1503245 (Refugee)

1503245 (Refugee) [2016] AATA 4867 (5 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1503245
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Brendan Darcy
DATE:5 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 May 2016 at 5:01pm
CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Fear of harm from corrupt officers and politicians – Pressure to withdraw application for coveted position – Witness credibility – Vague and inconsistent evidence – Implausible claims – Lack of genuine fear
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
MIEA v Guo (1997) 191 CLR 559
MZYXS v MIAC [2013] FCA 614
MZYXS v MIAC [2013] FMCA 13
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZVVE v MIBP [2015] FCA 837
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] October 2013 and the delegate refused to grant the visa [in] February 2015.
The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal, differently constituted, [in] March 2015. The delegate’s decision record was attached to the application for review.
The applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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
Background
The applicant claims to be born on [birth date] in the capital city of Sri Lanka, Colombo, and to be a citizen of Sri Lanka.
The applicant claims that she resided in [Suburb 1], Colombo from 2003 until her departure to Australia ; that she speaks, reads and writes Sinhala and English; that her religion is Buddhist; and that her ethnicity is Sinhalese.
The applicant claims she has never married or been in a de facto relationship and has no children. The applicant claims her parents [and siblings] reside in Sri Lanka.
The applicant claims she completed secondary education in [year] and in [year], she joined [a government body, Agency 1] in Sri Lanka, where she was employed until her departure to Australia. The applicant claims that her former position within [Agency 1] was [in a particular division] working as [a particular position].
The applicant departed Sri Lanka only once prior her departure to Australia and that was to [another country] in 2010 for a [course].
The applicant departed Sri Lanka [in] 2013 by plane, via Singapore before arriving in Australia on the same date while holding a [temporary] visa.
The applicant’s stated intent was to [undertake Event 1].
The applicant applied for a class XA subclass 866 protection visa [in] October 2013.
On departmental file is a statutory declaration dated [in] January 2015 signed by the applicant with her written claims for protection.[1] A summary of the applicant’s written claims is below:
[1] DIPB Folio 57
The applicant was selected by the Sri Lankan Authorities to participate in [Event 1] in [City 1] after assessing her skills and qualification. Subsequently officials for the Australian Department of Immigration issued a [temporary] visa for the applicant [in] September 2013.
The applicant had been notified that a few relatives of high ranking [Agency 1] officers and politicians were nominated to attend [Event 1]. She was threatened by the higher rank [Agency 1] officers and politics to withdraw from the journey; however the applicant claimed she had refused to withdraw as she had fulfilled all the [requirements].
The applicant then claimed she was constantly threatened, including death threats to her warning her not to return to Sri Lanka.
In addition to these threats from some top officials, there were threats from some underworld figures who have threatened her for the same reasons.
The applicant claims she was ill-treated by these high ranking officials and colleagues due to the influence of the above mentioned people. After arriving in Australia the applicant’s mother informed her [a number of] people went to her home and asked about her whereabouts. The applicant’s parents were threatened and then made a complaint to the police. To date no investigation has taken place.
The applicant claims there is no effective protection in Sri Lanka if she returns because the people she fears have strong connections within the Sri Lankan government.
The applicant states she fears she will disappear and that her parents continue to receive threats by those seeking information about her whereabouts.
Dated [in] 2013, a police report with a translation into English was also submitted. The complaint was made at [a police station] [in] 2013.[2] The translation indicates that the applicant’s mother complained to the police about receiving a telephone message telling the mother that her daughter had to forego her ambition to attend [Event 1]. The applicant’s mother claims a [vehicle] arrived at her house with [a number of] unknown persons to find out whether her daughter went to Australia. It is claimed in the report they accused the applicant of taking money to go abroad and she would not resign and when she returns they will not allow her to live. The mother also claimed she and her husband were harmed when they were [assaulted].
[2] DIPB Folio 55-56
The applicant attended an interview with the department to elaborate on her claims for protection [in] January 2015.
[In] February 2015, the Minister’s delegate refused to grant the protection visa. In the decision record, the delegate found the applicant’s claims to have been implausible and lacking in credibility. The delegate said that the applicant was often evasive and found the applicant submitted a non-genuine police report.
Oral Evidence
The applicant appeared at a scheduled hearing with the Tribunal on 22 April 2016 to present arguments and provide evidence. The applicant was assisted by her representative.
At the hearing, the applicant provided a translated extract from [a police station] in Sri Lanka dated [in] 2014. The statement is from the applicant’s [sibling]. It outlines that that the applicant received threatening phone calls from ‘[a named individual]’. The statement claims she received [a large number of] threatening phone calls and threatened the applicant’s whole family.
The applicant stated that she was born in [Suburb 1] of Colombo, Sri Lanka; that her father was [Occupation 1] and that her mother was a [Occupation 2]. The applicant stated that she had [details of siblings removed].
The applicant claimed at the hearing that she had completed [her] secondary education and began but did not complete a [degree]. The applicant claimed that her father was not very wealthy so she could not complete her tertiary studies.
The applicant also claimed her religion was Buddhist; that her ethnicity is Sinhalese and that she is able to read, write and speak in Sinhala and English.
The applicant also claimed that her profession was of [an Agency 1 officer] and that her [position] in Sri Lanka had been [position removed]. The applicant said she spent [a number of] months in [training] before beginning her [Agency 1] career as [a particular position] in [year]. The applicant claimed she earned about [amount] Sri Lankan rupees per month and added that with the allowance for extra work it was a good salary.
The applicant claimed that she enjoyed [activities similar to Event 1]. The applicant said she [participated in similar events previously].
The applicant claimed she applied to attend [Event 1] and was successful in that qualification. The applicant claimed she only applied through [paperwork]. However, according to the applicant, the selection committee, chaired by [a named individual], was placing pressure on the applicant to withdraw her selection to allow unqualified applicants, relatives of powerful people, to travel to Australia with a valid visa and airfare to whom the position was guaranteed. The applicant claimed the selection committee members had taken bribes.
The applicant was asked by the Tribunal if the system was corrupt could she explain why the selection committee had not simply allocated the position for [Event 1] in the first place rather than offer it to the applicant in the first place. The applicant responded that had she not have been successful it would have been in the media and cause embarrassment to the officials and the government in general. The Tribunal enquired if the applicant had approached the media when she was being forced to withdraw; the applicant said she did not and there was no need to go to the media as she had not withdrawn. The Tribunal enquired what level of media interest existed in her not going to [Event 1] given [her particular role was] not of national significance; the applicant insisted the journalists would write columns about it.
The applicant claimed that her mother in Colombo received death threats when she arrived in Australia. At the hearing, the applicant claimed they were underworld figures and retired solders. Sentences from the applicant’s statutory declaration were read out which outlined the applicant claimed politicians had made threats and the Tribunal asked the applicant to name those politicians who had made death threats. The applicant was unable to. The applicant’s statement also mentions high ranking [Agency 1] officers; the Tribunal asked the applicant to name them or their rank; the applicant, after a long hesitation, said she was unable to do so. The only person the applicant was able to identify was the chair of the selection [committee].
The Tribunal asked to the reasons positions in [Event 1] were so valuable; the applicant said because they were promised to political supporters of corrupt officials and politicians and that the supporters were angry about being left behind in Sri Lanka despite those undertakings. The Tribunal asked the applicant if the money used for bribes would have been better spent on visas and airline tickets directly; the applicant responded that they were not very educated. The Tribunal reminded the applicant she had said earlier that they were relatives of powerful people and mentioned that the Tribunal has had experience of low income Sri Lankan nations gaining passports, visas and airline fares to depart from Sri Lanka. The Tribunal also asked why would anyone continue to threaten or harm the applicant in the future given the value of the visa and airline ticket has no current value and that the matter appears to be quite trivial; the applicant, after a long hesitation and much prevarication, did provide a response directly and added that she has a fear as an unmarried woman.
The Tribunal asked if she would be arrested on arrival; the applicant said it was because she had left. The Tribunal stated the applicant had not left the country illegally. The applicant said the [officers in Agency 1] last threatened her in [2013] and continue to seek her.
The applicant elaborated about the past harm experienced by the applicant’s mother when a number of men [assaulted] her mother. It was noted that harm to her father was not mentioned in her oral claims and the applicant said she was not there. The applicant stated that the applicant directly received phone calls threatening her from [a member of the army] and that her [sibling] had made an official complaint. The applicant claimed she has never met the man. The applicant said the [member of the army] was part of a network of underworld figures, corrupt politicians and law and order officials.
The applicant claimed she was last threatened in [2014]. The applicant claimed her parents were last threatened in 2015 when her mother had told her that neighbours had told her mother people had been seeking information about the applicant’s whereabouts. The Tribunal asked if these people have contacts in the army and police they would know if the applicant had arrived through Sri Lanka’s computerised system for arrivals and departures.

The applicant added that she has a fear of being abducted because she is a single woman and that police do not look into such complaints. The Tribunal asked if she could reside with her [siblings] where male companions would be available and that she was also a former [Agency 1 officer] trained to defend herself; the applicant said she would not have a job as [an Agency 1 officer] on return which was different to when she departed for Australia.
At the end of the hearing, the Tribunal asked if she could name any of the people or organisations she was afraid of; the applicant was unable to do so and added that organised crime in Sri Lanka is made up of jobless drug addicts and army deserters and violent criminals.
The applicant was asked by the Tribunal to name any politicians who would target her and which parties they belonged to; the applicant was unable to do so. The Tribunal asked to name the [Minister of a particular portfolio] at the time of her departure given he is mentioned in her statutory declaration; the applicant named [Mr A] from the United People’s Freedom Alliance (UPFA). The Tribunal informed her that it was [Mr B] according to country information and that [Mr A] had been the [Minister] in 2007. [3] The applicant was asked if she could complain to the [Minister] who is from a rival party about his corrupt behaviour; the applicant claimed that the crime rate is up in Sri Lanka. The Tribunal asked if she could expose the corruption to the media; the applicant claims the journalists only report things after something happens.
[3] AAT 50-51
No further submissions were required.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant claims to be a citizen of Sri Lanka and provided copies of her passport to the Department with her application. The applicant had her Sri Lanka passport at the hearing. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is her receiving country for the purposes of complementary protection.
There is no information before the Tribunal that the applicant has the right to enter and reside in any other country therefore the Tribunal finds she has no such right.
Credibility Assessment
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 his 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 also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility[4]:
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
[4] AAT - Migration & Refugee Division, Guidelines on the Assessment of Credibility July 2015
At the hearing, the Tribunal found the applicant had provided many inconsistent and unreliable answers to its questions.
The Tribunal accepts the following limited number of credible facts regarding the applicant and her claims:
·The applicant was born in Colombo and that most of her family, including her parents, continue to reside in Colombo;
·The applicant is a Buddhist; has never married; that she was reads, writes and speaks Sinhala and English; and that her ethnicity is Sinhalese;
·The applicant completed [high school] in Sri Lanka; commenced a [degree] but decided to attend [training] and subsequently became [an officer] in [Agency 1] and worked in [a particular division].
·The applicant successfully applied for [Event 1] in Australia in 2013 for [details of Event 1 removed].
Overall the Tribunal found the applicant’s claims to be vague, inconsistent and implausible and that her oral testimony was featured by a lack of detail and prevaricating responses to the Tribunal’s enquiries.
The Tribunal has considered the credibility of her claims that she was threatened with harm after her arrival in Australia because she had not stepped aside to allow unqualified applicants to attend [Event 1]. The applicant provided oral evidence that the selection process was overseen by corrupt officials. When it was put to the applicant at the hearing, if that was the case the applicant would not have been selected in the first instance, the applicant claimed she was qualified and the media would cause the officials embarrassment. The Tribunal does not accept the applicant’s explanations as they are implausible. Had the officials genuinely been as corrupt and had favoured cronies on behalf of corrupt and powerful people as claimed, the applicant would never have been offered the position to attend [Event 1]. Secondly, the Tribunal does not accept that there was any media interest in the [applicant’s role in Event 1] as it was not of any national significance. Thirdly, the Tribunal does not accept that the position to attend was coveted by anyone in authority or close to it as the matter is trivial and inconsequential. [Event 1] that was held in [City 1] in [State 1] in 2013 is [an event] of little national or international importance designed [details of Event 1]. Furthermore international travel to Sri Lankans is not unaffordable or restricted to citizens of that country outside of those affected by claims to have supported the Tamil Tigers. There is no suggestion by the applicant that she is connected with the Tamil Tigers, imputed or otherwise. In this regard, the applicant’s claim she had been targeted for attending [Event 1] in lieu of others, is highly implausible. The serious or significant harm arising from the applicant’s claim is disproportionately trivial given the travel to Australia was of little value. Based on the applicant’s implausible, inconsistent and far-fetched evidence, the Tribunal does not accept the applicant was threatened with harm on arrival to Australia for the reasons claimed, including taking the position corruptly set aside for someone else or that she caused humiliation towards anyone in authority. In making this finding on credibility, the applicant has invited the Tribunal to consider other credibility concerns with her evidence in this review.
Of particular concern to the Tribunal was her inability to present consistent evidence between the applicant’s written claims and her vague oral evidence at the scheduled hearing regarding her alleged persecutors and past threats. On the one hand, the applicant claimed in her written claims that among those seeking to harm her were ‘higher rank [Agency 1] officers and politicians’ ‘top government bodies and some of the underworld figures in Sri Lanka’; at the hearing on the other hand, the applicant claimed it was figures from the underworld and retired army personnel. The applicant had to be pressed to remind her that she feared people in politics and high ranking [Agency 1] officials by the Tribunal reading to her the contents of her January 2015 statutory declaration. The Tribunal notes the applicant made no claim to suffer forgetfulness or any mental symptom that might affect her memory. Had the applicant a genuine fear of politicians and high ranking [Agency 1] officers, the applicant should have been able to recount her fears to the Tribunal in a consistent manner. Similarly, it was also of particular concern to the Tribunal the applicant was unable to identify any political figure, senior [Agency 1] figure or organised crime figure by name or position or with any descriptors despite being given the opportunity to do so. The Tribunal notes the applicant was unable to nominate [a minister of a particular portfolio] at the time of her departure at the hearing despite raising his corrupt behaviour in her written claims. It is also of concern to the Tribunal that the applicant changed her testimony during the hearing when she originally stated the position the applicant refused to concede to someone else prior to her departure had been for those connected to rich and powerful people and that later in the hearing the applicant claimed the positions were for less educated people in politics. When the applicant was challenged by this inconsistency at the hearing, the applicant was unable to provide a direct response. The Tribunal finds the applicant fabricated this specific claim and does not accept the applicant had been targeted by anyone in Sri Lankan parliament, a political party or the government more generally. The Tribunal notes that as a former [Agency 1 officer] in [a particular division], the applicant was well placed to be able to identify or nominate senior [Agency 1] officials who had allegedly threatened her but was unable to do so, despite working in the same organisation. Based on the applicant’s vague and inconsistent testimony, the Tribunal does not accept the applicant was ever targeted or threatened by anyone in [Agency 1] in Sri Lanka for any reason. The specific claim the applicant was targeted by figures in the underworld or organised crime (or centralised criminal syndicates) was undermined by her testimony at the hearing when the applicant said she had specifically feared petty or violent criminals who operated randomly and opportunistically. In this regard the Tribunal does not accept she was specifically targeted by any one in organised crime or any specific underworld figure in Sri Lanka as claimed in her written claims. While the Tribunal acknowledges she was able to mention by name the chair of [a] selection committee and [a member of the army] in a consistent way, the Tribunal places little weight on this evidence as the applicant’s evidence was overwhelmingly vague, inconsistent and lacking in conciseness as outlined above. Based on the applicant’s lack of consistency outlined above and in the context of the Tribunal’s considerable credibility concerns, the Tribunal does not accept the applicant was targeted or threatened by anyone in authority in Sri Lanka in the past, including officials in the [selection] committees, the police force, the army, organised crime or in parliament, political parties or in government in general.
In the context of the applicant’s overall lack of credibility and detail provided to the Tribunal, the applicant has invited the Tribunal to consider whether the past harm to her family members and threats to the applicant occurred at all. The applicant claims that her parents have been harmed in 2013 soon after she departed; that her [sibling] made a formal complaint to the police in 2014 about threats from [a member of the army]; and that her parents’ neighbours have been asked about the applicant’s whereabouts. At the hearing, the Tribunal noted that the authorities would not have required to intimidate or monitored the applicant’s family members because the applicant’s whereabouts would have already been known through its centralised computerised system for international departures and arrivals. The Tribunal has already made a number of findings it does not accept the applicant was targeted by any one authority or organised crime for the reasons stated. Based on the applicant’s overall lack of credibility, the Tribunal does not accept the applicant’s family were ever harassed, monitored or harmed in the past as claimed by the applicant.
Based on these significant adverse credibility findings, the Tribunal places no weight on the content of the submitted documents from the applicant’s family members to support her claims. The Tribunal finds the applicant’s family has assisted the applicant in fabricating her claims for protection for migration and not out of any genuine fear the applicant will be harmed on return to her country of origin and reference. Accordingly the Tribunal does not accept the applicant was ever threatened over the phone or through family members for any Convention or non-Convention, as claimed by the applicant.
On the basis of its considerable credibility concerns, the Tribunal does not accept that the applicant will face any serious or significant harm of any kind from being threated, monitored, harmed or even killed by anyone in authority or in organised crime, because the applicant refused to step aside [in] [Event 1] held in Australia in 2013 as claimed, for a Convention or non-Convention reason, now and into the foreseeable future.
Risk chance of serious harm or real risk of significant harm as a single woman
The Tribunal has considered the claims that as a single woman in Sri Lanka she faces a real chance of serious harm or real risk of significant harm if she returns to Sri Lanka.
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.
The Tribunal has also considered if the applicant meets the threshold for the ‘real risk’ element in the complementary protection criterion in s36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[5]
[5] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 32, as re-issued 21 May 2015. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department of Immigration and Citizenship which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013) (upheld on appeal in MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013)) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[6] Unlike the refugee criterion, s.36(2)(aa) does not require that an applicant hold a subjective fear.[7]
[6] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.
[7] SZVVE v MIBP [2015] FCA 837 (Perram J, 13 August 2015) at [21].
The Tribunal has considered country information pertaining to single, widowed or war widowed women in Sri Lanka and pertaining to criminal activity. According to DFAT’s most recent report into Sri Lanka, women are vulnerable to serious or significant harm in certain circumstances:
2.36 Crime rates across Sri Lanka vary, but are highest in Colombo District and tend to be higher in the Western Province and the Northern Province. The incidence of homicide throughout has fallen sharply in recent years and is now comparable with other South Asian countries, UNODC estimated a murder rate of 3 per 100,000 in 2011, but the rates of many other serious crimes, including assault and rape have either remained steady or increased slightly. DFAT is aware of increased reports of gender based violence (GBV) in the north and east, and has been told that these reports of GBV have not been met with an effective response.
[…]
3.88 Rape and domestic violence are criminalised under the Prevention of Domestic Violence Act of 2005. Marital rape is an offence only in cases where the individuals are legally separated. Sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum five-year prison sentence. Reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas. A majority of cases are likely to go unreported due to associated social stigma. Domestic violence is also reported to be high, but is also likely to be underreported given the stigma associated with it and conservative views that it is a family matter, especially in Tamil culture. The Asian Human Rights Commission has said that most cases reported to authorities result in ‘settlements’ which do not proceed to prosecution, although sentences are sometimes given in serious cases. President Sirisena’s election manifesto committed to taking action to prevent the abuse of women (and children), including speeding the trial process for these offences. It is too early to assess implementation of this commitment.
The Immigration and Refugee Board of Canada, ‘Sri Lanka: Whether widows, single women and single mothers are vulnerable to violence or any other ill-treatment in Colombo (January 2003 - June 2004)’, 25 June 2004:
In Sri Lanka, one in every five households is headed by a woman (Daily News 25 Mar. 2003). Of the total female households, 23.3 per cent are located in urban centres, and 65 per cent are headed by widows (ibid.).
Two news articles reported that discrimination and social stigma are common towards female-headed households, which are deemed to be inauspicious and are not culturally accepted (ibid.; Women's Feature Service n.d.). Female heads of households are viewed as being unlucky and a bad omen and are generally not invited to community ceremonies such as weddings and festivals (ibid.; Daily News 25 Mar. 2003). Furthermore, "[f]atherless children are ... often ill-treated by society. Female-headed households are always under the threat of rapists, womanizers and often become easy targets of criminals" (ibid.).
This is also true of widows, who are also reportedly discriminated against (UNIFEM 10 June 2004; IPS 4 Nov. 2003; Daily News 25 Mar. 2003). One source referred to widows as being considered "inauspicious" by Sri Lankan society (ibid.), another as "bad luck" (UNIFEM 10 June 2004) and still another as victims of "[s]ocial stigma, loneliness, economic difficulties, pressure from the family and sexual harassment" (IPS 4 Nov. 2003). The Inter Press Service (IPS) explained that although a system of financial assistance exists for war widows, there are problems because those who collect this money are often "at risk of harassment from military personnel" while those who remarry risk losing their husband's salary or pension (ibid.). Another news article stated that:
"[n]ight [v]iolence", a new phenomenon in rural areas, is experienced by war widows, and other widows, single parents, divorcees and others. Women in Anuradhapura have reported threats of violence at night, as well as actual violence where men trespass [into] their homes to make demands for sex (Daily News 19 July 2003).

The applicant makes no claim to be a widow, a war widow or a woman who is the head of a household. There is no suggestion the applicant will reside in either the Northern or Eastern Provinces as a single woman. The applicant however claims she will be vulnerable as a single woman in Sri Lanka and she has a fear of crime rates in Sri Lanka in these circumstances. As discussed at the hearing, the applicant has the support of her family and [siblings] who are readily available to accompany her in public places, if required. It was further noted the applicant had spent considerable time in Sri Lanka as a single woman and has not been harmed and that she had been trained to defend herself as [an Agency 1 officer]. The applicant expressed concern that she would not return to Sri Lanka in [Agency 1] and would be considerably vulnerable. The Tribunal does not accept the applicant faces a real chance or a real risk to serious crimes in Sri Lanka as a single woman. The applicant has the ongoing support of her family and has spent considerable time as a professional single woman in Sri Lanka, traveling to and from her workplace, without being harmed. Based on country information, the Tribunal is also not satisfied the crime rate is substantially rising as claimed. It is also not satisfied that at its current rate the risk to the applicant would amount to a real chance or real risk of harm to her or any similar Sri Lankan citizens, including single Sinhalese women. Based on the applicant’s individual circumstances and the available country information, the Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm of any kind, if she were to return to Sri Lanka arising as a single woman or because of criminal activity or because of a combination of these factors, now and into the foreseeable future.
Individually and cumulatively, the Tribunal has considered the claims made in her visa application for protection and at the scheduled hearing to be lacking any substantive or reliable written, documentary or oral evidence to support her critical claims. Based on its extensive credibility concerns, the Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm, now or into the foreseeable future.
Accordingly, the Tribunal finds the applicant does not face a real chance or real risk of harm from being targeted for corrupt or any other motives as claimed, for any reason. The Tribunal finds the applicant does not face a real chance or a real risk of harm arising from not being able to access services, accommodation, and employment or have a real chance or real risk of harm from physical harassment or ill treatment, including sexual assault, or any other serious or significant harm, for any reason.
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will face serious harm if she were to return to Sri Lanka, now or in the foreseeable future. Accordingly, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations. The applicant does not have a well-founded fear of persecution if she returned to Sri Lanka for any Convention or non- Convention reason at all.
The Tribunal has considered each of the applicant’s’ claims again the complementary protection criteria in s.36(2)(aa) and whether there is a real risk of significant harm, as a necessary and foreseeable consequence of the applicant removed from Australia to Sri Lanka.
Based on the available information and evidence, the Tribunal is not satisfied that 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment.
Conclusions
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Brendan Darcy
Member

[2016] AATA 4867

5 May 2016

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Immigration

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