1419778 (Refugee)

[2017] AATA 2949

1419778 (Refugee) [2017] AATA 2949 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419778

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Brendan Darcy

DATE:22 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2017 at 2:43pm

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Particular social group – Victims of crime – Tamil – Catholic – Failed Tamil asylum seeker - Perceived wealth – Fear of violence – Criminals in drug trade – Drug affected family member - Previous harm experienced – Real risk of significant harm - Internal protection available - Fear of persecution not a shared characteristic - Prosecution on return does not amount to significant harm - Significant inconsistencies in evidence – Embellishment of claims

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 91S 425, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Respondents S152/2003 (2004) 222 CLR 1
Mehmood v MIMA [2000] FCA 1799
Primatchek v MIMA [2000] FCA 517
Applicant S v MIMA (2004) 217 CLR 387
MIAC v MZYYL (2012) 207 FCR 211

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] April 2013 and the Minister’s delegate refused to grant the visa [in] November 2014.

3. The applicant applied to have the delegate’s decision to refuse reviewed by the Tribunal, (prior to Migration and Refugee Tribunal’s amalgamation with the Administrative Appeals Tribunal), on 3 December 2014.

4. The applicant appeared before the Tribunal on 6 July 2016 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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

   Refugee criterion

8. 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).

9. 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.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. 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

    Background

22. The applicant claims to be born on [birth date] in Negombo in Sri Lanka’s North Western Province and claims to be a citizen of Sri Lanka. On the departmental file ([file number]) is the applicant’s national identity card ([document number]).

23. The applicant claims his ethnicity is Sinhalese and his religion is Catholicism.

24. The applicant claimed he resided in Negombo between [year] and 2002 where he was raised before moving to [a school] in [City 1] between 2002 and 2005; and then returning to Negombo between 2005 and 2012.

25. The applicant unlawfully departed Sri Lanka for Australia by sea in [July] 2012 before arriving in Australia [in] August 2012. He was then released from immigration detention in February 2013.

26. In the applicant’s written claims submitted to the Department [in] April 2013 in a statutory declaration as part of his application for a class XA subclass 866 visa.

27. The applicant claimed in that statement that he boarded in [City 1] with his [brother], [Mr A] at a Catholic school because of problems associated with his [other] brother, [Mr B].

28. When he was younger, his brother, [Mr B] would take money from the applicant and threaten their parents with knifes.

29. [In] April 2012, at least four people came to his family home in Negombo and destroyed it. One person put a knife to his neck and told him that he would be killed. The applicant reported to the police that the culprit was the applicant’s brother, [Mr B], who was involved in using and selling illicit drugs. 

30. After reporting [Mr B] to the police, the applicant started to receive death threats from people associated with his brother. [In] July 2012, the applicant’s brother, [Mr B], was arrested and taken into custody.

31. The applicant claimed he departed Sri Lanka because of his brother’s actions and the people with whom his brother is associated, who are extremely rich.

32. The applicant’s older brother had damaged some posters from the United National Party (UNP) and the applicant was assaulted by people from UNP who mistook him for his brother.

33. The applicant attended an interview with the Department of Immigration and Border Protection [in] September 2014.

34. The applicant submitted that his brother was imprisoned between 2005 and 2008 and again between 2012 and 2013 on drug related charges. Translated (but no original) court documents from the Magistrate’s court in Negombo also relate to these claims. The documents pertain to the applicant’s older brother appearing before a court relating to breaches to Sri Lanka’s illicit drug laws.

35. The applicant submitted to the Department that between 2008 and 2012, his brother lived away from his home and would only come occasionally to harass the applicant’s parents for money and stay overnight.

36. The applicant added that he has not seen his brother since 2008. At the interview with the Department, the applicant confirmed he had not reported his brother to the police and submitted that whilst his brother had been imprisoned the day before the applicant departed Sri Lanka for Australia that this was unrelated to him lodging a police report and was entirely co-incidental.

37. In the departmental file is also an undated affidavit by the applicant’s father claiming that this eldest son, [Mr B], is heavily addicted to drugs, that the eldest son caused considerable suffering in demanding drugs and that the applicant’s home life was unsuitable because of the demands of money, yelling and fighting.[1]

    [1] DIBP Folio 91

38. According to the decision record, the applicant was unable to recall which year his brother had damaged UNP posters and claimed his brother was involved in the UNP and he was not harmed, only to change his oral evidence as he had only remembered it recently. The applicant added it was a case of mistaken identity.

39. The Minister’s delegate refused to grant the applicant the protection visa on the grounds that he did not have a Convention reason for his claims to support he was a refugee; that his testimony was vague and lacking in detail; and because the delegate did not accept there was a real risk of harm arising from the applicant’s brothers and his associates given his brother’s history of arrest and imprisonment and lack of interaction with his brother, if the applicant were to be removed from Australia to his country of reference.

    Oral Evidence at the Scheduled Hearing

40. On 6 July 2016, the applicant appeared before the Tribunal to provide evidence and present arguments that he is owed Australia’s protection obligations. The applicant was assisted by an interpreter in the English and Sinhalese languages and his authorised representative was in attendance.

41. At the end of the hearing, the applicant undertook to provide copies of original documents in Sinhalese as well as translated documents pertaining to his brother’s history by a certain date.

    Post hearing submissions

42. On 9 August 2016, the applicant submitted a digital copy of the applicant’s passport indicating the applicant was citizen of Sri Lanka and that the valid passport had been issued [in] 2011 and was set to expire [in] 2021.

43. On 11 August 2016, the applicant’s representative forwarded a translation of a court document from the Negombo’s Magistrate Court. The court document indicates that a suspect was taken into custody for peddling [and] possession [of] [a drug] [in] February 2012. The document indicates that the accused is [Mr B] is dated [March] 2013.  Also submitted was a translation of a [court] document dated [February] 2013 in which [Mr B] applied for bail. There is also translation of the court proceedings dated [March] 2013 of the same accused which indicates that the accused had been in remand for [a number of] months beginning [in] July 2012 and that no previous complaints or cases had existed against [Mr B], and that the presiding magistrate had granted bail with conditions attached.

44. Dated 12 August 2016, the applicant’s representative submitted a legal submission. In this submission, it was argued that the applicant has a well-founded fear of persecution based on the applicant’s ethnicity as a Tamil; based on his imputed political opinion as a failed asylum seeker; and based on his membership of a particular social group, namely, as ‘victims of crime’ and ‘targeted of exploitation’ as well as a failed asylum seeker or as a failed Tamil asylum seeker. 

45. The submission raised an earlier AAT decision from 29 April 2016 (case number: 1404514) as relevant to his review application and that this decision’s findings about forced returnees with reporting requirements made relocation for this applicant unreasonable. 

46. The submission further addressed some of the credibility concerns raised by the Tribunal when the applicant was unable to recall exact dates and other details relating to his claims and that the Tribunal should not demand for exact consistency of details between different instances when considering asylums seeker claims and that there may be many factors which may explain the appearance of poor credibility.

47. It is noted that there were no documents about earlier courts documents pertaining to the applicant’s older brother’s charges or imprisonment and that the translated documents were the same as those provided to the Department.

48. No further submissions were forwarded to the Tribunal, right up to the time of writing this decision.

    Country Information

49. The Tribunal has considered the following regarding state protection from the December 2015 DFAT report on Sri Lanka:

    State Protection

    5.1 DFAT assesses there is no law or Government policy which hinders access to state protection on the basis of religion or ethnicity. Any citizen can exercise avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka. In practice, these avenues may be limited by linguistic barriers or by a lack of resources for court proceedings. In addition, some Tamils in the north and east may not have full confidence in police and security officers and may therefore be less likely to seek redress through them.

    […]

    Police

    5.4 The Sri Lankan Police Service (SLPS) has a notional strength of around 90,000 members. It has responsibility for enforcing criminal and civil laws and maintaining general law and order. The SLPS maintains a 6,000 member paramilitary Special Task Force (STF).

    5.5 With the removal of the Emergency Regulations in 2011, the SLPS became responsible for maintaining law and order within Sri Lanka. In August 2013, the former Rajapaksa government reassigned ministerial responsibility for the SLPS from the Defence Secretary’s portfolio to the President. Under the Sirisena government, portfolio responsibility for the SLPS has been given to the Minister of Law and Order and Prison Reform. The Sirisena government has identified the independence of the police as part of its agenda for constitutional reform.

    5.6 Language remains a significant barrier for effective policing, particularly in the north and east. There are reportedly 900 Tamil police officers and 1,500 Tamil-speaking Sinhalese officers deployed to the north and east, which suggests that relatively few of the approximately 15,000 officers in the north and east can speak Tamil.

    5.7 The SLPS maintains a separate unit to deal with the disciplinary issues of its members. The SLPS also offers a ‘Tell IGP (Inspector-General of Police) service’ where any member of the public can call a free number to discuss their engagement with the SLPS and register concerns or complaints. The public can also lodge complaints with the National Police Commission, which investigates complaints against individual police officers or the police force in general.

    Judiciary

    […]

    5.12 In practice, there can be a lack of effective legal protection and redress for victims of crimes in Sri Lanka. This is generally due to a lack of resources rather than ethnicity or religion. DFAT is not aware of any cases over the last few years where persons were denied access to legal remedies based on ethnicity or religion. In some cases, disputes are settled outside the legal system.

1. The Tribunal has also considered the more recent January 2014 DFAT report into Sri Lanka about the effectiveness of state protection and it assesses that there is general consistency about the effectiveness of Sri Lanka’s police and courts between reports and notable improvements for Tamil Sri Lankans. 

   ASSESSMENT OF CLAIMS AND FINDINGS

   Country of Reference

2. The applicant claims to be a national of Sri Lanka. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. The applicant also provided the Department a copy of his national identity card ([number]). Based on the copy of his national identification card and with no evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.[2]

   [2] ATT 39-42

   Third country protection

3. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Credibility Findings

4. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that is for the reasons claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’.  It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

5. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

6. The Tribunal accepts the following straightforward aspects of the applicant’s circumstances, as credible:

   ·The applicant was born in [year] in [Negombo] as claimed and that the applicant had usually resided in [Village 1] in Western Province when he lived in Sri Lanka, as claimed;

   ·The applicant’s ethnicity is Sinhalese and his religion is Roman Catholic

   ·The applicant’s father and mother continue to reside in  the applicant’s home town of [Village 1];

   ·The applicant has never married or lived in a de facto relationship and has no children, as claimed;

   ·The applicant has a brother, [Mr B] who is [older] than the applicant; as well as [another] brother, [Mr A], and no sisters. Both reside in Sri Lanka; and

   ·The highest education level attained by the applicant was [details of education] in Sri Lanka and that applicant has worked variably in low paid work in [various positions]. 

7. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including a copy of his national identity card. The Tribunal accepts the applicant has never applied for or owned a passport ordinarily issued by his country of origin and reference.

8. The Tribunal accepts there is consistency in the applicant’s overall written and oral claims, although he expressed difficulties remembering significant details. For this reason, the applicant, in a number of instances, did invite the Tribunal to consider whether there were other embellished written or oral evidence.  The Tribunal also makes a favourable credibility finding that the submitted and translated court documents that were provided to it after the applicant’s hearing to be genuine copies.

   Harm arising from the Applicant’s Older Brother

9. The main dispositive or critical claims put to both the Department and the Tribunal that the applicant is owed protection based on the applicant’s written and oral claims that his drug affected brother, [Mr B], and his criminal associates have threatened and harmed the applicant and his family in the past and will continue to threaten and harm the applicant and his family if he were to return to Sri Lanka.  It is noted that the applicant’s representative relevantly argued in its submission that the applicant has memberships of the following relevant particular social groups: ‘victims of crime’ and a ‘target of exploitation’. It was also argued that there was well founded fear of persecution arising from a claim about imputed political opinion.

10. The Tribunal is satisfied that his [other] brother, [Mr B], has been an illicit drug user when the applicant and his [other] brother were aged about [age] years of age as claimed.  When the Tribunal asked the applicant to which drug or drugs the applicant’s brother had been addicted, he claimed only to know that it was a powder and that he did not discuss it with his parents. The Tribunal notes that the applicant nominated [a specific type of drug] in his entry interview and that submitted translated court documents indicate that the applicant’s older brother had been taken into custody for [selling and possessing quantities of] the same illicit substance. The Tribunal accepts that the applicant was not entirely certain which drug that his brother was using during the hearing but based on the available evidence with particular emphasis on the translated court documents, it is accepted that the applicant’s brother had been a [drug] user and dealer and that this reasonably explains adverse behaviour including violence arising from the applicant’s older brother, as claimed.

11. The Tribunal accepts that the applicant’s older brother threatened the applicant and his [other] brother when they were adolescents and that [Mr B] had used sticks to beat his brothers; that [Mr B] had tied them down and that [Mr B] had threatened to cut their necks with a knife in 2002 as claimed. It is also accepts that [Mr B] had attacked his parents, as claimed.  The Tribunal accepts that his parents informed the police to protect the family and tried to use drug rehabilitation for their eldest son. 

12. The Tribunal accepts that the applicant and his [other] brother were placed in a hostel to complete their secondary education. During the scheduled hearing, the applicant also claimed that he did not return to his parents’ home after school in 2008 but lived four villages away with his maternal aunt where he was not harmed. The Tribunal accepts this to be the case.

13. During the scheduled hearing, the applicant claimed that his older brother had been imprisoned between 2005 and 2008 and then in 2008 his older brother had been imprisoned for three or four months for assaulting and cutting or stabbing people. (The applicant did know who the people were but he said the victims had been hospitalised, according to his parents). The applicant also claimed during the hearing that his brother was in prison for breaching drug laws in 2012 and was then released back into the community only to be imprisoned again (about 2013) and was at the time of the scheduled hearing. The applicant claimed he learned about the last imprisonment from his parent whom is in regular contact. Overall the applicant’s testimony was vague which the applicant attributed to his forgetfulness and the lack of information provided by his parents.

14. However, the Tribunal does not accept the 2008 claim about his brother’s imprisonment. According to the translated submitted court document dated [February] 2013, it states that the applicant has never had any previous complaints or cases against him. Neither the applicant nor his representative explained this anomaly in any post hearing submission. The Tribunal provided the applicant additional time to provide original documents and translated document to substantiate these specific claims; however the applicant was only submitted documents pertaining to 2013. Taking all this evidence into consideration, it strongly undermines the applicant’s specific claim about an earlier charge or imprisonment.  During the hearing, the Tribunal noted that the earlier imprisonment between 2005 and 2008 had been mentioned during the departmental interview and not in his written claims and that the briefer 2008 imprisonment had not been mentioned to the department; the applicant responded he only said what he remembered at the time. Ordinarily, the applicant has invited the Tribunal to consider that such a late and vague claim that was later undermined by credible documentary evidence had been deliberately embellished or fabricated for migration purposes; however the Tribunal has provided the applicant with the benefit of the doubt that the 2008 imprisonment of [Mr B], as claimed by the applicant during the scheduled hearing was submitted only to embellish to his otherwise credible claims about his older brother and not to deceive in any systematic or deliberate manner. However, the applicant has invited the Tribunal to consider that he has embellished other aspects of his claims.

15. The applicant claimed there was a major incident of violence by the applicant’s older brother in April 2012 when at least four others at his parent’s house, demanded money, caused damage towards his parents’ property and threatened his parents with a knife and threatened to kill the applicant. (In the applicant’s written statement, the applicant claimed the knife was put to his own throat.) The applicant claimed that he was not harmed because the applicant was not at his parent’s house at the time but it was the incident that led to his departure for Australia in July 2012 as the applicant had reported the death threats. (The delegate noted the applicant claimed that he did not report to the police in the departmental interview, contrary to the applicant’s earlier written claims). The applicant also claimed that the applicant’s [other] brother was not home during the incident but a motorcycle belonging to his [other] brother had been stolen by [Mr B] from his [other brother’s] workplace.

16. The Tribunal finds that this claim about this specific 2012 incident to have been also embellished, in the context of the Tribunal’s earlier finding that the applicant had embellished his claims.  As a submitted court document indicate, the applicant’s brother had been taken into custody in July 2012 for peddling and possessing illicit drugs and was offered bail as the court found that there had been no earlier complaints or cases against the applicant’s brother.  In the applicant’s written claims to the department, the applicant claimed that he had reported his older brother after receiving death threats. Had there been earlier police complaints about death threats and other threatening acts or assaulting or cutting other people as claimed by the applicant, then it would be reasonable to expect that such complaints would be mentioned. The Tribunal does accept as credible many elements of this specific claim: it accepts that his older brother has intimidated and used force and threats against his parents for money based on the plausibility arising from desperate and violent behaviour from drug addicts towards family members. Based on the plausibility of the specific claims, the Tribunal also accepts that that his older brother associated with as many as four other equally desperate and volatile men who physically harassed the applicant’s parents, as claimed in the hearing. (However it does not accept they threatened him as claimed in his written claims).  For the same reasons, it further accepts the specific claim about the applicant’s [other] brother having his motorcycle stolen as claimed. It also accepts that the applicant’s older brother had been arrested and imprisoned for a third time based on the plausibility of the specific claim. 

17. However the Tribunal finds that the applicant has embellished specific claims about death threats against him personally (along with his other family members) and the claim that he reported death threats to the authorities as the evidentiary material before the Tribunal provides a clear discrepancy in this regard. Accordingly the Tribunal finds the applicant did not receive death threats by his older brother in 2012, either directly or indirectly or that he ever complained to the police about his older brother for any reasons.  Based on the inconsistent evidence between the written claims and the oral claims with the department, the Tribunal does not accept the older brother was reported by the applicant to the authorities.  Overall, the Tribunal accepts there was an incident in April 2012 in which his parents were harmed and threatened by [Mr B], as claimed by the applicant, but it also finds that the applicant had embellished this specific claim to strengthen his otherwise weak claim for departing from Sri Lanka to Australia in July 2012.

18. The applicant offered as part of the reason for [Mr B]’s threats and acts of violence had been based on his jealousy towards his brothers assuming his [other] brothers had been receiving preferential treatment by his parents. The Tribunal accepts that the applicant’s older brother was partially motivated for some reason related to his perceived unfair treatment by his parents but finds that his affliction arising from drug use and the need to extract money from vulnerable members of the applicant’s family would also explain [Mr B]’s motives for violence towards his family in the past. Despite the Tribunal’s adverse credibility findings regarding the applicant having embellished elements of his claims, the Tribunal finds that the applicant has experienced some distress from a young age arising from his older brother’s behaviour and addiction, that his brother has been imprisoned for serious offences related to his drug addiction and that this dynamic between the applicant and his older brother will persist into the reasonably foreseeable future. Accordingly, the Tribunal accepts that the applicant has a genuinely personally-held subjective fear of persecution arising from his brother’s behaviour, now and into the foreseeable future.

19. In parenthesis, the Tribunal does finds there is a chance of serious harm, through the significant physical harassment by the applicant’s older brother as it is accepted there is a history of intimidation, theft, the extortive use of verbal threats, weapons and property damage and there is little evidence to suggest that this drug afflicted behaviour has been modified through rehabilitation, abstention or treatment. In this regard, the harm feared amounts to serious harm that satisfies ss.91R(1)(b) and (2)(b).

20. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

21. The submitted court document dated [March] 2013 demonstrates that there is a level of internal protection available to the applicant. The applicant claimed he did not read the untranslated document, although he claimed to have been able to read, write and speak Sinhala and undertook to provide a copy of the original in Sinhalese. The document states that the applicants’ older brother had been remanded for [a number of] months before being released on bail. Cash bail was set at [amount] Sri Lankan rupees and personal bail was set at [a larger amount], that the bail conditions must be acceptable to the bail applicant’s family members; and that that the applicant’s older brother had to report to the Negombo police once a week. These bail conditions are strict and indicate that the applicant’s older brother is known by and is subject to the organs of state. They indicate that the applicant’s family have a role in their troubled son’s bail conditions and that the state is specifically active in policing and prosecuting the crimes of the applicant’s older brother, despite the limitations of the Sri Lankan police and judiciary. This information that the applicant’s brother was detained without bail for some time indicating that his brother was not connected to wealthy or influential individual or criminal syndicate that could have his brother corruptly released in a more timely manner, instead of enduring length custody and imprisonment. During the hearing, the applicant claimed his parents did not provide bail.  This information indicates that the applicant will have a high level of internal protection available to him as a victim of crime if he is further threatened or harassed by his brother who may or may not be in the community into the foreseeable future, even if he is to return to his home town of [Village 1] in the Western Province.

22. In Mehmood v MIMA, von Doussa J recognised that ‘[h]owever good the level of protection offered by a state might be, random acts of thuggery or other criminal behaviour cannot always be prevented, and hence absolute guarantees against harm are impossible in fact, and are not required in law to negative a real chance of persecution’.[3] Similarly, in Primatchek v MIMA Madgwick J acknowledged that no country can guarantee protection of its nationals, adding that ‘if there is insufficient evidence as to the identity of persecutors for law enforcement authorities to act on, then no matter how willing and capable such authorities may generally be of protecting a person against persecution, protection will fail. It is not against such irreducible failure to protect its nationals that the Convention is directed’.[4]

    [3] [2000] FCA 1799 (von Doussa J, 12 December 2000) at [15].

    [4] [2000] FCA 517 (Madgwick J, 24 March 2000) at [14].

23. Moreover the Tribunal does not accept the applicant have well-founded fear of persecution based on the claimed memberships of ‘targets of exploitation’ or ‘victims of crime as these specifically are not Convention grounds for persecution. In this regard, the Tribunal does not accept that ‘targets of exploitation’ amounts to being a particular social group as the fear of persecution, specifically exploitation, cannot be the shared characteristic of a particular social group. Neither does the Tribunal accept that ‘victims of crime’ or even as someone who is ‘vulnerable to crime’ by virtue of the applicant’s older brother being a criminal or a drug addict satisfies one of the Convention’s nexus reasons, namely a membership of particular social group. Based on the applicant’s particular claims as someone narrowly targeted by another family member arising from his brother’s addiction, there is no evidence of discriminatory or ‘persecutory’ laws or practices against the applicant as a member of a group which  has an identifiable attribute other than the shared persecution of the group, such laws and practices may indicate a particular social group if over time the discriminatory treatment has been absorbed into the social consciousness of the community, as explained in Applicant S, Gleeson CJ, Gummow and Kirby JJ helpfully expanded on McHugh J’s example of left-handed men in Applicant A.[5]

    [5]  Applicant S v MIMA (2004) 217 CLR 387 at [31].

1. Neither do the applicant’s claims in this regard amount to the applicant being subject to the general application of the law as the applicant is not being subjected to any national law based on these specific claims.

2. Notwithstanding s.36(2B)(b), the Tribunal is satisfied that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will face a real risk of significant harm. This is based on the Tribunal’s findings that the applicant faces a real chance of serious harm, notwithstanding the Convention’s internal protection provisions and because the ‘real chance’ standard is the same as the ‘real risk’ test. The Tribunal finds the significant harm that he has this real chance of facing is being subjected to cruel and inhuman treatment and degrading treatment at the hands of his older brother who will on an ongoing basis severely harass, extort, physically threaten, humiliate and mentally torment the applicant. In this way, the applicant does satisfy s.36(2A)(d) and (e).

3. However, just as the Tribunal has considered that the applicant does not have a well-founded fear of persecution based on this Convention reason as there is a sufficient internal protection available to him, it has considered the operation of s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm.  In MIAC v MZYYL the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[6]

   [6] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

4. The country information cited above does not state that the Sri Lankan police and judiciary are ineffective or fall below international standards or that he would be denied their protection based on the applicant’s ethnicity or religion. In this particular case, the police and the judiciary are found to be active with regards to the foreseeable behaviour of the applicant’s brother and accessible and available to the applicant and his other family members.   The Tribunal finds that applicant will have the protection of more than one authority of the country and that the receiving country has an effective legal system for detecting, prosecuting and punishing known criminals and recidivists, such as the applicant’s brother, on an ongoing basis. That is, the Tribunal finds that even in the instance where the older brother does harass or threaten the applicant or breach unrelated laws to his past convictions, the level of protection available to the applicant will lead to the real risk of significant harm (being severely harassed, extorted, physically threatened, humiliated and mentally tormented on an ongoing basis) to be considerably reduced by effective policing and prosecuting, given the likelihood of [Mr B] being subjected to bail or parole conditions and ongoing monitoring by the authorities. This reduced risk of ongoing harm is highlighted by the accepted testimony that the applicant’s family did not provide bail in 2013 and that his brother had been apprehended and imprisoned on at least two occasions since 2012. Therefore the protection available, the Tribunal finds, removes the real risk of significant harm. Accordingly, based on the applicant’s accepted circumstances and the country information, there is taken not to be a real risk of significant as the applicant could obtain, from an authority of the country, protection such that the applicant would not have a real risk he will suffer significant harm, pursuant to s.36(2B)(b).

5. It follows from this finding regarding s.36(2B)(b), the Tribunal finds there is no substantial reason for it to believe, that the applicant, as a necessary and foreseeable consequence of returning to either his home town or anywhere within his country of reference, will suffer a real risk of significant harm, arising from his brother’s foreseeable behaviour.

   Harm arising from Imputed Political Opinion

6. The applicant also claimed that the applicant experienced harm arising from his brother’s political opinion. In the applicant’s written and oral claims, it had been claimed by the applicant that his older brother was seen pulling down UNP posters; that the applicant has been mistaken for his brother, [Mr B]. It was consistently put by the applicant that [Mr B] was not politically involved in any other party or movement and that the applicant could not remember the year of the specific incident.  During the scheduled hearing, the Tribunal had noted the applicant earlier claimed that his brother was a bigger build than him so it may have been unlikely to confuse each other; to which the applicant responded that although he was leaner and shorter than his older brother they shared a similar face and that the incident occurred while it was dark. The applicant further claimed he was never hit but only held by the UNP political members and was released once they realised he was not [Mr B]. This vague and improbable incident would ordinarily be found not to be considered credible or reliable; however, there is a thread of consistency in the applicant’s retelling of this specific incident that has invited the Tribunal to find to be credible. Accordingly, the Tribunal accepts that the applicant had been in an incident where the applicant had been apprehended but not harmed based on the applicant being mistakenly identified and based on his older brother’s imputed political opinion against the UNP. The Tribunal notes that that the applicant did not advance any anti-government or political views of his own in any of his written or oral claims to either the Department or the Tribunal. Based on the applicant’s own testimony in which the applicant had not been harmed or further threatened for his imputed political opinion in the past, the Tribunal finds that the applicant does not have a real chance of serious harm based on his political opinion, imputed or otherwise or because he resembles his older brother by any supporters or members of any political party in Sri Lanka, if returned to his country of nationality, now or into the reasonably foreseeable future. For the same reasons, there are no substantial grounds for the Tribunal to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will face a real risk of significant harm of any kind.

7. Having considered the Tribunal’s above findings cumulatively claims arising from these specific claims about the applicant’s older brother and associates, the Tribunal finds that the applicant does not have a well-founded fear of persecution as a target of exploitation’, ‘a victim of crime’, his claimed imputed political opinion or any related Convention reasons, if he were to return to either his home town or anywhere within Sri Lanka, now or into the foreseeable future. Having cumulatively considered the same claims as required by s.36(2)(aa), the Tribunal further finds there is no substantial reason for it to believe, that the applicant, as a necessary and foreseeable consequence of returning to either his home town or anywhere within his country of reference, will suffer a real risk of significant harm.

   Harm arising from the Applicant’s Ethnicity and Religion

8. The Tribunal has earlier made a finding that the applicant is ethnically Sinhalese and that he belonged to the Roman Catholic tradition. However, the submission by the applicant’s representative dated 12 August 2016 raised the Convention reason for harm being the applicant’s ethnicity as a Tamil (including related Convention reasons such as a failed asylum seeker whose ethnicity is Tamil). The Tribunal accepts the consistently stated claim by the applicant that he is Tamil by ethnicity or race, and not Sinhalese as claimed very lately (and probably mistakenly) by the applicant’s representative. At no time in the applicant’s claims with the Department or those elaborated with the Tribunal did the applicant claim he will be harmed based on his race or his religion as a Roman Catholic. According to the DFAT report in 2015 and 2017, the Sri Lanka’s largest ethnic group is the Sinhalese; it assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. 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. It is noted the applicant did not advance any claims to be evangelical in his Catholicism.

9. Based on the country information and the applicant’s accepted ethnicity as a Sinhalese and religious affiliation, the Tribunal finds that the applicant does not face a real chance of serious harm based on his ethnicity or religion or a combination of these Convention reasons, at all, if he were to be returned to Sri Lanka, now or into the reasonably foreseeable future.  Based on these specific accepted circumstances and the same country information, there are no substantial grounds for the Tribunal to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will face a real risk of significant harm of any kind.

   Harm arising from Applicant Being a Failed Asylum Seeker

10. During the hearing, the applicant and his representative have claimed that the applicant will be targeted by the police and by criminal associates of his older brother as he will be perceived as wealthy due the lengthy period of time he has spent in Australia. It is further and relatedly claimed that the regular reporting requirements placed on failed asylum seekers and/or visits by the authorities to the residences of failed asylum seekers or illegal departees. These matters were discussed at some length during the scheduled hearing and the applicant claimed that after being released into custody he would be subjected to his older brother’s violent behaviour and expressed his fear that he may be interrogated as a failed asylum seeker or as an illegal departee. The representative claimed that a 2016 decision by the Tribunal (case number: 1404514) was relevantly supportive in this regard.

11. It is accepted that from the recent DFAT report on Sri Lanka in December 2015 that the applicant would face questioning at the airport; that he would be charged with leaving illegally and would be taken before the court, to either plead guilty and receive a fine, or not guilty and receive bail under a personal surety to return at a later date.

12. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

13. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka this would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

14. It is accepted that as a failed asylum seeker there is information as to what the applicant has to do in his country:  In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that ‘[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity. Further information on procedures at the airport can also be found in the UK Home Office Country of Origin Information report of March 2012.

15. The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination: UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.

16. The Tribunal considers that the applicant will be required to return to his home village of [Village 1] after being released by the Magistrate for further registration. As someone who left Sri Lanka illegally, remained overseas for a considerable period and would be assumed to have sought asylum, the applicant will be required to report to the local police station or military camp on a regular basis. This is in his home area, the area where his parents live and where the applicant was accepted to have been targeted in the past.

17. With regards to there being comparable circumstances between the applicant and those outlined in 1404514, it is noted that the applicant in that case did have overlapping or extenuating claims of political opinion and ethnicity (as a Tamil) as a failed asylum seeker and that the reporting requirements of failed asylum seekers to return to their local areas in this particular circumstance led to relocation being unreasonable as a failed asylum seeker. However in this matter, the Tribunal does not accept the reporting requirements, even within the applicant’s local area, would see the applicant face a real chance of serious harm as a failed asylum seeker. Therefore the issue of relocation and its reasonableness is not relevant based on the applicant’s particular circumstances.  It does not accept that the local law enforcement agencies will face a reduced resistance to protect him as a failed asylum seeker because he belongs to a family of victims of serious criminal activity. It is noted that the applicant’s older brother has an adverse history of illicit drug use and possession with the authorities and has been detained for some time for those commissions.  Indeed in the applicant’s circumstances, the authorities will be able to provide the applicant with accessible, albeit voluntary, opportunity to report any disturbances or concerns about breached bail conditions arising from his brother and his associates or other irregularities. With regards to being perceived to be wealthy, it is noted that the applicant has limited education and has not worked in high paying jobs in the past. On return to Sri Lanka, he is likely to return to similar employment he had in the past when in Sri Lanka. The applicant will appear financially modest regardless of any savings he may have accrued will in Australia. The Tribunal does not accept he will face a real chance in being perceived any differently among the general populace than any returning migrant worker, either from the West or the Middle East.  (According to the 2015 DFAT, Sri Lanka’s major sources of foreign exchange earnings are based on remittances. Sri Lankans working abroad returned approximately USD 6.4 billion in remittances in 2013.) While there is corruption among the authorities, the Tribunal notes that the current government has a number of anti-corruption measures in place, the Tribunal finds there will not be a real chance that he will be harassed or extorted as a failed asylum seeker who has spent time in a Western country or is perceived to be wealthy by the authorities due to the applicant’s otherwise limited education and work experience and based on his Sinhalese ethnicity (as the country information above indicates the internal protection measures are more effective for Sinhalese than Tamil Sri Lankans). This strongly indicates that the authorities will act in the applicant’s favour against the applicant’s older brother or his associates and therefore there are internal protection measures available  Accordingly, as a failed asylum seeker with reporting requirements who is also a Sinhalese Sri Lankan and whose brother is known to the authorities, the Tribunal is satisfied that the applicant will have a less than a real chance of serious harm as a failed asylum seeker, if he were to return to Sri Lanka, now or into the foreseeable future because internal protection measures are available to him.

18. Having considered the applicant’s circumstances cumulatively as a failed asylum seeker and the availability of internal protection, the Tribunal finds the applicant (who did depart Sri Lanka illegally; who is Sinhalese and who is not a person of interest to anyone politically influential) will not face a real chance of serious harm as a failed asylum seeker or for any related Convention reasons, now or into the reasonably foreseeable future. 

19. The Tribunal has considered the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty against the complementary protection provisions. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of significant harm during this process. The Tribunal has already made an earlier finding that the applicant’s family will assist him in this regard to ensure a timely release on bail. This information that the applicant’s brother was detained without bail for some time indicating that his brother was not connected to wealthy or influential individual or criminal syndicate that could have his brother corruptly release in a more timely. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.

1. In regard to the penalty the applicant may face, based on the information cited above and earlier findings in this regard, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigrants and Emigrants Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka, that there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention.

2. Based on the same assessment of subsection 36(2B)(b) and the relevant country information as discussed above,  the Tribunal is satisfied the applicant can obtain, from an authority of the country, protection, such that there would not be a real risk that the applicant would suffer significant harm, if he were to return to his home village with reporting requirements as a failed asylum seeker. The Tribunal, accordingly, that there would not be a real risk the applicant will suffer significant harm arising from the applicants’ older brother or his associates, arising the applicant’s claims as an illegal departee or a failed asylum seeker.

3. In this regard, the Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

   Additional Finding

4. During the scheduled hearing, the Tribunal found the applicant’s testimony had lacked some consistency and detail and he provided some late evidence. When the Tribunal asked for reasons for this, the applicant claimed he often had trouble remembering incidents accurately due to the trauma he had experienced. He additionally claimed that while in immigration detention, medical professionals had advised the applicant to forget focussing on events of the past and that is what he has tried to do but he claimed he did not recall very well these incidents. For instance, during the scheduled hearing, the applicant claimed he has court documents in Sinhalese on a USB (or memory stick) but had not submitted them until it was part of his post hearing submission. He also provided various accounts about his brother’s history with the police and being imprisoned. However, in the context of the findings above, the Tribunal finds that the applicant, while he had experienced some harm and distress in the past and that the harm was not over a long period of time. It also finds that, by his own admission, he had avoided many acts of harm and harassment that were otherwise inflicted on his parents and some incidents occurred when he was quite young. The Tribunal also notes that the applicant did not present any information from a medical professional to support his claims that he has difficulties with memory, either to the Department or the Tribunal. In the context of the Tribunal’s adverse credibility findings in which it was found the applicant had embellished a number of specific claims, the Tribunal finds that the applicant’s often vague and non-specific answers were not attributable with difficulties with remembering key events based on past trauma or medical advice, as claimed. Accordingly, the Tribunal finds the applicant was provided with a meaningful opportunity to participate in the Tribunal’s deliberations, in a manner consistent with s.425  and that those limited assertions that were claimed to be poorly remembered or only lately remembered were done only to augment the applicant’s otherwise weak but credible claims that he was owed Australia’s protection obligations.

   Cumulative Findings

5. There are no other residual claims to consider in this matter under either under s.36(2)(a) or s.36(2)(aa).

6. Having considered the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance that, if returned to Sri Lanka, that the applicant would be persecuted for the applicant’s religion, race, membership of any particular social group, for any other related or any other Convention reasons, now or into the foreseeable future.

7. Therefore the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reasons and does not satisfy the criterion set out in s.36(2)(a).

8. Having considered all of the applicant's claims individually and cumulatively, for the reasons given above, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Sri Lanka, that there is a real risk the applicant will suffer significant harm, by way of being arbitrary deprived of his life; that the death penalty being carried out on him; that he will be subjected to torture; be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.

100. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

Conclusions

101. 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).

102. 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).

103. 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

104.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Brendan Darcy
Member

[i]f the community's ruling authority were to legislate in such a way that resulted in discrimination against left-handed men, over time the discriminatory treatment of this group might be absorbed into the social consciousness of the community. In these circumstances, it might be correct to conclude that the combination of legal and social factors (or norms) prevalent in the community indicate that left-handed men form a particular social group distinguishable from the rest of the community