepts that there is a real chance the applicant would be seriously harmed by the authorities on return to Sri Lanka on account of his imputed political opinion.  

2. In reaching this conclusion the Tribunal has had regard to the United Kingdom, Upper Tribunal’s country guidance determination on cases from Sri Lanka which stated in part that the Sri Lankan government’s current focus is on preventing both a resurgence of the LTTE or any similar Tamil separatist organisation and the revival of the civil war within Sri Lanka,[7].  Of relevance to this case, the Upper Tribunal found that: If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.[8] The Tribunal also notes that the UNHCR confirms that detainees suspected of links to the LTTE are subject to mistreatment and torture.[9]

   [7] GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC)

   [8] Ibid

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

3. In the most recent DFAT update about the country situation in Sri Lanka DFAT assesses that there have been credible reports of torture carried out by the Sri Lankan security forces during the civil conflict and in its aftermath.  It is stated that reports of torture came from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections[10].  In terms of risk of torture or mistreatment of returnees, DFAT assess that it is low for the majority[11].  Nonetheless, taking into account what it accepts of the applicant’s profile and the fact that he is wanted for questioning by police in relation to witnessing the murder of a police officer, which is a serious crime, the Tribunal considers the applicant is at greater risk of serious harm when detained on return.

   [10] DFAT, Country Information Report Sri Lanka, 18 December 2015 at 4.17

   [11] Op cit at 4.23

4. Taking into account this country information, as well as what the Tribunal accepts of the applicant’s profile and history in Sri Lanka, the Tribunal finds that there is a real chance that the applicant would suffer serious harm at the hands of the authorities on return to Sri Lanka in the reasonably foreseeable future.  Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of the applicant’s imputed political opinion.  Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.

5. The Tribunal finds that the threat which the applicant would face on return to Sri Lanka comes from the authorities themselves. Therefore, the Tribunal finds that state protection from this threat in accordance with international standards would not be available to the applicant in Sri Lanka.

6. With respect to whether or not the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the perpetrators he fears are the authorities, who exist nationally.  Therefore internal relocation is not an option in the applicant’s case.

7. For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

8. Given the Tribunal’s findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.   

   CONCLUSION

9. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Nicole Burns
    Member