1500210 (Refugee)

1500210 (Refugee) [2018] AATA 252 (10 January 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500210
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Brendan Darcy
DATE OF DECISION:  10 January 2018
DATE CORRIGENDUM
SIGNED:1 February 2018
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The word ‘[Country 2]’ at paragraph 80 should be replaced with ‘Sri Lanka’.
Brendan Darcy
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500210
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Brendan Darcy
DATE:10 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 January 2018 at 2:01pm
CATCHWORDS
Protection visa – Sri Lanka – Race – Tamil – Particular social group – Tamil Male from North Western Province – Imputed political opinion – Imputed anti-Government pro LTTE opinion – Suspected LTTE involvement – Detention – Physical harm – Fear of extortion – Failed asylum seeker – Illegal departee and forced returnee

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 36, 65, 91R-91S, 425, 499
Migration Regulations 1994, Schedule 2, S 5J, s.91R(2)

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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] November 2012 and the delegate refused to grant the visa [in] December 2014.
The applicant appeared before the Tribunal on 5 July 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.
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 of the same class.
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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act 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 for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born [in] Kurunegala District in Sri Lanka’s North West Province and to be a citizen of Sri Lanka. On departmental file is the applicant’s untranslated birth certificate indicating he was born on [date],[1] along with his national ID card indicating the same date of birth.[2]
[1] DIBP Folio 42-43
[2] DIBP Folio 40-41
There is also an untranslated copy of the applicant’s identity card and a drivers’ licence (in English).[3]
[3] DIBP Folio 38-41
No copies of the applicant’s passport, valid or otherwise, are submitted to either the department or the Tribunal.
The applicant claims to be of Tamil ethnicity and that he belongs to the Hindu faith tradition.
The applicant claims to be able to speak, read and write fluently in the Tamil and Sinhala languages but speaks, reads and writes in English poorly.
The applicant claims to be married to [his wife], with whom the applicant has [specified children]. His claims his marriage date was [in] March 2001.
The applicant’s father was born in Puttalam District, North Western Province in Sri Lanka in [year] and his mother was born in [a named town] in Central Province in [year]. The applicant has [specified siblings in Sri Lanka].
According to his 866 form, the applicant was educated up to year [number] equivalent in Sri Lanka and claims that his mainly experienced unstable employment in [two specified] sectors within Sri Lanka with periods of unemployment.
The applicant travelled to [Country 1] and [Country 2] between October 2005 and May 2005. The applicant spent eight months of this time offshore in [Country 2].
The applicant departed Sri Lanka a second time [in] May 2012 and arrived in Australian without authorisation by sea when he arrived at [an] Australian overseas [territory] [in] June 2012.
The applicant made the following claims in his statutory declaration dated [in] November 2012:[4]
[4] DIPB Folio 44-49
·The applicant moved from [Town 1] (Puttalam District in the North Western Province) soon after his marriage in 2001. The applicant claimed that the Central Investigation Department arrived at his home in [Town 1], searched it and questioned his wife. The applicant claimed that when his brother-in-law or anyone else visited he would soon be visited by the police. The applicant claimed his Sinhalese neighbours would inform the police after any visitors came to his home.
·His wife insisted they leave the village as it was no way to live and moved to his wife’s village;
·The applicant claimed in 2007, a Sinhalese agent in [Village 1] had taken his passport, money and advised that he would obtain a visa to [Country 3] in order to claim refugee status there;
·The applicant’s friend, [Mr A] and the applicant himself visited the agent at 11 PM at night and the agent returned the passport and claimed the agent would return the money at a later date;
·The applicant claimed that he and [Mr A] were ambushed by around four men armed with pistols. The men spoke Sinhala and requested their ID cards. The applicant spoke to the men in Sinhala but his friend struggled to do this. The men then slapped the applicant’s friend. The applicant was threatened by one of them who told him that if he could not speak Sinhalese they should not be in Sri Lanka. The same man then hit the applicant in the mouth and the applicant claimed he fell unconscious. After this, the men reiterated that the applicant and his friends should not bin Sri Lanka if they could not speak Sinhalese and they then departed in a van;
·When the applicant regained consciousness, the applicant claimed his mouth was bleeding and he lost [some] teeth;
·About four or five months after this incident, [Mr A] was kidnapped and his body was later found [in a location];
·On or around June 2010, the applicant’s wife was studying in [Town 2] at a training college and the applicant was outside of the college waiting for his wife;
·The applicant claims there were two men speaking and joking in Sinhalese as the women left the college. The applicant claimed he approached the two men to ask them where they were from as there were not many Sinhalese men in [Town 2]. The two men responded by asked the applicant about where he was from and who he was. The applicant responded to the men that he was trying to be friendly and that he grew apprehensive and then withdrew. The two men then demanded the applicant’s ID;
·At this stage, around seven to eight officials from the Sri Lankan Army were passing by on bicycles to ask about the commotion. The two men told the officials that the applicant was telling stories and the applicant told the same officials that he was just being friendly as he could speak Sinhalese;
·The officials, it is claimed by the applicant, held the applicant by the throat, pushed him down onto the road, forced the applicant to show them his ID card and told the applicant to stop acting like a big man just because there were lots of Tamils in [Town 2];
·The officials also accused that the applicant was showing off because he knew Sinhalese. Two of the officials, it is claimed, then slapped the applicant;
·At this point, the applicant claimed he realised the two men in plain clothes were SLA officials as well. The SLA officials then discussed taking the applicant to a camp for further questioning and began dragging the applicant by the shirt towards the road;
·At this point, students from the college were coming out and one of his wife’s friends recognised the applicant. The applicant claims his wife’s friend began screaming and as a result of the commotion, the officials released the applicant and stated they would look for him later;
·The applicant claims he was treated this way because he was Tamil and if they had taken the applicant to the camp they would have beaten him;
·The applicant claims that on around November 2011, he was in [Town 2] cycling home from work at night when he was stopped by two Sri Lankan officers who were stationed at an army check point. This was a typical check point on the applicant’s route to and from work and he would normally be stopped and asked for his ID;
·However, the applicant claims that on this occasion he was returning home after midnight when the men at the checkpoint accused the applicant of travelling to steal. When the applicant responded in Sinhalese that he was returning from work, the officers asked the applicant to bring his boss to provide proof he was working at the time. The applicant claims that he responded in telling them that this was not practical and offered to provide them with contact details to verify his story;
·The applicant claimed the one of the officers slapped the applicant and accused him of lying as he did not believe it was plausible anyone would be working so late. The officer then searched the applicant, took his documents and forced him to kneel on the ground for ten minutes;
·Another officer then questioned the applicant to ask to the reasons the applicant was in [Town 2]. The applicant claims he responded that he was there because he left [Village 1] for work before one of the officers slapped the applicant on the head and another took turns to hit him before stopping for about 10 or 15 minutes;
·The applicant claimed they then resumed the beating and the officers asked unpleasant [questions] about him and his wife. The applicant claimed the officers were drunk and were asking humiliating questions while laughing. The applicant claims he was detained for four hours before being released around 4AM in the morning;
·The applicant claimed that between 2009 and his departure for Australia in May 2012, he experienced these sorts of encounters and treatment regularly;
·In April 2012, the applicant claimed he returned from [Village 1] from [Town 2] when he heard a van stopping on the road outside his house at around 2 or 3 AM in the morning;
·The applicant claimed there was a knock on the door and that he enquired as to whom it was but there was no response; the knocking continued but there was no reply again. The applicant claimed his wife said not to open the door and that he could still hear shoes outside his door for about half an hour before eventually leaving;
·The following day, the applicant claimed he departed for [Town 2] because he was frightened;
·Two weeks after the incident, the applicant claimed he returned to [Village 1]. He claimed he overheard a conversation between a shop proprietor and some customers that men in a van were seeking a man called ‘[applicant’s name]’ and that the men were Sinhalese speaking. The applicant claimed that he then returned to [Town 2] because he feared being kidnapped, just as his friend [Mr A] was in 2007 and he knew he could not remain in [Town 2] because of past experiences at the hands of the Army; and
·The applicant claimed if he returns to Sri Lanka it will not be safe as a Tamil, even though he speaks Sinhala.
Also on file is a copy of the entry interview with the applicant dated [in] August 2012.[5]
[5] DIPB Folio 82-100
A delegate representing the Minister refused to grant the applicant a protection visa [in] December 2014. The applicant applied to have the refusal decision reviewed by the Tribunal, differently constituted, on 6 January 2015 with the decision record attached.

According to the decision record dated [in] December 2014, the applicant claimed he resided in [a named] village in [Village 1] district between 2001 and 2009 (aside from his time abroad) and then travelled to [Town 2] so his wife could attend training college. In 2012, his wife finished college and they both returned to [Village 1] to reside. [Town 1] was the applicant’s then home area.
At the interview with the department and according to the decision record, the applicant claimed he was [mistreated] during the 2011 incident by SLA officers. The Minister’s delegate accepted this claim despite the applicant not including it in his statutory declaration.
The decision record also notes that during its interview with the applicant prior to the natural justice break the applicant claimed that there had been no attempts to contact him by anyone in authority in Sri Lanka since his departure to Australia. After the natural justice break, the applicant submitted his wife was approached in 2013. The applicant claimed the first time she was approached she told the men that the applicant was in [Town 2] working; the second time, the applicant claimed the men told his wife that they knew the applicant was in Australia and then threatened the applicant. The applicant claimed he did not state it earlier as he was unsure if the men were in authority or just Sinhalese men looking for him. The delegate was not satisfied with these responses and did not accept he has a profile with the authorities or any other persons in Sri Lanka.
[In] May 2015, [Mr B] wrote a supportive letter to the Tribunal in favour of the applicant’s claims for protection.
The Minister’s delegate refused to grant the visa for the reasons contained in the decision record; thereafter the applicant applied to the Tribunal, differently constituted, to have the refusal decision reviewed on 06 January 2015.
[In] July 2016, the authorised recipient, [Mr B], forwarded a further email on the applicant’s behalf. [Mr B] claimed to work for a not-for-profit agency and has provided counselling to the applicant while he had been employed by the[agency]. While [Mr B] does not claim in the submission that he professionally assessed the applicant’s psychological injuries, he believes the applicant suffered substantial psychological stress as a result of the events leading to his departure from Sri Lanka. In particular, [Mr B] wished to refute the delegate’s finding that the [mistreatment of] the applicant back in Sri Lanka was not a ‘one-off or opportunistic’ but was targeted towards him because of his ethnicity. [Mr B] also challenged the finding that because the applicant did not move away from the where the attack occurred as the applicant had, in fact, did move to another area. He also stated that because he is Tamil he will be imprisoned as a failed asylum seeker for an unknown long term period of time and that the applicant was likely to have more accurate knowledge of the situation in his country.
Oral Testimony
The applicant contacted the Tribunal after a hearing invitation was issued to him on 9 June 2016 seeking a postponement because [Mr B] was not available to represent him. The request was refused as [Mr B] was not a registered to provide migration advice or assistance. The Tribunal advised the applicant that this could be further discussed at the hearing.
The applicant appeared before the Tribunal at a scheduled hearing on 5 July 2016. He was assisted by an interpreter in the Tamil and English languages. The applicant’s supportive friend and authorised recipient, [Mr B], who had provided some written arguments in favour of this review applicant, was not present at the scheduled hearing.
The Tribunal notes that during the scheduled hearing the applicant complained that he did not have enough time to find a migration agent or lawyer to represent him. As explained in the hearing, that was not the case as the applicant had his application for review for a considerable amount of time (nearly eighteen months). The applicant did not ask for a further postponement and the hearing proceeded.
No further submissions were required at the end of the hearing and no further submissions were submitted.
Country Information
By way of background, the DFAT country information report from December 2015 regarding Sri Lanka states that “[r]elations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been highly strained since independence. Sinhalese have traditionally believed that Tamils received preferential treatment under British rule. Discriminatory policies, including making Sinhala the country’s only official language (Official Language Act 1956) and restricting access to higher education for Tamils, contributed to a sense of marginalisation in the Tamil community and provoked calls for a separate Tamil state, Tamil Eelam, in the north and east of the country. In July 1983, a full-scale conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE). In May 2009 the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka. Over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed.”[6]
[6] DFAT County Information Report on Sri Lanka, 18 December 2015 p.4
The same report stated the following information with respect to the treatment of Tamils.[7]
3.3 Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language ('official discrimination') including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies.
[7] DFAT County Information Report on Sri Lanka, 18 December 2015 p.12
More generally, there is a moderate level of discrimination between particularly ethnic groups ('societal discrimination'), largely as a result of the civil conflict and its causes.
3.7 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees.
3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.
3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.
The Tribunal has also considered the more recent 24 January 2017 DFAT country report into Sri Lanka[8] whose assessments about the risks and risk factors for Tamils, former LTTE members, both high and low profile members and levels of social discrimination are similar to the 2015 report. It is noted that both reports rely on the December 2012 UNHCR Eligibility Guidelines for Sri Lanka regarding imputed membership of the Liberation Tigers of Tamil Eelam.
FINDINGS AND ASSESSMENT OF CLAIMS
[8] DFAT Country Information Report into Sri Lanka, 24 January 2017.
Country of Reference
The applicant has claimed to be a citizen of Sri Lanka.
The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided copies of certificate of birth and nation identity card issued by Sri Lankan authorities to the department which is on the departmental file.[9]
[9] DIBP Folio 40-43
On the basis of this evidence, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that Sri Lanka is the applicant’s country of origin i under s.36(2)(a). On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Accepted Personal Circumstances and Incidents of Past Harm
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal has carefully considered the past experiences of the applicant as related in his detailed statutory declaration and his testimony during a scheduled hearing. Overall the Tribunal accepts that the applicant was a credible applicant who provided mostly consistent details between his written and oral claims although there was confusion about dates and years of events which the Tribunal did not place any significant weight on in finding adverse findings. This was mostly due to the Tribunal’s acceptance that the applicant’s recall is not expected to be perfect given the passage of time and due his memory had also been affected by a level of past trauma. Nevertheless the Tribunal did make a finding about one embellishment for the reasons outlined below.
Based on this overall favourable credibility finding, the Tribunal accepts the applicant’s following claims to have occurred in the past:
The Tribunal accepts that the applicant is ethnically Tamil and that he belongs to the Hindu faith tradition. The applicant, it is accepted, can also speak, read and write Tamil and speak Sinhalese when he was educated up to the equivalent of year [number] in Puttalam District.
It is also accepted that the applicant’s father and mother continue to reside in Puttalam District in Sri Lanka.
The applicant claimed to have [specified siblings] who are currently married and residing in Sri Lanka. He added that they had lived in [Village 1] most of their lives but had spent about six months in [Town 3] in Northern Province. The applicant claimed to have no [other siblings]. These specific claims are accepted by the Tribunal to be the case.
The Tribunal also accepts that the applicant was born in [his home town] in Sri Lanka’s North West Province between his birth and in approximately [year] and then moved to [another town] between [specified years], before moving to [Town 1] in Puttalam District in the same province with his [wife], with whom the applicant has [number] children.
The Tribunal has also considered the appciant’s claims to a number of key incidents of past harassment and harm to have been credible:
In 2001, the applicant claimed that shortly after he was married he and his wife moved from [Town 1] where his father’s house was, to [Village 1] where the family of the applicant’s wife resided. The applicant claimed they moved to his wife’s fears living in a neighbourhood with many Sinhalese following a house search by members of the Central Intelligence Division. The Tribunal accepts that in 2001 the applicant and his wife were visited by the members of the Central Investigation Department at their home which they searched. It is also accepted that the applicant’s house was subsequently searched after visits from the members of the applicant’s in-laws and others and that the applicant and his wife had reasonable suspicions that their Sinhalese neighbours informed the police of such visits. It accepts that the applicant’s wife was question and that faced with such intrusion, the applicant and his wife resolved to move another residence in [Village 1] in Puttalam District.
It was put to the applicant that the visit by the authorities was a routine visit that occurred during the civil war and that his wife wanted to move to be closer to her own family in [Village 1]; the applicant responded that this was the case and added that he remained in [Town 1] due to work commitments and visited his wife twice a month or when there was not enough work. The applicant also responded that he did not have personal fear of his Sinhalese neighbours until the CID visited his house, although he remained in [Town 1]. The applicant added that there was a dispute with some of Sinhalese neighbours about a fence and that police advised to take the matter to the courts. The applicant then claimed that one of the Sinhalese neighbour continued to encroach on his property and threatened him with a firearm. Although the applicant did not raise this dispute, the Tribunal has provided that applicant with the benefit of the doubt and accepts this incident occurred.
While there were also aspects of the applicant’s testimony that could be characterised as a civil dispute between neighbours over property boundaries in 2001, the Tribunal accepts that embedded in intimidation over this dispute were anti-Tamil attitudes, leading to his departure from one village in Puttalam district to another in [Village 1] district. However it is noted the police did recommend to the applicant to seek the courts’ involvement in the dispute and that he did not report the threats involving firearms to police
It is further accepted that the applicant remained in [Village 1] before departing for [Country 2] on [date] and then returning to his country of nationality and reference by [date]. According to the decision record (which was submitted to the Tribunal), the applicant did not claim he travelled to [Country 2] on a fraudulently obtained passport. The applicant claimed he was falsely promised the opportunity of residency in [Country 3], [Country 2] or [another country] by an agent. Eventually the applicant realised he was issued a fake visa when he tried to re-enter [Country 1] and voluntarily returned to Sri Lanka after being detained for overstaying his visa in [Country 2]. The Tribunal accepts this to be the case, noting that the applicant did not claim to have been apprehended as person of interest by the authorities when departing Sri Lanka and did not illegally depart Sri Lanka which the Tribunal also accepts to be the case.
The Tribunal notes that the applicant did not state in his statutory declaration that he feared persecution when he travelled to [Country 2]; the applicant claimed he was forgetting a lot of things and cited his hardships as a Tamil (including difficulties when he was a student in Sinhalese school) in needing to urgently leave for [Country 2]. Based on the applicant’s weak testimony and his voluntary return to Sri Lanka, the Tribunal does not accept the applicant had a personally-held fear of persecution when he departed his country of nationality in [earlier year].
On re-entry to the applicant’s country of nationality and reference, the applicant claimed in the departmental interview that he was questioned by the authorities at the airport for several hours and paid a bribe (consisting of all the money he had one his person) before being released. On balance and based on the Tribunal’s overall favourable credibility finding, the Tribunal accepts the applicant’s account in returning to Sri Lanka.
Occupationally, the applicant had owned a [business] and would regularly travel to Colombo depending on his business needs. At other times, the applicant claimed to have been variously employed in [two specified sectors].
First incident (since returning from [Country 2] in [year])
In 2007, it was claimed by the applicant that his travelling companion, [Mr A], was stopped by plain clothed Sinhalese men that the applicant suspected to be police or army officials at 11.00 at night. The applicant claimed he was living in [Village 1]. The applicant and his friend were required to provide proof of identity documents and were questioned. The applicant was able to understand Sinhalese while his friend did not. The men slapped [Mr A] as they said he should be able to speak Sinhalese. When the applicant intervened on [Mr A’s] behalf, the applicant was struck with a stick and blacked out. The applicant and [Mr A] were then left alone after the applicant regained consciousness. The Tribunal accepts this incident occurred.
The applicant claimed that four or five months later, [Mr A] was kidnapped or abducted and his dead body was found [in a location] along with another man. The applicant claimed a friend of [Mr A] had also been shot and killed. During the departmental interview and in the scheduled hearing, the applicant claimed that [Mr A’s] killing was related to the earlier encounter between the applicant, [Mr A] and the Sinhalese men and that he feared being harmed or similarly killed by the authorities. The Tribunal accepts that abductions of Tamil men during and immediately after the civil war occurred on an arbitrary basis and there was a credible and not a far-fetched possibility that this occurred to applicant’s friend as claimed. In this instance, the Tribunal accepts the applicant’s account of him and his friend being harassed and stuck by plain clothes officials and the death of his friend as claimed; however it does not accept the applicant’s friend had been killed for any direct reason except to state that some other people who knew [Mr A] were also being sought. The applicant claimed that one of these people was in [a city in Australia] at the time of scheduled hearing but was unwilling to provide evidence as a witness.
The Tribunal also notes that the applicant did not experience any further harm until an incident in 2009 or 2010 and that the authorities had information about his residency. Had the applicant been targeted by the authorities in a similar way, it would have been reasonable to expect the applicant to have also endured at least another incident of harassment or harm or even questioning by the same individuals or some other person in authority. However it is not claimed that this occurred and the applicant failed to demonstrate to the Tribunal how these two 2007 incidents were actually related. While it accepted the applicant had genuine subjectively-held fear of harm arising from this distressing incident on the basis on the applicant being a Tamil Sri Lankan, it does not accept the applicant will a real chance of serious harm arising from the same disturbing incident as a Tamil Sri Lankan or any other related reason outlined in s.5J(1)(a) for the reasonably foreseeable future.
Second incident

The applicant has consistently claimed that in or around 2009 he and his spouse moved to [Town 2] where his wife studied to become [an occupation]. During the scheduled hearing, the applicant claimed that one night in 2010 (June 2010, according to his statutory declaration) while waiting to escort his wife from a college, the applicant overheard two Sinhalese men talking about women at the college and that a conversation was initiated between the applicant and the two men. The applicant claimed it became apparent to him the men were from the Sri Lankan army or police. The applicant further claimed the discussion became heated when the men accused the applicant of showing off his proficiency in Sinhalese and was subsequently slapped in the face, according to his departmental interview (In the applicant’s statutory declaration it was claimed he was grabbed by the throat and then pushed to and then dragged along the ground). While the men threatened to detain the applicant at a police station or army camp, the applicant submitted that the school finished and decided to release him. It is accepted this incident occurred, although the applicant struggled to remember specific details about the manner in which he was harmed.
Third Incident
The applicant claimed in his statutory declaring that in November 2011 he was cycling late at night in [Town2] when he was stopped by Sri Lankan army officials at a checkpoint. The applicant claimed it was his typical route between work and home and normally the officials would only ask for his identity card. The applicant claimed that on this occasion the officials accused him of being a thief and then demanded to bring his employer to prove where he was working. The applicant claimed when he replied it was not practical or desirable to disturb his employer; the officials then accused him of lying, slapped him and searched him before forcing to kneel on the ground. The applicant then claimed that one officer interrogated him about where he came from and then was hit repetitively by other officials of the SLA. The applicant claimed the officials were drunk and that they asked unpleasant uncomfortable [questions] about his wife and then kicked him. After being warned not to tell anyone what happened, the applicant was then released in four in the morning. The applicant claimed to have been not only physically ill-treated but to have been [mentally mistreated]. During the departmental interview and the scheduled hearing, the applicant claimed that he had been [mistreated] during this incident.
It is noted that the delegate found some inconsistencies in the applicant’s account but also accepted the overall claim that this 2011 incident, including the [specific mistreatment], had occurred and that the delegate referred to DFAT’s country report on Sri Lanka from October 2014 indicating that the SLA members in the north and east of Sri Lanka have been credibly reported that [such mistreatments] against Tamils have occurred.
In this regard, the Tribunal accepts the incident, including [specific mistreatment], as generally claimed and that the applicant had been targeted as a vulnerable Tamil living in Sri Lanka’s Northern Province.
Fourth Incident
In the applicant’s statutory declaration, the applicant claimed that he returned to [Village 1] district in 2012 where the applicant claimed to have experienced intimidating activities. Specifically it was claimed that late one night in April 2012 the applicant witnessed a white van outside his house and that this was followed by a repetitive knocking on his door which the applicant did not answer. The applicant claimed the men lingered outside his house for half an hour before departing. The applicant claimed that he was so frightened of being abducted or killed he fled to [Town 2]. The applicant then claimed he returned to [Village 1] when he overhead the proprietor of a shop that a few Sinhalese men had been enquiring after a man called ‘[applicant’s name]’; again the applicant claimed to have fled again to [Town 2] believing that he was being deliberately targeted for abduction as had happened to others in the area. The applicant subsequently decided to depart for Australia.
During the interview during the scheduled hearing with the Tribunal, the applicant elaborated on these specific claims from 2012 (although he claimed the incident occurred at an earlier year). Asked whether the applicant had overacted, the applicant replied that over 2011 and 2012 period about four ordinary Tamils had been kidnapped in [Village 1] and that one person had been shot. He was unsure if the men were uniformed or were ‘grease men’ (soldiers wearing grease on their hands who terrorised Tamil households through late night home invasions). The Tribunal enquired if that had been the case, why did the men who were searching for the applicant stop short of just knocking on the door if they were determined to detain or even kill the applicant or his wife; the applicant responded that the door was made of teak and that they did not want to alert his neighbours. The Tribunal finds this particular response to be weak and unconvincing. Had the authorities been determined to apprehend and seriously or significantly harm the applicant they would have. As discussed during the hearing, the applicant had the opportunity to alert his neighbours to protect himself and his family. As the details of this account are weak, mutually unsupportive and unconvincing, the the applicant has invited the Tribunal to consider this fourth incident of past harm had been fabricated or contrived. In the context of the applicant not being a person of interest to the authorities when he first departed Sri Lanka, the Tribunal finds the applicant’s fourth incident as the triggering incident where he overheard himself being a person of interest and where he avoided being harmed not to be credible and that this specific claim had been submitted to both the Department and then elaborated upon at the Tribunal to augment his claims for protection.
Since Departing Australia
At the departmental interview, the applicant further claimed that his applicant’s wife in Sri Lanka had been approached by Sinhalese men in 2013 and claimed she told the men her husband was away working in [Town 2]. The applicant further stated that his wife was accused of lying as they knew he was in Australia and questioned to her to the reasons she deceived them. The applicant also claimed that threats were made against the applicant. However, during the hearing, the applicant mentioned that his wife had told the men his husband was missing and feared he would be harmed if he returned as it would confirm to the authorities his wife had been lying. The Tribunal accepts that the applicant’s wife had been questioned by the authorities in Sri Lanka given it is usual practice by the police and others to monitor Tamil neighbourhoods. Accordingly, the Tribunal has provided the applicant the benefit of the doubt about properly recalling the information conveyed to him by his wife and accepts that local authorities have monitored his residence by questioning his wife and that she claimed her husband was in another part of Sri Lanka.
It is noted that the applicant did not claim that his wife had been threatened in the past and that she continues to run a business in the applicant’s absence while caring for their [children], as claimed. It was also claimed that the police indicated to his wife they would return to question his wife but did not so do, indicating the applicant was not a person of interest to the authorities, as discussed during the scheduled hearing.
However, the Tribunal notes that there appears to be an element of embellishment in the applicant claiming that they returned to ask for questions of his wife or accusing her of lying. This is based on the applicant’s departmental interview that the applicant only raised this specific claim after his natural justice break, despite being giving the opportunity to raise it beforehand. As a significant development this was also not raised in the applicant’s statutory declaration. Furthermore, the wife remaining in [Village 1] and the discrepancies in detail between the applicant’s oral evidence with the department and before the Tribunal invited further adverse credibility concerns. Based on concerns, the Tribunal does not accept the applicant’s wife had been subsequently accused of lying or had been threatened by the authorities as claimed by the applicant and that the applicant had embellished this specific claim in order to augment his otherwise credible claims about his personally-held fears in returning to Sri Lanka.
Applicant’s Claims based on being Tamil /Tamil Male from North Western Province/ Tamil Male from North Western Province with an imputed anti-Government pro LTTE opinion
The Tribunal has made mostly favourable credibility findings in favour of the applicant in that during the conflict and immediately post-conflict Sri Lanka the applicant has been subjected to violence based on his race as a Tamil, for his imputed political opinion in favour of the LTTE and for related reasons, including as a Tamil. The incidents have occurred over a long period of time and the applicant is entitled to have little confidence in the authorities in not further harming him or holding subjective fears of persecution if he returns to Sri Lanka. These incidents were consistent with country information available to the Department and the Tribunal. They were not a series of one-off opportunistic incidents; they went hand-in-hand with the racially and politically polarised military, security and cultural climate that Tamils in Sri Lanka endured in the past. However, the legal considerations in granting protection visas are prospective and the Tribunal is required to consider the real chance of serious harm into the reasonably foreseeable future and the foreseeable and necessary consequences of the applicant’s removal from Australia to Sri Lanka under the Act’s complementary protection provisions.
Significantly the Tribunal has made a specific adverse credibility finding in not accepting that the triggering fourth incident of past harm in 2012. This finding has been taken into consideration in assessing the whole of the applicant’s circumstances and significantly undermines the applicant’s claims to be a person of interest to the authorities in Sri Lanka and who has a real chance of serious harm into the reasonably foreseeable future, if returned to [Country 2].
The applicant has provided a series of reasons as to why he could not return to Sri Lanka, arising out of his ethnic background, and relatedly, his imputed political opinion. The applicant has claimed that the applicant feared harm individually and cumulatively for the reasons of his ethnicity, gender, temporary location within Sri Lanka and imputed political opinions arising from this background that were pro LTTE and anti-government.
The applicant has also not claimed he (or any family members) had publicly expressed anti-government or pro LTTE opinion or activities or had any membership of any pro-Tamil organisations, either in Australia or Sri Lanka, but fears that this will be assumed and he does hold pessimistic views about the prospects for long term peace in Sri Lanka.
The Upper Tribunal (Immigration and Asylum Chamber) in the UK made a country guidance decision which comprehensively dealt with central issues arising in Sri Lankan asylum cases. According to the decision the focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war. The government’s focus is now on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka. As such, the current categories of persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state because they are or are perceived to have a significant role in relation to post-conflict Tamil separatism with the diaspora and/or a renewal of hostilities within Sri Lanka. According to the decision, in post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the authorities as indicting a present risk to the unitary Sri Lanka state or government.
According to the United Nations High Commissioner for Refugees (UNHCR), “the risks facing individuals with the profiles outlined below require particularly careful examination”.
All claims lodged by Sri Lankan asylum-seekers, whether on the basis of the refugee criteria contained in the 1951 Convention, or complementary forms of protection based on human rights obligations, need to be considered on their own merits according to fair and efficient status determination procedures and up-to-date and relevant country of origin information.
More specifically, the possible risks facing individuals with the profiles outlined below require particularly careful examination. UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
(vi) women in certain circumstances;
(vii) children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.
The applicant was informed during the hearing that similarly the DFAT assessment from the December 2015 report on Sri Lanka is that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, may be monitored by Sri Lankan authorities but are at a low risk of being detained or prosecuted.
The applicant responded to country information about Sri Lankan authorities who are focused on Tamil returnees who are threats to the integrity of Sri Lanka as an unitary state, including former members of the LTTE other than those that have provided low levels of support to the LTTE. The applicant responded that that Tamils continue to be taken to army camps to intimidate, harm and torture and that the Sinhalese will continue to gain from the peace at the expense of Tamils. The applicant further stated that while the LTTE did terrible things the ongoing ill-treatment of Tamils will create the foreseeable conditions for separatist violence and a new civil war, despite the LTTE having been defeated and disbanded. The applicant also claimed he can only live with Tamils due to the situation and that he would consider moving to [Town 2], although he continued to fear persecution from the police, given his past experiences. The applicant also expressed his fears of creeping Sinhalisation of Tamil areas where Buddhism is forced upon Tamils who are not Buddhist as well as racial discrimination against Tamils.
More specifically about the applicant’s own circumstances as a Tamil, the applicant claimed that he will be suspected as an arms smuggler for the LTTE and because he had spent considerable time in the Northern Province and so will be imputed with LTTE associations and separatist support. The applicant also added that he will be perceived as wealthy given his family owns a [business] and therefore subjected to the real chance or the real risk of extortion, bribery and ongoing harassment in a country where the authorities can still arrest and detain persons arbitrarily under Sri Lanka’s anti-terrorism laws. The applicant also expressed his fears for the safety and life of his wife who has falsely informed the authorities that the applicant was merely missing and that he had not illegally departed his country of nationality and reference. In this regard, the applicant claimed she could be killed.
A similar list of risk profiles was summarised in the case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), a UK case that considered significant country information and testimony regarding Sri Lanka. This case stated that:
The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
This information reflects the advice that the UNHCR has provided in its most recent determination on Sri Lanka. 'Tamils' or ' male Tamils' or 'Tamil males from North Western Province ' as distinct groups are not mentioned as in need of international protection, with references made to Tamils who have other circumstances, such as real or perceived links with the LTTE being referenced. While the UNHCR does state that its list is not exhaustive, the absence of the Tamil race generally, or reference to specific gender of Tamils in this list is of note. The risk profiles in GJ and Others also do not include these attributes in its list.
The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. The applicant himself stated that he is not involved any political movement in Sri Lanka in the past and did not advance that he was involved in any Tamil diaspora groups while in Australia.
The Tribunal accepts that the applicant has had some adverse engagement with the authorities prior to his departure, as discussed above. It accepts that he has spent some time in [Town 2], where he experienced [mistreatment] by Sinhalese men in authority, as claimed. The Tribunal accepts that the applicant was mistreated by the authorities at checkpoints and that he had endured discrimination and bullying by Sinhalese people throughout his life. However the Tribunal notes that the applicant was not detained for any long periods of time and released on each occasion. It is further noted that the applicant was able to obtain a passport and depart Sri Lanka for [Country 2] in [year], indicating that he was never suspected of being an LTTE sympathiser or support. Had this been the case, the applicant would have been faced a strong likelihood of long term detention at the point of departure. If the applicant were to return to his country of nationality and reference, the Tribunal does not accept that the applicant's is a person of interest to anyone in the armed forces. It follows from this that the Tribunal does not accept the applicant’s interactions with the army in the past as a Tamil would lead him to have a real chance of serious harm or a real risk of significant harm on return to Sri Lank.

With regards to the applicant being imputed with anti-government or pro-LTTE opinion, the Tribunal considers the mere fact that the applicant is Tamil or a young Tamil male or a Tamil from the North Western Province or has spent some time in the Northern Province, does not lead the Tribunal to accept that the applicant will have a real chance or a real risk of being imputed with 'anti-Government opinion' or a political opinion in support of a separate state structure for Tamils. The UNHCR and the UK case information cite specific concerns for particular people involved with or supporting the LTTE. The types of people that the UNHCR raises concerns about are people of seniority within the LTTE, or are actively continuing efforts to promote or support the LTTE in overseas Tamil communities. This is not the applicant. The Tribunal does not accept that anything in the applicant's background, including his race, gender or location(s) in Sri Lanka would lead to an imputed anti-Government opinion. That the applicant resided for some time in a location that was close to areas controlled by the LTTE does not, as detailed by the UNHCR, give rise to a claim for protection. The UNHCR guidelines encourage that each particular individual's circumstances should be considered, as done here. The Tribunal does not consider that the applicant is a person whom the authorities will be interested in, for the reasons specified individually or cumulatively, for any imputed anti-Government or pro-LTTE political opinion.
It has been stated by the applicant that Tamils have suffered longstanding systematic discrimination, in education, employment and other matters controlled by the government. The Tribunal noted at the hearing that the Eastern and Northern regions of Sri Lanka are areas that are presently predominantly Tamil in nature, though there are some Sinhalese moving into these regions. The building of some Buddhist monuments is an example of some changes in the area, though these are limited changes. The political representation at provincial and national levels in these areas is mostly Tamil political parties. The Tribunal notes the country information from the DFAT report assessing a low level of discrimination in the application of laws and moderate levels between ethnic groups. The applicant has not claimed to have experienced personally such discriminatory treatment in Sri Lanka in the past. The applicant’s personal experiences prior to his departure were in the context of Sri Lanka’s civil war and its immediate aftermath under the previous Rajapaksa government. The security situation that existed at that time was considerably more restrictive, especially for Tamil communities.
During that time, the applicant has not been denied the opportunity to work, participate in important cultural events or marry and form a family as a Tamil. Indeed he and his wife own a business that continues to operate.
Considering the future, the Tribunal considers that the Sri Lanka the applicant will be returning to is a very different place to the one he left. Critically the conflict between the LTTE and the Government ended in 2009 with a comprehensive defeat of the LTTE. There have been no large scare military attacks and no terrorist incidents since the end of this long conflict. This undermines the applicant’s overall impression he tried to provide to the Tribunal that the LTTE was still operational or incipiently capable of reactivating. Furthermore the Rajapaksa regime replaced by President Sirisena and a UNP led coalition government. As described above, there are steps in place to improve the situation for Tamils, though it will take some time to change some attitudes and practices. The Tribunal notes that DFAT assessed that in post conflict Sri Lanka, the number of abductions and disappearances since have dropped considerably while there are credible reports of enforced or involuntary disappearance since the end of the conflict. This indicates that the chance of such serious harm or risk of such significant harm is remote or insubstantial. DFAT further assesses that there is a moderate risk of torture or mistreatment for high-profile former LTTE members who are suspected of committing serious crimes, including terrorism offences. This is due in part to the use of torture to extract information or confessions from suspects, and the extended period these people may spend in pre-trial detention. There is a lower risk of torture or mistreatment for the majority of low-profile people with links to the LTTE.[10]
[10] DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014 p.13
The Tribunal considers that the applicant will return to his home area of [Village 1] district, where his family resides, where a family business operates and where seek employment as he has done in the past. The applicant has a resourceful and resilient past that will assist him in his resettlement, which will assist him to generate further income for himself and his family. It also notes he will be returning to a family who can emotionally support him. The Tribunal does not consider that the discrimination that can occur in some circumstances will cause difficulty for the applicant in his personal circumstances, with accommodation, family and work prospects. However in the applicant’s personal circumstances, the Tribunal does not accept that systematic discrimination that could be described as serious or significant harm occurs in in [Village 1] or throughout his home region of North Western Province in the foreseeable future.
The Tribunal does not accept that applicant's claim that all Tamils in Sri Lanka from his home province or those that spent some time in the Northern Province in the past face harm because of their race, age, skin colour or gender, or from where they come from or his trade, occupation or wealth, perceived or otherwise. The country information demonstrates that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or a relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR states that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. There is no suggestion that the applicant has been involved in any Tamil diaspora groups promoting separatism. The Tribunal does not accept that this applies in the circumstances of the applicant, a man from the north western region with no involvement in such activities, historically or presently.
The Tribunal has also considered the applicant’s claims that as he and his wife owned and operated a business in [Village 1] district and were Tamil, the applicant feared that he would be subjected to extortion and bribery and other physical harassment by Sinhalese Sri Lankans in the armed forced or the police. In this regard, the Tribunal notes the applicant is [an occupation] by trade and he has not claimed his wife has been subject to ongoing extortion based on their family business. Many Tamils have returned to Sri Lanka and send remittances to their families and not suspected of pro-LTTE or separatist sympathies. The applicant claimed fear of being arrested under the anti-terrorist laws of Sri Lanka; however in a June 2015 interview for The Island newspaper, Minister of Justice Wijeyadasa Rajapakshe stated that there were only 273 convicted or suspected LTTE cadres in government custody, including those in rehabilitation centres.[11] This indicates there is not a real chance or a real risk of being arrested or detained under these laws for the applicant as the Tribunal does not accept the applicant has any profile, even a low profile as an LTTE member or supporter.
[11] DFAT County Information Report on Sri Lanka, 18 December 2015 p.15
In summary, the Tribunal does not accept that the applicant, a male Tamil from the North Western Province or had spent some time in the Northern Province, faces a real chance of serious harm because he is of Tamil ethnicity, gender or age, or due to his skin colour, his perceived wealth or his past interactions with the authorities. The Tribunal considers that the applicant is not a person, who simply because of his ethnicity, location in Sri Lanka, age or gender, will be targeted by the authorities for harm. The Tribunal finds that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of race, or membership of particular social groups arising from his race, age, location or gender, or any imputed anti-Government political opinion arising from this background. Based on these findings about real chance, the Tribunal finds that the applicant does not have a well-founded fear of persecution for these or other related Convention reasons.

100. 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. Based on this ‘real chance’ assessment of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
Illegal departure
101. As mentioned above, the Tribunal has accepted the applicant lawfully departed Sri Lanka initially in [year] and was forcibly returned in [year]. The Tribunal also accepts that the applicant has illegally departed Sri Lanka in 2013, by boat before arriving in Australian territorial waters. The Tribunal accordingly finds that the applicant has been an illicit departee on only once and that if the applicant is found not to be owed Australia’s protection obligations he will be forced to return to his country for a second time.
102. During the hearing, the applicant was asked about what would happen to him on arrival as a person who breached the Immigration and Emigrant Act of Sri Lanka based on country information contained in the 18 December 2015 report on Sri Lanka from DFAT’s 2015 report. The Tribunal notes that the applicant commented on the information by stating that officials here in Australia only knows what happens up to the point of leaving the airport.
103. On his return, involuntarily or otherwise, Sri Lanka’s Department of Emigration and Immigration (DIE) will interview the applicant on return to Sri Lanka. It is likely that the applicant's unlawful departure will be identified by DIE and the applicant may face criminal sanction due to the manner of his departure. The Tribunal raised this country information with the applicant for comment, including that he would face charges that any person who left Sri Lanka in a manner that is proscribed by Sri Lankan legislation would face.
104. DFAT states in its December 2015 report on Sri Lanka that:
Offences under the Immigrants and Emigrants Act
5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo's Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed.

105. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.
5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General's Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers 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 (see 'Facilitators and organisers below).
5.33 5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.

106. The Tribunal then asked the applicant about bail, and the possibility of paying a fine if convicted of an emigration offence. The Tribunal noted that punishment, if convicted, could be up to 5 years imprisonment and up to a 200,000 rupee fine but country information from DFAT indicates that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. This information indicates that fines that have been handed out are between 5000 – 50 000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats.
107. There is no suggestion the applicant was involved in involved in people smuggling or had been previously convicted of any matters. As discussed above, the applicant had not illegally departed Sri Lanka prior to his arrival to Australia in mid-2012. The Tribunal considers that based on the applicant’s accepted travel history and the available country information, he will not be suspected as a people smuggler or be adversely profiled as an informant with information about people smuggling operations as the applicant only illegally departed Sri Lanka once.
108. As the oral evidence provided by the applicant indicates, the applicant fears that being interviewed and that being in custody for a short period of time will lead to long term detention. He also stated his fears about being released in the community will be traumatic and will lead to a real chance of serious harm or a real risk of significant harm for the reason as an illegal departee. Given the applicant has the support of his family and his travel history, the Tribunal finds the applicant does not have a real chance of being interview that lead to being physically ill-treated or harassed, to be detained for more than a short period or denied bail. The Tribunal considers that the applicant has the financial capacity and to pay a fine that may be imposed and that a family member would provide the surety to bail him out.
109. Country information indicates that people are released on personal bail. People who have been involved in people smuggling or had previous convictions and not complied with bail conditions may not be released on bail. The Tribunal places weight on the DFAT information, and is satisfied that the applicant will be held for a short period on arrival for questioning, and is likely to be charged with an offence under the Immigrants and Emigrants Act. The Tribunal notes that the applicant's family are presently in Sri Lanka, and the Tribunal considers that they will guarantee his bail and thus ensure his quick release from any process required to inform the applicant of the charges he will face. The Tribunal does not consider that the applicant will be remanded for an extended period on return to Sri Lanka due to the manner of his departure from Sri Lanka in 2012.
110. The Tribunal accepts the applicant will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka. The Tribunal finds that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing, and then generally face a financial penalty (and not a custodial sentence).
111. The Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal considers that the laws are not selectively enforced. The Tribunal does not accept the submission that they are selectively enforced against failed asylum seekers, who are placed into the situation of having to depart illegally. The Tribunal considers that the laws are enforced against anyone who breaches them.
112. Accordingly, the Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act, and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The very process of determining if someone was in breach of the Immigration & Emigration Act, or has any other pending charges, which the applicant will be required to do on returning through the airport, is a process applied to all returnees from Australia to Sri Lanka. The Tribunal therefore find that the applicant's very brief remand by the authorities for questioning, and for the provision of pending bail at the airport or in prison will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.
113. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure, and therefore, that there is no real chance he will face serious harm in the reasonably foreseeable future deriving from any legal penalty being imposed. The Tribunal does not consider the imposition of a fine, or the process of being charged and possibly convicted in these circumstances, constitutes serious harm.
114. The Tribunal has considered whether the detailed processes arising out of returning to Sri Lanka after departing illegally under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The applicant would be questioned for a short time to identify him and whether he has any outstanding charges. The Tribunal has determined that the applicant would not be harmed during this process, and does not consider that this short period of questioning constitutes significant harm. The Tribunal considers that it is likely that he would be charged arising out of his manner of departure. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departed Sri Lanka. The Tribunal does not consider the imposition of a fine, or the process of being charged and possibly convicted, in these circumstances, constitutes significant harm.

115. Having regard to the applicant's background, his ability to readily establish his identity (as he has done in the course of the protection visa application) and the presence of family in Sri Lanka, and noting the Immigrants and Emigrants Act bail provisions encompass bail on personal recognisance and without requirement of financial surety, the Tribunal finds the chances remote that the applicant will spend more than a very short period (of hours or at most a few days) remanded in custody awaiting bail on his own reconnaissance, or on the surety of his family, after his return to Sri Lanka.
116. The Tribunal does not accept that the applicant will be harmed while held for the very short period before coming before the magistrate. The Tribunal notes some people have been held for longer periods, in terms of having other criminal charges or coming to the attention to the authorities for reasons as outlined by the UNHCR and GJ and Others. The Tribunal does not accept that this is the situation for the applicant, and does not accept that he will be held for an extended period, given that he would not be a person of interest to the authorities or other inmates while being held for the short period. The Tribunal does not accept that the applicant's past experience, in [year], provides guidance to the experience he will have on return in 2016 or beyond.
117. The Tribunal has considered the prospect that the applicant will be harmed in the short period he may be detained before being brought before the Magistrate. Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka, the Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay on remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison, by the authorities generally or the prison guards who would target him. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand. Accordingly, the Tribunal the chances remote that he will face serious or significant harm in this context.
118. Further, the Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. The Tribunal notes the guidelines of the relevant Departmental PAM3 in this respect, including the discussion of prison conditions. While the applicant may be placed in overcrowded and poor conditions for a short period of time, the Tribunal does not accept that the applicant will be singled out or intentionally harmed by the authorities in these circumstances while waiting for his bail. Further, The Tribunal does not accept that there is any intention on behalf of the authorities to significantly harm the applicant, as defined in the Migration Act, while being detained in poor and overcrowded conditions. The Tribunal finds that there is no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant.
119. The Tribunal also does not consider that the applicant's detention in these conditions for a short period of time constitutes significant harm.
120. The Tribunal finds that the applicant does not face a real risk of significant harm while being detained on remand.
121. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, the Tribunal finds that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, the Tribunal finds that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.
122. In these circumstances, the Tribunal finds the applicant faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, the Tribunal also finds that the applicant does not face a real risk of significant harm due to his illegal departure, taken alone or in combination with his other circumstances.
123. The Tribunal accepts the applicant may also be required to report to his local police force in [Village 1] district and that he will come into contact with local officials who he has a genuine personally held fear that he will be seriously harmed through harassment or ill-treatment or significantly harmed by way of torture or degrading treatment. However, the DFAT country information from December 2015 (and the later report dated January 2017) indicated that the chance of serious harm or the risk of significant harm to be remote and less than a real chance or a real risk into the foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on his membership of a particular social group, namely as an illegal departee or as a forced returnee or any other related reason.
124. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention an illicit departee, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
125. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal does not accept the applicant was of any interest to the authorities, including the army, the CID or the police, once he allegedly started working in [specified business] because of his Tamil ethnicity and perceived support of the LTTE or suspected involvement with the LTTE based on his Tamil ethnicity and/or the previous charges against him in [year], which were dismissed in [the following year]. As such, for the reasons discussed above, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the authorities in Sri Lanka as a perceived opponent to the government and/or supporter of the LTTE.
126. In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity, his profile as a young single educated Tamil male or an imputed political opinion based on his Tamil ethnicity or any combination of these factors. The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within.
127. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.
128. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention, as claimed in the submissions of the applicant’s previous adviser.
129. The Tribunal is also not satisfied on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka or after his release into the community as a person who has failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker or Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts as possible that he may face further questioning and/or monitoring after being released into the community. However the Tribunal does not accept that the process of questioning or any surveillance of the applicant amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning or monitoring to which he may be subject to.
Additional Findings
130. The decision has been additionally difficult in assessing the real chance of serious harm and the real risk of significant harm arising from the applicant’s past trauma. In this regard, the Tribunal accepts, despite a lack of independent evaluation from a medical or psychological professional, that the applicant has experienced extreme humiliation [by] members of Sri Lanka’s armed forces. This is accepted the applicant’s friend, [Mr B], as a professional counsellor recognised substantial psychological stress. The Tribunal also notes that the applicant has accessed psychological services while he was in [Australia] about three years ago after which the applicant did not take the medication recommended to him. It is also accepted that the applicant has not told his wife about these specific experiences. The Tribunal further accepts that the applicant’s short term memory and capacity to concentrate have been affected and he experiences [specified symptoms]. The applicant added that he kept himself working and busy his mood improved. Although he has the opportunity to provide them to the Tribunal, there is no evidence before the Tribunal that the applicant experiences severe or deliberating psychological symptoms requiring intensive treatment as the applicant was otherwise highly functional.
131. The Tribunal notes the applicant was able to participate and respond to questioning throughout a lengthy hearing and it is accepted that he forgot some aspects of his otherwise consistent testimony, in particular, specific dates and years. The Tribunal accepts that the applicant’s difficulties in recalling some details was due to appearing before the Tribunal which can be distressing in the context of the applicant’s accepted past trauma. Nevertheless the Tribunal is satisfied that the applicant was able to meaningfully and expressively participate in the hearing consistent with s.425 of the Act.
Cumulative Findings
132. With these accepted circumstances about the applicant’s psychological injuries in mind, this has made this decision particularly difficult in assessing whether he is owed Australia’s protection obligations.
133. During the hearing, it was discussed that psychological services and even UN-funded programmes for victims of torture during the civil war will be available to the applicant as a traumatised returnee, to which the applicant responded that he could make use of those facilities if he felt safe enough. However he also feared that [this treatment] might happen again and expressed little confidence in the reconciliation in helping Tamils Sri Lankans or in the honesty and integrity of Sri Lanka’s political leadership. While the Tribunal accepts that the applicant holds a genuinely personally-held or subjective fear of serious harm arising from his accepted past trauma in the context of his other reasons, the Tribunal does not accept the applicant has a well-founded fear in the regards as the country information indicates that there are services available to Tamils victims such as the applicant. As discussed, country information also indicates that the reconciliation process between Tamils, victims of the civil war and the authorities has been ongoing and positive, albeit not comprehensive or prompt, and will continue to be so for the reasonably foreseeable future. There is also the emotional support of the applicant’s wife, parents and others with whom the applicant has been separated for some time, if he were to return to Sri Lanka. Finally, the Tribunal finds that the treatable psychological injuries that the applicant are not so serious as to amount to severe mental torment or other serious harm non-exhaustively listed in s.91R(2) or to amount to significant harm, including being subjected to degrading treatment or punishment. This includes the anticipated interaction the applicant will encounter as a failed asylum seeker on his return and his subsequent release into the community with reporting requirements with Sri Lankan authorities, as outlined above.
134. Based on these considerations, both individually and cumulatively, the Tribunal assesses that the applicant will be able to return to his home town and province without facing a real risk of serious harm that would satisfy s.91R(1)(b) based on his race, religion, political opinion, imputed or otherwise, as an illicit departee or any other related Convention reasons or a combination of them, now or into the foreseeable future.
135. Similarly, the Tribunal does not accept that the applicant will face a real risk of significant harm amounting to torture, arbitrary deprivation of life, being subjected to cruel or inhuman or degrading treatment or punishment, arising from the applicant’s accepted psychological injuries, either on return as an illicit departee or any other Convention reason or in the general community as a whole, as a necessary and foreseeable consequence of being removed from Australia to his country of reference.
136. Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm for any Convention or non-Convention reasons. Accordingly, the Tribunal does not have a well-founded fear of persecution that satisfies s.36(2)(a) at all.
137. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
Conclusion
138. 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).
139. 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).
140. 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
141. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Brendan Darcy
Member

[2018] AATA 252

10 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal