1508416 (Refugee)

[2017] AATA 3161

1508416 (Refugee) [2017] AATA 3161 (2 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508416

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Lilly Mojsin

DATE:2 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 March 2017 at 5:06pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Imputed political opinion – First named applicant – Fears being killed by members of the United National Party – No evidence of previous harm  – Previous protection visa applications refused – Lived unlawfully for over 18 years – Australian citizen child – Decision made on review – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65,91R, 362B, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

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 applicants Protection visas [PVA] under s.65 of the Migration Act 1958 (the Act).

2. The applicants claim to be citizens of Sri Lanka.

3. The first named applicant [applicant] entered Australia, [in] July 1990, on his Sri Lankan passport ([passport number deleted]), as the holder of a student visa. The applicant lodged a Protection visa application [PVA] [in] September 1991, which was refused [in] May 1993 and the applicant applied to the then Refugee Review Tribunal for review of that decision. However, [in] November 1993, he departed Australia.

4. The 2^nd named applicant, his spouse, entered Australia, [in] March 1991, on her Sri Lankan passport as the holder of a [temporary visa 1] She departed [in] December 1991 and she returned [in] February 1992 as the holder of a [temporary visa 1]. She departed Australia, [in] November 1993 with the applicant.

5. The applicant entered Australia [in] September 1996 on a Sri Lankan passport, as a holder of [temporary visa 2] in a fraudulent name.  The 2^nd named applicant also arrived in Australia, [in] September 1996, as the holder of a [temporary visa 3] in a fraudulent name.

6. The 3^rd named applicant was born in [Australia], on [date] and has remained in Australia. He is included as a dependent on the PVA, submitted by his father, the applicant, [in] November 2014.

7. Another child [Name deleted], who was born in [year] and he has been accorded Australian citizenship. He is now [age] years of age.

8. The applicants applied for the visas [in] November 2014 and the delegate refused to grant the visas [in] June 2015.

9. The applicants were represented in relation to the review by their registered migration agent.

10. The applicants were invited to attend a Tribunal hearing to be held on 16 February 2017. The applicants did not attend the scheduled Tribunal hearing. The applicants’ advisor wrote to the Tribunal advising the Tribunal that the applicants sought to have the Tribunal decide their application without appearing before the Tribunal.

11. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

    RELEVANT LAW

    See Annexure A.

    CLAIMS AND EVIDENCE

12. In his PVA the applicant claims he will be killed by members of the United  National  Party (UNP) because they hold a grudge against him as he assisted a member of the Janatha  Vimukthi  Peremuna  (JVP) party. The applicant claims members of VP continue to hold a grudge against him because of his previous involvement as a UNP member.

13. No separate claims were made on behalf of the 2^nd named or 3^rd named applicants.

14. The applicant applied for a PVA after he and his wife had been residing unlawfully in Australia for over 18 years.  Submitted with that application were 2 passports in the names of the applicant and the 2^nd named applicant. The delegate of the Department was satisfied that they are genuine passports, issued by the Sri Lankan authorities in 2005.

15. At an interview, held by the Department on 7 May 2015 when asked why he and his wife had travelled to Australia on false passports in 1996, he responded that he was in danger and could not remain in Sri Lanka. The applicant was asked about his application for a PVA in 1991, which was refused on 18 May 1993.  He responded that this was the case. It was put to the applicant that as he had been refused a PVA, it would have been difficult for him to be granted a visa and he agreed. 

16. The applicant said that he and his wife had been able to obtain their most recent passports while residing in Australia, through the assistance of his mother-in-law in Colombo, as she was able to provide the documents on their behalf and obtain passports for them. The passports were issued by the Sri Lankan government, in 2003 and the documents expired in 2008. The applicant said that he had not attempted to renew his passport or obtain another passport since the expiration of his last passport.

17. The applicant was asked about his statement in his PVA that he was charged with [a criminal] offence' and that the charges had been withdrawn and dismissed.  The applicant said that he had been working in a [shop] at the time and he had been selling an [illegal substance], over the counter. He was not aware it had been banned. The owner of the shop who had ordered the [products] had also been charged and later dismissed of the charges for the same reasons.

18. The applicant’s advisor, in a submission to the Tribunal dated 15 February 2017, states that the 2^nd named applicant and the 3^rd named applicant have not made specific claims for protection and do not intend to make specific claims for protection.

19. The applicant has provided a submission to the Tribunal. Attachment B is a series of references addressed to the Minister. Attachment C also consists of references. Attachment D consists of an employment reference for the applicant, bank statements and taxation statements.

20. The applicant’s advisor does not make any further claims other than to state that the applicant was a member of UNP, he states that JVP members hold a grudge against the applicant and will harm him and as a result of him providing assistance to members of JVP, UNP members hold a grudge against him and will harm him.

21. The applicant’s advisor requests that the Tribunal refer this matter to the Minister for Ministerial Intervention on compassionate grounds because of irreversible harm and continuing hardship to an Australian citizen.

    REASONS AND FINDINGS

22. On the basis of the Sri Lankan passports of the applicant and the 2^nd named applicant, I accept that the applicants are all nationals of Sri Lanka and are not nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicants are not excluded from Australia's protection by s. 36(3) of the Act. I also find that Sri Lanka is the applicants “receiving country” for the purposes of s. 36(2)(aa).

23. I accept that the applicant is ethnic Sinhalese from Colombo.

24. As I have not had the opportunity to explore the applicant’s claims I am unable to be satisfied that the applicant was a member of UNP. I am also unable to be satisfied that the applicant will be killed by members of the United National  Party (UNP) because they hold a grudge against him as he assisted a member of the Janatha  Vimukthi  Peremuna  (JVP) party. I am also unable to be satisfied that members of JVP continue to hold a grudge against him because of his previous involvement as a UNP member.

25. As I have not had the opportunity to explore the applicant’s claims I am unable to be satisfied that the applicant suffered any harm in Sri Lanka, prior to his departure. 

26. I am required to assess if the applicant has a real chance of suffering Convention related harm on his return to Sri Lanka now or within a reasonably foreseeable future.

27. I accept that the UNP is a dominant political party and that its leader is the current Prime Minister of Sri Lanka.  I have no independent information before me to suggest that members of the UNP or JVP seek to harm persons who have assisted another political party.  I am of the view where it the situation it would be known to independent sources such as DFAT, Amnesty International and US State Department reports on Human Rights Practices.

28. The evidence before me is that the security and humanitarian situation in Sri Lanka has greatly improved since the end of the war. 

29. I have considered the situation for illegal departees from abroad. DFAT information about the treatment of illegal departees from abroad who have left Sri  Lanka  with false passports suggest that they would be questioned at the airport to establish identity, charged under the Immigrants and Emigrants Act (IEA) for illegal departure at the airport and brought before a court to apply for bail. In most cases illegal departees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor or sometimes they need to wait until a family member comes to collect them. Eventually the illegal departee will need to return to Court to face the charges. Generally fines of 5,000 rupees are imposed, although the Negombo magistrate levies fines of around 50,000 to act as a deterrent.  If an illegal departee were to arrive on the weekend, he is placed in the remand section of the Negombo prison until the bail hearing on Monday. I accept that an illegal departee may be on remand until the Monday when he can go before a magistrate. I note that there has been a report of a person held for two weeks on remand. I am satisfied on the information before me that the most time that an illegal departee would be held is two weeks. Even if the illegal departee were held on remand for a short period of up to two weeks, I do not accept the illegal departee will be treated any differently. I am of the view that questioning at the airport, the possibility of being in remand for a short period, charged, and the payment of a fine is not because of race, ethnicity, religion or political opinion, but because the illegal departees left Sri Lanka illegally. I am not satisfied that any problems an illegal departee may face as a result of being charged, questioned, held on remand in cramped and uncomfortable and unsanitary conditions are for any Convention reason.

30. Information before me indicates that all illegal returnees from abroad are treated according to standard procedures regardless of ethnicity. DFAT suggests that the risk of torture or mistreatment is low and, without further information from the applicant, I do not accept he faces a real chance of torture, interrogation or mistreatment upon arrival or during questioning.

31. I also find that the Sri Lanka departure laws are laws of general application and therefore the enforcement of the laws do not constitute serious harm. Nor do I accept that the law is arbitrarily applied in an inconsistent manner by the Sri Lankan courts. I prefer to rely on DFAT advice. I do not accept that the I&EA provisions that deal with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent or that they are implemented in a discriminatory manner. Independent information indicates the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees.

32. The applicant arrived in Australia with a false passport. Without further information from the applicant I am unable to be satisfied that he left Sri Lanka illegally. Without further information from the applicant I am unable to be satisfied that he would be unable to pay bail on his return, if he were to be found to be an illegal departee/returnee. 

33. I have had regard to the conditions in prison and I accept that conditions in Sri Lanka's prisons are generally poor, overcrowded and unsanitary. I accept that there have been incidents of sexual abuse in detention. The independent reports in relation to the circumstances of individuals who are held in prison in Sri Lanka indicate some are tortured and assaulted. However, it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government are targeted. Without further information from the applicant, I do not accept the applicant has such a profile or was of interest to authorities. I do not accept that the applicant is at risk of torture or mistreatment upon remand.

34. There have been some reports of questioning or reporting to local police when returnees go home. I am not satisfied that questioning or reporting amounts to serious harm. The UNHCR and IOM have regularly monitored returnees and despite large numbers of involuntary returnees to Sri Lanka and high level reporting, there is very limited evidence of returnees suffering serious harm and those reported to have suffered harm had LTTE connections or criminal records. Without further information from the applicant, I do not accept the applicant has such profile or other particular profile or circumstances that put him at risk. I do not accept that the applicant faces a real chance of serious harm after arrival or upon subsequent return to his home within a reasonably foreseeable future.

35. In light of the applicant’s circumstances and independent information, I find that the chance of torture or mistreatment during questioning or if he were to be held on remand or upon subsequent return to Sri Lanka is remote.

36. I am not satisfied, that questioning, arrest, and the poor conditions in remand, or any subsequent monitoring or questioning and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c). I have also considered whether the applicant faces future serious or significant harm arising from circumstances since leaving Sri Lanka, ie as a failed asylum seeker or because of his illegal departure.

37. There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment. DFAT stated that between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. Although DFAT does not routinely monitor the situation of returnees, DFAT assessed that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The majority of these returnees are Tamil, not Sinhalese.

38. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention. The evidence before me does not suggest that the applicant is suspected of committing serious crimes.

39. I am not satisfied that all  failed asylum seekers  returned to  Sri Lanka  would have a real chance of being persecuted (including either as  failed asylum seekers  or due to ie, an actual or imputed political opinion).

40. I note that there is a new government now in Sri Lanka. The new Sri Lankan Government had committed to re-introducing provisions of the 17th amendment to the Sri Lankan Constitution, with a focus on establishing and strengthening independent bodies, including in relation to the Human Rights Commission of Sri Lanka.  Victims of torture can complain to the HRCSL or directly to the Supreme Court about violation of their fundamental rights. There were a total of 535 complaints of torture reported to the HRCSL in 2012. However, it is difficult to determine the prevalence of torture with any accuracy which means that few reports are proved or disproved. Disciplinary action can also be taken if such complaints are made against the police or in prisons, but there have been few recent cases where charges have been brought against police officers for torture.

41. The Sirisena government has publicly encouraged all Sri Lankans living overseas to return. DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT assesses there is no law or Government policy which hinders access to state protection on the basis of religion or ethnicity. Any citizen can exercise avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka. In practice, these avenues may be limited by linguistic barriers or by a lack of resources for court proceedings. In practice, there can be a lack of effective legal protection and redress for victims of crimes in Sri Lanka. This is generally due to a lack of resources rather than ethnicity or religion–DFAT is not aware of any cases over the last few years where persons were denied access to legal remedies based on ethnicity or religion. In some cases, disputes are settled outside the legal system.

42. I have considered the claims of the applicant individually and cumulatively. For the above reasons, I find that the applicant faced no serious harm in the past and  I am not satisfied the applicant faces a real chance of serious harm upon return to Sri Lanka for a Convention related reason in the reasonably foreseeable future.

43. I am not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka.

    Complementary Protection

44. Without further information from the applicant I am unable to be satisfied that the applicant departed Sri Lanka illegally. The independent information assessed by DFAT indicates that returnees who have made claims for protection abroad are not mistreated. I do not accept questioning at the airport, being charged and bailed or payment of fine, or held on remand for a short period constitutes significant harm. I do not accept monitoring visits on return, if they occur, constitutes significant harm. I do not accept that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment in those circumstances. Without further information I am unable to be satisfied that the applicant would not be able to pay the fine, even the maximum amount of r50,000, and this payment would not constitute significant harm. In relation to the prospect of detention for any period of time, I accept that returnees may be remanded in conditions which are cramped, uncomfortable and unsanitary, I do not accept that spending up to a fortnight in such conditions amounts to significant harm or that the applicant faces a real risk of suffering significant harm.

45. I also do not accept that such treatment is intentional as is required by the law in Australia. I do not accept that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is 'intentionally inflicted' on an applicant as required by the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act. Nor do I accept that overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of 'degrading treatment or punishment'.

1. Without further information from the applicant I am not satisfied that the applicant has any personal characteristics that renders him vulnerable to harm on remand. Nor am I satisfied that during any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring visit that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I find that there is no real risk that the applicant will suffer significant harm.

2. I have considered the applicant’s circumstances, singularly and cumulatively.  As  I do not accept that the applicant suffered any harm when he resided in Sri Lanka,  in light of the applicant’s circumstances, I do not accept the applicant will come to the adverse attention of the authorities or that he faces a real risk of arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

3. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

4. The applicant’s advisor has requested that the Tribunal refer this application to the Minister, pursuant to s417 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The request is based on exceptional circumstances surrounding the children, one of which is an Australian citizen. A detailed submission, by the applicant’s advisor, has been provided.

5. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Lilly Mojsin
   Member

   
   

   Annexure A

   Relevant Law

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.