1504782 (Refugee) - [2015] AATA 3410

1504782 (Refugee) [2015] AATA 3410 (31 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504782
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Fraser Syme
DATE:31 August 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 August 2015 at 2:08pm

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

The applicant is a [age] year old man from Northern province, Sri Lanka. According to the applicant, in 1996 his brother was forced to join the Liberation Tigers of Tamil Eelam (“LTTE”) to allow the rest of his family to relocate to a displaced persons camp. His brother left the LTTE in 2002, but was then caught by the Sri Lankan army and held in detention for 18 months. Upon the applicant’s father paying a bribe, the brother was released. The applicant’s family has since lost contact with his brother. The applicant was detained once in 2007 by the Sri Lankan army and once by the Elam Peoples Democratic Party (“EPDP”) in 2008, both times he was released when his captors recognised the applicant did not know the whereabouts of his brother. Since 2009, the applicant’ s workplace was [damaged], he has often been checked and questioned by the Sri Lankan authorities and paramilitaries – so he went into hiding, including by going to [Country 1] in 2012. He fears he will be harmed by Singhalese, Sri Lankan authorities or paramilitaries because he is a Tamil, from the north of Sri Lanka and as someone who is from a wealthy or perceived to be from a wealthy Tamil family. He fears the Sri Lankan authorities or paramilitaries too will harm him because of his brother’s connection to the LTTE and that he applied for asylum in Australia.
The applicant first applied to Refugee Review Tribunal (“RRT”) (differently constituted) on 5 December 2012 for review of a decision made by a delegate of the Minister for Immigration [in] October 2012 (the delegate’s decision is not dated) to refuse to grant him a Protection visa under s.65 of the Migration Act. The applicant included a copy of the decision record of the delegate with that review application. The RRT affirmed that decision on 9 October 2013 (RRT file 1219191).
The application is before the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”) for reconsideration following Orders of the Federal Circuit Court of Australia (FCC file SZTLV) [1] that the decision of the RRT is affected by error. The Court found the RRT failed to properly consider the applicant’s claims related to fearing harm because he is from a wealthy or perceived to be from a wealthy Tamil family.
[1] SZTLV v MIBP [2015] FCCA 773
This review application raises the following issues for the Tribunal to determine:
a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka.
b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka
HISTORY OF APPLICATION FOR REVIEW
The applicant who claims to be a citizen of Sri Lanka arrived in Australia as an unauthorised maritime arrival. He applied to the Department of Immigration for a protection visa [in] August 2012. In the decision under review the delegate accepted the applicant’s claims regarding his brother and his past incidences of detention and questioning, but found the applicant did not have a significant profile that would cause him to be of interest to the Sri Lankan authorities. On the basis of country information, the delegate found that the applicant did not have real chance of serious or significant harm because he is a Tamil, had an imputed pro- LTTE or anti-EPDP political opinion or as a failed asylum seeker, if he returned to Sri Lanka. The applicant did not raise his claims about being from a wealthy Tamil family before the delegate.
The RRT made its decision on largely the same basis as the delegate in relation to events which occurred before 2009 but largely rejected as fabricated the applicant’s claims from 2009 onwards – including rejecting claims of threats against him and his family’s business. The applicant first raised his claims regarding being a wealthy Tamil in a post hearing submission of the applicant’s then migration agent. The RRT acknowledged that claim in its decision, but as noted above, the FCC judged the first Tribunal did not expressly address in its findings the applicant’s claim he feared harm as a member of the particular social group of wealthy or perceived to be wealthy Tamils.
The applicant appeared in person before the Tribunal via video at a first hearing on 9 July 2015 and at a resumed hearing on 20 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an onsite interpreter in the Tamil and English languages. The applicant’s former migration agent has ceased representing him at the time of the Tribunal hearings and provided no additional submissions.
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.
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.
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’).
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 (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There are two DFAT country information assessments regarding Sri Lanka, to which the Tribunal has had regard: DFAT Country Report – Sri Lanka (“DFAT Country Report”) and DFAT Thematic Report – People with links to the Liberation Tigers of Tamil Eelam (“DFAT Thematic Report”).
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In making its findings, the Tribunal is mindful the applicant has primary school level of education and was [age] years old at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
The Tribunal finds the applicant is a national of Sri Lanka. He provided a copy of his Sri Lankan identity documents. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered his home village, as the place he resided for the majority or his life and where his parents and sister continue to reside to be his home region in Sri Lanka.
The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal put to the applicant during the hearing it considered his credibility was an issue.
Well-founded fear of persecution
The Tribunal is mindful it must consider the applicant’s chance of harm not only currently but into the reasonably foreseeable future. In making its findings, the Tribunal has considered PAM3 Refugee and humanitarian - Refugee Law Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
The Tribunal has had regard to the findings of the delegate and of the RRT as well the decision of the Court. The view of the Tribunal is that other than the failure to fully address the applicant’s claims regarding being a wealthy Tamil, the decision of the RRT comprehensively sets out and addresses all of the issues raised by the applicant’s claims and the evidence before the RRT. That the Court identified no other errors in the RRT’s decision weighs strongly in favour of such a view.
The Tribunal discussed with the applicant in detail his claims related to membership of a particular social group of wealthy or perceived to be wealthy Tamils, the Tribunal also discussed with the applicant whether he had any additional evidence or claims of harm regarding his being a Tamil from the north of Sri Lanka, his imputed links to the LTTE and his applying for asylum in Australia.
Membership of particular social group of wealthy or perceived to be wealthy Tamil family
The applicant told the Tribunal that the EPDP and CID continued to constantly threaten his family. EPDP came 5-6 times each year and CID came 15-16 times to ask about his brother. His family home is located close by to an EPDP camp. He explained he thought that was in part to do with their wishing to locate his brother, but recently realised it was too because they perceived his family to be wealthy. He further explained that the EPDP were in essence doing the dirty work that the Sri Lankan authorities were unable to do themselves.
He stated the threats were against him and his [family members]. The Tribunal noted that threats on their own may not be a form of serious or significant harm. It further noted that if the motivation of the CID and EPDP was to get some of the wealth of the applicant’s family, it would appear the family’s wealth was very vulnerable now. It had difficulty accepting as plausible why the CID or EPDP would not have before now taken such wealth from the applicant’s sister and [parents]. The applicant first offered as an explanation that the CID or EPDP would not commit violence against women. The Tribunal noted the information in the DFAT report regarding the prevalence of violence against women. The applicant later sought to explain that the CID and EPDP wished to lure the applicant back so that they could in turn get his brother and then they would take the family wealth. The Tribunal put to him it had difficulty accepting the plausibility of that, again noting the vulnerability of his [family] and it would be a far easier proposition for the CID or EPDP to take the family’s wealth from [his family members] than from the applicant and/or his brother.
The Tribunal commented it appeared neither he nor anyone in his family have been harmed in the past for reason of being part of a wealthy family. He replied that was he and his brother are away, so there is no one to attack. The Tribunal noted there was the applicant’s [other family members]. It considered no attempt being made to take the family’s wealth from the family when it was in such a vulnerable situation greatly undermined the applicant’s claims he would be harmed because he is a member of a wealthy family.
When asked how wealthy was his family, the applicant initially replied his family are not rich or poor, they have sufficient assets. When the Tribunal commented that would suggest his family are not wealthy and there may therefore not be a real chance he would be harmed for that reason, the applicant then sought to change his evidence to say his family were not superrich, just low level business. He claimed his earlier evidence was a mistake and that it was the Tribunal’s fault it had told him earlier to just answer questions yes or no. The Tribunal noted it had asked him an open question how wealthy his family was and it did not limit his evidence about that.
The Tribunal questioned the applicant too about why he did not raise any claims he feared harm due to his family’s wealth until after the hearing with the RRT. He replied that he told the RRT his family made money from running its own business. He claimed he told the RRT his family had land, houses and vehicles, but the RRT did not ask him about those things. He knew that his family were being harassed only to take their wealth, but the RRT did not ask about that. The Tribunal noted that did not explain why he did not raise these claims before the department. He replied that he did not think it would play an important role. He had not been extorted for money when detained in the past by the EPDP, he only came to realise the importance of his family’s money after the RRT hearing. When asked how he came to that realisation, he said as a result of recent investigations he made with friends of his brother in 2013 about brother transporting items for the LTTE which led him to guess his brother made a lot of money. He claimed the EPDP told his sister they would use him to get his brother and extort money from both of them. The Tribunal noted he claimed his brother had been missing since 2006, why had he not contacted these friends of his brother before the recent contact. He replied he faced no harm until problems started for him in 2008/9. The Tribunal had difficulty accepting the applicant would not contact his brother’s friends until 2013. The Tribunal further noted the applicant guessing his brother made a lot of money was inconsistent with his earlier evidence that his family had lots of property and houses.
After the hearing, the Tribunal sent a letter to the applicant adopting the procedure in s.424A inviting him to comment or respond on: why he did not raise and claim regarding fear of harm due to his being from a wealthy Tamil family until after the RRT hearing. The applicant responded stating he had little contact or assistance from his former migration agent in preparing his application for protection. The Tribunal is not persuaded this is a reason why the applicant himself did not raise any issues regarding fear of harm because his family is wealthy and undermines his evidence that he did not realise his family’s wealth was in issue until after he investigated with the friends of his missing brother after the RRT hearing.
The Tribunal rejects that the applicant comes from a wealthy family or would be perceived to be from a wealthy family. The Tribunal considers the applicant has fabricated this claim. Firstly, it is not persuaded by his reasons why he did not raise the claim until after the hearing with the RRT. The Tribunal considers if the applicant genuinely feared harm because of his family being wealthy, it is reasonable to expect him to have raised that earlier. Moreover, the applicant’s own evidence was that his family are not wealthy, which he then sought to change upon the Tribunal noting that may undermine his claim. His reasons for seeking to explain why he wished to change his evidence again were not convincing. Weighing heavily against the applicant is the implausibility in his claim that the CID and EPDP continue to threaten his family and do so he believes in part because of his family’s wealth, yet, neither the CID or EPDP has attempted to take any of the family wealth – albeit there is only the applicant’s [sister] and [parents] protecting that wealth. Further implausible is the applicant’s claim it was only after the RRT hearing did he realise the role his family’s wealth played in the harassment of the CID and EPDP and then only after he made some investigations with friends of his missing brother. The Tribunal finds it implausible the applicant would only inquire about his missing brother with those friends after the RRT hearing and not at the time of his brother’s disappearance. The Tribunal considers too the applicant concluding from those investigations was an assumption his brother had made a lot of money. That is inconsistent with his earlier claims the family owned lots of land and vehicles. The Tribunal therefore rejects that he made those investigations. For those reasons the Tribunal rejects that the CID or EPDP have been harassing or threatening his family in the past. The Tribunal considers the applicant has fabricated his claims that his family own lots of property or vehicles. He has done so in order to create a profile which would increase his chance of receiving protection.

For those reasons, the Tribunal considers there to be only a speculative chance, and therefore not a real chance the applicant faces serious harm from the CID or EPDP or any other persecutor because his family are wealthy or perceived to be wealthy. As the Tribunal has found there is no real chance of harm, it is unnecessary for the Tribunal to make a finding as to whether member of a wealthy or perceived to be wealthy Tamil family is a particular social group.
Tamil – imputed political opinion
At the resumed hearing, the Tribunal discussed with the applicant his claims regarding he would be harmed by the Sri Lankan authorities because he is a Tamil, from north of Sri Lanka and because he will be presumed to have a connection with the LTTE. The applicant told the Tribunal other than his brother, neither he nor any other family member was connected to the LTTE.
The Tribunal questioned the applicant about his departing Sri Lanka using his Sri Lankan passport at the airport in Colombo to fly to [Country 1] in 2012. He confirmed that was a passport lawfully issued in his own name. He then changed his evidence that he had to pay SLR90,000 to an ‘agent’ to get the passport for him. He explained this was his second passport. His first passport was caught by the CID in the possession of another ‘agent’ and he had not responded to requests of the CID to talk with them about that. The Tribunal put to the applicant it had difficulty accepting he was wanted by the Sri Lankan authorities for suspected connection to the LTTE and in relation to his first passport, yet he was able to depart Sri Lanka through the airport in Colombo using a passport issued in his own name. He then said he followed the instructions to go through a particular counter at the passport inspection and he paid a fee or SLR350,000 for everything. The Tribunal noted from his entry interview he claimed his sister paid a total of SLR900,000 for everything. He said that was what was paid to an [Country 1]n ‘agent’. The Tribunal told him the inconsistencies in the amounts he paid caused it to doubt he paid any amounts at all and that made the Tribunal doubt too he was a person of interest to the CID.
After the hearing, the Tribunal sent a letter to the applicant adopting the procedure in s.424A inviting him to comment or respond on: why he gave inconsistent evidence regarding the payment of fees to obtain issue of his Sri Lankan passport and to depart Sri Lanka. The applicant responded stating that the figures he quoted in the hearing are what he paid to the Sri Lankan ‘agent’ and the figures he quoted in the entry interview are what his sister paid to the [Country 1]n ‘agent’. The Tribunal is not persuaded by that explanation. The question he responded to in the entry interview was for the ‘total amount’ he paid. Further, it seems implausible that his sister in Sri Lanka would pay fees to an agent in [Country 1] when she is in Sri Lanka and the applicant was the one who went to [Country 1]. The Tribunal accepts the applicant paid fees to come to Australia but considers the applicant’s inconsistent evidence in relation to fees he paid leads the Tribunal to conclude he paid no fees to obtain his Sri Lankan passport or depart through the airport in Sri Lanka. Further, the Tribunal considers the applicant being able to depart Sri Lanka using a passport in his own name strongly undermines his claims that he was wanted by the CID or EPDP either due to his missing brother, suspected links to the LTTE or of interest to the CID or any other Sri Lankan authorities because an earlier missing passport. The Tribunal considers the applicant has fabricated his claims that he was of ongoing interest to the CID or EPDP for reasons of his missing brother, suspected links to the LTTE, a lost passport or any other reason.
The Tribunal accepts the applicant is Tamil. The applicant’s evidence to the department and to the Tribunal was that other than his missing brother, neither he nor any other member of his family had any connection to the LTTE other than they lived in LTTE controlled areas.
The Tribunal told the applicant it was willing to accept that the applicant’s claims he had been questioned in the past by the Sri Lankan authorities about whether he had any connection to the LTTE, but noted he was never charged and was always released. He referred to his claimed period of detention of 17 days in 2007. The Tribunal noted that occurred within the context of the Sri Lankan civil war and that he was eventually released on Orders of the court.
The Tribunal considers the implication in much of the applicant’s claims is he will be harmed by the Sri Lankan authorities as someone suspected of links with the LTTE or opposed to the government because he is a Tamil and because he lived in the north of Sri Lanka. Regardless whether that is considered in terms of his ethnicity, imputed or actual political opinion or membership of a particular social group, the Tribunal considers the issues under consideration are substantially the same.
The Tribunal discussed with the applicant country information regarding the situation for Tamils. It noted the UNHCR 2012 eligibility guidelines for assessing the protection needs of asylum seekers from Sri Lanka [2] and the UK Upper Tribunal guidance decision of 2013 [3] indicate Tamils are not in need of protection unless they have other characteristics, such as ties to the LTTE. According to the UNHCR a risk factor exists for a Tamil with certain actual or imputed links to the LTTE. The decision of the UK Upper Tribunal, indicates that although the Sri Lankan authorities are described as ‘paranoid’ about an LTTE resurgence, simply because a Tamil has had LTTE connections or sympathies in the past will not now of itself cause the Sri-Lankan government to consider that that person is a destabilising threat. The risk is limited to those who are or are perceived to have a significant role in relation to post-conflict separatism. The Upper Tribunal decision too indicates that the Sri Lankan authorities are aware persons who lived or worked in areas of Sri Lanka previously controlled by the LTTE had some level of involvement with the LTTE during the civil war, but that would not cause the Sri Lankan authorities to consider such a person to be a risk. The Sri Lankan authorities collect and maintain sophisticated intelligence gathering techniques to identify persons with substantial links to the LTTE. The Tribunal therefore having regard to that information does not consider all Tamils would be imputed with a pro-LTTE political opinion just because they are Tamil.
[2] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26-37 <
[3] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
The applicant replied the Sri Lankan government consider everyone in the north of Sri Lanka is connected to the LTTE and they do not just look at the individual, but the whole family would be looked at. What really happens in Sri Lanka is not reported in English. The Tribunal noted it was open for the applicant to provide translations of non-English reports, but he had not done so. He replied he had been waiting for an opportunity to do so. The Tribunal commented the applicant received the hearing invitation in April. He had a reasonable opportunity to provide any such reports. He then claimed he did not know that the Tribunal would discuss country information with him. The Tribunal noted it told him during the first hearing it would discuss country information with him.
Elsewhere in the hearing the when referring to harm to Tamils, the applicant spoke generally of claims that there is no justice, freedom or independence in Sri Lanka. The Tribunal takes these to be claims that Tamils suffer from discrimination and harassment.
The Tribunal accepts that the independent evidence indicates, at least until the end of the civil war in 2009, that Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities. The Tribunal also accepts that the information indicates that the risk was more prevalent in LTTE dominated Northern and Eastern areas. This is consistent with the applicant’s claims of general discrimination and persecution of Tamils. The independent evidence supports the applicant’s claims that during the civil war many thousands of Tamils disappeared, presumed dead, and thousands of others were killed or injured. The DFAT country report states the situation for Tamils in Sri Lanka has changed significantly since the cessation of the civil war between the Sri Lankan government and LTTE in 2009. However the Tribunal accepts on basis of the country information provided by the migration agent that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. Human Rights Watch has reported that there is evidence of continuing atrocities against some Tamils who were members or supporters of the LTTE. [4] The Bar Human Rights Committee of England and Wales [5] and Amnesty International report on surveillance, intimidation and monitoring of former LTTE members by the security forces. [6] The DFAT thematic report refers to there a high risk of harm to high profile former members of the LTTE. However, while the Tribunal accepts the harassment and discrimination that Tamils may face in Sri Lanka does give rise to some harm as indicated in the country information, the Tribunal is not satisfied when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm.. The Tribunal accepts based on the country information that most Tamils experience some degree of harassment and discrimination. Having considered the applicant’s individual circumstances, the Tribunal is satisfied the applicant faces a remote chance and therefore not a real chance of serious harm because he is a Tamil.
[4] See Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January 2013. (Harrison F.2013, ‘Tamils
still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November
[5] Y Sooka, March 2014, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014” Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA
37/011/2014, September, p. 11
The applicant said it was inevitable he would be harmed by the EPDP, as his house is located next door to their camp. For the reasons set out above, the Tribunal rejected the EPDP have threatened his family in the past. Although the applicant has claimed his home is located close to an EPDP camp, the Tribunal does not consider there to be anything but a remote or speculative and therefore not a real chance the applicant will face serious harm from the EPDP.
The Tribunal has considerable doubts regarding that his brother was a member of the LTTE. It is significantly concerned by his claim during the hearing he only made investigations with friends of his brother in 2013, even though he claims his brother has been missing since 2006. As noted above the Tribunal has rejected the applicant made those investigations and the Tribunal is mindful the applicant sought to rely on the investigations to explain his claims regarding his family’s wealth. The applicant has otherwise provided generally consistent evidence throughout his claims that his brother was forced to join the LTTE and after leaving the LTTE was held in detention by the Sri Lankan authorities but went missing after being released. At that time, the applicant claims the brother was transporting items of the LTTE. The Tribunal is willing to give the applicant the benefit of the doubt and accept his claims related to his brother. The question therefore is whether having a brother who was a former member of the LTTE is sufficient for the Sri Lankan authorities to consider the applicant is someone who is of interest to them. In the view of the Tribunal, the answer is no. The Tribunal forms that view for the reasons that: the brother has been missing for approximately 9 years; the brother himself was released by the Sri Lankan authorities, strongly suggesting the Sri Lankan authorities did not consider the brother to have any significant role in the LTTE; albeit the applicant has been questioned and detained in the past by the CID and EPDP regarding his links to the LTTE, the applicant has always been released and the country information suggests the Sri Lankan authorities do not consider persons with limited links to the LTTE to be persons of interest.
On the basis of the country information discussed above, it does not accept he will be imputed with any anti-government or pro-LTTE opinion because of any of the other reasons he has claimed he will be imputed with such a political opinion, including: he is a Tamil or because he lived in an LTTE area in the north of Sri Lanka or because he was questioned in the past about connection to the LTTE or because his home is located close by to an EPDP camp. The Tribunal places considerable weight on the applicant being able to depart Sri Lanka to [Country 1] using a passport in his own name strongly undermines that he was in anyway of interest to the Sri Lankan authorities or the EPDP. The Tribunal considers there is only a speculative and therefore not a real chance he will suffer serious harm by the Sri Lankan authorities, EPDP or Singhalese because of his race, any particular social group or political opinion or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Failed asylum seeker
There are two aspects to the applicant’s claim. That the Sri Lankan authorities will impute him with a pro-LTTE/anti-government political opinion because he applied for asylum and that the Sri Lankan authorities will seek to punish him because they will assume the applicant was critical of them in his claims for asylum.
The Tribunal considers the Convention ground relevant to this claim is an implied political opinion of being against the Sri Lankan authorities due to the applicant’s applying for asylum overseas or his membership of the particular social group of returned failed asylum seekers. Interrelated to this is his race as a Tamil and an implied political opinion of being pro-LTTE because he is a Tamil and/or applied for asylum overseas. Regardless of which Convention reason, the Tribunal considers the issues under consideration are substantially the same.
The Tribunal discussed with the applicant country information that there are reports [7] of some Tamils being questioned, detained and tortured by the Sri Lankan authorities upon return to Sri Lanka as failed asylum seekers, particularly from the UK. Freedom from Torture and Tamils Against Genocide report on returnees with links to the LTTE or the Tamil diaspora being harmed on return by the Sri Lankan authorities. The Tribunal is mindful too of reports such as that of HRW [8] as to the prevalence of the use of torture by the Sri Lankan authorities when questioning or detaining persons. The UK Home Office [9] noted six and the Canadian Immigration Refugee Board [10] four cases of failed asylum seekers being detained upon return, all of whom had criminal charges outstanding in Sri Lanka. The DFAT Country Information Report indicates all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka, the same information is reported by the British [11] Canadians. [12] Thousands of asylum seekers have returned to Sri Lanka since 2009 from Australia, US, Canada, UK and European countries but there are relatively few allegations of mistreatment and the DFAT country information report states many allegations of mistreatment of returnees have not been substantiated. The Tribunal put to the applicant that it did not consider he had a profile as someone with links to the LTTE or the diaspora and that he would not be imputed targeted for harm because he applied for asylum in Australia.
[7]See: Freedom From Torture 2014, Freedom from Torture up-dated submission to the Human Rights Committee for the 5th periodic review of Sri Lanka in October 2014, 1 October <
[8] We will teach you a lesson Sexual Violence by Sri Lankan Security Forces, 26 February 2013, UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March
[10] Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August <
[11] UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, pp.202-203
[12] Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August <

The applicant replied three people from his village were arrested. The Tribunal told him it accepted that happened if they returned after departing Sri Lanka illegally. He further said the government would not change anything would probably be voted out at the next election. The Tribunal discussed with the applicant the reports [13] of the presidential elections run in January 2015 not being marred by political violence when compared to past elections. He further stated only people in Sri Lanka know what really happens.

[13] see: J. Burke, The Guardian (8 January 2015), “Sri Lankan polling stations close with high voter turnout” ; BBC “Sri Lanka’s Rajapaksa suffers shock election defeat” (9 January 2015) ; BBC “Sri Lanka’s Maithripala Sirisena looks to have toppled Rajapaksa” (9 January 2009) ; and Centre for Monitoring Election Violence 2015, Presidential Election 2015 – Statement at the Conclusion of Polling, 9 January >

With his s.424A response, the applicant included a letter and an article regarding the treatment of failed asylum seekers by the Sri Lankan authorities. The letter is dated August 2014. It refers to the use of torture by the Sri Lankan authorities and refers to cases of persons charged for illegal departure from Sri Lanka, which is not the circumstance of the applicant. The article is dated August 2015. It particularly refers to 6 individual claims of use of torture by the Sri Lankan authorities on returnees to Sri Lanka from Australia. It states too that Australia has returned more than 2000 persons to Sri Lanka

Elsewhere he said he may be able to get out of the airport, he will be exposed to harm back at his home. The Tribunal discussed with the applicant that according to information from DFAT [14] returnees are generally met either by DFAT or IOM staff at the airport. Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia are questioned by the Sri Lankan authorities upon return to the airport in Colombo. The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person’s family and the police in their home area. Those who have departed Sri Lanka illegally will be charged with offences. However, as the applicant departed Sri Lanka legally to [Country 1] in 2012.

[14] DFAT Country Information Report: Sri Lanka, 31 July 2013; (CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012, CX304258 of 27 February 2013 and DFAT report 1479 of 4 March 2013)

On the basis of the country information set out above, the Tribunal does not accept that all failed asylum seekers are imputed with anti-government or pro LTTE political opinion by the Sri Lankan authorities, regardless whether the returnee is Tamil or not. In making that assessment the Tribunal has had placed weight on the UNHCR guidelines and the Upper Tribunal guidance decision noted above which indicate that while persons with links to the LTTE may be in need of protection, the Sri Lankan authorities rely on sophisticated intelligence gather in identifying persons with such links.
After assessing all the evidence and the applicant’s circumstances as a whole, the Tribunal finds that the applicant will not be imputed with an anti-government or pro LTTE political opinion because he will return to Sri Lanka as a person who applied for asylum overseas. In reaching that finding, the Tribunal has given regard to the country information on the return of failed asylum seekers to Sri Lanka and has been mindful of the questioning process and not just the outcome of any questioning the applicant may face from the Sri Lankan authorities as a returnee and is not satisfied that questioning when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm. The Tribunal is not satisfied the applicant has a real chance of serious harm because of an implied political opinion or membership of any particular social group however described arising from the applicant returning to Sri Lanka as a person who applied for asylum in Australia if the applicant returns to Sri Lanka, now or in the reasonably foreseeable future.
The Tribunal considers his claims further below in relation to complementary protection.
Real risk of significant harm
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
Discrimination and harassment
The Tribunal accepted above on basis of the country information that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. The Tribunal has had regard to whether that harassment and discrimination amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the harassment of or discrimination towards Tamils involves severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, the harassment and discrimination cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could the harassment or discrimination be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal accepts the harassment and discrimination may cause some humiliation to the applicant, but is not satisfied that the harassment and discrimination would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the harassment or discrimination will amount to significant harm.
Failed Asylum seeker
The Tribunal has had regard to whether the harm the applicant may suffer arising from his return as a failed asylum seeker, in particular, being detained at the airport and questioned, is significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, or detained for investigation will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, or detained for investigation cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, or detained for investigation would cause extreme humiliation which is unreasonable.
In relation to the balance of the applicant’s claims, the Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. 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.[15] Given the test is the same, for the same reasons set out above in relation to real chance, the Tribunal is not satisfied the applicant has a real risk of significant harm.
[15] [2013] FCAFC 33
The Tribunal therefore considers there are no 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).
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.
Fraser Syme
Member

Freedom from Torture 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September < Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009-2011, p.23; Tamils against Genocide, “Returnees at Risk: Detention And Torture in Sri Lanka”, (16 September 2012);