1506237 (Refugee)

[2018] AATA 2900

1506237 (Refugee) [2018] AATA 2900 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506237

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:8 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 June 2018 at 4:50pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Imputed political opinion – Pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government – Ethnicity – Tamil from the north east of Sri Lanka – Frequently travel to India – Detention of family members by army – Son considered LTTE sympathiser by the Criminal Investigation Department – Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 19D(4)

Migration Act 1958, ss 36, 65

Migration Regulations 1994, ss 424A, 424AA, 438, 499

CASES

MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 235 ALR 609

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 31 January 2014 and the delegate refused to grant the visa on 13 April 2015.

3. The applicant appeared before the Tribunal on 20 April 2017 and 14 February 2018 to give evidence and present arguments. At the first hearing the Tribunal also received oral evidence from [Ms A], who is the applicant‘s daughter.  The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

5. The Tribunal notes on 12 July 2017 this case was reconstituted to a different Member. In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.19D(4) of the Administrative Appeals Tribunal Act 1975.

6. The issue in this case is whether the applicant faces a well-founded fear of persecution for a Convention reason or otherwise whether the complementary protection provisions apply.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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).

9. 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.

10. 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’).

11. 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.

12. The Tribunal notes after the second hearing DFAT released a new country information report on Sri Lanka, dated 23 May 2018.  The new DFAT report confirms information that was discussed at the Tribunal hearings with the applicant, where relevant. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Non-disclosure certificate

13. As a preliminary matter, in this case the Department of Immigration (the Department) issued a certificate restricting disclosure of information it had received from a third party pursuant to s.438(1) of the Act after the delegate’s decision (and after the Tribunal’s first hearing). As discussed at the second hearing, the Tribunal considers the certificate valid because it was given to the Department in confidence.

14. The information to which the certificate is subject related to allegations from a third party, casting doubts on aspects of the applicant’s protection claims. The particulars of the information relevant to the applicant’s case were set out in a letter the Tribunal sent to the applicant on 15 November 2017 pursuant to s.424A of the Act, with a copy of the s.438 certificate (attached to the decision record). The applicant was invited to comment on that information but failed to do so. Nonetheless the Tribunal decided to exercise its discretion to conduct a further hearing to discuss issues arising as a result (and any relevant updates in the applicant’s circumstances given the time that had passed between hearings). At the second hearing the representative claimed she never received the Tribunal’s s.424A letter via email, which is why she did not respond, however it was sent to the last email address provided in connection with the review. The Tribunal set out the relevant information to the applicant at hearing pursuant to s.424AA of the Act, as well as gave the representative a copy of the original s.424A letter, and granted her additional time to respond to that information. The applicant’s new representative appointed after the second hearing requested additional time to respond to the information, which the Tribunal granted. On 21 March 2018 the representative provided a written response, submitting that the information is irrelevant to the applicant’s protection claims and should be given no weight because it was given anonymously and appears to have been given with the intention to hinder the applicant’s prospects, noting the applicant and her daughter have had a disagreement with some family members in [City 1, Australia].

15. The specific information and response is addressed where relevant below, in relation to the applicant’s specific protection claims and issues that arise in this case. 

    Health and memory problems

16. At the first Tribunal hearing the applicant claimed she had had a stroke and had difficulty remembering things as a result.  Her representative requested further time to provide medical evidence of such, which the Tribunal granted.  In a written submission[1] received after the first hearing the representative submits that the applicant’s past traumatic experiences in Sri Lanka and stroke she suffered ‘most recently’ has made it difficult for her to recall specific events or details.  She attached a letter from [Dr B], consultant psychiatrist, [Suburb 1], dated 3 May 2017.  In his letter [Dr B] states the applicant is under his care for the treatment of a ‘Confused State’; that she had a stroke with partial paralysis of the right side of the face on 20 June 2014 and was treated at [Suburb 1] Hospital as an inpatient for two days; she was confused; her memory is poor; she repeats almost all questions and finds questions difficult to answer; she would need constant care (almost 24 hours daily) and attention; and he understands that her daughter [Ms A] is willing to care for her.  

    [1] Dated 10 May 2017.

17. To explain the applicant’s at times confused and vague oral evidence at the first hearing the representative contends in her written submission that, in addition to health problems, the applicant is over [a certain age], illiterate, from a rural village and has never attended school or been employed in her life.  However her submission in this respect is undermined by information contained in the protection visa application that the applicant attended primary school and secondary school in Sri Lanka up to [a certain year].  Therefore the Tribunal does not accept she is illiterate and never attended school as submitted.

18. At the second hearing the representative submitted another letter from [Dr B] dated 12 February 2018 which essentially repeats the content of his letter from May 2017, absent his signature.  At hearing the applicant explained that the doctor was not at the clinic when she went to get an up to date letter so his wife ‘tampered’ with the old letter before giving it to her. 

19. Other medical evidence provided by the representative to the Tribunal at the second hearing included a copy of the applicant’s [Suburb 1] Hospital Department Discharge Summary dated 29 June 2014, an imaging request from [a health facility] dated 18 July 2014 (for investigation of chest pain) and a letter from [Dr C], GP [at the health facility] dated 13 February 2018.  Notably, there is no mention of the applicant suffering a stroke (or having memory problems) in any of these documents provided, including the letter from [Dr C] who outlines the applicant’s medical history and diagnoses to February 2018.  Nor is there any mention of a stroke in the applicant’s April 2017 statutory declaration provided to the Tribunal before the first hearing.  In the discharge summary from the [Suburb 1] Hospital it states that the applicant presented to the emergency department on that day presenting with right side head ache and facial droop and the diagnosis was Bell’s palsy.  This diagnosis was confirmed in the letter from [Dr C] who stated: ‘Phx Right Bell’s palsy June 2014 – nil residual problems.  Normal CT brain’.  With this in mind the Tribunal asked the applicant at hearing if her diagnosis after presenting at the emergency department with partial face paralysis in June 2014 was for Bell’s palsy or a stroke.  She said it was a stroke: she had paralysis of the right side of her face, was admitted to the [Suburb 1] Hospital in 2014 and still uses eye medication.  However, apart from the letters from [Dr B], her treating psychiatrist who records her medical history as having suffered a stroke in June 2014, there is no other medical evidence to confirm that was the case.  Instead the hospital records and recent letter from [Dr C] clearly state the applicant was diagnosed with Bell’s palsy at this time.  The Tribunal accepts the applicant may have erroneously believed she suffered a stroke given similar symptoms, and this may have been incorrectly communicated to her psychiatrist, [Dr B], as reflected in his letters to the Tribunal.  However, based on the medical evidence provided from [Suburb 1] Hospital and the letter from [Dr C], the Tribunal finds the applicant suffered from Bell’s palsy in June 2014, received treatment and the Tribunal is satisfied that apart from taking eye medication, there are no residual problems.  

20. The Tribunal is willing to accept the applicant may have some memory problems, attributable in part to her age and experiences living in a country in the past with a protracted civil war.  At some points in the hearings she appeared confused and her evidence was vague at times, in particular when trying to recall dates and sequencing of events.  The Tribunal has kept this in mind when assessing her evidence, giving some weight to the letter from [Dr B] in this regard.  However, overall the applicant was able to answer questions at hearing relatively lucidly.  Furthermore, as set out below, the Tribunal has a number of credibility concerns with the applicant’s evidence in key respects, including matters of implausibility, which cannot be explained by poor memory problems. 

21. With respect to the applicant’s mental health [Dr C] notes in her letter that the applicant was last seen by a psychologist in 2014 – 2015 for ‘anxiety management strategies, sleep hygiene issues and chronic pain’.  She identified the applicant’s concerns related to her health and visa uncertainty at the time.  [Dr C] fails to mention the applicant’s visits to [Dr B] at all, which casts doubts on the applicant’s claims at hearing to having been seeing a psychiatrist to help with her memory problems since her alleged stroke.  Her oral evidence about her treatment with [Dr B] was also vague; for instance she was unable to remember since when, or how often (she said ‘off and on’), and she was vague about specific treatment she received apart from stating that her doctor told her not to think too much and to relax.  Despite these concerns, the Tribunal accepts the applicant may have experienced anxiety in the past for which she underwent treatment as set out in the letter from [Dr C].  Although her evidence was vague, the Tribunal is also willing to accept the applicant may have seen a psychiatrist ‘off and on’ whilst in Australia, however he has not indicated a specific diagnosis or identified any specific mental health concerns, apart from concerns with memory as discussed.  Given these considerations the Tribunal does not accept the applicant’s mental health is so poor as to lead to a real chance of serious harm or a real risk of significant harm on return to Sri Lanka in the foreseeable future. 

22. The Tribunal has considered the applicant’s other health concerns.  [Dr C] states in her letter that the applicant was first seen on 12 May 2014 for management of her ‘complex medical and social issues’.  She lists a number of health [diagnoses].  [Dr C] describes the applicant’s medical conditions as ‘serious and chronic’, although she states currently her condition remains stable (she did not specify what condition).  At hearing the applicant indicated stomach problems (she did not elaborate).  The Tribunal accepts the applicant has numerous health problems, some chronic and some which require management of symptoms through medication for example.  Having regard to the information contained in the letter from [Dr C] the Tribunal is satisfied the applicant does not suffer from any particularly severe medical problems which cannot be managed through medication [or] further medical treatment [if] required.  There is no claim or information before the Tribunal to indicate that the applicant would not be able to access such medical treatment in Sri Lanka in the future if required.   

23. The Tribunal accepts the applicant has some ongoing health problems but is of the view that her ill-health and incapacity to work as a result (for example) have been exaggerated. In reaching this conclusion the Tribunal has had regard to an allegation received by the Department, as set out in a letter to the applicant after the first hearing pursuant to s.424A of the Act, which included that the applicant was currently working in a shop in [Suburb 1] and it is not true that she is sick. At the second hearing the applicant explained that her daughter has a shop in [City 1, Australia] where she goes and waits; sometimes she takes orders to help out her daughter and often lies down on a bed there. In a written submission the Tribunal received after the second hearing in response to this information, the representative submits that as the applicant is still unwell with limited mobility her daughter takes her to her shop where there is a bed and kitchen at the back where she stays during the day. She provided a statutory declaration[2] from the applicant’s daughter – [Ms A] - who confirms she runs a business and owns a [shop] in [Suburb 1]; that her mother attends her business with her daily because she is unable to leave her unattended at home; while her mother is mobile she needs assistance with everyday tasks; her mother usually stays at the back of the shop and does not work for her nor is she able to perform any tasks; she believes the information provided to the Department is false and unsubstantiated; and requested the Tribunal disregard the information provided by an anonymous person.

    [2] Dated 3 March 2018.

24. The Tribunal accepts the applicant’s daughter runs a shop in [Suburb 1] and the applicant may visit there regularly and may rest at times at the shop.  However this information, combined with the applicant’s own oral evidence that she helps out sometimes, for example by taking orders, and that whilst her daughter helps care for her, she is able to look after herself with basic daily tasks such as bathing and cooking, leads the Tribunal to the view that the applicant’s health problems have been exaggerated in this case.  The Tribunal does not accept she is unable to work and needs constant care.  Given these considerations the Tribunal finds the applicant does not face a well-founded fear of persecution or a real risk of significant harm if returned from Australia to Sri Lanka on the basis of ongoing chronic health problems.   

    Country of nationality

25. The applicant last arrived in Australia on 23 November 2013 as the holder of a visitor visa on a Sri Lankan passport issued in her own name.  The Departmental file contains copies of selected pages of the applicant’s passport.  On this basis and given the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts the applicant is a national of Sri Lanka and has assessed her protection claims accordingly. 

    Background and claims

26. The applicant is [an age] year old Tamil woman from Trincomalee, (originally from Jaffna) eastern Sri Lanka who last came to Australia in November 2013.  Her husband, daughter and son currently reside in Sri Lanka, a daughter and son live in [Country 1] and another daughter ([Ms A]) lives in Australia. 

27. The applicant claims to fear serious harm from the Sri Lankan authorities on imputed (pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government) political opinion grounds because she is a Tamil from the north east of Sri Lanka, because she frequently travelled to India from 2007 to 2012, because [Ms A] and her husband were detained by the army in 2004 after being intercepted by the Karuna Group ([Ms A]’s husband has since  disappeared) and because her son was considered an LTTE sympathiser by the Criminal Investigation Department (CID) in 2013.

28. The applicant set out her initial claims for protection in a written statement[3] to the Department, summarised as follows:

    [3] Dated 31 January 2014.

    ·She moved to Trincomalee from Jaffna in around April 2004, when the LTTE split.

    ·Her daughter ([Ms A]) and her husband were intercepted by members of the Karuna Group and they handed over her daughter to the army (her son-in-law remains missing). Her daughter was detained by the army at their camp in Batticaloa for six months where she was beaten, forced to preform hard labour and experienced attempted sexual assault by the soldiers.

    ·The applicant’s whole family was targeted; several of her relatives have been offered protection by Australia; and the army believes her family and the applicant are LTTE sympathisers.

    ·To secure her daughter’s release the applicant had to pay a sum of money to the army and her daughter was released on the undertaking that she report to the army camp each week.

    ·After her release, the applicant and her daughter moved to Trincomalee in late 2004; around six months after the tsunami on 26 December 2004 the army visited frequently looking for the applicant’s daughter; and on 2 January 2006 five Tamil students were shot on the beach, and there is widespread speculation it may have been by police, or Karuna paramilitaries.

    ·Her daughter came to Australia in 2006.

    ·The north east part of Sri Lanka is still subject to military rule and the government perceives those from the north east as LTTE supporters or sympathisers.

    ·The applicant travelled to India frequently from 2007; however, she was prevented by the authorities from leaving the country at the end of 2012 because they considered she supported the LTTE and was travelling to India to pass information on to the LTTE supporters there.

    ·In September 2013 her son ([Mr D]) was questioned by the ‘Crime [sic] Investigation Division’.

    ·Her nephew and daughter have been accepted as refugees by the Australian government.

1. Material provided to the Department in support of the visa application included news articles and a blog about the situation in Sri Lanka for Tamils and other human rights concerns.

2. On review the applicant provided a statutory declaration[4] to the Tribunal in which she reiterates and elaborates upon her initial protection claims.  As well, she states that she fears persecution on return to Sri Lanka as a failed asylum seeker whose children have been suspected of supporting the LTTE.  She sets out the ‘most significant incidents’ in her past that will affect her on return as follows:

   In 1995 the LTTE started recruiting young men and women to their movement.  My daughter was approached by the LTTE and to avoid her being forcibly recruited to the LTTE movement, I moved to [Town 1] from [Town 3] with my family.

   In 2004 when we moved to Trincomalee, my daughter was arrested and held in detention in Batticaloa for 6 months.  At the time the Karuna’s paramilitaries were in control of Batticaloa and they harassed and persecuted those who had come from Jaffna, because everyone who came down from Jaffna was suspected to have links to the LTTE.  During the detention of my daughter she was tortured and the rest of her family including myself, we were all targeted.

   Karuna Group arrested my daughter and her husband was handed over to the army and we never could find him.  Even to date he is missing and we don’t know what happened to him.  That is how ruthless the army is.  Fortunately, my daughter [Ms A] managed to flee Sri Lanka in 2006 and came to Australia.  Her claims to be a refugee were accepted and today she is a citizen of Australia.  Her claims were the same as mine.  We both went through the same agony and suffering at the hands of the Sri Lankan authorities and the Karuna group at the time.

   My son who is now in [Country 1] was questioned in September 2013 by the Crime Investigation divisions.

   My nephew [was] accused of being a supporter of the LTTE and he fled the country and sought refugee status in Australia.  He was accepted in Australia as a refugee in Australia in 1997. 

   [4] Dated 18 April 2017.

3. The representative provided a written submission[5] to the Tribunal in which she refers to country information from various sources including TamilNet, Amnesty International, Human Rights Watch and the International Crisis Group about ongoing concerns for Tamils and those suspected of LTTE links in post war Sri Lanka.

   [5] Dated 12 April 2017.

4. The applicant gave oral evidence to the Tribunal about her and her family’s past experiences in Sri Lanka and fears upon returning there now at the Tribunal hearings, summarised where relevant as follows. 

5. The applicant said she left Sri Lanka because the CID and the army were looking for her because she helped the LTTE in the past by giving them food when she used to live in [Town 1], and also in Trincomalee, particularly following the release of her daughter from being detained for six months in 2004 (described further below). 

6. The applicant said prior to coming to Australia in November 2013 she lived in Trincomalee: she could not recall how long she had lived in Trincomalee for – stating maybe four, five or 10 years. Before that she had lived in [Town 1], Jaffna.  She was unable to remember the dates when she moved.  At the first hearing the applicant stated that after her daughter came to Australia in 2006 and before she came to Australia in 2013, she was living by herself in Trincomalee.  However, at the second hearing she said that she lived with her husband and son in Trincomalee.  Her husband was also living in Trincomalee, but they do not speak since they separated in 2009. 

7. The applicant said [Ms A] was not an LTTE member whilst in Sri Lanka however she used to make and give them food, as did the applicant, when they lived in [Town 1]. 

8. After [Ms A] married and moved to Batticaloa members of the Karuna Group took her and her husband.  [Ms A] was released six months later after her in-laws paid money and sometime after that [Ms A] came to Australia.  The applicant does not know what happened to [Ms A]’s husband, who remains missing. 

9. The applicant said after [Ms A] went to Australia in 2006 the army and CID used to come and ask about her; initially she said ‘over and over’ again, then later at hearing she said not every day, but ‘off and on’ until she left Sri Lanka in 2013.  As a result, the applicant said she hid in different houses in Trincomalee.  She said they came because of the applicant’s daughter and because the applicant had fed the LTTE in the past.  When asked if there was ever a time when the army caught her, given her claims they were looking for her, the applicant said ‘no’ because she used to hide in a lane behind her house and in a neighbour’s yard.  When asked why the CID was looking for her, the applicant replied because she took her daughter away (from them) and because she had helped the ‘movement’.  When asked why the CID were still wanting to ask about her daughter so many years after she had left Sri Lanka (in 2006) and after the war had finished (in 2009) the applicant said even after the war the CID and Sinhalese army are still continuing there.

10. The applicant said she first came to Australia in 2009 because her nephew had died in an accident.  She returned to Sri Lanka around 15 days later and returned again to Australia in November 2013 because her mother – in Australia at the time – was sick, and because the CID was looking for her and she was in hiding. 

11. The applicant said she visited India 12 times from 2007 until 2012. Her son from [Country 1] used to visit her there, as well as her younger sister. They did not meet her in Sri Lanka because they had problems.  They met in Trichy, Tamil Nadu and stayed with relatives.  She had no problem leaving the Colombo airport and returning, but claimed that is because people helped at the airport. 

12. The applicant said her son, [Mr D], was taken by the CID for questioning in Sri Lanka from Trincomalee, sometime after he returned from living in [Country 2] to get married.  She could not recall when, but said it was when the war was going on.  When asked why he was taken by the CID, the applicant did not answer, but said he scolded her and blamed her for his problems (because she and [Ms A] had helped the LTTE by providing food).  He left Trincomalee and they had no further connection.  When asked if anything has happened to her son or daughter in Sri Lanka or any other relatives after the applicant left, the applicant replied that she does not talk to them, noting that when she was living alone in Sri Lanka they did not visit her.  At the second hearing she said she had not had much contact with them and they do not tell her much because she is sick. 

13. The applicant said her husband currently lives in Trincomalee with [Mr D]. He used to be a fisherman but no longer works because of [health] problems.  The applicant clarified that they are still married but she does not talk to him.  When asked if she would live with her husband on return to Sri Lanka she replied ‘no’.  When asked where she would live if she had to return, the applicant did not reply, and instead stated that all her siblings are in Australia and she cannot live with her husband, who is a [patient].

14. The applicant said even now people who have helped the LTTE in the past are facing serious problems, including being detained and harmed.  She is fearful of being harmed because she gave the LTTE so much food, and noted that the authorities do not care if she is old. 

15. [Ms A] also gave oral evidence to the Tribunal in April 2017, summarised as follows.  She said she came to Australia around 2006 and was granted protection on the basis that she and her husband were arrested by the Karuna Group (in collaboration with the army) as suspected LTTE supporters in Sri Lanka.  Her mother paid them a lot of money and as a result is facing a lot of problems.  She was unable to state when she and her husband were arrested, stating that she wanted to forget her story.  She was held by the Karuna Group for six months.  [Ms A] said she was not an LTTE member and she does not know about her husband’s past life. 

16. After she was released by the Karuna Group, [Ms A] said she went to Trincomalee and ‘they’ used to come and inquire about her. 

17. When asked if she has returned to Sri Lanka since coming to Australia in 2006,  [Ms A] replied ‘two or three times’ to see her mother because she was sick, staying only for a few weeks in Colombo.  She would meet her mother in Colombo.

18. [Ms A] said her mother had a lot of problems from the CID in Sri Lanka.  Her mother came to Australia in 2009 and returned to Sri Lanka thinking there would be no problem.  However there are a lot of problems and arrests in Sri Lanka and she had no help over there.  When asked if her mother told her anything over the phone about her problems, [Ms A] said normally her mother would not tell her about her situation because she did not want her to think about such things.  She only started sharing when she came to Australia in 2013.  When asked what she shared – for example any particular incidents – [Ms A] said her mother told her the CID used to come and take her for enquiries because she took [Ms A] away from them.  They used to ask her whereabouts and about the help they gave the LTTE.  When asked if there were any particular incidents including recently before her mother came to Australia (in November 2013), [Ms A] replied that all her mother’s problems were because of her: she paid money to get her released from being detained by the Karuna Group, and they promised to come back to sign in, but she came to Colombo and then Australia and did not return.

19. [Ms A] said her brother in Sri Lanka was taken by the CID once and he blames their mother for his problems because their mother helped the LTTE; as a result he has stopped talking to her.  When asked when her brother was taken by the CID, [Ms A] said before the applicant came to Australia the second time.  She is not sure why, noting they do not talk much because her brother is annoyed with her because of all these problems.  Her brother also thinks it is a possibility that her husband turned against them, noting they did not know his past history and do not know what her husband may have divulged to the authorities.  The Tribunal considers this is speculation and does not find the applicant faces a well-founded fear of persecution from the authorities on the basis of speculation that her son-in-law may have divulged some information about her or her family to the authorities in the past.

20. [Ms A] said her husband remains missing and noted that still people go missing in Sri Lanka, including in Trincomalee.  She reiterated that the authorities have been harassing her mother because she paid for her release from the Karuna Group in 2003 or 2004 and a condition of her release was to go and sign in regularly but she did not.  She added that they do not know what her husband told the authorities and the authorities want to destroy all people connected to the LTTE.

    Findings on the applicant’s past experiences in Sri Lanka

21. The Tribunal accepts the applicant is a Tamil woman originally from Jaffna who lived in Trincomalee on Sri Lanka’s east coast before last coming to Australia in November 2013.  It accepts her claims to have travelled from Jaffna to [Town 1] and then to Trincomalee due to the government fighting with the LTTE in the past.  It accepts her claims of having to move around a lot to avoid the fighting and to avoid her children being forcibly recruited by the LTTE.  The Tribunal also accepts her claims of her relatives being killed and property being destroyed during the fighting in the mid-90s as set out in her statutory declaration provided to the Department, including her niece and nephew being killed in a bomb blast at their school.  However as these incidents took place a long time ago during the war – which ended in May 2009 – and there was no follow up incidents or issues, the Tribunal does not find the applicant faces a real chance of serious harm in relation to the these past incidences on return to Sri Lanka in the foreseeable future.

22. The applicant’s claims about being visited and monitored by the CID in [Town 1] were very vague at hearing and she fails to mention this at all in her initial written statement provided in support of her visa application.  For these reasons the Tribunal does not accept she was visited and monitored by the CID in [Town 1]. 

23. The applicant’s central claims relate to her adverse profile attributed to her by the CID in Sri Lanka because she helped feed the LTTE and because her daughter was detained by the army (with paramilitary support) for six months before being released on payment of monies in 2004.  Her son-in-law was taken at the same time and remains missing.  The Tribunal notes both the applicant and her daughter’s oral account of [Ms A]’s experiences in this respect was limited and vague and when pressed [Ms A] replied that she did not want to think about it.  This is understandable to a certain extent.  Given [Ms A] has been granted protection in Australia and country information indicates reports of Tamils were taken and detained by paramilitaries at this time, often in concert with the authorities, the Tribunal is willing to accept that the applicant’s daughter and her son-in-law were abducted by the Karuna Group in around 2004, that the applicant’s daughter was held for held for six months in an army camp and mistreated there, and she left Sri Lanka sometime later, in around 2006.  The Tribunal also accepts the applicant’s son-in-law has been missing since.  Although the applicant failed to mention in her initial statutory declaration and at hearing her daughter’s alleged reporting requirements after her release, the Tribunal is also willing to accept she may have been required to regularly report to the army after her release from detention and that some enquiries immediately after her daughter was released from detention by the authorities may have been made when the applicant and her daughter lived together in Trincomalee around 2005/2006, having regard to [Ms A]’s oral evidence to the Tribunal in this regard. 

24. The Tribunal does not accept, however, the applicant’s claims that she was of adverse interest to the CID or army after [Ms A] left Sri Lanka in 2006 and continuing until the just before the applicant left in November 2013 as claimed, given a number of concerns with her evidence, as set out below, which cannot be explained away by the applicant’s health or memory issues.

25. The applicant’s oral evidence about her alleged problems with the CID from around 2006 to 2013 in Sri Lanka was vague, confused and at times evasive.  She was asked a number of times the nature of the problems and alleged harassment she received from the CID but only answered in general terms that they used to come, harass and torture her and she hid.  Her evidence was confusing about whether she was or was not actually questioned by the CID.  When asked if they actually harmed her, or even managed to talk to her, she said ‘no’ (at the first hearing) because she used to hide in a lane behind her house or in neighbours’ yards.  At the second hearing when asked the same question, the applicant said the CID did talk to her when they came looking for her in Trincomalee; however, she was unable to remember when, and when asked where, she said this occurred at her home in [Town 1].  The Tribunal has had regard to [Ms A]’s oral evidence that her mother told her the CID used to come and take her for enquiries.  However the Tribunal found [Ms A]’s oral evidence to the Tribunal, about her mother’s alleged problems that ensued as a result of her problems with the Karuna Group and the authorities after she left the country, very vague.  Whilst such vagueness could partially be explained by the fact that [Ms A] was not living in Sri Lanka when the problems occurred (that is from 2006 to 2013) and she wanted to forget as claimed, she did indicate that her mother shared what happened when she came to Australia in 2013 (and they currently live together).  When asked what her mother told her  about her experiences in Sri Lanka during this period, [Ms A] replied in broad terms that all her mother’s problems were because of her: she paid money to get her released from being detained by the Karuna Group and they promised to come back to sign in, but she came to Colombo and then Australia and did not return. However she did not provide any specific examples, and as mentioned her claim that her mother experienced problems because she paid money to get her released from the Karuna Group is undermined by the applicant’s oral evidence that it was her son-in-law’s family members who paid the money and made the arrangements, not the applicant.[6] 

    [6] The Tribunal notes this discrepancy does not constitute adverse information and is merely an inconsistency because on the applicant’s and [Ms A]’s evidence ultimately money was paid for [Ms A]’s release: SZBYR v MIAC (2007) 235 ALR 609.

26. The Tribunal also found the applicant’s oral evidence about allegedly being in hiding from the CID after they accused her of helping the LTTE was vague.  For instance she said she was in hiding in Trincomalee from when all the problems started but was unable to identify the problems specifically or provide any context.  When pressed she said she was in hiding from around 2000 and had been hiding all the time.  However her evidence was vague and somewhat implausible that she would be hiding all the time from 2000 and therefore the Tribunal does not accept her claims in this regard.

27. As well, the applicant’s claims before the Department and presented at the first Tribunal hearing that one of the main reasons the CID had an ongoing adverse interest in her was because she paid monies to the Karuna Group and/or army (or their intermediaries) at the time to secure her daughter’s release from detention has changed.  Specifically she told the Tribunal at the second hearing that it was her son-in-law’s mother and other relatives who paid the money and brokered [Ms A]’s release.  This explained – according to the applicant - why she did not know the amount, who the money was paid to or any other details.  The applicant’s oral evidence in this regard also undermines [Ms A]’s oral evidence that her mother’s problems in Sri Lanka were due, among other things, to the fact that she paid money to get her released from being detained by the Karuna Group[7].   

    [7] Ibid

28. There are other concerns the Tribunal has with the applicant’s claims that she was of ongoing adverse interest to the Sri Lankan authorities from 2006 to 2013 because of her daughter and because she provided food to the LTTE in the past as follows.

    a.The applicant continued to reside in Trincomalee until 2013, returning there after numerous trips to India, a visit to Australia in 2009, and also a trip to [other countries] (in around 2012) despite her claims to be of ongoing adverse interest to the authorities in large part because of [Ms A].  She did not seek protection in Australia in 2009 and returned to Sri Lanka.  At hearing she said she returned to Sri Lanka from Australia at that time because of news that the problems had subsided.  However she returned in late January 2009, which was before the end of the war in May 2009.  In her statutory declaration provided to the Tribunal the applicant said she did not apply for refugee status when she came to Australia in 2009 to attend her nephew’s funeral because she still had her daughter and son living in Sri Lanka and because Tamils in the east did not realise at the time that the situation would worsen once Trincomalee was under complete government control.  However the Tribunal notes the applicant’s son and daughter remained in Sri Lanka when she left in November 2013 and sought protection in Australia.  At hearing she said she wanted to return to Sri Lanka because her son, [Mr D], was living alone then and she wanted to live with him. 

    b.The fact the applicant was able to leave Sri Lanka and return many times from 2007 to 2012 without any problems indicates to the Tribunal that she was not of adverse interest to the CID or the authorities at the time.  At hearing the applicant said she did not experience any problems because she did not tell any neighbours or relatives when she left.  Her oral evidence was confused as to whether she actually paid bribes to leave the country: at the first hearing she initially said she used to pay ‘them’ money so they did not check at the airport all the time; however, she later said ‘no’ when asked if she ever gave money to anyone for her travels, apart from for her ticket and visa.  At the second hearing she said she ‘set up’ people who worked at the airport to ensure she did not face problems but did not provide any further details.  In her statutory declaration provided to the Tribunal the applicant states she fled the country with the help of an agent who got her visa and noted that it is well known that people get away from Sri Lanka with the help of authorities by paying ‘big’ money.  The Tribunal accepts bribery can take place in Sri Lanka and is willing to accept she may have paid her agent some money to help her exit without problems in November 2013.  It does not accept she used bribery the other times, given confused and internally inconsistent oral evidence to the Tribunal in this respect.

    c.The applicant told the Tribunal at hearing that [Ms A] has returned to Sri Lanka since coming to Australia in 2006 (and being found to be a refugee), which is not indicative of someone who fears serious harm in Sri Lanka from anyone.  At hearing the applicant initially said her daughter did not stay for many days and visited Colombo and Trincomalee, and then said she was unsure because they normally do not talk about it. 

    d.The applicant gave evidence to the Tribunal that her husband and son continue to live in Trincomalee, yet nothing has happened, despite her claims to have been of ongoing adverse interest to the CID.  At hearing when asked if they have experienced any problems, the applicant said she does not know because they do not tell her anything because she is sick. 

1. Given these concerns, whilst the Tribunal is willing to accept [Ms A] was detained by the Karuna Group for six months in 2004, alleged to have supported the LTTE at the time, and then released following payment by her husband’s family (and that her husband remains missing), and may have been required to report to the army, and the authorities may have visited on occasion before [Ms A] left Sri Lanka in 2006, it does not accept that the applicant was thereafter questioned by the CID or of any ongoing adverse interest to the CID or the army because of her daughter or for any other reason.  The Tribunal does not accept the applicant was in hiding in Trincomalee as claimed or that the CID have questioned her son or anyone else in relation to the applicant in the past. 

2. Looking to the future, the Tribunal has accepted that the applicant’s daughter was detained for six months by Karuna Group members and released after payment of money by her husband’s family members in 2004.  For reasons above the Tribunal does not accept that the applicant brokered her release as initially claimed, or that the applicant was of any adverse interest to the Karuna Group, CID or anyone else as a result.  Country information from the UK Home Office, as discussed at hearing, indicates that in general,  evidence of past membership or connection with the LTTE would not of itself warrant international protection, unless a person has or is perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state.[8]  The applicant has not indicated that she was ever involved with the LTTE in Sri Lanka – apart from providing them with some food whilst in Jaffna – or that she has been active in the diaspora community since leaving Sri Lanka and the Tribunal finds the applicant has not been active in the diaspora community.  

   [8] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

3. Based on this country information, and the fact the kidnapping of the applicant’s daughter and son-in-law took place 14 years ago and before the end of the war, the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka on the basis of being a family member of her daughter who may have been suspected of assisting the LTTE in some way as claimed, even when considered cumulatively with other aspects of her claims discussed above and below.  Her fear of persecution for this reason is not well founded. 

4. The Tribunal accepts the applicant (and her daughter) may have given food to the LTTE in the past, which was not uncommon at the time.  The applicant was vague at the first hearing about what else was done.  At the second hearing she said she also housed their motorbikes and parcels at her house in [Town 1] sometimes.  However given she had not raised this claim before and her oral evidence was vague, the Tribunal does not accept the applicant let the LTTE keep their motorbikes and parcels at her house in [Town 1] sometimes in the past.  Given the war has now ended and country information that indicates the situation has improved significantly since (set out below), the Tribunal is not satisfied providing food to the LTTE alone would give the applicant an ongoing profile such that she would be of adverse interest to the authorities. 

5. The Tribunal has considered the applicant’s claim that she is under more scrutiny by the authorities in Sri Lanka because her son, [Mr D], was questioned by the CID in September 2013 about his alleged connections to the LTTE.  The applicant’s oral evidence at hearing about the CID’s alleged interest in her son was vague and in some respects inconsistent with her written claims to the Department and Tribunal.  For instance, she was unable to recall the timing of his interrogation, apart from stating it occurred after he returned from [Country 2] to marry in 2008 or 2009, before the war ended.  ([Ms A] told the Tribunal her brother was questioned before the applicant came to Australia in 2009.)  This is inconsistent – by a number of years – to her claims in her written statement to the Department and statutory declaration provided to the Tribunal that her son was interrogated in September 2013.  A further concerns is in relation to the applicant’s claim in her statutory declaration provided to the Tribunal that sometime after her son was questioned and fled Trincomalee, the CID officers came looking for him and questioned her when she told them she did not know his whereabouts.  However the applicant did not mention this at hearing and when asked a number of times whether the CID actually spoke to her during their alleged visits to her house in the past, she replied that they did not because she hid. 

6. Furthermore, the applicant’s claim in her statutory declaration to the Tribunal that her son never returned to Trincomalee (from [Town 2]) as a result of being questioned by the CID, is undermined by her oral evidence to the Tribunal that he now lives in Trincomalee with his wife and [children] (and his father).  The Tribunal accepts that [Mr D] may have moved from [Town 2] to Trincomalee after the applicant wrote the statutory declaration in April 2017.  However, other concerns with her evidence in this regard, including a lack of apparent rationale for the CID to take such interest in her son in relation to her as claimed in September 2013, nine years after [Ms A] was released from detention, leads the Tribunal to doubt her claims in this regard.  For these reasons the Tribunal does not accept the applicant’s son was interrogated and harmed by the CID in September 2013 in Sri Lanka as claimed. 

7. The Tribunal notes in the representative’s response to its letter setting out information pursuant to s.424A of the Act, including that the applicant has no threat in Sri Lanka, the representative submits that the applicant’s family have been labelled as a family with LTTE links and is still under surveillance. She states also that the applicant’s son who sought asylum [overseas] (unsuccessfully) and returned to Sri Lanka is still under surveillance. Although she does not state his name, the applicant’s evidence to the Tribunal was that her only son in Sri Lanka currently is [Mr D]. The applicant made no mention at hearing that her son (or other family members) in Sri Lanka are under surveillance and when asked if they had experienced any problems, she replied that said she does not know because they do not tell her anything because she is sick. Given her oral evidence in this regard, and the limited information before it about the nature of the alleged surveillance to which [Mr D] (and the applicant’s family) in Sri Lanka are purportedly subject, combined with other credibility concerns as set out above, the Tribunal does not accept the applicant’s son and other family members are currently under surveillance in Sri Lanka.

8. The Tribunal has considered the applicant’s claim that she was suspected of being an LTTE supporter due to her frequent travels to India in the past and prevented from doing so as a result.  In her initial written statement provided to the Department the applicant states from 2007 she travelled to India frequently; however, the army prevented her from doing so towards the end of 2012 because they suspected her of passing information to LTTE supporters in India.  In her statutory declaration to the Tribunal the applicant states that she travelled to India several times to escape problems back home; her children came once to see her from [Country 1] because they could not come to Sri Lanka; and she stopped travelling to India in 2012 when the authorities questioned her and were suspicious of her regular visits there. The Tribunal accepts the applicant travelled to India from Sri Lanka at least 11 times prior to 2012 and she may have met her children from [Country 1] there.  However she made no mention of being questioned by the authorities as a result (or prevented from going to India) at hearing and when the matter was raised her oral evidence was vague and general.  For instance, she said because she went to India, the army made some enquiries about her but did not answer when asked when this occurred or provide any other details or context.  As well, when asked how they prevented her from going to India the applicant said they said ‘you are going and coming’ and the CID asked her why, but she did not indicate when or where, apart from stating that she used to hide when they came.  For these reasons the Tribunal does not accept the applicant was questioned about her frequent trips to India by the authorities, suspected of passing on information to the LTTE in India or prevented from visiting India by the Sri Lankan authorities in the past as claimed.  Combined with the Tribunal’s findings that the applicant was not of ongoing adverse interest to the authorities because of her daughter, because she gave food to the LTTE when in [Town 1] or for any other reason, the Tribunal finds remote the chance the applicant would face persecution from the authorities on return to Sri Lanka because of her visits to India from 2007 to 2012 on imputed (pro-LTTE/anti-government) political opinion grounds.

9. For these reasons (as well as those below) the Tribunal does not accept the applicant was questioned or threatened by the authorities (including the CID) or members of the Karuna Group in the past in Sri Lanka with respect to the fact she gave food to the LTTE or regarding the experiences or profiles of her children or for any other reason.  It does not accept that they regularly visited the applicant looking for her and that she hid from them.  The Tribunal accepts her daughter was detained by the authorities for six months in around 2004 and was granted protection in Australia around 2006 and her son-in-law has disappeared, but does not find the applicant faces a real chance of persecution on return to Sri Lanka on these bases.  The Tribunal does not accept the applicant’s son, who currently lives in Trincomalee with his father and has not reported any problems, was questioned by the CID in 2013 as claimed or is of any adverse interest to the authorities. 

10. Accordingly the Tribunal does not accept the applicant faces a well-founded fear of serious harm from the authorities on return to Sri Lanka on imputed (pro-LTTE/anti-government) political opinion grounds or as a member of the particular social group of her daughter’s family or her son’s family, or from belonging to a family with perceived links to the LTTE in the foreseeable future.  

    Family members who are refugees

11. The Tribunal has considered the submission that the applicant faces a well-founded fear of persecution on return to Sri Lanka on the basis of being related to people who have sought asylum (and in some cases found to be refugees) in other countries, in particular Australia and [Country 1].  It is submitted as a result she will be imputed with a pro-LTTE/anti-government political opinion and face serious harm on return to Sri Lanka. 

12. Whilst the Tribunal accepts the applicant’s daughter experienced problems in the past from the Karuna Group and the army and was granted protection in Australia in 2006, it does not accept the applicant faces a well-founded fear of persecution on return to Sri Lanka on this basis.  The Tribunal found the applicant was not of ongoing adverse interest to the authorities when she lived in Sri Lanka after her daughter had left and was granted protection in Australia, including during her numerous visits outside Sri Lanka.  For these reasons the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka from the authorities on the basis that her daughter sought asylum and was found to be a refugee in Australia, on imputed (pro-LTTE) political opinion grounds or on the basis of her membership of a particular social group of her daughter’s family.

13. The Tribunal accepts the applicant’s daughter and son went to [Country 1] sometime before [Ms A] came to Australia in 2006.  At hearing the applicant was unsure whether they had been granted protection there and was vague as to why they left Sri Lanka in the first place, apart from stating they left because they had problems and had people going after them (she did not elaborate).  [Ms A] told the Tribunal her brother and sister have been granted refugee status in [Country 1]; they went there about 10 or 15 years ago; and they left Sri Lanka because of fear of bombings at the time.  When asked if her siblings in [Country 1] had any LTTE connections, [Ms A] replied ‘no’. The representative provided to the Tribunal copies of documents relating to the applicant’s children’s immigration status in [Country 1].  This includes a letter from t[Country 1 authorities] which refers to the granting of indefinite leave to enter/remain in [Country 1] to [(the applicant’s son)] on 23 June 2011 (due to the strength of connections to [Country 1] and length of residence in [Country 1]) and a letter from [Country 1 authorities] dated 24 March 2006 granting indefinite leave to enter to [(the applicant’s daughter)].  Although it is not clear from these documents that the applicant’s children were granted refugee status in [Country 1], the Tribunal is willing to accept that may have been the case.  The Tribunal is also willing to accept the applicant children may have met the applicant in India in the past, because they did not feel safe at the time to meet in Sri Lanka.  However this for reasons below the Tribunal does not accept that this results in the applicant facing a well fear of persecution on return to Sri Lanka.

14. At hearing the applicant did not indicate that the authorities had shown an adverse interest in her when she resided in Sri Lanka – including the numerous times she travelled abroad from 2007 to 2013 – in relation to her children who had sought asylum in [Country 1] (or her sister in Australia). Nor has she indicated that her family members who have remained in Sri Lanka have faced any problems from the authorities or anyone else on this basis. Furthermore, in response to the Tribunal’s s.424A letter to the applicant which included information that her children in [Country 1] go to Sri Lanka, it was conceded by the applicant that her children in [Country 1] did go to Sri Lanka to visit to care for their sick father. This indicates that the applicant’s children who have been granted refugee status in [Country 1] themselves no longer face a real chance of persecution in Sri Lanka. For these reasons the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka on imputed (pro-LTTE) political opinion grounds because two of her children sought (and were granted) asylum in [Country 1].

15. The Tribunal notes in response to its s.4242A letter the representative indicated that the applicant’s son had sought asylum [overseas], but due to inadequate evidence his claim was rejected and he returned to Sri Lanka; however, he is still under surveillance (she did not elaborate).  The applicant did not mention her son – [Mr D] – who remains in Sri Lanka is under surveillance and for reasons above the Tribunal has not accepted that he was of any adverse interest to the authorities in Sri Lanka.  For these reasons, whilst the Tribunal accepts the applicant’s son in the past may have sought asylum [overseas] (unsuccessfully), it does not accept the applicant faces a well-founded fear of persecution from the authorities on return to Sri Lanka on this basis.  

16. The applicant claims other relatives have been found to be refugees in Australia, which adds to her risk profile.  Specifically, in her statutory declaration provided to the Department she states her nephew was found to be a refugee in Australia in 1997.  She states her nephew was present at the school in [Town 3] in September 1995 that was attacked and he lost his brother and the applicant lost her niece in the attack.  At hearing the applicant said her brother and two sisters came to Australia long before her daughter came (in 2006) and her mother came in 2009, who has since died.  She was unsure if any of them were found to be refugees.  [Ms A] gave evidence to the Tribunal that her grandmother (now deceased) and an aunt and uncle were granted refugee status in Australia.  The Tribunal accepts as possible that the applicant’s mother, nephew, sister and brother (and possibly other relatives) have been found to be refugees in Australia, possibly on imputed (pro-LTTE) political opinion grounds.  The applicant has not claimed that any of these relatives were actual LTTE members, are wanted by the Sri Lankan authorities, or have been active in diaspora activities, which may make them of ongoing adverse interest to the Sri Lankan authorities.  The Tribunal notes nothing happened to the applicant when she lived in Sri Lanka on the basis of her relatives seeking asylum in Australia – including during her numerous visits abroad from 2007 to 2012 – and she has not indicated that her family members who have remained in Sri Lanka have faced problems from the authorities on this basis. 

17. Given these considerations, the Tribunal finds remote the chance of serious harm to the applicant from the authorities or anyone else on imputed (pro-LTTE/anti-government) political opinion grounds or as a member of a particular social group of family members who have sought asylum and/or have been found to be refugees in other countries such as Australia and [Country 1] on return to Sri Lanka in the foreseeable future. 

    Fear of paramilitaries

18. The Tribunal has considered the applicant’s concerns about ongoing paramilitary activity in Sri Lanka including a fear of being kidnapped.  The Tribunal has accepted the applicant’s daughter and son-in-law were kidnapped by Karuna Group members around 2004, her daughter was released after payment of money around six months later, and that her son-in-law remains missing.  However, for reasons above, the Tribunal does not accept that after [Ms A] came to Australia in 2006 the applicant was of any adverse interest to the Karuna Group (or anyone) in relation to her daughter, son-in-law or for any other reason.  

19. In written submissions[9] to the Tribunal the representative argues that in Sri Lanka the security situation and the incidents of extrajudicial killings, disappearances and abductions for ransom have not reduced since the end of the war.  She refers to 2012 annual reports from Amnesty International and Human Rights Watch in this regard, as well as information published by the Immigration Review Board of Canada in February 2012 that security forces prefer to outsource much of their operational capacity to non-LTTE paramilitary groups such as the Karuna Group.   It is submitted that the report also notes the Karuna faction holds a close alliance with Sri Lanka’s security forces. The representative also refers to a report from the Human Rights Commission of Sri Lanka dated 18 April 2012 which records 21 complaints of disappearances from January to April 2012 at the commission’s head office and regional offices, including Jaffna, [Town 2] and Batticaloa.  The representative highlighted the following observation in the report that ‘whilst some of these complaints have been given publicity by the media, others have not received publicity’. Reference is also made to DFAT’s country information report on Sri Lanka dated 15 June 2010 which states they are aware of instances where extortion threats against Tamils ‘have involved abduction for ransom and also threats of murder’ and that extortion threats are primarily carried out by paramilitary groups.  The Tribunal has had regard to these reports; however, it notes many reports referred to are at least five years old and do not reflect a significantly changed situation in Sri Lanka, discussed further below. 

    [9] Dated 12 April 2017 and 10 May 2017.

1. In her submission the representative refers to more recent TamilNet articles about white van abductions allegedly continuing in Jaffna (dated April 2017) and the abduction of a Tamil businessman released after torture in Kilinochchi (dated October 2016).    

2. In her statutory declaration provided to the Tribunal the applicant states that although the ‘government bias’ reports indicate that incidents of extrajudicial killings, disappearances and abductions have reduced significantly and torture has decreased since the end of the war, this is not the real situation, especially in the Eastern Province where she states the current situation is ‘extremely dangerous’ and where Sinhala paramilitary groups are attacking the Tamil community living in Trincomalee.  She also stated that after she returned to Sri Lanka from Australia in 2009, the security forces (including military intelligence and others), working with armed paramilitaries in the east, were looking for LTTE supporters everywhere.  In this environment Tamils were detained and tortured before being released with a warning not to reveal information about their experience and threatened with rearrest or death if they did.  As well, she states there were secret places where suspected LTTE sympathisers were taken, tortured and often killed. 

3. The Tribunal accepts, based on country information including advice from DFAT, that systematic abductions using white vans, often leading to enforced disappearances, occurred during the conflict and post-conflict period.[10]  Country information also indicates that although there are no longer active paramilitaries in Sri Lanka, informants and intelligence operatives continue to work with the military.[11]   

   [10] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 4.7.

   [11] Austrian Centre for Country of Origin & Asylum Research and Documentation, CIS38A80123251, December 2016, pp.47-48. 

4. The Tribunal accepts that enforced disappearances occurred during the time of conflict in Sri Lanka and often Tamils were victims.  However, as discussed with the applicant at hearing, DFAT also indicates that incidents of extra-judicial killing, disappearances and abductions for ransom, including incidents of violence involving former LTTE members, have decreased considerably since the end of the conflict and DFAT understands that disappearances are no longer common.[12]  

   [12] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 4.1 and 4.7

5. On the basis of DFAT’s advice about the considerable decrease in disappearances and abductions since the end of the war and overall improved security situation, combined with the Tribunal’s findings that the applicant was not of ongoing adverse interest to the Sri Lankan authorities or paramilitaries such as the Karuna Group in the past and will not be on return, the Tribunal finds remote the chance the applicant would face serious harm including being abducted and/or ‘disappeared’ by paramilitaries such as the Karuna Group on return to Sri Lanka in the foreseeable future. 

   Tamil ethnicity and place of origin

6. The Tribunal has considered if the applicant faces a well-founded fear of persecution on the basis of her Tamil ethnicity, and being from the north east region of Sri Lanka, as submitted. 

7. In her initial statutory declaration to the Department the applicant stated that the government perceives those from the north east as LTTE supporters or sympathisers and that the north east is still subject to military rule.

8. The Tribunal accepts the applicant is a Tamil woman originally from Jaffna in the Northern Province and afterwards from Trincomalee in the Eastern Province of Sri Lanka from around 2004. It accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection,[13] including being from the north east and/or an area previously controlled by the LTTE.  Neither, as discussed at hearing, and mentioned earlier, in general would a person who evidences past membership or connection with the LTTE warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus  are a threat to the state.[14] The Tribunal accepts the applicant provided food to the LTTE in the past, noting it was not uncommon for Tamils to assist the LTTE in such ways during this period, but not that she assisted them in any other way.  For reasons above the Tribunal does not accept the applicant experienced any problems from the authorities in Sri Lanka in the past as a result, and she has not indicated that she has been active in the diaspora community since leaving Sri Lanka.  Given country information that indicates a connection to the LTTE in the past (in the absence of being perceived to be active in post-conflict Tamil separatism) is insufficient to warrant international protection, the Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka because of her limited support providing food to the LTTE many years ago before the end of the war, her daughter’s detention and perceived assistance to the LTTE in 2004, and on the basis of other family members’ perceived LTTE connections, as discussed.

   [13] DFAT, Country Information Report Sri Lanka, 23 May 2018; UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017; and UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December 2012.

   [14] UK Home, Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

9. In her statutory declaration provided to the Tribunal the applicant states that although the war has ended, the torture of Tamils has not, referring to a number of TamilNet articles.  She also states that the navy is deploying an extremist Buddhist group called the Bodu Bala Sena (BBS) to keep Tamils away from their lands in Trincomalee.  However she has not claimed that she or her family in Sri Lanka have been kept away from their land.

10. The representative argues in her written submissions to the Tribunal that the security situation in Sri Lanka has not improved and cautions against the assumption that torture has stopped or reduced as a consequence of the new (Sirisena) government.  She refers to an April 2017 report from Freedom from Torture and a March 2017 report from Human Rights Watch to support her contentions in this regard.  The representative submits that such reports confirm that Tamils with LTTE connections are subject to harassment even now.  Reference is also made to the May 2012 US Department of State report on human rights practices in Sri Lanka about frequent harassment of young and middle aged Tamil men by security forces and paramilitary in northern and eastern regions in 2011.

11. The Tribunal acknowledges that military and security forces remain in the northern province of Sri Lanka and parts of the east, and operate a number of commercial businesses as well as continue to occupy some fertile farming land in the north and restrict access to some fishing areas.[15]  However, as discussed at hearing, DFAT report that the security situation in the north and east has improved significantly since the end of the conflict in May 2009, with greater freedom of movement and a reduction in the military’s involvement in civilian life, and that most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula or smaller surrounding military camps.[16]  Further, DFAT note that the government has publicly claimed that military involvement in civilian activities has ceased.[17]

    [15] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 2.11.

    [16] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 2.32 and 2.36.

    [17]  DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.4.

12. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assess that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the current government.[18]  They do state, however, that surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues, ‘including missing persons, land release and memorial events’.[19] The applicant has not claimed to have been involved with any such issues that could be construed as politically sensitive.  Whilst the Tribunal accepts her son-in-law remains missing, this occurred 14 years ago and the applicant has not claimed to have been involved in any related protests or investigations and therefore the Tribunal finds remote the chance that she would be monitored and possibly face serious harm from the authorities on return on this basis or more broadly as a Tamil associated with politically sensitive issues.   

    [18]  DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.11.

    [19]  DFAT, Country Information Report Sri Lanka, 23 May 2018 at 3.9 and 3.11.

13. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity and in the immediate aftermath of the war.  However, in light of the end of the war in May 2009 and the country information cited above that assesses being of Tamil ethnicity does not on its own warrant international protection, and the improved security situation, the Tribunal finds  the applicant does not face a real chance of suffering serious harm on account of being a Tamil including from the north east, alone or in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed above and below.  

    Failed asylum seeker

14. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on a return to Sri Lanka as a failed asylum seeker.  It is submitted that she would be imputed with an anti-government political opinion on this basis and face a real chance of persecution on imputed political opinion grounds. 

15. In her statutory declaration provided to the Tribunal the applicant argues that as a failed asylum seeker on return to Sri Lanka she will be questioned at the airport; the first thing they will enquire about will be her family members, including her children; she will not be able to hide the truth about her children; and the fact that her son and daughter – once suspected and accused of being LTTE supporters – have sought refugee status overseas (in Australia and [Country 1]) will place her life in danger.  She also stated that whilst the Sri Lankan government state that Tamils returning to Sri Lanka will be safe, they are not, according to Aran Mylvagana of the Tamil Refugee Council.  She states further that failed asylum seekers on return to Sri Lanka will be detained by the security forces, interrogated, tortured and even sexually assaulted.  She attached a number of TamilNet articles to support her contentions, including reference to an article published on 4 December 2016 that stated that ‘Families associated with the LTTE in past face constant threats from Colombo Intel squads’.

16. On review the representative submitted to the Tribunal articles from The Guardian (dated October 2014) and The Conversation (dated March 2017) about the mistreatment of asylums seekers returned to Sri Lanka. 

17. At the hearing when asked about her concerns returning as a failed asylum seeker, the applicant said she is very fearful and there is no one to help her in Sri Lanka. 

18. The Tribunal has had regard to the submissions and relevant country information contained within them and acknowledges the applicant’s concerns articulated about what might happen to returnees, including (Tamil) failed asylum seekers if detained on return to Sri Lanka. 

19. At hearing the Tribunal discussed the standard procedures for processing involuntary returnees as set out in the DFAT Country Information Report on Sri Lanka.  In that report it is stated as follows:

    Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. [20]

    [20] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.28 and 5.29.

20. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of ethnicity and religion. DFAT further state that they understand that detainees are not subject to mistreatment during processing at the airport.[21]

    [21] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.29.

21. Also as discussed, DFAT state that during 2008-2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka, and many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil.  DFAT state further that although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to the south.[22]  

    [22] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.37.

22. As discussed at hearing and previously mentioned, the UK Home Office reports that in the UK country guidance case of GJ & Others, the UK Upper Tribunal identified as one of four risk categories individuals who are or perceived to be a threat to the integrity of Sri Lanka as a single state because they have or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[23] Such country information indicates that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.  The applicant has not indicated that she has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism and the Tribunal finds that she is not such a person.

    [23] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil separatism, Version 5.0 June 2017 at 2.3.9

23. While the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on her return to Sri Lanka, taking into consideration her particular profile as someone who has no criminal record and the findings above that she is not of ongoing adverse interest in respect of suspected LTTE links and has had no involvement in diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and she would not face a real chance of persecution as a Tamil failed asylum seeker.  The Tribunal accepts that the applicant may have supported the LTTE by providing food occasionally when she lived in [Town 1] which was not uncommon for Tamils living in that area during that period. It also accepts her daughter was detained for six months in 2004 and subsequently has protection in Australia, as do her children in [Country 1].  However it does not accept that she experienced problems from the authorities as a result nor would she on return for these reasons. The Tribunal finds remote the chance that the applicant would be imputed with an anti-government political opinion on these bases and seriously harmed by the authorities as a result on return, even when combined with other aspects of her profile, and given her Tamil ethnicity and originating from the north east.  

24. As well, the Tribunal does not accept the standard questioning process the applicant may be subject to would result in serious harm, even taking into account the applicant’s chronic health issues and some memory problems, as discussed earlier.  

100.   The Tribunal accepts that when the applicant returns to her home area of Trincomalee her arrival may be noted and she may be questioned by the Sri Lankan authorities.  The latest DFAT report confirms the earlier report that monitoring and surveillance of some returnees in the north and east continues and they may face some societal discrimination.[24]  However, given the Tribunal’s findings above, it does not accept there to be a real chance that such monitoring or surveillance would result in the applicant being targeted for harm by the Sri Lankan authorities, paramilitaries or anyone else in her home area on the basis that she is a Tamil who has sought asylum in Australia, or for any other reason.  Her fear of persecution on membership of a particular social group (‘failed asylum seekers’) and (related) imputed political opinion grounds because she sought asylum in Australia are not well founded.

[24] DFAT, Country Information Report Sri Lanka 23 May 2018 at 5.40–5.42.

Capacity to subsist

101.   The Tribunal has considered whether the applicant faces a real chance of serious harm in the form of significant economic hardship and/or denial of capacity to earn a livelihood of any kind that threatens her capacity to subsist, listed as instances of serious harm referred to in s.91R(1)(b) of the Act. 

102.   It has been submitted that the applicant has separated from her husband since 2009, is old, has health problems and has no family support in Sri Lanka given her children’s hostility towards her because she left their father. 

103.   At hearing the applicant said she did not work in Sri Lanka because of health problems: that is shortness of breath. While the applicant was in Sri Lanka her sister in Australia used to send her money.  She said that her husband, son and daughter currently live in Sri Lanka.  Her husband lives with her son and his family in Trincomalee and her daughter lives with her family in Jaffna.  She said her husband used to be a fisherman but no longer works because of [health] problems.  The applicant clarified that they are still married but she does not talk to him.  She said they were not living together after she first came to Australia in 2009.  When asked if she would live with her husband on return to Sri Lanka she replied ‘no’.  When asked where she would live if she had to return, the applicant did not reply, and instead stated that all her siblings are in Australia and she cannot live with her husband, who is a [patient]. She said she does not talk to her daughter who lives in Jaffna and rarely to her son. 

104.   The Tribunal has concerns about the applicant’s claims that she is separated from her husband and does not talk to her children in Sri Lanka for a number of reasons, including her vague and at times internally inconsistent evidence in this regard.  For example at the first Tribunal hearing she claimed they had separated since 2009 however at the second hearing she told the Tribunal that she lived with her husband (and son) in Trincomalee prior to coming to Australia in November 2013.  As well, whilst on the one hand the applicant claims she does not speak to her husband, son or daughter in Sri Lanka, in response to the third party allegation the Department received that the applicant’s husband in Sri Lanka has a business and a shop, and her son and daughter there have a shop she provided a letter[25] from her husband’s surgeon in Sri Lanka, a copy of a letter[26] from her daughter’s husband in Sri Lanka to the divisional secretary, [Town 3] (advising that his occupation is [deleted] and his income not sufficient to meet daily essential needs), and a handwritten letter from the applicant’s son, [Mr D], to the Grama Niladhari, Trincomalee date stamped ‘[2018]’ (stating that he is the breadwinner for his family but currently unemployed).  This indicates that the applicant is still in contact with her family members in Sri Lanka, who have provided these letters in support of her application.   For these reasons the Tribunal does not accept the applicant has separated from her husband and is estranged from her children in Sri Lanka.  It therefore finds she is likely to live with her husband and her son on return there.   For reasons above the Tribunal is of the view the applicant (and her daughter) have exaggerated her health problems and does not accept she is too sick to work or needs intensive daily care.  The Tribunal accepts her husband may be sick and her son unemployed at the moment, and the difficulty in the applicant finding work at her age with limited experience.  Nonetheless it notes the applicant’s oral evidence to the Tribunal was that she received remittances from her sister in Australia when she lived in Sri Lanka in the past, and given the evidence that the applicant’s daughter continues to run a business in Australia, and support the applicant financially and otherwise, the Tribunal is satisfied her daughter would continue to support her mother through such remittances on return to Sri Lanka, and possibly remittances from her sister once again.  The Tribunal notes whilst the applicant was living in Sri Lanka she had sufficient funds to afford multiple trips overseas. 

[25] Dated 27 February 2018

[26] Dated 5 May 2018

105.   Given these considerations the Tribunal does not find the applicant faces a real chance of serious harm in the form of being unable to subsist on return to Sri Lanka in the foreseeable future.    

Other matters

106.   The Tribunal notes in her statutory declaration provided to the Department the applicant states that she fears persecution on return to Sri Lanka on the basis of her Hindu religion, as well as the other grounds discussed (that is Tamil race and political opinion).  At hearing the Tribunal asked the applicant if she has any fears on return to Sri Lanka as a Hindu.  She said not because she is Hindu, but because she is Tamil because of the all the problems between the LTTE and army.  When asked why, then, in her statutory declaration it states she fears returning as a Hindu, the applicant said maybe they misunderstood her but she did not say anything about her religion.  Given the lack of claims and limited information before it on this matter, the Tribunal is not satisfied that the applicant faces a well-founded fear on return to Sri Lanka from anyone on the basis of her Hindu religion.

107.   Further, for reasons set out above (paragraphs 23 and 24) the Tribunal finds the applicant does not face a well-founded fear of persecution or a real risk of significant harm if returned from Australia to Sri Lanka on the basis of ongoing chronic health problems.   

Conclusion – Refugee grounds

108.   Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.

109. 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).

Complementary protection

110. On the basis of the applicant’s claim to be a national of Sri Lanka and earlier findings about her identity and nationality with regard to his refugee assessment, the Tribunal finds that Sri Lanka is the applicant’s receiving country of the purposes of s.36(2)(aa).

111. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criterion in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act.

112.   In her written submission to the Tribunal the representative submits that there are substantial grounds for believing that the applicant faces a real risk of significant harm if sent back to Sri Lanka because of her family member’s imputed links with the LTTE.  The representative argues, among other things, that torture has not decreased since the end of the war, referring to a 2017 Human Rights Watch report and on October 2013 TamilNet article. In her statutory declaration provided to the Tribunal the applicant states although the war ended in 2009, the killing and torture of Tamils from northern parts of Sri Lanka has continued. 

113.   For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if she returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, or as a member of a particular social group of her children’s family, as a Tamil from the north or east, as a relative of those who have been granted refugee status abroad, being unable to subsist or because of chronic health problems.  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 Refugee Convention definition.[27] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities, paramilitaries or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

[27] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

114.   Furthermore, the Tribunal is not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka or on return to her home area as a person who has failed to obtain protection in Australia.  The Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on her return to Sri Lanka.  However, as discussed above (elsewhere), taking into consideration the applicant’s particular profile as someone who has no criminal record and the findings above that she was never suspected of having any involvement with the diaspora activities, and is not of ongoing adverse interest to the authorities as a suspected LTTE supporter (or for any other reason), the Tribunal is satisfied that the applicant would be released and she would not face a real risk of significant harm as a Tamil failed asylum seeker, even taking into account that her daughter was detained for six months in 2004 and subsequently has protection, and her children who have obtained protection in [Country 1].

115.   Furthermore, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.   The Tribunal also is not satisfied the process of questioning itself would constitute significant harm, even when taking into account the applicant’s health and memory problems.  The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk she would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which she may be subject to.

116. Having considered the applicant’s claims individually and cumulatively, for these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that she will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSION

117. 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).

118. 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).

119. 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 criteria in s.36(2).

DECISION

120.   The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Nicole Burns
Member

Attachment – extract from Tribunal’s s.424A letter

Dear [applicant’s name]

INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [APPLICANT’S NAME]

I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The Tribunal has received from the Department of Immigration and Border Protection information from a third party which is subject to a non-disclosure certificate under s438 of the Migration Act because it was given in confidence.  Please find attached a copy of that certificate.

Broadly, the information which is subject to the certificate is as follows:

·     That you are currently working at a shop in [Suburb 1] and it is not true that you are sick.

·     That in Sri Lanka your husband has a business and a shop and your son and daughter have businesses.

·     Your other children who reside in [Country 1] go to Sri Lanka often and your son who used to be [overseas] has been deported.

·     That you have no threat (in Sri Lanka).

This information is relevant to the review because, subject to your comments, it may indicate that you have not been truthful about your health which it is submitted has resulted in difficulties recalling events in Sri Lanka and broader memory problems.  It also may indicate you have not been truthful about your claim that you cannot work in Sri Lanka because you are sick.  Also it may cast doubt on the veracity of the letter you have provided to the Tribunal from [Dr B] (dated 3 May 2017) that you suffered a stroke on 20 June 2014 and as a result you would need constant care and attention (‘almost 24 hours daily’).  The information may also indicate that you have not been truthful about your claims to have no support in Sri Lanka, including that you have separated from your husband (since 2009) and that your children in Sri Lanka have abandoned you.  As well, the information that your children who reside overseas return to Sri Lanka often may indicate that they do not hold fears of persecution in Sri Lanka, which casts doubts on your claims to fear persecution in Sri Lanka as a member of their family.  It may also cast doubt on your claims that your sons from [Country 1] used to visit you in India given they had problems in Sri Lanka because the authorities suspected them of being linked to the Liberation Tigers of Tamil Eelam (LTTE).  Furthermore, this information may cast doubts about your credibility overall. 

As a result the Tribunal may not accept your claims to fear persecution in Sri Lanka or a real risk of significant harm there.  If so, this would be the reason or part of the reason for affirming the decision under review.

You are invited to give comments on or respond to the above information in writing.