1419929 (Refugee)

[2016] AATA 3775

1419929 (Refugee) [2016] AATA 3775 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419929

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Paxton

DATE:29 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2016 at 5:14pm

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

3. The applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

19. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

20. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

21. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

22. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

23. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The applicant’s claims can be summarised as follows.

25. The applicant, who is Singhalese, of the Roman Catholic faith, and grew up in the village of [Village 1], in the North Western Province of Sri Lanka, is a long term supporter of the United National Party (UNP). As a supporter of the UNP he regularly canvassed for the UNP at election time, including the election of 2010, visiting the homes of people in the village to encourage them to vote for the UNP. In [Village 1] in 2010, over the election period, he was assaulted a couple of times by opposition United people’s Freedom Alliance (UPFA) supporters who were angry because his activities canvassing for the UNP.

26. Because of these political problems, the applicant and his family (at that time his wife and [number] children) left [Village 1] and went to [Village 2], more than 100 kilometres away. He was a fisherman in [Village 1] and continued making his living by fishing for fresh water fish when he and his family moved to [Village 2]. After this move, he experienced no further problems for six months but when NPFA supporters from [Village 1] found out from his brother that he had moved to [Village 2], they came to [Village 2] to harass him and local residents joined in. On one occasion, they threw stones at him and he was hit on the head.  The applicant had to flee Sri Lanka for this reason. After his departure from Sri Lanka, his wife received anonymous letters threatening to abduct the children and this was related to his political activity. The applicant fears harm in the future from UPFA supporters because of his involvement with the UNP.

27. The applicant departed Sri Lanka illegally by boat [in] June 2012. The applicant believes he will be prosecuted by the authorities on return to Sri Lanka because, although he had no role in organising LTTE Tamils for the boat to Australia, he was on a boat with LTTE supporters and authorities will believe that he supported the illegal departure of LTTE people. The applicant’s [relative] has stated that people smugglers have named the applicant as having being involved in organising people for the boat.

    Country of nationality

28. The applicant claims to be a citizen of Sri Lanka and provided a copy of his Sri Lankan identity card, passport and birth certificate to the Department with his application. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.

    Third country protection

29. 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.

    Assessment of claims

30. On the basis of documentary evidence including copies of the applicant’s passport, birth certificate and ID card, the Tribunal accepts that the applicant is Singhalese and born in the village of [Village 1], in the North Western Province of Sri Lanka. On the basis of evidence the applicant’s evidence, the Tribunal accepts that the applicant departed Sri Lanka illegally by boat [in] June 2012.

31. In consideration of the applicant’s claim that he fears being assaulted by UPFA supporters because he is a supporter of the UNP, the Tribunal sought information from the applicant about the political stance of the UNP at the hearing. The applicant was vague and limited in his response. He explained that the government of President Rajapaksa placed many restrictions on Sri Lankans and that he believed that a new government would benefit Sri Lanka economically. The Tribunal found that the applicant had a rudimentary knowledge of the UNP political position, which the Tribunal would expect to be commensurate with a low level UNP supporter. In response to the Tribunal’s enquiry about his involvement with the UNP, the applicant stated he had no formal role with the UNP but that at election time he canvassed homes door to door for the UNP and reported to the UNP office in the village. On the consistent oral evidence of the applicant, the Tribunal accepts that the applicant was involved in a low-level support role canvassing homes for the UNP at election time.  

    ·     the [official] of [town] wrote in an undated letter that the applicant is a leading member of the UNP. As found above, the Tribunal accepted the applicant’s description at the hearing of his role as a UNP supporter who assisted at election time. The Tribunal considers that the characterisation of the applicant as a leading member of the UNP does not match the applicant’s account of this role and exaggerates the applicant’s profile within the UNP. This leads the Tribunal to have serious concerns about the general credibility of the letter. For this reason, the Tribunal does not accept that it presents a reliable account of the applicant’s circumstances and gives this letter little weight.  

    ·     Father [name], [priest], Diocese of [name], in an undated letter, states that the applicant was an activist in the UNP and that he had to flee firstly [Village 1] and then [Village 2] to avoid the persecution of SLFP. The Tribunal considers that the description of the applicant’s role as an activist does not accord with, and exaggerates, the applicant’s own description of his role as a UNP supporter who canvassed at election time. This leads the Tribunal to have serious doubts about the credibility of this letter. The Tribunal does not accept that it presents a reliable account of the applicant’s circumstances. For this reason, the Tribunal does not accept that it presents a reliable account of the applicant’s circumstances and gives this letter little weight.

    ·     Reverend [name], Parish Priest, Director [religious activities], indicates in his letter of [February] 2013 that the applicant “was actively involved in the then government and its social and economic services of the UNP from 1986 - 2000.” The Tribunal considers that this description of the applicant’s involvement with the UNP, which suggests extensive and high level membership, does not accord with the applicant’s own account of his involvement. This leads the Tribunal to consider that the applicant’s activities in the UNP have been exaggerated in this letter and that the letter does not represent and accurate account of the applicant’s circumstances. This leads the Tribunal to have serious doubts about the credibility of this letter. On this basis the Tribunal does not accept that it presents a reliable account of the applicant’s circumstances. The Tribunal does not accept that the applicant was actively involved in the then government and its social and economic services of the UNP. For this reason, the Tribunal does not accept that it presents a reliable account of the applicant’s circumstances and gives this letter little weight.

32. In consideration of the applicant’s claim that he was abused, harassed and assaulted in election related violence in [Village 1], the Tribunal considered that the applicant was vague and inconsistent about these claimed events. He stated initially that he was assaulted a couple of times, and later in the hearing he stated that this occurred a number of times. The applicant has no documentary evidence of these claimed assaults. On the basis of country advice of December 2015 from the Department of Foreign Affairs and Trade (DFAT), discussed with the applicant at the hearing, that under the Rajapaksa regime, elections were characterised by extensive violations of elections laws, and that election related violence occurred[1], the Tribunal accepts that the applicant was abused and harassed in election related hostility. However, on the vague evidence before it, the Tribunal does not accept that the applicant was assaulted or forced to leave his home in [Village 1] or Sri Lanka for this reason. The Tribunal accepts that the applicant, as a low level UNP supporter, was subject to occasional abuse and harassment from UPFA supporters.

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

33. Having regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2A) of the Act, the Tribunal has considered whether the abuse and harassment experienced by the applicant in [Village 1] after the election in 2010 constituted either serious harm or significant harm to the applicant. The Tribunal finds that while the hostility around the electoral process created a tense and unpleasant environment, it did not give rise to treatment which constituted persecution amounting to serious or significant harm.

34. The Tribunal considered the applicant’s claim that he moved to [Village 2] after the election of 2010 to escape harassment from opposition party supporters in [Village 1] and that after a six month period, when they came to know he had moved to [Village 2], they came to [Village 2] to harass him. The Tribunal has considered the claim that on one occasion, supporters of the UPFA threw stones at him and he was hit on the head. The applicant claimed that he reported this incident to the police in [Village 2] but that they took no action and did not provide him with any documentation. At the hearing, the Tribunal sought more detail from the applicant about the alleged perpetrators of this harassment. He stated that they came from his old village and attacked his house, and that others from [Village 2] joined in this action. In this discussion the applicant was extremely vague. He could not identify in any way, or provide any detail about, the people who came from his old village and attacked his house. The applicant did not know why these people were motivated more than six months after the election to travel over 100 kilometres to harass him. The Tribunal found this vague account very difficult to believe. The Tribunal would expect if these events occurred that the applicant could identify to some extent the people involved, and be able to provide plausible explanation for their behaviour at that time. On this basis, the Tribunal does not accept that people came from [Village 1] and harassed the applicant for any reason. The Tribunal does not accept that people from [Village 2] joined with those from [Village 1] in any action against the applicant. The Tribunal does not accept that these people threw stones at the applicant and that he was hit on the head. It follows that the Tribunal does not accept that the applicant reported this matter to the police but that they took no action.

1. The Tribunal also considered the applicant’s claim that following his departure from Sri Lanka in 2012, his wife received letters threatening to abduct his children. On further enquiry at the hearing, the applicant was very vague about this claim. The Tribunal enquired how the letters were received and he stated that they were thrown into the garden, that they were anonymous and did not say why they were threatening harm to his children or why they wanted the applicant. He stated he thought they threatened his children because they believed he was hiding in another area and wanted him to return to the house. He stated that they stopped threatening his family when they learned from his brother that he had come to Australia. The applicant stated that he did not know why that more than two years after the election anyone would continue to have any interest in him because of his political activities. He stated that this is what people do and that he was doing the same thing. The Tribunal pointed out to the applicant that he had previously stated that his wife received letters threatening to abduct the children because he had assisted the departure of LTTE members. At the hearing, the applicant stated that he could not remember what he had claimed previously but that the threats came because of his political affiliation with the UNP. The extremely vague and changing nature of the applicant’s claims in relation to the threats to his wife, lead the Tribunal to consider the applicant to be an unreliable witness in respect to these threats. For this reason, the Tribunal has serious concerns about the credibility of these claims. On this basis, the Tribunal does not accept that the applicant’s wife has ever received any threats against the applicant’s family for any reason.

   In consideration of the applicant’s claim to fear return to Sri Lanka because he faces violence from UPFA supporters, the Tribunal has also referred to DFAT country information of December 2015.  As put to the applicant, the political situation in Sri Lanka has changed over the four years since his departure.  As put to the applicant the most recent DFAT advice on Sri Lanka about the political process indicates that while violations of the election process have been noted elections are considered to have occurred in a relatively free and fair manner.[2]

   [2] DFAT Country Information Report, Sri Lanka, December 2015

2. As put to the applicant, DFAT have further stated in their advice of December 2015, that:

   3.26 The Presidential election on 8 January 2015 was relatively peaceful and orderly and the parliamentary election held on 17 August 2015 was described by the Commonwealth Observer Group as ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’. [3]

   [3] DFAT Country Information Report, Sri Lanka, December 2015

3. At the hearing, the Tribunal referred to DFAT advice that since the presidential election on 8 January 2015 there have been reports of some post-election violence between UNP and UPFA.  As put to the applicant, on 25 January 2015, Sri Lanka’s The Sunday Times newspaper cited reports from the People’s Action for Free and Fair Elections (PAFFREL) that since the election there had been two people killed and nine complaints received of ‘harassment, intimidation and influence on State officials’. As put to the applicant, the Campaign for Free and Fair Elections (CaFFE) had received complaints of 48 violent incidents with 22 cases of assault against officials[4]. The Tribunal notes these reports of post-election violence but, as put to the applicant, the Tribunal also notes independent sources indicate that politically-motivated attacks have been investigated and the perpetrators, on both sides have been arrested[5] and that the reports do not refer to low level supporters of the UNP such as the applicant. At the hearing, the Tribunal also referred to reports indicating that action has also been taken by the President to strengthen police response to this activity. Reporting comment by the UNP General Secretary, Kabir Hashim, The Sunday Times said that ‘the President and Prime Minister had ordered the police and other relevant authorities to take necessary action to avert post-election violence, regardless of Party affiliations and prosecute them under the laws of the country’.[6]

   [4] Weerakkody, C 2015, ‘Opposition, poll monitors urge Govt. action against its supporters’ post-poll thuggery’, The Sunday Times, 25 January < <CXBD6A0DE859>

   [5] Sri Lanka: CI150206181632342 – United National Party (UNP– Police protection from inter-party violence, 3 March 2015

   [6] Weerakkody, C 2015, ‘Opposition, poll monitors urge Govt. action against its supporters’ post-poll thuggery’, The Sunday Times, 25 January < <CXBD6A0DE859>

4. In response to this country information, the applicant stated that although the war has ended and there is a new president and prime minister, nothing has changed and the political problems remain. The applicant noted that although the UNP are in government, the UPFA is still there. The applicant stated that officials who come to observe elections know if someone is killed but they do not know about occurrences at village level. The applicant stated that while reports say that police will investigate and take action that they are not really doing these things.

5. The Tribunal has considered all the evidence before it, including the applicant’s comments, and considers that the applicant faces no more than a remote chance of serious or significant harm from UFPA supporters because of his political activity in support of the UNP. On the evidence, the Tribunal finds that the applicant is not a person, who because of his political opinion, will be targeted by anyone for harm.  Furthermore, on the basis of independent country information, the Tribunal is satisfied that a person experiencing election related violence could seek the protection of the state authorities. The Tribunal finds that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason. 

6. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee convention definition: MIAC v SZQRB [2013] FCAFC33. Based on the consideration of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.

7. The Tribunal has considered the applicant’s claimed fear of return to Sri Lanka because he will be prosecuted by the Sri Lankan authorities because the boat on which he departed Sri Lanka also carried LTTE Tamil people and for this reason he will be suspected of assisting with organising their illegal departure. The applicant stated that he believed this would occur because his [relative], who came to Australia on the same boat as the applicant and returned to Sri Lanka two years ago, had told him that the people smugglers had told the authorities that the applicant was involved.

8. At the hearing, noting the applicant had previously made a claim to fear return to Sri Lanka because he had departed Sri Lanka illegally, the Tribunal made repeated enquiries to elicit claims from the applicant other than those related to his involvement in UNP activities. The applicant stated firmly a number of times that his only fear in relation to retuning to Sri Lanka related to his political activity with the UNP. It was only after considerable prompting by the Tribunal, which included discussion of country information relating to treatment of returnees who had left Sri Lanka illegally discussed below, that the applicant put forward the claim that he feared he would be persecuted as a people smuggler. The Tribunal enquired why he had not raised this claim at any time before this hearing despite having numerous opportunities, including that provided by his Departmental interview. The applicant was very slow to respond, then stating that he did not raise this matter earlier because he was not asked about it and he did not consider it a serious problem. He stated that he did not want to mention these things and did so only because the Tribunal asked him. Taking into account that the applicant had many opportunities to raise this claim at an earlier point in the Tribunal hearing, and also throughout the protection visa process, but that he had not done so, the Tribunal formed the view that the applicant had fabricated this claim. The Tribunal would expect that if this matter had any factual basis, that the applicant would have raised the claim at a much earlier time. The Tribunal also notes that, as explanation for the delay in raising this claim, the applicant stated that he did not do so because he did not think it was serious problem. In the view of the Tribunal, this is not a plausible explanation for why he did not raise matter of importance to his protection visa application at an earlier time. On the evidence, in respect of this claims related to people smuggling, the Tribunal does not accept the applicant is a credible witness.

9. The Tribunal asked the applicant why he thought the authorities would believe he had a part in organising Tamil passengers for the boat. The applicant was extremely vague in response. He stated that he had no role at all in organising the boat or its passengers but the authorities would think he had because he was on the boat with LTTE people. When pressed, he claimed that his [relative] was charged in this way when he returned to Sri Lanka two years ago. The applicant stated that following questioning, his [relative] was released on bail to attend Court in the future but that he has not been required to attend to date. Later in discussion, the applicant stated that his wife had advised him that his [relative] said the people smugglers of his boat had told the authorities that the applicant was involved.

10. As above, the Tribunal found the applicant is not a credible witness in respect of this claim. Taking into account the applicant’s vague response and the credibility concerns expressed above, the Tribunal does not accept that the applicant is of interest to the authorities because he is believed to have organised Tamil passengers to leave Sri Lanka illegally because he was also a passenger on the boat. The Tribunal does not accept that the applicant’s [relative] has been charged with matters related to people smuggling or that he has been bailed to appear in Court on people related charges. The Tribunal does not accept that people smugglers have told authorities that the applicant was involved in organising passengers for the boat. On this basis, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from the authorities or anyone else for activities related to people smuggling, now or in the reasonably foreseeable future.

11. While the applicant stated at the hearing that he did not fear return to Sri Lanka because he had left illegally, the Tribunal notes that he had raised this claim previously. The Tribunal has accepted above that the applicant departed Sri Lanka illegally, departing by boat and travelling to Australia. The Tribunal therefore addressed this issue with the applicant. The Tribunal put the following country information from DFAT’s December 2015 report on Sri Lanka concerning returnees to the applicant.

    Offences under the Immigrants and Emigrants Act

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

    5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings…

    5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.[7]

    [7] DFAT report February 2015

12. The applicant agreed with this account of the processes applying to returnees, indicating that this was the process applied to his [relative] on return. The applicant stated that his [relative] was bailed after providing the deeds of his house as surety that he would attend Court at some time in the future. As noted above, his [relative] has not yet been required to attend Court. The applicant indicated he would expect similar processes to apply to him.

13. The DFAT country information cited above discusses the process on return to Sri Lanka. The Department of Emigration and Immigration (DIE) would interview the applicant on return to Sri Lanka. It is likely that the applicant’s unlawful departure will be identified by DIE and the applicant may face criminal sanction due to the manner of his departure. The Tribunal asked the applicant about bail, and the possibility of paying a fine if convicted of an emigration offence.  The Tribunal noted that punishment, if convicted, could be up to 5 years imprisonment and up to a 200,000 rupee fine but country information from DFAT indicates that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. This information indicates that fines that have been handed out are between 5000 – 50 000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats. The Tribunal noted that this may lead it to conclude that the fine the applicant would have to pay would be similar or not much higher. The Tribunal asked if the applicant was in a position to pay the fine and any amount for bail that may be required. The applicant indicated his wife has a small business selling fish and that they have a small property. The applicant expressed no concern that he could meet the surety or payments required. The Tribunal considers that the applicant will have the financial capacity to pay for a fine that may be imposed.

14. The Tribunal accepts the applicant will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka. The Tribunal finds that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing, and then generally face a financial penalty (and not a custodial sentence).  The Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal considers that the laws are not selectively enforced. Accordingly, the Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act, and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal therefore finds that the applicant's very brief remand by the authorities for questioning, and for the provision of pending bail will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.

15. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure, or therefore, that there is any real chance or real risk he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty being imposed.

16. While the applicant expressed no fears in this regard, given the applicant departed Sri Lanka illegally, the Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departed Sri Lanka. The Tribunal does not consider the imposition of a fine, or the process of being charged and possibly convicted, constitutes serious or significant harm.

17. Having regard to the applicant's ability to readily establish his identity (as he has done in the course of the protection visa application) and the presence of family in Sri Lanka, and noting the Immigrants and Emigrants Act bail provisions encompass bail on personal recognisance and without requirement of financial surety, the Tribunal finds the chances remote that the applicant will spend more than a very short period (of hours or at most a few days) remanded in custody awaiting bail on his own reconnaissance, after his return to Sri Lanka. The applicant expressed no concern with respect to meeting the surety or payments required.

18. The Tribunal has considered the prospect that the applicant will be detained for a short period before being brought before the Magistrate. Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka[8], the Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison, by the authorities generally, prison guards or by other inmates, who would target him for any reason. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities, prison guards or inmates during a brief period of remand, the Tribunal finds the chances remote that he will face serious or significant  harm in this context.

    [8] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014, 

1. In these circumstances, the Tribunal finds the applicant does not have a real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure.

2. The Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. The Tribunal notes the guidelines of the relevant Departmental PAM3 in this respect, including the discussion of prison conditions.  While the applicant may be placed in overcrowded and poor conditions for a short period of time, the Tribunal does not accept that the authorities are intentionally seeking to harm the applicant by placing him in these conditions for the short period he would be detained.

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

4. The Tribunal also does not accept that the applicant will be singled out or intentionally harmed by the authorities, prison guards or other inmates in these circumstances while waiting for his bail. The Tribunal does not accept that there is any intention on behalf of the authorities to significantly harm the applicant, as defined in the Migration Act, while being detained. The Tribunal finds that there is no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. The Tribunal also does not consider that the applicant’s detention in these conditions for a short period of time constitutes significant harm. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.

5. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm in Sri Lanka arising from his political opinion, or as a person who left Sri Lanka illegally.

6. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Sri Lanka.

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

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

    Amanda Paxton
    Member