1500013 (Refugee)

1500013 (Refugee) [2016] AATA 3887 (12 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500013
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Amanda Goodier
DATE:12 May 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 May 2016 at 2:13pm

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] December 2014.
The applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. In considering these issues, the Tribunal has applied the law set out in Annexure “A” and has carefully considered all of the applicant’s claims and evidence in light of the independent material referred to and provided in his submissions and that referred to by the delegate in their decision which was attached to the application for review as well as the independent country information referred to in this decision as set out in Annexure “B”.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference and home area
The applicant claims to be a citizen of Sri Lanka. The delegate accepted he was a citizen of Sri Lanka. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and that Sri Lanka is his country of nationality and receiving country.
The Tribunal is satisfied on the evidence before the Tribunal, the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s36(3).
The applicant indicates he lived in Colombo, Western Province from birth until he departed from Australia in February 2007. The Tribunal finds Colombo, Western Province the applicant’s home area.
Background
The applicant was born in Colombo, Western Province, Sri Lanka on [date] and is currently [age]. He indicates he resided at the same address in Sri Lankan until 2013. He indicates he is a student and employed as a [occupation].
The applicant submitted that his mother was working under the [ministry] as an [occupation] until she retired in [year]. His father [had some addictions] who abused his mother who eventually divorced him. His father was an [occupation] of the [name]. Board. As a young child he was depressed at witnessing his mother’s suffering and his [sibling] and he urged his mother to take them away from him permanently. His father never returned home after the divorce and they have no contact with him. He developed a hatred of those who beat women and would not tolerate violent acts. His mother had political influence and with the help of her colleagues, managed to get his father out of her life.
The applicant submitted that his father would visit the house when he was at work and unable to protect his mother. One of their relatives, [Mr A] was an [Defence Force] [officer] who was convicted and sentenced as one of the persons involved of [a crime]. He was released on probation and when he came to know the problem his mother was facing from his father he came forward to help by staying with his mother. He was happy that he moved in as his father never came to visit his mother after that. [Mr A] is related to his father and knew the problems his mother had faced for a long time being a relative. He was engaged in the war against the LTTE and seldom had time to visit them. After he served his time in prison no-one came forward to accommodate him but his mother did as she wanted to get away from his father.
He was not happy with the actions of the [Defence Force] and the [crime] so was involved with fellow students in protesting against the government’s inaction in prosecuting these [Defence Force] officers knowing that his father’s relative was involved in the [crime]. When he came to stay with them, he was not willing to let him stay inside the home but his relatives encouraged him stating [they were defenceless] and his mother and [sibling] could be harassed by his father. His mother agreed knowing he was a relative and because he had known the suffering from the past.
When he moved in, all his father’s relatives started to talk bad about them. They all feared [Mr A] for his [crime] and stayed away. He started to love the applicant’s mother and his mother told him that she proposed to marry [Mr A]. The applicant was against the marriage and he could not accept this person who had [committed a crime]. He came to know that the applicant was reluctant towards the marriage and became friendly with him. His mother told him that [Mr A] was kind towards her and she had confidence he would not let them down. He did not want to go against his mother’s wishes and kept his distance when they married. His mother did not wish to discuss anything about him. [Mr A] started to talk to the applicant so he asked him to relate to him privately in relation to [the crime]. He stated that if he failed to act, according to his colleagues he would have lost his job. [Mr A] told the applicant he had secret information he could not tell the applicant. He also told the applicant he was involved in killing Tamils in the north and east of Sri Lanka. He also warned the applicant that politicians have wide powers and can abduct and kill whenever they wished. The applicant was told that if he wished to protect his mother and [sibling] he should join the [Defence Force]. [Mr A] warned the applicant not to disclose what he had been told or he would face the consequences and he knew many people, including hardened criminals He became afraid of [Mr A] and decided to leave the country to keep some distance between them. His mother also advised him to leave. Despite being worried about the safety of his mother and [sibling], he travelled to Australia to further his studies.
[Mr A] was always encouraging him to join the [Defence Force], even while he was in Australia. The applicant realised that this was so that [Mr A] would have control over him. He never wished to join the [Defence Force] knowing that many innocent Tamils and Sinhalese were mercilessly murdered by the [Defence Force]. When he returned in 2009, [Mr A] forced him to stay permanently and join the [Defence Force] but he refused. One of his friends wanted to join the [Defence Force] and his mother got [Mr A] to assist him in being recruited. One day around December 2009 his friend called him and said that he did not wish to remain in the [Defence Force] and wanted to leave the country. He said that [Mr A] had contacts with many criminals and prominent politicians of the resent government that were involved in many abductions and murders. He was being ordered to be involved in illegal acts. The applicant travelled to [country] in 2010 and requested his mother to visit him there at his [relative]’s home. He discussed things with his mother and came to know that she was not happy in the marriage and suspected he was involved in drugs. He advised his mother to get his [sibling] married and move with [sibling] into [spouse]’s home after divorcing [Mr A]. He spoke to his mother regularly and she complained about [Mr A] and his behaviour and activities. In January 2013 she eventually divorced him. He was so happy. He returned to Sri Lanka in May 2013 for his [sibling]’s marriage. A few days after his return his friend arrived and asked him to go to another friend’s home for a discussion. He told him that [Mr A] was aware he was in Sri Lanka and was planning to abduct him and force him to join the [Defence Force] as he was determined to get his revenge as he believed the applicant was the cause of his divorce. While they were discussing things his mother called to say that there were [number] CID officers searching for his friend and him and they asked that he report to CID headquarters. His mother was told that they were wanted in relation to questions about drug dealings and unless he joined the [Defence Force] voluntarily, he would be arrested and sentenced to prison. He stayed with friends and asked his friend to get a visa immediately for [Country 1] as they had to leave the country at the next opportunity. The agent advised them to travel to [Country 1] immediately at the first instance where he would make arrangements for his friend to get a job. His mother advised him not to leave immediately as they would be searching for them at the airport. When his fiend got his visa they left and stayed in [Country 1] until his friend got a visa for [country]. When he contacted his mother, she told him not to contact her for a while as the police were searching for them. After he returned to Australia he spoke to his mother who told him that [Mr A] had gone to the house with some friends and threatened her that if he returned he would be sentenced to prison on false grounds.
The delegate set out the applicant’s immigration history. Since his arrival in Australia [in] February 2007 the applicant returned to Sri Lanka in September/October 2007, June 2009 and May 2013. The delegate referred to the applicant also travelling to [country] in February 2007 prior to his arrival in Australia, again in January 2008 and in November 2010. He also travelled to [Country 1] in May/June 2013.
According to the delegate’s decision, the applicant indicated he took part in protests in Colombo in 2002. He stated he took part as some of those [victims of crime] were relatives of his friends at school. He also indicated that he had not participated in any other protest in Sri Lanka. The applicant firstly stated that those responsible for the [crime] were found guilty in [year] then said they went to prison in [year]. The applicant indicated that the purpose of the protest was to acknowledge the convictions and erect a commemorative plaque to remember the [victims]. It was held [number] years after the convictions because money had to be collected for the plaque. He later told the delegate that it was a protest against similar crimes in the future. He also told the delegate that one of the accused was his [relative] and future step-father so he did not attend the proceedings but was outside the court in [year] but did not go in.
According to the delegate’s decision the applicant indicated that his father was violent toward his mother and they divorced in [year] or [year]. His mother remarried [Mr A] in 2006. He told the delegate that his mother was [Mr A]’s [relative] and they were [related]. He told the delegate that [Mr A] was released from prison in [year] after serving [number] years of a [number]year sentence. He then had no-where to go so lived in the family home and his presence meant his father did not visit his mother and cause problems. He told the delegate that his family cut him off when he went to prison therefore he had no house to stay in. He told the delegate that [Mr A] was accepted back into the [Defence Force] after his release from prison and when this was queried by the delegate, responded that it was because he had political influence and that is why he regained his position. He stated that [Mr A] was in the home to protect his mother and his relationship with her developed and they decided to get married. His mother knew about the conviction but her main concern was for her ex-husband to stop harassing her. He stated that his mother did not believe he [committed the crime]. He indicated that they did not talk very much. He told the delegate that the marriage was signed before the Registrar and there was no wedding. The applicant indicated that he and his [sibling] did not have any social problems because of his mother’s marriage to [Mr A].
The delegate refers to the applicant stating that [Mr A] confessed on several occasions that he [committed the crime]. The first confession took place in June 2006 and the applicant passed it on to his mother who confronted [Mr A] in 2010. He said nothing before as [Mr A] told him not to tell anyone.
The delegate gave little weight to the marriage certificate indicating his mother married [Mr A] based on country information as to the high prevalence of fraudulent documents from Sri Lanka.
The applicant told the delegate that in 2006 [Mr A] started to put pressure on him to join the [Defence Force] and in 2009 when he returned threatened to kill him if he told anyone about the confession to [the crime]. He then later stated he could not remember when [Mr A] first confessed to [the crime] then said that it was in 2007 when the applicant was visiting Sri Lanka from Australia. He then telephoned his mother 5 to 6 days after returning to Australia and told her. In June 2009 [Mr A] forcefully told him to join the [Defence Force] in a threatening manner. He was fearful of returning to Sri Lanka after he completed his qualifications as he told him he would join once he completed his studies. He then returned after his mother was divorced and he has 18 months’ work experience.
When asked by the delegate why he did not seek protection in 2011 instead of applying for a skilled migration visa, the applicant responded that the divorce was pending at that time and he thought if the divorce was finalised there would be no problem. He returned to Sri Lanka in May 2013 as his [sibling] was getting married and [Mr A] had not been to the family home for about 5 months. He then travelled to [Country 1] to help his friend get a job.
The applicant told the delegate that he had been in Sri Lanka in May 2013 for about 5 days when the CID came to his house to arrest him and say he would be framed for drugs involvement if he did not join the [Defence Force]. The CID knows [Mr A] and they have looked for him about 10 times. He remained in Sri Lanka for a further 3 to 4 days and did not have any problems departing. He told the delegate that [Mr A] is involved in drugs and thinks the applicant is in Sri Lanka and wants him to join the [Defence Force] and participate in drug related activities and also because he wasn’t revenge as he thinks he was responsible for his mother divorcing him. The delegate found that the applicant had willingly returned to Sri Lanka on several occasions despite claiming to fear harm as a result of [Mr A]. He claims the police will not help him due to corruption.
The delegate found the applicant provided inconsistent information and did not adequately address matters put to him for clarification. The delegate did not find the applicant a credible witness.
Credibility
The Tribunal accepts that the process of seeking protection and the giving of evidence can be stressful and consequently the applicant may have difficulty providing his evidence in a concise and contextual manner. The Tribunal accepts that sometimes timelines can be inconsistent as a result. The Tribunal has noted that a person should not be required to provide an unrealistic degree of precision and detail in statements and accepts that an experience of trauma may affect a person's ability to recall specific events and details.
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
Having considered all of the evidence before it, including the applicant’s written claims and oral evidence at hearing, as well as the other evidence before the Tribunal, the Tribunal has formed the view that the applicant has not been truthful in relation to his claims to protection. The Tribunal did not find the applicant a credible witness. These findings are made as a result of the cumulative concerns arising from: inconsistencies, changes and contradictions in the applicant’s written and oral evidence; his inability to provide convincing or credible explanations for aspects of his claims, and gaps in his claims; and other concerns as detailed below. The applicant was on notice at the beginning of the hearing that there were concerns over the credibility of his claims. The Tribunal for the reasons set out below, did not find his claims believable. The Tribunal found the applicant’s overall testimony thoroughly unconvincing. The Tribunal found the applicant to not be forthcoming when discussing his claims nor did not adequately address matters put to him for clarification. He was provided with opportunity during the hearing to raise all his claims and evidence as provided in his written statements and to the delegate, but failed to do so. His testimony appeared in the main to be rehearsed, vague and brief or convoluted and evasive. The Tribunal considers that the applicant’s oral evidence regarding the reasons why he left Sri Lanka not believable.
The Tribunal found the witness to be clearly an intelligent man who was able to explain away inconsistencies put to him. The Tribunal finds that the applicant is able to tailor his responses to suit the particular circumstances at the time. After considering all his evidence individually, cumulatively and in its entirety, the Tribunal did not find the applicant credible or a witness of truth.
The applicant told the Tribunal that he was married in Australia [in] December 2014, providing a copy of his marriage certificate. He also told the Tribunal that his [sibling] now lived in [city], Australia, having accompanied [spouse] who was the holder of a skilled visa. He told the Tribunal that his [sibling] was married in May 2014. He also stated that his mother remained living in the family home.
The applicant provided the Tribunal with photographs of his mother’s wedding to [Mr A]. He told the Tribunal that his [relative] witnessed the marriage which was also witnessed by one of [Mr A]’s friends. It was held in the family home. He added that he also attended the wedding and took photographs but could not remember whether his [sibling] also attended.
The applicant claims to fear returning to Sri Lanka because his stepfather will harm him as revenge for getting his mother to divorce him. He fears his stepfather will force him to join the [Defence Force] or he will arrange for the applicant to face false drug charges which will result in him facing a long prison sentence.
The applicant claims that his stepfather is extremely well connected to politicians, criminals and the [Defence Force] and he knows based on this stepfather’s past actions that he can arrange for these things to happen to him. He claims that because of his stepfather’s connections he will be unable to seek protection from the authorities and will be unable to relocate anywhere in Sri Lanka as his stepfather will find him. He claims that his stepfather has told his mother that he will harm her son to get his revenge on her as harming her son will hurt her. He told the Tribunal that Sri Lanka is extremely corrupt and his stepfather can do anything and the applicant will be unable to be protected.

The applicant claimed that his stepfather came to live in the family home following his release from prison as he had no-where else to live. He also claimed that his stepfather moved in to keep his father away as his father had regularly visited the family home harassing his mother.
The Tribunal questioned the applicant about his father. The applicant was able to tell the Tribunal where his father lived. When asked about the last time he saw his father, he indicated about 12 to 13 years ago and his mother told him where his father was living as she had seen him in the area as they close by. He told the Tribunal that he has no contact with his paternal side of the family.
The applicant indicated that after his parents’ divorce, his father would regularly visit the family home and harass them. [Mr A] moved in to protect his mother and his father stopped visiting. He stated the relationship developed and they married. Later in the hearing, and not consistent with his written and earlier oral evidence, the applicant claimed that [Mr A] and his mother started their relationship just after his parent’s separation in [year]. He told the Tribunal that his father last lived with them in [year] and his mother started her relationship with [Mr A] after they had separated. The Tribunal indicated that according to the divorce certificate provided by him, his parent’s divorce was finalised in [year] and the applicant indicated that was correct but his mother was already seeing [Mr A].
The Tribunal is not satisfied on the evidence provided that the reason [Mr A] moved into the family home was to stop his father from regularly visiting and harassing his mother. The Tribunal found the applicant’s evidence vague and inconsistent in this regard.
The evidence provided by the applicant is that his mother was well connected politically. He told the Tribunal that she was employed as an [occupation] in the public service and knew the Ministers as they worked in the same office. He said she was not politically active, just knew them through her work. The Tribunal noted that the witnesses to her first marriage were the [senior public servants and government officials] for the [name] area. The Tribunal confirmed with the applicant that in 2005 his mother was appointed as a [official]. He told the Tribunal that he could not remember when his mother retired however the evidence provided indicates that this was in [year].
The Tribunal asked the applicant where he was when his father visited and was told that he attended school then would be involved in sport and other activities after school and not be home when his father visited. He indicated to the Tribunal that he was home on occasion when his father returned to hassle them. He stated that his father’s visits were the main reason for [Mr A] moving in with his mother. He told the Tribunal that his mother had gone to the police but they did nothing. The Tribunal put to him that his mother was well connected politically but the applicant responded that it was only while she was working and not all the time.
However the evidence to the Tribunal is that the applicant’s mother worked until she retired in [year]. The evidence before the Tribunal indicates the applicant’s mother was employed during the time he claims his father was visiting the house harassing her. When this was pointed out to the applicant, he then stated that his father would turn up at the house during the period she worked as well. He also told the Tribunal that his father would also turn up even if he was there too. The Tribunal does not accept that as the applicant’s mother worked in the public service in the same office as Ministers that she was unable to obtain assistance from the police to protect her from her husband.
The applicant told the Tribunal that his stepfather was in the [Defence Force] and held the rank of [rank]. He stated he has always been in the [Defence Force] and has never to his knowledge been employed in any other position or in any other capacity. His stepfather assisted his friend to get into the [Defence Force] and it was his friend who told him about his stepfather’s illegal activities. His friend deserted from the [Defence Force] and fled Sri Lanka, travelling to [Country 1] and then to [country].
The Tribunal put to the applicant that the marriage certificate provided by him had his stepfather’s occupation down as [occupation]. The Tribunal indicated that if his stepfather was in the [Defence Force] then it would indicate that and provide his rank. The applicant responded that he has seen his stepfather in uniform and he always believed his stepfather was in the [Defence Force] as that is what he held himself out to be and he always saw him in his uniform. The Tribunal noted that his stepfather is in a suit in the photographs provided by the applicant of the wedding and his witness is also down as occupation “[occupation]”.
The applicant told the Tribunal that he returned to Sri Lanka in May 2013 as his mother had divorced his stepfather who had not been around for a while. He also returned for his [sibling]’s wedding but because of events his [sibling] did not get married and was married sometime later in May 2014. The applicant claims that a few days after his arrival the CID turned up at his home looking for him. He was with his friend who was in the [Defence Force] and another friend at the time. He claims the CID told his mother that he was required to join the [Defence Force] or it would be arranged for him to face false drug charges and go to prison. He then states that his mother contacted him to tell him what happened. He then stayed at a distant family member’s home for a few days while he rearranged his departure and flew to [Country 1] with his friend.
The Tribunal put to the applicant that he claims his stepfather is very well connected and is also a family member yet he was unable to locate the applicant in the 4 to 5 days he was in Sri Lanka. The applicant stated he stayed with a distant family member whom the stepfather would not know. The Tribunal checked with the applicant whether he had any difficulties departing Sri Lanka and was told that he did not. The Tribunal put to him that if his stepfather was as well connected as he claims, why he wasn’t stopped on his departure from the country. The applicant indicated that he was lucky and was able to depart. The applicant told the Tribunal that if he lived in Sri Lanka permanently his stepfather would be able to find him but would be unable to do so in the few days he remained in Sri Lanka.
The applicant also told the Tribunal that he did not know who the people were but his mother thought they were CID. They could have been anyone pretending to be CID which is not consistent with his written evidence and earlier evidence in that he claims his stepfather has contacts and influence and can get the CID to do things for him.
The applicant told the Tribunal that his mother told him that people have turned up looking for him between 10 to 20 times, asking if he is in Sri Lanka and if he is to surrender to the police. When asked why he is to surrender to the police the applicant claimed because he has been falsely accused of being involved in drugs.
The Tribunal indicated to the applicant that if his stepfather was as well connected as he claims, he would know when the applicant arrived in Sri Lanka and when he departed. He would therefore know that the applicant had not returned and there would be no need for people to turn up on a regular basis looking for him. Also his mother keeps telling them he is not in Sri Lanka.
The applicant told the Tribunal that his stepfather had been trying to get him to join the [Defence Force] for years to get him out of the family home and following the divorce, his stepfather’s intention was revenge. He told the Tribunal that his stepfather wanted him to join the [Defence Force] so he can be involved in illegal activities and then he would be framed and be in trouble.
The Tribunal accepts on the basis of the evidence presented, that the applicant’s mother married [Mr A] who was involved in the [criminal] incident for which he was found guilty and sentenced to [number] years imprisonment.
The applicant’s evidence was inconsistent as to when the relationship between his mother and [Mr A] commenced, firstly indicating it was after [Mr A]’s release from prison and later indicating they started seeing each other after his father had left the family home and prior to [Mr A] being imprisoned for his involvement in the [criminal] incident. The applicant claims that his step-father was so powerful that he could get released from prison for home visits and was visiting their home prior to his release and his marriage to the applicant’s mother. The Tribunal is not satisfied on the evidence provided that [Mr A] moved into his mother’s home to provide protection from the applicant’s father as the Tribunal is satisfied from the applicant’s evidence that his mother and step-father had already commenced a relationship prior to that time. The Tribunal considers that as the applicant’s mother and step-father were seeing each other prior to his step-father’s conviction and imprisonment, his mother would have been aware of the nature of the offences with which he was charged.
The Tribunal has considered the evidence from the applicant that his step-father returned to the [Defence Force] following his release from prison. He claims that his step-father is so powerful and well-connected it was possible for him to return to the [Defence Force] and to his rank. The copy of the wedding certificate has his step-father’s occupation listed as “[occupation]” and gives no indication of his military rank. The Tribunal also noted that in the photographs provided his step-father is in a suit and not in military uniform. The applicant claims that he always saw his step-father in uniform and held the rank of [rank]. He also stated that his step-father had never been involved in any other employment except for his employment in the military. The Tribunal then referred to his evidence that his friend indicated that he was in the [Defence Force] with his step-father as his step-father involved him in various illegal activities to which the applicant responded that he was not sure if his step-father was involved in the [Defence Force] or just held himself out as being involved. The Tribunal does not accept that if the applicant’s step father remained in the [Defence Force] with a rank of [rank], that he would list his occupation as “[occupation]” in his marriage certificate. The Tribunal also notes the change in the applicant’s evidence from the positive of his step-father being in the [Defence Force] to the possibility in that his step-father held himself out as being in the [Defence Force].
The applicant claims his step-father is extremely well connected and is seeking revenge because the applicant’s mother divorced him. He claims his step-father has organised with the CID for him to be charged with drug offences and that during his last visit the CID visited his home to ask where he was and gave his mother an ultimatum that he join the [Defence Force] or he will be arrested on drug charges. He also claims that despite his departure from Sri Lanka, the CID has visited his home on a regular basis asking where he is. He claims his step-father wants him in the [Defence Force] to be involved in his illegal activities so he can be framed and go to prison.
The applicant claims that he was so fearful he went into hiding then changed his departure date for travelling to [Country 1] prior to his return to Australia. The applicant told the Tribunal that he flew to [Country 1] with his friend but they flew on different flights on the same day. His friend deserted the [Defence Force] to depart Sri Lanka. He said he travelled with his friend as he had organised with a friend to give him a job but as his friend spoke little English he needed to go with him to assist. The Tribunal referred to the copy of his passport provided to the Tribunal indicating that he had applied for his visa for [Country 1] in February in [Australia] and that did not look like a spur of the moment decision. The applicant responded that he had planned to visit [Country 1] after spending a month in Sri Lanka but because the CID were after him he changed the arrangements and left earlier.
The Tribunal does not accept the applicant’s evidence that his step-father is in the [Defence Force] retaining a military rank. The Tribunal did not find the applicant a credible witness and does not accept that the applicant’s step-father would retain his commission after being found guilty and imprisoned for his involvement in the [criminal] incident. The Tribunal also finds that if the applicant’s step-father had retained his rank and was still employed in the Sri Lankan [Defence Force], that would be listed as his occupation in his marriage certificate to the applicant’s mother. The Tribunal also places weight on the applicant’s change in his evidence from being positive his step-father was in the [Defence Force] to his step-father holding himself out as being in the [Defence Force]. The Tribunal finds the weight of the evidence clearly indicates that the applicant’s step-father is not employed in the [Defence Force] and the applicant has fabricated this aspect of his evidence to enhance his application for protection.
The Tribunal does not accept that the applicant’s step-father has sufficient influence to be able to get the CID to do things for him. The Tribunal considers that if the applicant’s step-father had the influence and connections attributed to him such that he could arrange false charges against the applicant, based on the country information contained in the DFAT report as put to him at hearing, he would not have been able to depart Sri Lanka as easily as claimed. The Tribunal also considers that as his step-father is also a member of the applicant’s family, he would have been able to locate the applicant during the 5 days he remained in Sri Lanka prior to his departure from [Country 1], especially if he was as well-connected as claimed and wanted to extract his revenge on the applicant. The Tribunal does not accept the applicant’s reason that as he stayed with a distant relative [Mr A] was unable to find him.
The Tribunal also does not accept that the CID have returned to his mother’s home to look for him as the Tribunal finds that they would be aware he has departed Sri Lanka from the departure records. The applicant also varied his evidence late in the hearing stating that the people who turned up as his mother’s home looked as though they were from the CID and that is why his mother through they could be from the CID.
The Tribunal does not accept as plausible that the CID would turn up at his mother’s house and tell her to tell her son that if he didn’t join the [Defence Force] they would make sure he faced false drug charges and go to prison. The Tribunal does not accept as plausible that his stepfather has been trying to force him to join the [Defence Force] so he can involve him in illegal activities and frame him so he will go to prison.
The Tribunal does not accept the applicant’s evidence that he fled Sri Lanka travelling to [Country 1] to assist his friend. He told the Tribunal that within a few days of his arrival the CID visited his home and spoke to his mother. He then claims to have gone into hiding, departing about 5 days later after changing his arrangements. According to his passport, which was provided to the Tribunal he was in Sri Lanka for about 9 days before departing for [Country 1] where he stayed for about 16 days before returning to Australia. It is clear from the evidence in his passport that he had obtained his visa for [Country 1] some time prior to his departure for Sri Lanka in May that year. The Tribunal does not accept the applicant is a credible witness and finds that he has fabricated his claim to have fled to [Country 1] with his friend to escape the CID and his step-father, [Mr A].
After considering all the available evidence and as the Tribunal did not find the applicant a credible witness, the Tribunal finds he has fabricated his claim to fear harm from his step-father, [Mr A]. Therefore the Tribunal rejects each and every one of his claims to fear harm from his step-father, [Mr A] if he returns to Sri Lanka. The Tribunal does not accept that his step-father, [Mr A], will force him to join the [Defence Force], or requires him to join the [Defence Force] to engage in illegal activities so he can be caught and imprisoned, or has organised for false drug charges to be brought against him by the CID or will harm in in any other way. The Tribunal does not accept that the applicant’s step-father, [Mr A] has any interest in him, adverse or otherwise, such that he wants to seek revenge because the applicant’s mother divorced him.
Therefore, the Tribunal finds that there is not a real chance that the applicant would be harmed by [Mr A] or any of his associates or the CID or the [Defence Force] or anyone associated with the Sri Lankan government or the Sri Lankan government in the reasonably foreseeable future if he returns to Sri Lanka for any Convention ground.
The Tribunal has considered the applicant’s claims individually, cumulatively and in entirety and finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka now or in the reasonably foreseeable future.
Complementary Protection
As the Tribunal has 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).
In light of the findings made above regarding the applicant’s claims, specifically having rejected all his claims, and having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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] FCAFC 33.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
Amanda Goodier

Member
ANNEXURE ”A”

Relevant law

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

Refugee criterion

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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.

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

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.

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.

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.
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.

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.

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

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’).

‘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.

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

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 country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Reports relevant to this application are DFAT Country Reports on Sri Lanka, 18 December 2015.
ANNEXURE B
COUNTRY INFORMATION
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[2016] AATA 3887

12 May 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction