1420087 (Refugee)

[2016] AATA 3776

1420087 (Refugee) [2016] AATA 3776 (21 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420087

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Roslyn Smidt

DATE:21 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 April 2016 at 11:41am

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 is a citizen of Sri Lanka, applied for the visa [in] March 2013 and the delegate refused to grant the visa [in] December 2014.

3.    The applicant appeared before the Tribunal on 8 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4.    The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

THE RELEVANT LAW

5. 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.

6.    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).

7.    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.

1. 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’).

2. Significant harm as defined in subsection 36(2A) of the Act. Significant harm is defined in the Act as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. According to s.5(1), cruel or inhuman treatment or punishment' requires that the pain or suffering be 'intentionally inflicted'. Similarly, 'degrading treatment or punishment' is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of 'torture' also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.

3. 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.

   CLAIMS AND EVIDENCE

4. The applicant is a [age] year single man of Tamil ethnicity from [Town 1], Puttalam North Western Province in Sri Lanka.  He worked as a fisherman in [Town 1] from December 2009 until March 2012 when he went [Country 1] where he [worked] until May 2012. He left Sri Lanka illegally by boat [in] May 2012 and arrived in Australia [in] June 2012. His parents and [siblings] remain in Sri Lanka.

   Entry interview [October] 2012

5. When asked why he had left Sri Lanka why and he feared to return, the applicant said that his [relative] had been detained by the CID [in] May 2012 and released [in] May 2012. He did not know why his [relative] was detained. The night of his [relative]’s release 3 people came to his house. They spoke Singhala so he could not understand them, but his mother said that they were looking for his [relative] and his father.  They beat him and threatened to kidnap him in two days if he did not tell the truth. The following day his father went to buy fish and did not return.  He later learned that his father was in hiding.

6. The applicant said that the [relative] who had been detained also came to Australia by boat. He said that his [relative] arrived after him and that he had spoken to him occasionally since arriving in Australia. He also said that he had been in contact with his family in Sri Lanka.

7. When asked if he had been involved in politics, the applicant said that his father had put up posters for a man called [Mr A] from the United National Party (Green Party) about 6 years earlier.

   Protection visa application [February] 2013

8. The applicant said that while working as a fisherman before going [Country 1] he had had problems with a Singhalese fisherman who cut the boat of the Tamil fisherman with whom he worked and restricted their ability to fish. Because of this he got a permit and went to work in [Country 1]. He said that his father also a fisherman and owned a [fish] business.

9. The applicant said that his father was a supporter of the Sri Lankan Freedom Party (SLFP) and supported a local candidate called [Mr A] (later recorded as [shortened name]). His family received a house because they had supported this candidate.  His [relative] also supported [Mr A].  At some time [Mr A] lost out to a Singhalese candidate who had good connections with the government.  Following that the CID began to look for his father and [relative].

10. The applicant did not know the full details of why the CID was looking for his father, but he believed that a Singhalese politician had tried to force his father to pay additional money from their fish business at the local market, so his father began to sell fish from his [relative]’s house. Because of this the Singhalese politician organised for the CID to lay false charges of weapon smuggling from [location] against the applicant’s father and wanted to arrest him.

11. Shortly after the applicant returned from [Country 1] his [relative] was detained for two days. He told the applicant’s family that [Mr A] had helped to secure his release.  Following this the applicant’s father went to the fish market and never returned. That night the applicant’s home was invaded by people from the CID.  The CID officers spoke to his mother in an abusive manner in Singhalese. They asked where his father and [relative] were and threatened to kidnap him if his father was not located within two days.

12. The applicant feared he might be killed or abducted. He did not want to leave legally on his passport as he feared he would have problems at the airport, so he left illegally by boat and came to Australia. After arriving in Australia his mother told him that his father was in hiding.

13. The applicant said that he feared he would be abducted or killed if he returned to Sri Lanka because of the problems related to his [relative] and father.

    Interview with the delegate [June] 2014

14. The applicant said that he feared he would be detained or abducted or killed if he returned to Sri Lanka because of his association with this father and [relative].  He claimed his father and [relative] were strong supporters of the SLFP and they had travelled to different places with an SLPF member called [Mr A] from 1997 to 2011 and his family was given a house because of their support for the SLFP.

15. When asked why he had left Sri Lanka the applicant said that a man called [Mr B] who was Singhalese had asked the CID to arrest his father and [relative] and they had agreed to do because Singhalese people always support each other. He explained that [Mr B] had wanted to abduct someone close to [Mr A] because he wanted to defeat him in the elections. When asked if the CID was interested in his father and [relative] for any other reason he said that he did not know the political situation of his [relative] and father and why he was beaten, but after he arrived in Australia he spoke to his [relative] who told him what had happened and also told him that he had been detained for two days [in] May and [Mr A] had arranged for his release.

16. The delegate noted that the applicant had a passport and visa for [Country 1] when these problems occurred and asked why he had not returned there to avoid problems with the CID. He said that that CID had his contact details and where going to return in two days so he was desperate.

17. The delegate noted that there were a number of contradictions in the evidence provided by the applicant. She pointed out that when he was first interviewed on arrival in Australia he said he said he came because he was in poverty. The applicant said he was confused when he first got off the boat and he had a lot of hardship when he was studying so he mentioned poverty. She also noted that he had previously claimed that father and [relative] had problems related to their [fish] business and that false charges of weapons smuggling had been laid again them as a result, but he had failed to mention either of these matters when his father’s problems were discussed during the interview.  The applicant said that he had not mentioned his father’s business problems or the weapons charges because he was not asked about them.

18. The applicant said that the CID had continued to harass his mother and his siblings in Sri Lanka and they no longer stayed at their home at night.

19. When asked why he feared harm because of his Tamil ethnicity the applicant spoke about being harassed by a Singhalese fisherman. The delegate advised him that it was her understanding that Tamils were not generally at risk of serious harm because of their race. The applicant responded that there were continuing ethnic problems in the country.  His representative submitted that he would be at risk of harm on return to Sri Lanka because he was a Tamil from the North West and his profile had been heightened by the fact that the CID was interested in his family.

20. The applicant also claimed that he would be at risk of serious harm if he returned home because he is of Tamil ethnicity and because he had left the country illegally and sought asylum in Australia.

21. The delegate did not accept that the applicant was of interest to the CID because of his father’s political or business dealings. She found that claim that they would pursue the applicant for these reasons when he was knew nothing about his father’s business whereabouts at the time and was only visiting from [Country 1] implausible. Alternatively she noted that if the CID had been interested in the applicant, they would have taken him for questioning.

22. With regard to the applicant’s ethnicity the delegate noted that while Puttalum district is predominantly Singhalese, [the applicant’s town] is described as an example of inter-ethnic and inter-religious harmony.  After noting information from a range of sources on the current situation of Tamils in Sri Lanka, she did not accept that he had a well-founded fear of persecution for reasons of race if he returned to his homeland.

23. With regard to the applicant illegal departure and asylum claim in Australia the delegate cited evidence from DFAT which indicated that Tamils returning to Sri Lanka in these circumstances were not generally at risk of serious harm and found that the applicant’s fears relating to illegal departure and seeking asylum in Australia were not well-founded.

    Review application and submissions

24. The applicant applied for review of the delegate’s decision on 9 December 2014. A copy of the delegate’s decision was attached to this application.

25. On 5 April 2016 the applicant’s representatives forwarded a submission on his behalf.  It stated that the applicant continued to rely on his earlier statement and submissions. With regard to the applicant’s fears that he would be persecuted because he is a Tamil it added he was constantly ridiculed and treated differently in Sri Lanka because of his ethnicity.  With regard to his status as someone who fled Sri Lanka illegally and sought asylum in the west it added that returnees are frequently treated as dissidents and are likely to be detained and tortured. It also argued that the applicant would be imputed with the same political opinions as his father and [relative] and that he would also be imputed with anti-government political opinions because of his illegal departure and asylum claim in Australia.

26. It was submitted that the delegate had erred in finding that the applicant’s claims lacked credibility. It was submitted that he had not provided a complete and accurate account of event in his early interviews and submissions because he was not familiar with the application process, because he feared the authorities and believed that information he provided might be forwarded to the Sri Lankan authorities.

27. It was submitted that the delegate had erred in finding the situation had improved for Tamils in Sri Lanka. A number of articles which it was submitted supported this view and supported that applicant’s claim that he would be at risk of serious harm in Sri Lanka for the reasons he had claimed were provided.

    Hearing held on 8 April 2016

28. The applicant confirmed that he had never been involved in the LTTE or any political groups or activities in Sri Lanka. He said that he had never been accused of being in the LTTE, but his father and his [relative] were accused of transporting weapons for the LTTE. Nobody else in his family was accused of involvement in the LTTE.

29. The applicant said that his father and [relative]had been involved in political rivalries for a long time, but they had not experienced any serious problems because of this apart from the events which occurred shortly before he left for Australia.

30. I noted that the delegate had pointed out a number of inconsistencies in the evidence the applicant had provided regarding his father’s problems with the CID and asked him to explain what had happened. He said that two Singhalese brothers called [Mr B brothers] who belonged to the SLFP had caused problems for him and his family.  These men held the position of Chairman and Deputy Chairman in a local area which was predominantly Singhalese. The applicant’s father and [relative] supported another SPLF member called [Mr A] who was a Tamil.  [Mr A] held the position of Chairman in [Town 1]. The [Mr B brothers] and [Mr A] were not in competition for the same elected positions, but they were rivals and disliked each other. As a result the [Mr B brothers] targeted the applicant’s father and [relative] by alleging that they used their [fish] business to transport weapons from [location] and accused of being involved with the LTTE. 

31. The applicant said that his [relative] was arrested by the CID [in] May 2012. The CID men beat him and tried to shoot him and asked where the applicant’s father was.  The applicant’s [relative] was released on bail [in] May 2012 after [Mr A] intervened on his behalf. He went to the applicant’s house the same day and warned his father that the CID was looking for him so he should go into hiding. The next [day]the applicant’s father went to the fish market and never returned. At about mid-night that night the CID came to the applicant’s home and asked his mother where his father was. The applicant was also questioned and beaten. He was told that if he did not tell them in two days where his father was they would take him away and get rid of him. The CID also went to his [relative]’s house, but his [relative] was in hiding. The next day the applicant boarded a boat for Australia.  He left by boat rather than leave on his passport using his still current visa for [Country 1] because he was afraid that he would be stopped at the airport.

32. The applicant confirmed that he had arrived in Sri Lanka from [Country 1] [in] May 2012 and left for Australia [in] May 2012. He also confirmed that his [relative] was detained [in] May and released [in] May and that he is now in Australia.  When asked if they had travelled on the same boat he said that his [relative] had left before him. I observed that the applicant’s [relative] could only have left one day before him at most as he was released from detention [in] May and the applicant left Sri Lanka [in] May.  He said that he was not sure when his [relative] left and added that he had been on boat [number]  and his [relative] had been on boat[different number]. I observed that this appeared to suggest that his [relative] had left after him. He said that perhaps that boat had taken longer to get to Australia.

33. A month after the applicant arrived in Australia he learned that his father had telephoned his mother and told her he was in hiding and she should not look for him.

34. I advised the applicant that I had a difficulty accepting his claims regarding his problems with the CID.  I noted that he had given conflicting accounts of why his father and [relative] had problems with the CID, stating first that it related to a refusal to pay money to a Singhalese politician in what appeared to be an attempted extortion, but told the delegate that it was because his father and [relative] supported [Mr A].  I also noted that he had claimed in his first written statement that his father and [relative] were accused of involvement in weapons smuggling, but did not mention this during his interview with the delegate until reminded of his earlier claim by the delegate. The applicant said that he had he had not been asked about the weapons charges or attempted extortion by the delegate and added that the CID had asked his father and [relative] for money. I also noted that applicant had claimed for the first time at the hearing that his father had been accused of smuggling guns for the LTTE. He said that he had mentioned that they had been accused of transporting weapons.

35. I advised the applicant that I found it difficult to understand why his father was not arrested prior to his [relative]’s release from detention if he was also wanted on serious charges. The applicant maintained that this was what had occurred.

36. I advised the applicant that I had difficulty understanding why his father and [relative] would have been targeted by someone from the same political party in the reasons he had claimed. The applicant said that the [Mr B brothers] did not want [Mr A] to be prominent in the party so they had targeted his father and [relative].  When asked, he said that he did not know if any other supporters of [Mr A] had any problems because of this.

1. I noted that the applicant had claimed that his [relative] had left for Australia before the applicant, which meant he must have left on [specific date] May 2012. I also noted that the applicant had claimed that the CID came to his home at mid-night that specific date] May 2012 and he took a bus to [a town] the following morning and boarded a boat for Australia the same day.  I advised him that I it was not my understanding that boats departed from Sri Lanka for Australia every day or that it would be possible to make the necessary arrangement to leave by boat within less than 24 hours as appeared to be the case for both himself and his [relative]. He said that [another relative] had made the arrangements for him to leave. He maintained that his [relative] had left before him, but said that he was not sure when he left.

2. I asked that applicant to explain the significance of an untranslated police report dated [August] 2013 which was attached to his file. He said that it related to problems his [relative]’s wife had faced with [Mr B’]s people.  The applicant’s adviser provided a translation for the document following the hearing. It is a report from [a] Police Station dated [October] 2013 which states that the wife and father-in-law of the applicant’s [relative] were assaulted in their home by unidentified men who were looking for the applicant’s [relative]. The report states that the applicant’s [relative]’s wife believed that they were associates of [Mr B] and that they were looking for his [relative] because he supported [Mr A] in the elections.

3. The applicant confirmed that most people in his area were Tamils and that the only problem he had faced personally because of his ethnicity was harassment by a Singhalese fisherman while at sea fishing. He added that his father’s problems with the CID were also linked to ethnicity.  When asked what problems feared he might face if he returned to Sri Lankan because of his ethnicity he said that he feared he would face the same problems as in the past. I advised him it was not my understanding that Tamils were generally at risk of harm in Sri Lanka merely because of their ethnicity.  He responded that the Singhalese prevented him from fishing and would continue to do so if he returned. I noted that his father had operated a successful business in the fishing industry which suggested that Tamils were able to find work in the area. He said that he did not interfere in his father’s business.

4. I noted that it had been claimed that the applicant would face harm if he returned to Sri Lanka because he had left the country illegally and asked what problems he thought he would face because of his illegal departure. He said that he could not go back because of his problems with the CID. I advised him that it was my understanding that people who left illegally would be questioned on return probably briefly detained and fined because they had broken a Sri Lankan law, but it was not my understanding that people who left illegally faced serious harm in Sri Lanka because of this.  The applicant again said he would have problems because of the CID. I asked if he thought he would have had problems because of his illegal departure if he did not have problems with the CID. He said he might not have problems immediately, but in the future he might and added that he did not know if he would have any problems at the airport.

5. I noted that it had been submitted that the applicant would be at risk of harm on return to Sri Lankan because he had applied for protection in Australia. I advised him that it was not my understanding that he would be at risk of harm for this reason and asked why he thought he would face problems because he had come to Australia and applied for protection. He responded that he had problems in Sri Lanka and he could not return.  I asked whether he thought that someone who had not had problem in Sri Lankan would have problems just because they had applied for protection in Australia. He said that he did not know, but he was afraid to return.

6. I noted that it had been submitted that the applicant would be seen as having the same political opinions as his father and would be at risk of harm if he returned to Sri Lanka. I noted the applicant had never been involved in politics and that his father had supported a legal political party and asked why he thought he would be seen as sharing his father’s political views and why he would face problems because of this.  He said that he would have problems because of the rivalry between [Mr A] and the [Mr B brothers] had led to the [Mr B brothers] making false accusation against his father, who he also disliked.

7. The applicant said that the CID had come to his mother’s house looking for him six months after he left Sri Lanka. I noted that he did not appear to have mentioned this previously. He said that CID had only come to his house recently.  I noted that this appeared to contradict his claim that they had gone to his house six months after he left Sri Lanka. He said that they had come 6 months after he left and again recently, but his mother had only given him this information recently as she did not want him to be afraid. I advised the applicant that I had difficulty understanding why the CID would be pursuing him as he had not been accused of anything and it was his father who was facing charges.  He said that the CID wanted to detain him to force his father to surrender. [As noted above, the applicant had claimed that his family was visited by the CID after his departure during his interview with the delegate].

   Country information

8. Unless otherwise stated this overview relies on information contained in DFAT Country Information Report: Sri Lanka 18 December 2015.

9. Serious civil conflict between the Sri Lankan government and the LTTE began in the 1980s and continued until May 2009, broken only by an internationally-brokered ceasefire from 2002 until 2006. At the peak of its power in 2004 the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka. Trincomalee was under the control of the LTTE up until 2007, when Eastern Province was retaken by the Sri Lankan Army. 

10. During the civil war it was not uncommon for Tamils, particularly young men from the north and east to be detained by security forces and questioned about their possible involvement in or support for the LTTE. At the end of the war former LTTE members were detained in rehabilitation camps. Most have now been released. LTTE members who have not gone through this process remain at risk of arrest. Many civilians who had lived in areas under LTTE control spent time in internally displaced people’s camps due to destruction in their home areas. While in the IDP camps they were there were screened for LTTE involvement. Civilians who lived in areas under LTTE control and provided the group with low level material support are not generally at risk of detention or other harm in Sri Lanka today.

11. Areas which had previously been under LTTE remain under military control which has involved monitoring of the population. DFAT advise that forced registration of Tamils has now ceased and that monitoring and harassment of Tamils has decreased since the election of President Mahithripala Sirena in January 2015 and that the community feels more confident refuse or question the motives of monitoring activities by authorities if they occur. DFAT also advise that the new government has a more active approach to promoting human rights and reconciliation than its predecessor.

12. According to DFAT there is no official government discrimination against Tamils in Sri Lanka today, although lack of Tamil speakers in the security forces and government offices can present problems for some Tamils. They note that there are a number of Tamil political parties, the largest of which is the Tamil National Alliance. The TNA leader is currently the leader of the opposition in the Sri Lankan parliament. The current government cooperates more actively with the TNA that the Rajapaksa government.  DFAT assess that there is a moderate level of societal discrimination between different ethnic groups in Sri Lanka as a result of the civil conflict.

13. There are currently no banned political parties in Sri Lanka. Elected representatives and their supporters and volunteers are generally free to operate openly and freely regardless of their ethnicity or the political affiliation. However, under the Prevention of Terror Act anyone who causes or intends to cause acts of violence or religious racial or community disharmony can be imprisoned for up to five years. A number of groups have been listed as terrorist groups by the government. This includes the LTTE and a number of groups operating outside Sri Lanka.

14. DFAT assesses that while Buddhists received preferential treatment in some areas under UNHCR guidelines issued in 2012, the mere fact that a person is an adult Tamil from the north or east, on its own, no longer places that person at risk of persecution. In their view Tamils who might still be at risk were LTTE members, LTTE combatants, LTTE members who actively supported the military work of the group, people involved in fundraising and propaganda activities and close family members of these people remained at risk of harm in Sri Lanka at that time. 

15. DFAT advise that those most at risk of detention or prosecution are a small number of former LTTE military or political leaders who remain at large and people who are suspected of serious criminal or terrorist acts during the conflict. Such people are likely to be sent to rehabilitation camps and prosecuted through the Sri Lankan courts.  Such people are likely to be subjected to intense monitoring after they are released from rehabilitation or imprisonment. DFAT note that there is at least one allegation of LTTE suspects being killed rather than detained following a man hunt in 2012.

16. DFAT advise that other former LTTE members, including combatants, who have not completed rehabilitation are likely to be detained and placed in rehabilitation camps, but are unlikely to face prosecution.  DFAT is aware of some cases of low level LTTE members being arrested after being released from rehabilitation camps.

17. DFAT also advise that someone suspected of involvement in an attempt to resurrect the LTTE may still be at risk of detention in Sri Lanka.

18. During the civil war there were numerous reports of abductions, disappearances and extra-judicial killings. The LTTE and paramilitary groups have all been accused of involvement in these events. Some may also be the result of business or personal disputes. DFAT advised that the number of killings, abductions and disappearances had dropped considerably since the end of the war. DFAT report that three Tamils where shot and killed in April 2014 in the only case of LTTE linked extra-judicial killing since the end of the war, although there are also reports of killings involving criminal suspects.  There have also been credible reports of enforced and involuntary disappearances following the end of the war.  DFAT reported that during the time of the Rajapaksa government journalists, non-government organisation staff and others who were critical of the government were sometimes kidnapped.

19. Incidents of extra-judicial killings, disappearances and kidnappings for ransom occurred frequently during the civil war, particularly in the north and east. The security forces, the LTTE and paramilitary groups have been blamed for these abuses, but some relate to business or personal disputes. DFAT assesses that the incidence of these occurrences had fallen considerably since the end of the conflict.

20. Torture was carried out by the Sri Lankan security forces during the civil war and there have been credible reports of torture of criminal suspects, political activists and people with suspected links to the LTTE since the end of the war. DFAT note that a number of organisations including Freedom from Torture and the International Truth and Justice Project have published reports which include allegations of abduction and torture following 2009. They note that many of the cases relate to the period shortly after the end of the civil war and note that many of the allegations were made anonymously to third parties, some outside Sri Lanka. Overall DFAT is of the view that torture continues to be used in Sri Lanka to extract confessions and information, but notes that it is difficult to determine the prevalence of torture with any accuracy. They note that allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka. They assess that overall the risk of torture or mistreatment of LTTE suspects has decreased since the change of government and that high profile former LTTE members who are suspected of committing serious crimes or terrorism offences are most at risk.

21. According to DFAT people who leave Sri Lanka illegally have committed an offence under Sri Lanka’s Immigrants and Emigrants Act.  If they return to Sri Lanka they are likely to be detained and questioned at the airport to confirm their identity and have their names checked against intelligence and police records. This can take up to 24 hours. Unless there are outstanding arrest warrants or security concerns, returnees are sent to a Magistrates Court where charges under the I&E Act are laid and penalties determined. Generally speaking those who plead guilty are fined and released while those who plead not guilty are granted bail and face court at a later date. In some cases delays may mean that returnees are detained briefly while their case is finalised.

22. Overall, DFAT assesses that ordinary passengers who depart illegally are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. While the law provides for fines of up to 200,000 rupees (about AUD 2,000) and custodial sentences, in most cases fines are relatively small for ordinary passengers [DFAT Country Report of 16 February 2015] and DFAT have been advised that no ordinary passengers have been given a custodial sentences. Overall, DFAT assesses that ordinary passengers who depart illegally are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures.

23. DFAT state that they are aware of a small number of allegations of torture or mistreatment by asylum seekers returning to Sri Lanka. They note that they cannot verify these allegations, many of which were made anonymously to third parties. However, they note that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the UK, the US, Canada and Europe and there have been relatively few allegations of torture.  They assess that the risk of torture or mistreatment for the majority of returnees is low, including those who have committed offences under the Immigrants and Emigrants Act.

    CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(a) (REFUGEE STATUS )

    Problems relating to the applicant’s father and [relative]

24. For the following reasons I did not find the applicant to be a truthful or a credible witness and I do not accept that he fled Sri Lanka by boat in May 2012 because he had been threatened by the CID and feared for his life.

25. In the first place, the applicant has given differing accounts of why the CID was pursuing his father and [relative], stating in his entry interview that he did not know why his [relative] had been arrested, then claiming in his first written statement that he believed that it related to his father and [relative] refusing to pay money to a Singhalese politician in order to operate their business from a local market, then telling the delegate that the CID had arrested his [relative] and wanted to arrest his father and [relative] because they had been persuaded to do so by [Mr B], a Singhalese politician wanted to defeat [Mr A] a Tamil politician whom [relative] and father supported in elections. During the hearing he again claimed the CID wanted to arrest his father and [relative] because [Mr B] wanted to harm [Mr A], but said that they were from the same party and were not rivals for an elected position. In addition the applicant claimed in his written statement that his [relative] and father had been accused of weapons smuggling, but had clearly forgotten this when the issue was discussed during his interview with the delegate as he failed to mention it until reminded of his earlier evidence by the delegate.

26. In considering the significance of these discrepancies I have considered the applicant’s evidence that he was not aware of the reasons the CID was pursuing his father and [relative] until he spoke to his [relative] after he arrived in Australia. However, the applicant was present when his [relative] came to warn his father that he should go into hiding because the CID wanted to arrest him and I do not accept that he would have been unaware of the reasons for this if this had occurred. 

27. I have also considered the submissions by the applicant’s representative that he did not understand the application process, that he was fearful of the authorities and that he feared that any information he provided would be sent to Sri Lanka. I do not accept any of them. No knowledge of the protection visa process is needed to answer simple questions such as why did you leave Sri Lanka in an honest and reasonably complete fashion. It is not plausible that someone would come to Australia to seek protection if they feared Australian authorities nor is it plausible that the applicant would have felt the need to conceal the reasons he fled Sri Lanka from the Sri Lankan authorities as he had never been involved in any anti-government activities and the authorities would have been aware of the false weapons charges allegedly faced by his [relative] and father.

28. Secondly, I find the applicant’s claims regarding the reasons the CID was interested in the applicant’s father and [relative] and the applicant himself far-fetched and implausible. I find the claim that a politician would have sought to harm someone from the same party by arranging for the CID to arrest two of his supporters far-fetched and implausible, particularly as according to the applicant’s evidence at the hearing, they were not rivals for the same position but held the same office in different area. Furthermore, even if I accept that the applicant’s father and [relative] were close to [Mr A] and that harming them in 2012 would somehow reduce his power or influence, it is not plausible that [Mr A]’s rival [Mr B] would be continuing to pursue the applicant’s father and [relative] after they had been absent from the area for some four years and clearly no longer in a position to have any impact on [Mr A]’s activities or his standing in the community.

29. I have also considered the claim that the applicant’s father and [relative] were accused of smuggling weapons for the LTTE in 2012 and that this lead to his [relative]’s arrest in 2012. It is not plausible that the CID would have released the applicant’s [relative] after only two days or that they would have failed to detain his father, who remained at home and easy to located for over two days after his[relative]’s arrest, if they had genuinely suspected or believed that they were involved in smuggling guns for the LTTE or anyone else.

30. Even if I accepted that the CID was continuing to seek the applicant’s father (which I do not) I find the claim that the CID would continue to hunt for the applicant for nearly four years so they could detain or abduct or get rid of him in order to pressure his father to give himself up completely implausible. If the CID believed that detaining or abducting a family member would have forced his father out of hiding then surely they would have detained his mother or siblings. And killing the applicant, as he appears to be suggesting, would no doubtless have caused his father to remain in hiding, not to give himself up.

1. The applicant’s evidence at the hearing regarding the CID’s continuing interest in him was contradictory and unconvincing. When I incorrectly observed that he had not made this claim previously, he did not correct me but indicated that the CID had only come to his home recently and when I pointed out that this was at odds with the claim that they had come 6 months after he left Sri Lanka, said that this was true but he had only recently learned of these visits, which is at odds with his evidence to the delegate in xxxx.  Far from persuading me that he was of continuing adverse interest to the CID, I find the applicant’s changing evidence regarding the claimed visits of the CID to his home a strong indication that he is not a truthful witness.

2. The applicant’s claim that his [relative] was released after [Mr A] intervened on his behalf does not sit well with the claim that the CID did [Mr B]’s bidding because they were both Singhalese or with this claims that he, his father and his [relative] were so fearful that that had to flee the country or go into long term hiding to avoid arrest or other serious harm.

3. After considering all of the relevant evidence, I do not accept that the applicant’s [relative] were involved in or accused of smuggling weapons or supporting the LTTE or that the applicant’s [relative] was detained by the CID and that his father was at risk of detention by the CID in May 2012 for any reason or that the applicant was threatened by the CID in May 2012 for any reason. I find that he concocted these claims in order to enhance his claim for protection in Australia and I am not satisfied that the applicant has a well-founded fear of persecution arising from these events.

4. In reaching this conclusion I have considered the police report relating to an attack on the applicant’s [relative]’s wife and father by people associated with [Mr B]. However, even if this document is genuine, which I strongly doubt, it contains nothing which suggests that the CID would pursue the applicant if he returned to Sri Lanka and I have given it no weight.

   Race

5. It has been claimed that the applicant would be at risk of serious harm on return to Sri Lanka because he is of Tamil ethnicity. After considering all of the relevant evidence, I do not accept this claim.   As noted above and discussed with the applicant at the hearing, DFAT advise that Tamils are not generally at risk of serious harm in Sri Lanka because of their ethnicity.  At the hearing the applicant confirmed that the majority of people in his local area were Tamils and that the only problem he had personally encountered because of his ethnicity prior to leaving Sri Lanka was the dispute with a Singhalese fisherman while he was working for a Tamil fisherman.

6. I accept that the applicant and his employer faced problems with a Singhalese fisherman prior to his departure for [Country 1] in December 2009. However, there is nothing in the evidence before me which suggests that Tamils in [Town 1] or anywhere else in Sri Lanka are generally prevented from working as fishermen. According to the applicant his father and [relative] both worked as fishermen and ran [a] fish business which involved selling their goods over a wide area. I do not accept that there is a real chance that the applicant would be unable to work as a fisherman on his return to Sri Lanka because of his Tamil ethnicity or more generally denied the right to earn a livelihood on return to Sri Lanka because of his Tamil ethnicity.

7. I have also considered the applicant’s representatives submission that was constantly ridiculed and treated differently in Sri Lanka because of his ethnicity. Despite being given the opportunity at the hearing to provide evidence of any problems which he had faced in Sri Lanka because of his ethnicity, the applicant provided no examples of being ridiculed or differential treatment apart from the problems with the Singhalese fisherman discussed above. In these circumstances and in light of the applicant’s evidence that the majority of people in his local area were Tamil and the evidence from DFAT and others that Tamils are not generally at risk of persecution because of their ethnicity, I do not accept that there is a real chance that the applicant were experience ridicule or differential treatment amounting to persecution in Sri Lanka because of his Tamil race.

   Illegal departure and asylum application

8. It has been submitted that the applicant will be at risk of persecution because he departed Sri Lanka illegally in 2012 and sought asylum in Australia, which will result in him being suspected of being dissident.

9. In light of the advice from DFAT set out above, I accept that if the applicant returns to Sri Lanka he is likely to be briefly detained and questioned at the airport, then transferred to a Magistrates Court where he is likely to be charged and fined under the I&E Act for leaving the country illegally. I also accept that there is some possibility that he may be remanded for a short period while waiting to be brought before a magistrate or for bail to be arranged, should this be required. However, I find that this treatment relates to the non-discriminatory operation of a law of general application intended for the legitimate state purpose of border control and do not accept that it is harm suffered by the applicant for a Convention reason.

10. I do not accept that there is a real chance that the applicant will be persecuted on return to Sri Lanka because he would be viewed as a dissident or an anti-government by the Sri Lankan government because he left Sri Lanka illegally and sought asylum in Australia. As noted above, DFAT assess that the risk of torture or mistreatment for the majority of returnees is low, including those who have committed offences under the Immigrants and Emigrants Act.  In the applicant’s case there is no credible evidence before me which suggests that he was involved in any militant or political activities or that he was of adverse interest to the Sri Lankan authorities for any reason prior to his departure from Sri Lanka. Furthermore, he does not come from the northern or eastern parts of Sri Lanka which were once under LTTE control or influence. In these circumstances I find that he does not have a well-founded fear of persecution on return to Sri Lanka for any reason because he sought asylum in Australia.

11. In reaching this conclusion I have noted the reports provided by the applicant’s representatives which suggest that even Tamils with even minimal past links or perceived links to the LTTE continue to be detained and tortured in Sri Lanka and that failed asylum seekers are at risk of harm because of this. For example, Freedom from Torture Reports document cases of rape and torture reported by asylum seekers in the UK. While not disputing the veracity of reports on individual cases, I give greater weight to the advice from DFAT and UNHCR which I understand to be based on a broader view of the situation drawn from multiple sources on the ground in Sri Lanka.

    Political opinion

12. It has been submitted that the applicant would be seen as holding the same political views as his father and [relative] if he returned to Sri Lanka and be at risk of harm because of this if he returned to Sri Lanka. At the hearing he said that he feared that [Mr B] would harm him because of his association with his father and [relative], but did not claim that he or his father or [relative] were of adverse interest to anyone else because of their real or perceived political views or activities.  As discussed above, I do not accept that the applicant’s father and [relative] were targeted by [Mr B] because of their political views or associations. It follows that I do not accept that the applicant would be at risk of harm from [Mr B] because he was believed to hold the same views.

13. According to the applicant his father and [relative] supported that SLPF, a mainstream political party which operates openly and freely in Sri Lanka and has representatives in Parliament. There is no evidence before me which suggests that members of the SLPF are at risk of serious harm in Sri Lanka because of their political opinion. In these circumstances, even if the applicant was perceived to be a SLPF I do not accept that there is a real chance that he would be persecuted because of this.

14. It has also been submitted that the applicant would be viewed as a dissident by the Sri Lanka authorities because he left Sri Lanka illegally and applied for asylum in Australia. For the reasons set out in the preceding section, I also reject this claim.

    Findings in relation to Refugee Status s.36(2)a

15. After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there is a real chance that he will suffer serious harm amounting to persecution in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka and therefore I do not accept that he has a well-founded fear of persecution for a Convention reason. I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)a.

    CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(aa) (COMPLEMENTARY PROTECTION )

16. The applicant’s application for complementary protection relies on the same claims as those put forward in his refugee application.

17. As discussed above, I do not accept that the applicant is or ever was of interest to the Sri Lankan authorities or anyone else because his father and [relative] had been targeted by a Singhalese politician who was in conflict with a Tamil politician they supported or that he would be imputed with political opinions which would cause him to face problems of any kind with anyone in Sri Lanka because of his association with his father and [relative].

18. I accept that the applicant is of Tamil ethnicity and that he experienced some problems with a Singhalese fisherman while working with a Tamil fisherman prior to 2009.  However, the applicant no longer works as a fisherman and there is nothing in the evidence before me which suggests that Tamil fisherman in [Town 1] are generally at risk of significant harm while carrying out their work. In these circumstances, I do not accept that the applicant faces a real risk of experiencing significant harm because he is a Tamil even if he returns to his former occupation.

19. It has also been submitted on the applicant’s behalf that he was ridiculed and treated differently in Sri Lanka because of his Tamil ethnicity. As discussed above, he has not provided any evidence to substantiate the claim. In these circumstances, and in light of the fact that he comes from an area where the majority of the population are Tamil and the advice from DFAT regarding the treatment of Tamils in Sri Lanka, I do not accept that there is a real risk that the applicant will face significant harm on return to Sri Lanka because of his ethnicity.

20. It has also been claimed that there is a real risk that the applicant would suffer significant harm if he returned to Sri Lankan because he left Sri Lanka illegally and sought asylum in Australia.

21. As also set out above, I accept that the applicant will mostly likely be questioned on arrival, charged with an offence under the I & E Act, briefly detained and fined according to the provisions of the law and the nature of his offence, then released. I do not accept that being detained and questioned after departing the country in contravention of Sri Lankan law or being fined in accordance with those laws constitutes significant harm as envisaged by the Act. 

22. I have also considered whether there is anything in the treatment which the applicant may face on arrival or while any charges against him are processed would give rise to a finding that there was a real risk he would face significant harm on return to Sri Lanka.

23. I am aware of reports of failed asylum seekers facing torture or serious harm on return to Sri Lanka. However, these appear to be isolated cases involving people with links or suspected links to the LTTE. The September 2015 report by the UN Office of the High Commissioner for Human Rights cited in the DFAT report indicates that allegations of torture most often relate to Tamils detained under the PTA and the Emergency Regulations. The applicant has no real or suspected links to the LTTE and there is nothing in the evidence which suggests that he is at risk of being detained under the PTA or Emergency Regulations.

24. As noted above, DFAT note that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries and there have been relatively few allegations of torture or mistreatment and assesses the overall possibility of returnees experiencing torture as low, including in cases involving charges under the I&E Act.  In these circumstances, I do not accept there is a real risk  that the applicant would be detained and tortured or face any other significant harm while being detained in relation to charges under the I&E Act.

    Findings in relation to Complementary Protection s.36(2)a

25. After considering all of the evidence and taking account of any cumulative effect of the relevant claims, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

26. 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).

100.   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).

101.   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

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

Roslyn Smidt
Member