1506381 (Refugee)

[2017] AATA 2971

1506381 (Refugee) [2017] AATA 2971 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506381

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:4 December 2017

PLACE OF DECISION:  Melbourne

DECISION: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.

Statement made on 04 December 2017 at 12:20pm

CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Imputed political opinion – Liberation Tigers of Tamil Eelam – Fear of persecution from authorities – Fear of paramilitary groups – Karuna Group – Insignificant ties to the Liberation Tigers of Tamil Eelam – Particular social group – Tamil – Failed asylum seeker - Pre conversion visa taken to be valid current visa

LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 91R, 422, 438, 499
Migration Regulations 1994, r 2.08F

CASES
MIAC v SZQRB [2013] FCAFC 33
SZTGM v MIBP [2017] HCA 34

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 [in] September 2013 and the delegate refused to grant the visa [in] April 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant appeared before the Tribunal on 4 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The Tribunal notes that 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.422(3) of the Migration Act 1958.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant faces a well-founded fear of persecution on return to Sri Lanka for a Convention reason or otherwise complementary protection provisions apply (an extract of the relevant law is attached).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

7. The applicant is a [age] year old Tamil male from [Village 1], [District 1] Sri Lanka. He lived in [Country 1] from January 2010 to March 2011, working as [occupation], and lived near Colombo for around three months in 2011 on return from [Country 1].  He came to Australia by boat in April 2013.  His parents, [siblings] and other relatives live in [District 1].  His father works as a farmer and owns land.  His other brother lives in [Country 1]. 

8. The applicant claims to fear serious harm from the Sri Lankan authorities and/or the Karuna group on imputed (pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government) political opinion grounds because of his Tamil ethnicity, illegal departure from Sri Lanka, returning as a failed asylum seeker and specifically because of his involvement in incidents around 2006/2007 in [District 1] involving the LTTE and a paramilitary group referred to as the Karuna group (discussed in more detail below). 

9. The applicant set out his initial protection claims in a statutory declaration[1] that accompanied his visa application, claiming in summary as follows:

   ·He left Sri Lanka because of his ethnicity and imputed political opinion, suspected of collaborating with the LTTE.  Members of the Karuna group are after him and the Sri Lankan government will not protect him.

   ·During the war his school was used as a shelter for internally displaced persons (IDPs). Two armed LTTE members stationed at the school helped the applicant (as a scout) deliver food to the IDPS.

   ·The applicant’s cousin witnessed the LTTE members steal [goods] from others, told the owners and this created problems.  The applicant’s cousin informed members of the Karuna group about the LTTE members and their weapons. Acting on this advice, one of the LTTE members was killed by Karuna group members at the applicant’s cousin’s home.  The other LTTE member was captured and interrogated about their weapons.

   ·During interrogation this LTTE member identified three IDP boys as having knowledge of the location of the weapons however when questioned they denied all knowledge of the weapons.  The applicant was also questioned about the weapons: he said he only delivered food to the IDPs and as the three IDP boys had spent a lot of time with the LTTE members they may know where the weapons were.

   ·This angered the LTTE member and three IDP boys (present at the time the applicant was questioned by Karuna group) and led to them suspecting he had given away information about the weapons.  As a result the three IDP boys were under immense pressure and questioned.

   ·The captured LTTE member managed to escape from the Karuna group, which raised more suspicion against the three IDP boys.  These boys were then recruited by the Karuna group.  This made the applicant afraid because the IDP boys were angry at the applicant and were now in a position to harm him, notably at the height of the war in 2009.  Because of this situation the applicant left Sri Lanka for [Country 1] until January 2011 when he had to return because his contract had ceased.  On return he feared for his life because of the three boys who had joined the Karuna group and were very powerful. 

   ·The applicant said on return to Sri Lanka from [Country 1] he did not remain at the same place and was always in hiding because he was so frightened.

   ·After the war, Karuna group members were recruited by the Sri Lankan army and they were requested to join them in the campaigns.  The applicant left the country because he feared harm if he refused to do so.

   [1] Dated [in] September 2013.

10. In his oral evidence to the Tribunal the applicant said the main reason he left Sri Lanka in April 2013 was because of problems that arose in around 2006 in [District 1], summarised as follows.

11. He said he was volunteering with [Charity 1] at the time, which involved helping displaced persons at his school with food and clothing, through [international] assistance.  The applicant, who was [age] at the time, became friends with two LTTE members who moved into the school, pretending to be civilians.  Around six months later, in 2007, one of the LTTE members was subsequently shot and killed by members of the Karuna group whilst hiding at the applicant’s [relative’s] house following a round up.  The other LTTE member was captured, beaten by Karuna group members and taken away.  The applicant witnessed these events.  Afterwards many people – including Karuna group members - came to know the applicant was friends with the LTTE members. 

12. The applicant said he initially did not know whether these two men were LTTE members or Karuna group members, however after that incident he came to know they were LTTE. Because he was associated with the two LTTE members, he was suspected of having links to the LTTE at this time, including having knowledge of where they kept their weapons and ammunition: that is why local boys who joined the Karuna group ‘dobbed him in’. 

13. Two months after the LTTE member was shot (and the other captured), the applicant was questioned by Karuna group members at one of their branches in [District 1].  He was asked about the two LTTE members, his friendship with them, and the location of buried ammunitions.  Anxious, his parents reported this to the police.  The police went to the Karuna group branch where the applicant was being held, and then took the applicant to the police station where they questioned him again, because of their suspicion that the applicant knew the whereabouts of LTTE ammunition stores.  The applicant said he was interrogated about the location of the hidden ammunitions ‘in a soft manner’ by the police yet threatened with harm if he failed to provide information.  The applicant told the police he knew nothing about the LTTE methods and that he was only friends with the two LTTE members for a short period of time.  The police then released him, and the applicant returned home. 

14. The applicant left Sri Lanka and moved to [Country 1] in January 2010.  When asked why nothing happened during the three year period after he was questioned by the Karuna group and police until he left for [Country 1], the applicant said because during this time he was never in his village ([Village 1]), noting that after he finished [school] he moved to study at a [college] in [City 1] and his village is located [a distance] away from [District 1].  Although he said he did visit his village sometimes.  The applicant said at that time the army had taken control of the area and the power of the Karuna group had dwindled.

15. The applicant returned to Sri Lanka from [Country 1] in March 2011 following the end of his work contract. 

16. The applicant said sometime after he returned to Sri Lanka from [Country 1], he thinks around April 2011, he rented a place along with five or so Tamil boys in [a town] ([a distance from] Colombo) for a couple of months: they all worked for the same company, [working on the same project].  One day some Sinhalese people – he thinks plainclothes ‘CID’ - came to their house, searched them and took his passport, ostensibly for checking but they never returned it.  They took his housemates’ national identity cards (NICs) (the applicant had lost his). The area was predominantly Sinhalese and the applicant thinks their neighbours requested the police to check on them. The applicant was reluctant to go to the police to try and get his passport back, afraid because of the incident in 2006/2007 in [District 1] and the ongoing suspicion of the authorities that because of his friendship with the two LTTE members at the IDP camp at his school, he knew the location of buried LTTE arms, ammunition and money.

17. The applicant said he is afraid if he returns to Sri Lanka Karuna Group members – who still exist – will dob him in to the authorities.  He is afraid of everybody, including the government, army, police and the Karuna group, noting that they are all enemies of the Tamil people. 

    Findings on the applicant’s past experiences in Sri Lanka

18. The Tribunal accepts the applicant worked as a volunteer for [Charity 1] in and around [District 1] district in Sri Lanka in the past and in this role helped provide food to IDPs temporarily accommodated at his school in around 2006.  It accepts as plausible that during this period two LTTE members spent time at the school and may have befriended some of the IDPs as well as others assisting the IDPs at the time.  However for reasons below the Tribunal does not accept that he in particular was friends with them. It accepts once members of the Karuna group found out about their existence one of the LTTE members was captured and the other shot as claimed. 

19. However, as discussed at hearing, the Tribunal has a number of concerns about the applicant’s claims to have witnessed these events and been directly implicated, given inconsistencies between some of his evidence before the Department and Tribunal about the circumstances of the incident and follow up events. For example:

    ·The dates as to when the incident occurred are inconsistent.  At his protection visa interview (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review) the applicant said it occurred in 2006, at the Tribunal hearing he said the shooting of the LTTE member occurred in 2007, and in his statutory declaration provided to the Department he stated that the incident occurred at the height of the war in 2009.  The applicant’s then representative at the interview with the delegate said (according to the decision record) that it occurred in 2006 and continued until 2009.  At the Tribunal hearing the applicant said he would have confused the dates and clarified that 2006 was the major incident and 2009 was the end of the war.

    ·The reasons as to how the two LTTE members came to the Karuna group’s attention are different. That is in his entry interview (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review) he said the LTTE came to cause these problems and specifically they hit one of his nieces and his niece went to complain to the Karuna group about them.  In his statutory declaration provided to the Department the applicant stated that his cousin, who had witnessed the LTTE members steal [goods], told the Karuna group about the LTTE members and their weapons.  At the Tribunal hearing the applicant said the two men were suspected of being LTTE because their behaviour was a bit different, for example taking someone’s motorbike for a ride, and people had complained to the Karuna group about them, who said they were not their men.  He said the two LTTE members were found [in an] area by the Karuna group during a round up: one of the LTTE members was shot and the other captured (he was nearby when the incident happened).  When these inconsistencies were pointed out at hearing, the applicant said there was a ‘guy’ staying at his [relative’s] house who had witnessed the two LTTE men stealing [goods] and as a consequence of him witnessing that, they assaulted him; he then went and told the Karuna group, who became aware of the issue.  However he failed to mention this at all in his initial oral evidence at hearing, stating that he forgot to.  He was unable to explain why he stated at the entry interview that it was his niece who reported the LTTE members to the Karuna group.

20. To explain some of the inconsistencies, the applicant said at hearing (and earlier) he was tense.  At the delegate’s interview (as set out in the delegate’s decision record), the applicant’s then representative argued that there is scope for such inconsistencies (with respect to stating key dates and names at that stage) given the protection visa process, number of interviews and statements and differing lines of questioning employed. The representative also noted the UNHCR handbook which states the benefit of the doubt should be given to asylum seekers at the first interview given their suspicion of the authorities. The Tribunal accepts the applicant may have been tense before the Tribunal and the Department and there may be some discrepancies given the lengthy application and review process. However these factors do not, in the Tribunal’s view, explain a variety of credibility concerns, as discussed above and below. 

21. Other concerns include the fact the applicant failed to mention key aspects of his claims at the Tribunal hearing as set out in his statutory declaration provided to the Department.  For instance at hearing he made no mention of the three IDP boys who were allegedly close to the LTTE members and who he said when questioned by Karuna group about weapons were the only people who may have known about the weapons.  Only when the Tribunal asked him about these boys did the applicant say it was true that there were boys who were friendly with the LTTE members and who later joined the Karuna group who still remember him (and he is therefore afraid of them).  He said he forgot to mention them in his earlier oral evidence.

22. Similarly, the applicant failed to mention at hearing his claim in his statutory declaration provided to the Department that the (captured) LTTE member and the three boys suspected the applicant may have given information to the Karuna group about the weapons.  The applicant said he forgot, but because these three boys joined the Karuna group it is assumed that he must have known these things.  He said the three boys would have dobbed him in to the Karuna Group because they did not like him for some reason.  However his failure to mention this key claim initially at hearing causes the Tribunal to doubt his claims in this respect. 

23. There are other concerns the Tribunal has with the applicant’s claims about this incident and the applicant’s alleged involvement.  These include the Tribunal’s view that if the authorities suspected the applicant had knowledge of LTTE arms, ammunition and money buried in 2006/2007, they would have asked him about that between 2007 and 2013.  At hearing the applicant said someone could dob him in, even at a later stage, and he would be at risk.  If he returns, the authorities will dig into his past, and will find out he was suspected of having such knowledge and there will be torture and humiliation.  He said that even today the Karuna group members are around; they would find out he had returned from Australia and they would tell the authorities.  He said the Karuna group still dob in people they do not like to the army.  However the applicant’s claims in this respect are undermined by the fact that it appears the Karuna group did not ‘dob in’ the applicant to the authorities in the period he lived in Sri Lanka after the incident, from 2007 until 2013 (with the exception of his time in [Country 1]) and there is no indication the authorities actually thought the applicant had that information about LTTE weapons, ammunition and money.  As set out in the delegate’s decision record, the applicant’s then representative submitted at interview the reason the applicant was not questioned as an LTTE suspect following the end of the war was because he was not in the country at the time.  However the applicant gave evidence at hearing (after some confusion) that he lived in [Country 1] only from January 2010 to March 2011, leaving a number of years after the alleged incident and after returning from [Country 1] where the applicant resided in Sri Lanka without coming to the adverse attention to the authorities or the Karuna group in terms of being suspected of having knowledge about LTTE weapons and ammunition or for any other reason. 

24. A further concern is the fact that the applicant returned to Sri Lanka from [Country 1] in 2011 despite his claims to fear serious harm from the likes of the Karuna group (and the authorities) because of his friendship with two LTTE members and his possible knowledge of LTTE weapons and ammunition.  After a few months working in Colombo he returned to [District 1], the area he claims he would be known by Karuna group members and the authorities as someone with suspected knowledge of the location of LTTE weapons and ammunition, among other things.

25. As well, the fact that the applicant left Sri Lanka when he went to [Country 1] and returned using his own passport and did not experience any problems indicates to the Tribunal that he was not considered an LTTE suspect or someone with elaborate links with the LTTE by the authorities at that time. 

26. At the Tribunal hearing the applicant said he was moving around after the incident and in his statutory declaration provided to the Department he said he was in hiding.  However the Tribunal notes he also said he lived in [City 1], which was around [distance] away from his village for most of the time since 2007 (apart from [Country 1]).  When this was pointed out, the applicant said during that time he was still at school and he meant avoiding confrontation with Karuna group members.  He said as he is now grown up and would be returning from Australia and these men, who have nothing else to do, would dob him into the authorities.  The applicant said if he returned to Sri Lanka today there are people who would know and they still may dob him in, as someone who may know ‘hidden elements’.

1. Given these concerns the Tribunal does not accept the applicant’s claims to have befriended two LTTE members whilst assisting IDPs in his school in 2006, or that he witnessed the shooting of one of the LTTE members and the capture of the other by the Karuna Group in 2007, or that local boys who subsequently joined the Karuna group dobbed him in to the Karuna group or that he was questioned by the Karuna group or the police thereafter, in relation to his friendship with these LTTE members and the location of buried LTTE weapons and ammunition.  It follows that the Tribunal does not accept that the applicant was in hiding after these events as claimed or that this was the reason he moved to [Country 1] in January 2010 as claimed.

2. Given these findings the Tribunal does not accept that the applicant faces a real chance of serious harm from Karuna group members and/or the authorities on return to Sri Lanka based on an imputed political opinion, suspected of collaborating with the LTTE and/or having knowledge of LTTE weapons (and other material) storage.  It accepts he may have mingled or come across LTTE members when undertaking voluntary work at a school that accommodated IDPs in the past but finds remote the chance that he would face serious harm from the authorities or anyone else on return as a result.  Given these findings the Tribunal also finds remote the chance that Karuna group members would find out he had returned from Australia and they would tell the authorities, as submitted.  His fears of persecution on these bases are not well founded.

3. The Tribunal has considered the applicant’s claims that whilst living with other Tamil boys near Colombo in 2011 the CID visited and took his passport and never returned it.  The applicant made no mention of such an incident in his statutory declaration to the Department, which casts doubts on whether it occurred at all.  Nonetheless, even if the Tribunal accepts the applicant was visited by plainclothes Sinhalese men whom he assumed were CID in 2011 and they took his passport, the Tribunal finds remote the chance that he would face serious harm as a consequence on return.  That is because on the applicant’s own oral evidence to the Tribunal there did not appear to be a specific reason why the CID were interested in him and they appeared to be responding to neighbours’ concerns about a number of young Tamil men living together.  The Tribunal notes as well the applicant was not singled out, given his oral evidence that the visiting Sinhalese men asked to see all of his housemates identity documents and only the applicant provided his passport instead of his NIC because his had been lost.  Such monitoring of young Tamil males living together was not uncommon at that time, in the immediate post war period.  The applicant has not claimed and there is nothing before the Tribunal to indicate that the applicant was of any further interest to the authorities following this visit in 2011, including for around two years he remained in Sri Lanka and for these reasons the Tribunal considers it was a routine check.     

4. For these reasons the Tribunal finds remote the chance the applicant would face serious harm from the authorities on return to Sri Lanka because Sinhalese men – possibly the CID - visited and took his passport in 2011, around six years ago.

5. The Tribunal has considered the applicant’s former representative’s oral submission at the interview with the delegate (as set out in the decision record) that the United States country report for 2013 states that LTTE sympathisers are considered terrorists and are still in danger, they are reportedly abducted and the state does not provide protection.  However for the reasons above the Tribunal does not accept that the applicant was considered an LTTE sympathiser by the authorities or their proxies such as the Karuna group in the past nor would be in the future. 

   Tamil ethnicity

6. At hearing the applicant said in addition to these problems he does not have equal rights in Sri Lanka, the government harasses innocent Tamils, and there is no freedom for Tamils in Sri Lanka.  He said ‘today’ in [District 1] there are a lot of demonstrations and protests of Tamils demanding freedom and equality but nothing is heard by the authorities.  He said they do not have freedom or self-rule there. 

7. The Tribunal accepts the applicant is a Tamil from [District 1] in the eastern province of Sri Lanka.  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 the situation for Tamils in Sri Lanka has improved since the end of the war, and particularly since the election of the current Sirisena government.  For example, the Sirisena government claims to have prioritised human rights and reconciliation, and has made significant progress including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA); and committing to reform of the PTA. 

8. Country information also indicates, as discussed at hearing, that a person being of Tamil ethnicity would not of itself warrant international protection.[2]  Neither, in general would a person who evidences past membership or connection with the LTTE unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus a threat to the state.[3] The applicant has not indicated that he was ever involved with the LTTE in Sri Lanka, apart from his ‘friendship’ with two LTTE members in around 2006, which for reasons above the Tribunal does not accept.  Further, the applicant has not indicated that he 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. 

   [2] Department of Foreign Affairs and Trade 2017 DFAT Country Information Report Sri Lanka 24 January 2017; UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017; and UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December

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

9. The Tribunal acknowledges that military and security forces remain in the northern province of Sri Lanka and parts of the east.  However, as discussed at hearing, DFAT report that the security situation in the north and east has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life; that the Sri Lankan police are now responsible for civil affairs across Sri Lanka; and while a sizeable military presence remains in the north and east, armed forces personnel are generally restricted to their barracks.[4] 

   [4] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.32

10. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government.[5]  They state that while some cases of monitoring continue to be reported, such as the military or police observing public gathering or NGO forums, the overall prevalence of monitoring has greatly reduced; the government has begun reducing High Security Zones in the Northern Province; military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east;[6] and that members of the Tamil community have also described a positive shift in the nature of interactions with the authorities.[7]

    [5] Ibid at 3.9

    [6] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.39

    [7] Ibid at 3.9

11. At the Tribunal hearing the applicant said the Sri Lankan government want to show to the outside world that everything is fine, they are trying to camouflage the atrocities they have committed, and they think they have not done anything wrong to Tamils.  He said it is the same government and they are still committing atrocities: maybe not collectively but individually. He said the government is propagating that everything is coming to normalcy and there would be no problem in the future but who knows.  Also the government may not last forever and Rajapaksa might come back to power.  The applicant said people from outside Sri Lanka cannot see the reality there.  He said if a military man knocks on his door and takes him, no one will come to know about it.  He said it is not necessary that the army is waiting for him to arrive because lots of people are willing to dob anyone in to the authorities.

12. The applicant said on return to Sri Lanka the authorities will stop and question him; they will suspect that he knew the whereabouts of the (LTTE) ammunitions or wealth; and they will cross examine him and beat him.   

13. The Tribunal has considered the applicant’s concerns about returning to Sri Lanka as a Tamil and someone suspected of having LTTE links.  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 that being of Tamil ethnicity does not on its own warrant international protection and the improved security situation, the Tribunal finds that the applicant does not face a real chance of suffering serious harm on account of being a Tamil, nor in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed. Given these considerations, when combined with a significant improvement in the security situation since the end of the war and immediate post-war period, the Tribunal finds remote the chance that the applicant would be seriously harmed by the authorities on imputed political opinion grounds as an LTTE supporter or on the basis of his Tamil ethnicity even when considered cumulatively with other aspects of the applicant’s profile, considered separately below.  The Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka by the authorities on the basis of an imputed (pro-LTTE) political opinion and/or his Tamil ethnicity in the foreseeable future.  His fears of persecution on imputed political opinion grounds and on the basis of his Tamil ethnicity are not well founded. 

    Fear of paramilitaries

14. The Tribunal has considered the applicant’s concerns about ongoing paramilitary activity in Sri Lanka and fear of kidnappings.  At hearing the applicant said there are a lot of disappeared Tamils and people are still asking about their whereabouts. 

15. The Tribunal has found that the applicant has not been questioned or of adverse interest to the Karuna group in the past in Sri Lanka, or any other paramilitary group.  

16. Reports indicate that although there are no longer active paramilitaries in Sri Lanka, informants and intelligence operatives continue to work with the military.[8]   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, abductions were now seldom reported.[9]  The applicant said violence and torture is still there.  In response to the Tribunal’s comments that country information does not indicate that the Karuna group has the same level of impunity that it did under the Rajapaksa government; that the group is not part of the government or army; and the government arrested some Karuna group members recently, the applicant said it was just to appease the international government community.

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

    [9] Statement by United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, at the end of his Mission to Sri Lanka, dated 9 February 2016.

17. On the basis of country information about the considerable decrease in abductions, among other things, since the end of the war, combined with the Tribunal’s findings that the applicant was not of adverse interest to the Sri Lankan authorities or 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. 

    Failed asylum seeker

18. 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.  The Tribunal has considered if he will be imputed with an anti-government political opinion on this basis (combined with departing the country illegally and other matters addressed elsewhere in the decision record). 

19. The Tribunal accepts that the applicant entered Australia without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka. 

20. DFAT sets out the standard procedures for processing involuntary returnees in their recent Country Information Report on Sri Lanka as follows:

    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department.  These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.[10]

    [10] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.19

21. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.[11]

    [11] Ibid at 5.20

22. DFAT also state that during 2008-2015, over 1,500 failed asylum-seekers were returned  from Australia to Sri Lanka, in addition to the many Sri Lanka asylum seekers who have been returned from other countries, including the, the US, Canada, the UK and other European countries.  As well, DFAT state that the majority of these returnees are Tamil and although the experiences of individual returnees will 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 Colombo and other urban areas.[12]  

    [12] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.27

23. The UK Home Office reports, as discussed at hearing, that in the UK country guidance GJ & Others, the 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 are or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[13] 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 he has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism and the Tribunal finds that he is not such a person.

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

24. 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 his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he does not face a well-founded fear of persecution as an LTTE suspect, and has not been involved with diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker.  The Tribunal accepts that the applicant may have had his identity checked during a home visit by the authorities in 2011 as claimed.  However it does not accept that he experienced problems from the authorities as a result nor would 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 his profile such as being Tamil, departing illegally and his volunteer work with IDPs.  

25. The Tribunal accepts that when the applicant returns to his home in [District 1] his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason.  His fear of persecution on membership of a particular social group (‘failed asylum seekers’) and imputed political opinion grounds are not well founded.

26. The Tribunal notes at hearing the applicant raised for the first time his fear of being robbed or harmed on return to Sri Lanka given he would be returning from Australia and may be suspected of having money.  The applicant has not provided any information and there is nothing before the Tribunal to indicate that returnees from Australia are targeted for robbery or harm (perceived to have money), in Sri Lanka and the Tribunal does not accept that he faces a well-founded fear of persecution on return on this basis.

    Illegal departure

27. The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing the Tribunal discussed with the applicant DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.  Also that in practice most penalties (which can include imprisonment of up to five years) are almost always a fine, that fine amounts vary on a case by case basis (but can be up to 200,000 Sri Lankan rupees/AUD2000) and can be paid by instalment.  Further, that DFAT advised that if a person pleads guilty, they will be fined and are then free to go.  In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[14]

    [14] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.21 – 5.26

1. At hearing the applicant said it is a crime to depart Sri Lanka illegally.  He said the problem is that even if he returns home if there is an incident the authorities will come and dig into his past. He said they can harm him and his family may also be attacked.  The Tribunal noted that country information does not indicate that individuals or their families are targeted for leaving Sri Lanka illegally or for having come to Australia.  In response the applicant said all this time he has been away from home those three boys are still with the Karuna group and questioned what would happen if they find him on the street given it is their job to report to the military. He said the problem is returning to Sri Lanka after many years, and they might come to know that he is coming from Australia.

2. As discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application and as mentioned above they advised that detainees are not subject to mistreatment during their processing at the airport. The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  For reasons set out above the Tribunal does not accept that the applicant has an anti-government profile or is of ongoing adverse interest to the authorities or anyone else for any reason, including in relation to the 2006 incident and 2011 incidents.  The evidence before the Tribunal does not indicate that the I&E law is being applied selectively or in a discriminatory manner for a refugee reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of the non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and discriminatory conduct.

3. At hearing the applicant confirmed that he has no problem paying the fine amount but his concerns relate to the issue with the LTTE and Karuna group, as discussed.  The Tribunal also notes his evidence that he has family members in Sri Lanka who could pay the fine and/or act as a guarantor if bailed if required. 

4. The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions.[15] However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short term period of being detained given its findings that he is not of any ongoing adverse interest to anyone. As mentioned, the applicant indicated at hearing that he has family members in Sri Lanka and that paying a fine would not be a problem for him. The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return. There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison. However as the Tribunal does not accept the applicant is of any ongoing adverse interest to the authorities for any reason, including outstanding criminal matters, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population. The Tribunal is not satisfied therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm as defined in s.91R(2).

   [15] DFAT 2017 Country Information Report Sri Lanka 24 January 2017at 4.25

5. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant who has departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when he is later dealt with by the courts, or when he returns to his home area, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.  The Tribunal does not accept that the applicant faces a real chance of serious harm on return to Sri Lanka because he departed the country illegally as submitted. 

   Other matters:-

6. As discussed at hearing, the Departmental file contains information that is subject to a non-disclosure certificate under s.438 of the Act because it is against the public interest to do so. The Tribunal does not consider the certificate valid (in terms of the information it contains being contrary to the public interest). The Tribunal has considered the information to which the certificate relates and whether it is relevant to the review. Broadly speaking, it relates to concerns about the applicant’s identity because of different information he gave about the spelling of his brother’s names, his parents, and different dates of birth. However he has provided explanations which the delegate accepted and on this basis the Tribunal, as indicated at hearing, does not have any identity concerns in relation to the applicant. It therefore gives the information to which the certificate is subject no weight.

7. At the Tribunal hearing the applicant stated that the authorities would not let ‘them’ build a Hindu temple in a Sinhalese dominated area.  He did not elaborate or provide further details. When asked if he experienced any problems as a Hindu in Sri Lanka he replied ‘no’.  Given these considerations the Tribunal does not accept he faces a well-founded fear of persecution on return to Sri Lanka on religious grounds (as a Hindu).

   Conclusion – Refugee grounds

8. 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 his fear of persecution is not well-founded.

9. 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

10. On the basis of the applicant’s claim to be a national of Sri Lanka and earlier findings about his 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).

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

12. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, as a Tamil, as a Hindu, or a returnee from Australia who may be perceived to have money.  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.[16] 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 or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [16] 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].

13. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing. The Tribunal does not accept that the applicant is of any adverse interest to the authorities. Based on the Tribunal’s earlier reasoning on this matter, it does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand. The Tribunal considers if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine and notes his oral evidence to the Tribunal that he is able to pay the fine. The Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing.

14. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him.

15. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards. However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention on the Sri Lankan government to inflict such harm,[17] and therefore do not amount to significant harm as defined in s.36(2A).

    [17] As held in SZTGM v MIBP [2017] HCA 34.

16. Similarly the Tribunal is not satisfied on the evidence before it that the process of questioning, the imposition of a fine as punishment and the applicant’s charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters, but to provide a modest punishment and possible deterrence for departing the country illegally. 

17. The Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

18. 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 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 his 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 he is of no ongoing adverse interest to the authorities as an LTTE suspect or for any other reason, or in relation to diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker.  The Tribunal accepts that when the applicant returns to his home in [District 1] his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for significant harm by the Sri Lankan authorities or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason.  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 his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

19. 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 he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

20. 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).

21. 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).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

23. 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 OF RELEVANT LAW

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

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

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.