1508442 (Refugee)
[2016] AATA 3303
•9 February 2016
1508442 (Refugee) [2016] AATA 3303 (9 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1508442
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Fraser Syme
DATE:9 February 2016
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 09 February 2016 at 2:18pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a [age] year old man from Northern Province, Sri Lanka. According to the applicant, he and his family have been harmed by the Sri Lankan authorities in the past because of suspected links to the Liberation Tigers of Tamil Eelam (“LTTE”). He fears the Sri Lankan authorities will for a number of reasons consider he is a supporter of the LTTE and will harm him if he returns to Sri Lanka, including because he is a Tamil, applied for asylum in Australia and departed Sri Lanka illegally.
The applicant first applied to Refugee Review Tribunal (“RRT”) (differently constituted) [in] November 2013 for review of a decision made by a delegate of the Minister for Immigration [in] October 2013 to refuse to grant him a Protection visa under s.65 of the Migration Act. The applicant included a copy of the decision record of the delegate with that review application. The RRT affirmed that decision on 20 March 2015 (RRT file [number]).
The applicant is before the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”) for reconsideration following Consent Orders of the Federal Circuit Court of Australia (FCC file AOR15) that the decision of the RRT was affected by error. The applicant’s migration agent submits the Court accepted the RRT failed to consider the applicant’s ability to obtain bail as part of its assessment of whether the applicant was owed complementary protection.
This review application raises the following issues for the Tribunal to determine:
a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka.
b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka
HISTORY OF APPLICATION FOR REVIEW
The applicant who claims to be a citizen of Sri Lanka arrived in Australia as an unauthorised maritime arrival. He applied to the Department of Immigration for a protection visa in May 2013. The delegate conducted an interview with the applicant in September 2013 with the assistance of an interpreter in the Tamil and English languages. The Tribunal has listened to a recording of that interview. The applicant provided to the department his Sri Lankan passport; birth certificate; identity card, a reintegration certificate; a handwritten letter; displaced persons card and his school records.
In the decision under review, the delegate accepted the applicant grew up in an LTTE controlled area and lived with his [relative] after finishing high school. The delegate accepted the [relative] told the Sri Lankan authorities the applicant’s parents may have fled to [Country 1] and that in 2010 the applicant rang a [bell] on an LTTE remembrance day. The delegate further accepted the applicant was detained for the bell-ringing incident, his [relative] was held in an IDP camp, his cousin K was detained in a rehabilitation camp and another cousin P was arrested for attempting to depart Sri Lanka illegally, albeit it none of these family members of the applicant were members of the LTTE. The delegate did not accept the Sri Lankan authorities had come looking for the applicant in Sri Lanka since he came to Australia nor did the delegate accept the applicant’s cousin remained in detention due to the cousin’s attempted departure from Sri Lanka. On the basis of country information, the delegate was not satisfied the applicant faced a real chance of serious or significant harm if he returned to Sri Lanka because he is a Tamil, from north of Sri Lanka, an orphan, has any actual or imputed political opinion or his applying for asylum in Australia or illegal departure from Sri Lanka.
The RRT found the applicant to generally be a credible witness and accepted most of his claims as stated, including that no one in his family had been a member of the LTTE and including claims the applicant did not raise until he made second statutory declaration after the first hearing with the RRT. The RRT considered the applicant had not suffered any serious or significant harm in the past. On the basis of country information, the RRT was not satisfied the applicant had a well-founded fear of persecution because he is a Tamil, imputed with a pro-LTTE political opinion, applied for asylum in Australia nor was the Tribunal satisfied the applicant face a real risk of significant harm. The Tribunal found any penalty the applicant would face for illegal departure was under a law of general application.
The applicant appeared in person before the Tribunal on 27 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an onsite interpreter in the Tamil and English languages.
The applicant was represented in relation to the review by his registered migration agent. The migration agent attended the hearing via telephone and provided written submissions to the Tribunal before and after the hearing. The Tribunal has had regard to the submissions, which are discussed in more detail below. After the hearing, the applicant provided to the Tribunal an article which he claims is about [a family member] of his cousin.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There are two DFAT country information assessments regarding Sri Lanka, to which the Tribunal has had regard: DFAT Country Report – Sri Lanka (“DFAT Country Report”) and DFAT Thematic Report – People with links to the Liberation Tigers of Tamil Eelam (“DFAT Thematic Report”). Since the date of the hearing, a new Country Report on Sri Lanka was issued by DFAT on 18 December 2015. That report replaces the earlier Country Report and the Thematic Report. The Tribunal has had regard to all three reports. It has compared the information in the earlier reports and the new report. The Tribunal considers the relevant information in the new Country Report is materially the same as in the prior reports that it discussed with the applicant during the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In making its findings, the Tribunal is mindful the applicant has vocational school level of education and was [age] years old at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearing was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
The Tribunal finds the applicant is a national of Sri Lanka. He provided a copy of his Sri Lankan identity documents. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village where he resided before departing Sri Lanka and where his [relative] continues to reside to be his home region in Sri Lanka.
The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal put to the applicant during the hearing it considered his credibility was an issue.
Well-founded fear of persecution
The Tribunal is mindful it must consider the applicant’s chance of harm not only currently but into the reasonably foreseeable future. In making its findings, the Tribunal has considered PAM3 Refugee and humanitarian - Refugee Law Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
The Tribunal has had regard to the findings of the delegate and of the RRT as well the Consent Orders of the Court. At the hearing, the Tribunal discussed with the applicant in detail all of his claims.
In summary, his claims are for the following reasons he will be considered a supporter of the LTTE by the Sri Lankan authorities: One of his cousins, K was arrested on suspicion of being a member of the LTTE. Another cousin P, was arrested for illegal departure from Sri Lanka. His father refused as position as [occupation] in the mid-90s and then was regularly assaulted by the Sri Lankan army. His parents went missing in 2009. His [relative] lived in an internally displaced camp in 2009. He began living with his [relative] after he finished school in 2010 and was often questioned by the Sri Lankan authorities about his family. On one occasion, he was beaten and his [relative] raped. There was a dispute regarding [a certain activity] in his home village, which led to some arrests. In November 2011, he was questioned, assaulted and detained by police for ringing a [bell] on an LTTE remembrance day. R, the [family member] of another cousin was arrested on returning to Sri Lanka from [Country 2]. The applicant further claims the Sri Lanka authorities have continued to contact his [relative] and are looking for him.
As well as those events, the applicant claims he will be harmed by the Sri Lankan authorities because he is a young, orphan Tamil, he comes from the north of Sri Lanka, he applied for asylum in Australia and he departed Sri Lanka illegally. In relation to that last claim, the applicant’s [relative] is no longer willing to support him in relation to any bail application or generally if he returns to Sri Lanka.
The Tribunal accepts the applicant’s cousins K and P were detained. It accepts too that K was released. For reasons set out in more detail below however, the Tribunal does not accept P remains in detention for illegal departure. Nor does the Tribunal accept R (his cousin’s [family member]) has been detained for return to Sri Lanka. Nor does the Tribunal accept the applicant has no relatives willing to support him if he returns to Sri Lanka, including to help him procure bail.
Tamil – imputed political opinion
As noted above, the applicant has made a number of claims regarding why he would be harmed by the Sri Lankan authorities because they would impute him to be a supporter of the LTTE. These include because he is a Tamil, an orphan, from north of Sri Lanka and because of his family members and his ringing a [bell]. The applicant told the Tribunal none of his family, including his cousin K who was held in detention, were members of the LTTE. The Tribunal considers the implication in much of the applicant’s claims is he will be harmed by the Sri Lankan authorities as someone suspected of links with the LTTE or opposed to the government. Regardless whether that is considered in terms of his ethnicity, imputed or actual political opinion or membership of a particular social group, the Tribunal considers the issues under consideration are substantially the same.
The Tribunal accepts the applicant is Tamil. The Tribunal is willing to accept the applicant’s claims as stated. It accepts his father turned down employment with [an agency] and was harassed by the Sri Lankan authorities doing so, but finds that was not related to the applicant. It accepts too that there was a dispute regarding [a certain activity] in his home village, but again finds this was not related to the applicant. The Tribunal accepts he was separated from his parents during the Sri Lanka civil war while he was attending boarding school and accepts too that his parents are missing. The Tribunal accepts this has caused great distress to the applicant. The Tribunal also accepts the applicant was assaulted and detained for inadvertently ringing a [bell], but notes he was released and was not further harmed in relation to that incident. Again, the Tribunal accepts this caused distress to the applicant. The Tribunal is further willing to accept (albeit he did not make this claim until his second hearing with the RRT) that the applicant witnessed the rape of his [relative] and was assaulted by Sri Lankan authorities. Once more, the Tribunal accepts this caused distress to the applicant. The Tribunal is willing to give the applicant the benefit of any doubt about his claims because much of the applicant’s claims occurred within the context of the Sri Lankan civil war and therefore are consistent with available country information (which is detailed below).
It is convenient to note here that the Tribunal has not blankly accepted all of the applicant’s claims. It has considerable doubts about the applicant’s claims regarding the detention of his cousin P and of R, the [family member] of another cousin. It has doubts too regarding his claims no family members will assist him (including to obtain bail) if he returns to Sri Lanka. The Tribunal assesses these claims in more detail below when assessing the applicant’s claims on the basis of being a failed asylum seeker and his illegal departure from Sri Lanka.
The applicant told the Tribunal the Sri Lankan authorities are suspicious of him because of his father and his cousins. The Tribunal noted that other than the occasion where he inadvertently rang a [bell] on an LTTE remembrance day, he was never questioned or detained by the LTTE. He further stated the Sri Lankan authorities have been looking for him since he departed Sri Lanka, but for the reasons set out below, the Tribunal does not accept that occurred. The Tribunal has accepted an incident where the applicant was beaten when he witnessed the rape of his [relative], but the Tribunal does not consider that event occurred because the perpetrators suspected the applicant of having any role with the LTTE, otherwise it is reasonable to conclude he would have been detained for questioning at that time. The Tribunal is willing to accept to an incident where he did not travel to [Country 1]. He claims Sri Lankan authorities learned of his intention to travel to [Country 1] but warned him not to leave the country. He believes this is because his [relative] had previously told the Sri Lankan authorities the applicant’s family may have gone to [Country 1]. The applicant subjectively believes that is another reason the Sri Lankan authorities believe he is a supporter of the LTTE.
The Tribunal discussed with the applicant country information regarding the situation for Tamils. It noted the UNHCR 2012 eligibility guidelines for assessing the protection needs of asylum seekers from Sri Lanka [1] and the UK Upper Tribunal guidance decision of 2013 [2] indicate Tamils are not in need of protection unless they have other characteristics, such as ties to the LTTE. According to the UNHCR a risk factor exists for a Tamil with certain actual or imputed links to the LTTE. The decision of the UK Upper Tribunal, indicates that although the Sri Lankan authorities are described as ‘paranoid’ about an LTTE resurgence, simply because a Tamil has had LTTE connections or sympathies in the past will not now of itself cause the Sri-Lankan government to consider that that person is a destabilising threat. The risk is limited to those who are or are perceived to have a significant role in relation to post-conflict separatism. The Upper Tribunal decision too indicates that the Sri Lankan authorities are aware persons who lived or worked in areas of Sri Lanka previously controlled by the LTTE had some level of involvement with the LTTE during the civil war, but that would not cause the Sri Lankan authorities to consider such a person to be a risk. The Sri Lankan authorities collect and maintain sophisticated intelligence gathering techniques to identify persons with substantial links to the LTTE. The Tribunal therefore having regard to that information does not consider all Tamils would be imputed with a pro-LTTE political opinion just because they are Tamil.
[1] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26-37 <
[2] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
The applicant replied that what happened to his parents could happen to him. The Tribunal noted his parents disappeared during the Sri Lankan civil war. He later stated the Sri Lankan authorities have a file on his family which records them as being supporters of the LTTE. The Tribunal again noted the applicant was never questioned or detained on suspicion of involvement with the LTTE which strongly suggests the Sri Lankan authorities do not consider him to be a threat. For the same reason, the Tribunal does not accept suspicion he was a supporter of the LTTE was the reason he was warned not to travel to [Country 1], were it the case the Sri Lankan authorities did so suspect him at that time, it is reasonable to conclude they would have detained and questioned him – but that did not happen.
The applicant further raised the men who assaulted him and raped his [relative] may try to harm him because he could identify them. The Tribunal noted he remained in Sri Lanka for a long time after that event and the perpetrators did not seek to harm him during that time. It therefore considered there was only a remote and therefore not a real chance the perpetrators would harm him to stop him identifying them.
Elsewhere in the hearing the applicant claimed there is no justice, freedom or independence in Sri Lanka. The Tribunal takes these to be claims that Tamils suffer from discrimination and harassment.
The Tribunal accepts that the independent evidence indicates, at least until the end of the civil war in 2009, that Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities. The Tribunal also accepts that the information indicates that the risk was more prevalent in LTTE dominated Northern and Eastern areas. This is consistent with the applicant’s claims of general discrimination and persecution of Tamils. The independent evidence supports the applicant’s claims that during the civil war many thousands of Tamils disappeared, presumed dead, and thousands of others were killed or injured. The DFAT country report states the situation for Tamils in Sri Lanka has changed significantly since the cessation of the civil war between the Sri Lankan government and LTTE in 2009. However the Tribunal accepts on basis of the country information provided by the migration agent that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. Human Rights Watch has reported that there is evidence of continuing atrocities against some Tamils who were members or supporters of the LTTE. [3] The Bar Human Rights Committee of England and Wales [4] and Amnesty International report on surveillance, intimidation and monitoring of former LTTE members by the security forces. [5] The DFAT thematic report refers to there a high risk of harm to high profile former members of the LTTE. However, while the Tribunal accepts the harassment and discrimination that Tamils may face in Sri Lanka does give rise to some harm as indicated in the country information, the Tribunal is not satisfied when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm.. The Tribunal accepts based on the country information that most Tamils experience some degree of harassment and discrimination. Having considered the applicant’s individual circumstances, the Tribunal is satisfied the applicant faces a remote chance and therefore not a real chance of serious harm because he is a Tamil.
[3] See Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January 2013. (Harrison F.2013, ‘Tamils
still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November
[4] Y Sooka, March 2014, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014” Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA
37/011/2014, September, p. 11
On the basis of the country information discussed above, it does not accept the applicant has any profile which would warrant the Sri Lankan authorities to contact his [relative] or to be looking for him. It rejects that the Sri Lankan authorities have been looking for him since he departed Sri Lanka. It rejects he was warned not to travel to [Country 1] for reason he is suspected of being a supporter of the LTTE. The Tribunal does not accept he will be imputed with any anti-government or pro-LTTE opinion because of any of the other reasons he has claimed he will be imputed with such a political opinion, including: he is a Tamil or because he lived in an LTTE area in the north of Sri Lanka or because he was questioned in the past about connection to the LTTE or because he rang a [bell] or because he is an orphan or due to the detention of his cousins, nor due to his witnessing the assault of his [relative]. The Tribunal considers there is only a speculative and therefore not a real chance he will suffer serious harm by the Sri Lankan authorities, because of his race, any particular social group or political opinion or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Failed asylum seeker
There are two aspects to the applicant’s claim. That the Sri Lankan authorities will impute him with a pro-LTTE/anti-government political opinion because he applied for asylum and that the Sri Lankan authorities will seek to punish him because they will assume the applicant was critical of them in his claims for asylum.
The Tribunal considers the Convention ground relevant to this claim is an implied political opinion of being against the Sri Lankan authorities due to the applicant’s applying for asylum overseas or his membership of the particular social group of returned failed asylum seekers. Interrelated to this is his race as a Tamil and an implied political opinion of being pro-LTTE because he is a Tamil and/or applied for asylum overseas. Regardless of which Convention reason, the Tribunal considers the issues under consideration are substantially the same.
The applicant claims his [relative] R was detained by the Sri Lankan authorities. After the hearing, he provided a newspaper article he claims is about R. The applicant claims to have sighted a Facebook posting about the arrest of R, but was unable to provide a copy to the Tribunal. R is not named in the news article. The article actually refers to a Tamil travelling from Sri Lanka to [Country 2] arrested on document fraud and is not relevant as evidence of the Sri Lankan authorities harming returned asylum seekers. The source of the news article is not provided. The Tribunal places no weight on the news article and on the evidence. On the evidence before it, is not satisfied the [family member] of the applicant’s cousin has been arrested for any reason.
The Tribunal discussed with the applicant country information that there are reports [6] of some Tamils being questioned, detained and tortured by the Sri Lankan authorities upon return to Sri Lanka as failed asylum seekers, particularly from the UK. Freedom from Torture and Tamils Against Genocide report on returnees with links to the LTTE or the Tamil diaspora being harmed on return by the Sri Lankan authorities. The Tribunal is mindful too of reports such as that of HRW [7] as to the prevalence of the use of torture by the Sri Lankan authorities when questioning or detaining persons. The UK Home Office [8] noted six and the Canadian Immigration Refugee Board [9] four cases of failed asylum seekers being detained upon return, all of whom had criminal charges outstanding in Sri Lanka. The DFAT Country Information Report indicates all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka, the same information is reported by the British [10] Canadians. [11] Thousands of asylum seekers have returned to Sri Lanka since 2009 from Australia, US, Canada, UK and European countries but there are relatively few allegations of mistreatment and the DFAT country information report states many allegations of mistreatment of returnees have not been substantiated. The Tribunal put to the applicant that it did not consider he had a profile as someone with links to the LTTE or the diaspora and that he would not be imputed targeted for harm because he applied for asylum in Australia.
[6]See: Freedom From Torture 2014, Freedom from Torture up-dated submission to the Human Rights Committee for the 5th periodic review of Sri Lanka in October 2014, 1 October <
[7] We will teach you a lesson Sexual Violence by Sri Lankan Security Forces, 26 February 2013, UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March
[9] Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August <
[10] UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, pp.202-203
[11] Immigration and Refugee Board of Canada 2011, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August <
The applicant stated the Sri Lankan authorities will punish him for leaving Sri Lanka and will consider him to be a supporter of the LTTE. They will be suspicious about what he had said overseas.
On the basis of the country information set out above, the Tribunal does not accept that all failed asylum seekers are imputed with anti-government or pro LTTE political opinion by the Sri Lankan authorities, regardless whether the returnee is Tamil or not. In making that assessment the Tribunal has had placed weight on the UNHCR guidelines and the Upper Tribunal guidance decision noted above which indicate that while persons with links to the LTTE may be in need of protection, the Sri Lankan authorities rely on sophisticated intelligence gather in identifying persons with such links. The Tribunal has had regard too to the applicant’s low level connections to the LTTE through his father, [relative] and cousins.
After assessing all the evidence and the applicant’s circumstances as a whole, the Tribunal finds that the applicant will not be imputed with an anti-government or pro LTTE political opinion because he will return to Sri Lanka as a person who applied for asylum overseas. In reaching that finding, the Tribunal has given regard to the country information on the return of failed asylum seekers to Sri Lanka and has been mindful of the questioning process and not just the outcome of any questioning the applicant may face from the Sri Lankan authorities as a returnee and is not satisfied that questioning when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm. The Tribunal is not satisfied the applicant has a real chance of serious harm because of an implied political opinion or membership of any particular social group however described arising from the applicant returning to Sri Lanka as a person who applied for asylum in Australia if the applicant returns to Sri Lanka, now or in the reasonably foreseeable future.
Orphan
The Tribunal accepts the applicant’s family have gone missing during the Sri Lankan civil war. It notes though the applicant is an adult, not a minor. The Tribunal does not consider any ground of serious harm arises from the applicant being an orphan or that he has no relatives to care for him. While the applicant may face some difficulties re-establishing himself in Sri Lanka, those difficulties too do not amount to any ground of serious harm.
Further, for the following reasons, the Tribunal does not accept the applicant is estranged from his [relative]. Nor does the Tribunal accept the applicant has no relatives to help him. Firstly, the applicant’s evidence is his [relative] paid for him to travel to Australia and she did so in preference to sending her own son first. That is not consistent with the applicant’s claims his [relative] is angry at him for causing her to be harmed by the Sri Lankan authorities before he departed Sri Lanka. Moreover, the Tribunal rejected above the applicant’s claims the Sri Lanka authorities have contacted his [relative] looking for him since he left Sri Lanka. It follows that the Tribunal rejects the applicant’s [relative] has told him she will not support him because she has been harassed by the Sri Lankan authorities about him.
The applicant’s statutory declarations indicated his relatives have informed him of events in Sri Lanka. That too is inconsistent with his claims he has no other relatives in Sri Lanka to support him. When the Tribunal put these inconsistences to the applicant at the hearing, he variously said he may have been five, not eight months since he contacted his [relative] and that he had not visited the homes of his other relatives. The Tribunal is not persuaded by those explanations. The Tribunal considers the applicant has fabricated his claims to be estranged from his [relative] and to have no other relatives in Sri Lanka so as to create circumstances which may cause him not to be granted bail if he is charged with illegal departure (which is discussed in more detail below) from Sri Lanka with a view to then claiming he will face serious or significant harm while on remand.
Illegal departure from Sri Lanka
The applicant claimed he would be harmed because he departed Sri Lanka illegally. The Tribunal accepts that the applicant departed Sri Lanka without possession of his Sri Lankan passport and not from an approved port. The Tribunal discussed with him his doing so was an offence under the Immigration and Emigration Act of 2006 (“IEA”) for illegal departure from Sri Lanka. [12] It discussed too that according to information from DFAT [13] returnees are generally met either by DFAT or IOM staff at the airport. Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia who had departed Sri Lanka illegally had been arrested upon return to the airport in Colombo. The returnees were then charged with offences relating to illegal departure under the IEA and held on remand until brought before a Magistrate. After a bail hearing, the returnees are granted bail with a personal surety and able to return to their home area. The period on remand varies between a couple of hours to a couple of days, depending on how soon a bail hearing can be held, but there are reports of it taking up to two weeks. [14] The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person’s family and the police in their home area. Eventually the returnee will need to return to Court to face the charges. Although the IEA states the penalty for illegal departure is a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR, the Magistrates are able to use their own discretion in determining the amount of the fine. In practice, Magistrates have been handing out fines between 5,000 LKR and 50,000 LKR. Only returnees suspected of people smuggling offences have been denied bail or given a prison sentence. The most recently available information is the above process is continuing under the new government. [15]
[12] Sections 34, 35 and.45 IEA DFAT Country Information Report: Sri Lanka, 31 July 2013; (CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012, CX304258 of 27 February 2013 and DFAT report 1479 of 4 March 2013)
[14] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.
[15] A. Perera, B. Doherty, S. Medhora, ‘Asylum seekers transferred at sea by Australia to face court in Sri Lanka” (20 Feb 2015) >
Again, the Tribunal is mindful it must give regard not only to the outcome of any interrogation or questioning, but also whether there is a chance of harm during the process the process involved in attaining that outcome. [16] The Tribunal considers the offences under the IEA are laws of general application. On the face of the wording of the IEA legislation and the information regarding the implementation of the IEA before the Tribunal, the Tribunal is not satisfied the IEA laws are discriminatory in there terms or enforced in a selective or discriminatory way. The laws apply to all Sri Lankan citizens who depart Sri Lanka in breach of the IEA laws. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(1)(c) and therefore is not persecution. [17] The Tribunal does not accept that his prosecution for breach of Sri Lankan migration laws amounts to persecution.
[16] SZQPA v MIMA [2012] FMCA 123
[17] SZQPA v MIMA [2012] FMCA 123
The applicant stated he will be able to get bail if he is charged with illegal departure, because he has no relatives to support him. He told the Tribunal has not spoken with his [relative] for 8 months and he has no other relatives in Sri Lanka willing to care for him. He has nowhere to live, nowhere to go. He claims the [relative] will not help him because she is worried the applicant will bring more trouble to her. However for the reasons set out above, the Tribunal rejects those claims.
The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal has regard to the decision of the High Court in WZARV [18] that not all detention amount to a threat to a person’s liberty and is an instance of serious harm. The Tribunal accepts that conditions in Sri Lanka’s prisons are poor, they are described so in the DFAT country report. Conditions on remand have been described in media reports [19] as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. [20] The DFAT country report refers to there being unsubstantiated allegations but is unaware of reports of mistreatment of returnees while on remand. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal considers any period the applicant spends on remand is as result of the application of the IEA laws, which the Tribunal found above are laws of general application and any period on remand would be a consequence of those laws of general application and therefore not persecution. [21] Furthermore the Tribunal is not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would face a real chance of serious harm while held on remand.
[18] MIBP v WZAPN, WZARV v MIBP [2015] HCA 22, see also, SZTEQ v MIBP [2015] FCAFC 39
[19]‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, ACAT-France, “When arbitrariness prevails: A study of the phenomenon of torture in Sri Lanka”, (June 2012) see also DFAT country report, HRW op cit, Amnesty International op cit, UKBA op cit, Freedom from Torture. op cit, Canadian IRB op cit.
[21] MZAPO v MIBP [2015] FCCA 96, SZSPT v MIBP [2014] FCA 1245 and SZSRU v MIBP [2014] FCA 1252
Having regard to that country information, the Tribunal rejects the applicant’s cousin P remains in detention for illegal departure. While the country information supports it is plausible P would have been charged with offences related to illegal departure, the country information indicates only persons charged with people smuggling offences are not granted bail or not given fines. The evidence before the Tribunal does not indicate P was involved in people smuggling. The Tribunal considers this to be another instance of the applicant fabricating claims in order to create a profile on which he would not be given bail if he is charged with illegal departure from Sri Lanka with a view to then claiming he will face serious or significant harm while on remand.
The Tribunal considers it not because the applicant is a Tamil or a failed asylum seeker, but rather because the applicant departed Sri Lanka illegally that he will be charged or held or remand or questioned at the airport or further questioned upon return to his home village. The Tribunal is not satisfied that any difficulties the applicant may face as a result of questioning, being charged, encountering cramped and uncomfortable and unsanitary conditions on remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils or failed asylum seekers or persons with imputed political opinions. The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).
There is also the consideration of the applicant facing a jail term for his illegal departure. On the face of the wording of s.45(1)(o) of the IEA states both a fine and a prison sentence are enforced upon conviction for illegal departure. The information from DFAT and the Attorney General Department of Sri Lanka is the Magistrates have discretion to suspend a sentence and that is what is routinely done. This power is found in s.303 of the Code of Criminal Procedure. [22] The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the IEA. The Tribunal considers it high likely the applicant will be fined not more than LKR200,000 (AUD1,850) and more likely to be LKR50,000 (AUD460). [23] The Code of Criminal Procedure provides for allowing time for payment and for the payment of fines by instalments. [24] The evidence before the Tribunal does not suggest the applicant will be unable to pay or that fine or that payment of the fine will cause him hardship. The evidence before the Tribunal too does not suggest he is without any relative able to provide surety. Therefore, the applicant will be able to receive a suspended sentence. As such, the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.
[22] CODE OF CRIMINAL PROCEDURE &path=5[23] (accessed 22 January 2015)
[24] Parliament of the Democratic Socialist Republic of Sri Lanka n.d. [current],‘Code of Criminal Procedure. An Act to Regulate the Procedure of the Criminal Courts’, (2 July 1979) [No.26 of 1981] (amended to Act No.7 of 2006), LawNet. Government of Sri Lanka [Ministry of Justice], Section 291 ‘Provisions as to sentences of fine’ <>
In summary, the Tribunal finds the applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka because: the laws were not persecution due to a lack of discriminatory intent or application and there is no real chance he would face a term of imprisonment for the offence of illegal departure.
After assessing all the evidence and the applicant’s circumstances and being mindful of both the process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from his illegal departure, the Tribunal is satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Tribunal has considered the claims of the applicant individually and cumulatively. The Tribunal is not satisfied the applicant faces a real chance of serious harm by the Sri Lankan authorities due to his race, his being an orphan, where he lived in Sri Lanka, his relatives being detained, his ringing a [bell], being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason or combination of reasons, now, or in the reasonably foreseeable future if he returns to Sri Lanka. Therefore he does not satisfy the requirements of s.36(2)(a).
The Tribunal considers his claims further below in relation to complimentary protection.
Real risk of significant harm
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
Orphan
The Tribunal found above the applicant’s claims he is an orphan were not serious harm. The Tribunal rejected the applicant has no family to support him and nowhere to live. The Tribunal is mindful having his parents go missing during the Sri Lankan civil war would be a source of hardship to the applicant but does not consider that amounts to any form of significant harm.
Discrimination
The Tribunal accepted above on basis of the country information that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. The Tribunal has had regard to whether that harassment and discrimination amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the harassment of or discrimination towards Tamils involves severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, the harassment and discrimination cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could the harassment or discrimination be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal accepts the harassment and discrimination may cause some humiliation to the applicant, but is not satisfied that the harassment and discrimination would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the harassment or discrimination will amount to significant harm.
Illegal departure
The Tribunal has had regard to whether the harm the applicant may suffer arising from his committing offences under the IEA amounts to significant harm, in particular, being questioned, his bail conditions, being detained for a short period while on remand and imposition of a fine. The Tribunal has had regard to whether that amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, bail conditions, detention on remand or fine will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, the bail conditions, detention while on remand and fine cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could his bail conditions, detention while on remand or fine be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, the bail conditions, detention while on remand and fine would cause extreme humiliation which is unreasonable. Moreover, the definitions of ‘cruel or inhuman treatment or punishment’ in s.5(1) requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[25] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. Therefore, the Tribunal is not satisfied any harm arising from his being questioned, the bail conditions, being detained while on remand or fined will amount to significant harm.
[25] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
In relation to the balance of the applicant’s claims, the Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[26] Given the test is the same, for the same reasons set out above in relation to real chance, the Tribunal is not satisfied the applicant has a real risk of significant harm.
[26] [2013] FCAFC 33
The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the named applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Fraser Syme
Member
Freedom from Torture 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September < Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009-2011, p.23; Tamils against Genocide, “Returnees at Risk: Detention And Torture in Sri Lanka”, (16 September 2012);
The IEA was amended in 2006 to repeal s.45(6), which previously excluded operation of s.303 of the Code of Criminal Procedure.Key Legal Topics
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