1508466 (Refugee)

[2015] AATA 3411

1508466 (Refugee) [2015] AATA 3411 (28 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508466

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Tony Caravella

DATE:28 August 2015

PLACE OF DECISION:  Perth

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

Statement made on 28 August 2015 at 3:59pm

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] August 2014 and the delegate refused to grant the visa [in] June 2015.  On 23 June 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.

   Background and protection claims

3. In documents submitted to the delegate, the applicant declares that he was born in [year] in [Town 1], Central Province, Sri Lanka.  He claims to be a citizen and national of Sri Lanka and of no other country.  He claims to be of the Sinhalese ethnic group and a Buddhist by religion.

4. In his written application for a protection (Class XA) visa signed by the applicant [in] August 2014, the applicant declares that youths are threatened in Sri Lanka especially if they are not of the same political party as the ruling government.  The applicant declares his life was in danger and so his father decided to send the applicant to Australia to study and live a good life.  The applicant declares that if he had not departed Sri Lanka by now he may have been kidnapped, abused, harmed inhumanly, or killed.

5. In reply to the question which asks whether he has ever experienced harm in Sri Lanka, the applicant declares that thugs from the government came to his house and threatened him and his family because they voted for the United National Party (UNP) which the applicant refers to as being “the opposition party”.  The applicant also declares “The law enforce look the other way when Ministers hensman (sic.) abuse the civil life in Sri Lanka.  They are in the government payroll so nobody cant (sic.) touch them they do all the dirty work for government high up.  They run illegal covert opps (sic.) using tax payers money.”

6. In reply to the question which asks the applicant what he thinks may happen to him if he goes back to Sri Lanka, the applicant declares that he will be taken into police custody and released to be abducted by so called agents who are thugs.  He declares they will ask for ransom money which his family cannot afford to pay.  The applicant declares he will ultimately pay with his life.

7. In reply to the question asking who the applicant thinks may harm or mistreat him if he goes back to Sri Lanka, the applicant declares that after he left Sri Lanka in 2007 “after a while my mother called me said there were four government agents who were looking for me to make a statement for a past traffic violation incident which happened in 2008 while I was in Australia”. 

8. In reply to the question in the application form which asks why the applicant thinks this will happen, the applicant writes that a couple of his friends were abused and let go after their families paid money.  He claims his friends are living in [another country] and Australia.  He declares they (his friends) were beaten.  He also declares “I love my life I have a [child] in Australia I want to see [my child] grow up and be a part of [my child’s] life.”

9. On the question of whether the authorities of Sri Lanka can and will protect the applicant, he declares “Authorities are the bad guys in this case people cant trust them because they are in the government officials pocket.  They allow the thugs to play God with innocent people.”

   The delegate’s decision

10. The delegate refused to grant the applicant a protection visa and sets out the reasons for that in a decision record dated [in] June 2015.  The delegate found, amongst other things, that there are several reasons to doubt the applicant’s credibility.  Those reasons are set out in the delegate’s decision record.  Ultimately, the delegate accepted the applicant was a student in Sri Lanka at the time of the presidential elections there in 2005 and that he applied for a student visa and travelled to Australia [in] October 2007.  However, for the reasons set out in the delegate’s decision record, the delegate did not accept as credible the applicant’s written claim that he is a UNP voter who was targeted because of his voting preference.  Nor did the delegate accept as credible the applicant’s verbal claim that he witnessed a fight between two rival political gangs in 2005 and was threatened.  Nor did the delegate accept as credible the applicant’s verbal claim that he was assaulted while putting up UNP posters in 2005.  The delegate also rejected the applicant’s claim that he will be assaulted by persons connected by persons connected with the People’s Alliance (PA) Party.  The delegate also found the applicant did not meet the requirements prescribed under the complementary protection provisions of the Act.

    Application for review

11. On 23 June 2015, the applicant applied to this Tribunal for a review of the delegate’s decision. 

    Evidence provided at Tribunal hearing

12. The applicant appeared before the Tribunal on 7 August 2015 to give evidence and present arguments.

13. At the beginning of the hearing the applicant confirmed his date of birth and that he was born in Sri Lanka and that he is ethnic Sinhalese.  He confirmed he worked for his uncle as a [occupation] after completing [number] years of school in Sri Lanka.  He said his uncle operated a business called [name deleted] and that the business [details deleted].  He said he worked there for about 6 to 8 months.  He said that since his arrival in Australia he had worked [in occupation] and that he last worked in Australia in 2014.

14. The applicant told the Tribunal that he has a [child] by the name of [Child A].  He said that [Child A]’s mother is [name].  He said they live in [an Australian town].  He said they separated after having been together 7 months and that he has not seen his [child] since [Child A] was [number] months of age.

15. When asked to explain why he believes he cannot return to Sri Lanka, the applicant began by saying that a friend had asked him to do some poster work putting up UNP (United National Party) posters.  He said this was in November 2005.  He said that he put up posters for a particular presidential candidate for the UNP.  He said that a friend of his, [Mr B] was working for a member of Parliament by the name of [name deleted] and that [Mr B] had asked the applicant to help him put up posters.  He said that while in the course of putting up posters, 9 or 10 men came from across the road and attacked him. He said it was between 6 to 6:30 PM and that it was the 2^nd or 3^rd time that he had been out putting up posters.  He said it occurred [in] November 2005.  He said he could remember that date because he was raped that day. He said he was in a group of 7 persons putting up posters but 3 of them ran away.  He said the 9 or 10 men who came from across the road attacked their van and broke the van windows and then took him and his 3 colleagues to a place called [deleted].  He said there was a warehouse there and there were banners and posters up there for candidates for the People’s Alliance Party.  He said that the attackers took each of the 4 into different areas and tied them up to chairs.  He said in his case his particular attacker asked him questions as to why he was putting up posters and used very rough language in doing so.  He said his attacker also slapped him and abused him and forced the applicant on to the ground and when he was on the ground, his attacker hit him and said he was going to teach a lesson.  The applicant then claimed that his attacker raped him.  He said he believes he did this to show his dominance.  The applicant told the Tribunal that this attacker was drunk and had a pistol.

16. The applicant said that after his attacker stopped, the applicant got up from the ground and accidentally kicked his attacker in the face causing the attacker to have a nosebleed.  He then said he managed to escape and ran away to a river about 4 km away where he washed himself before going home.  He told the Tribunal that he then went to stay with his grandparents and also continued his [sport] playing.  In 2006, he went on a [sporting] camp to [another country].  He said he did that so as not to be alone.  He said that he eventually discovered the person who had abused him was a person called [Mr C].  He said that [Mr C] told him, through the applicant’s friends, that he would kill him because the applicant had given [Mr C] a bloody nose and because he had run away.

17. The applicant also claims that once when he was in [Town 1], [Mr C] saw him and [Mr C] wagged his finger at him.

18. The Tribunal asked the applicant if [Mr C] knew where he lived.  The applicant replied he did.  The Tribunal put it to the applicant that from November 2005 until the applicant departed for Australia in October 2007, [Mr C] did not appear to have done anything to harm the applicant despite having the opportunity to do so.  The applicant replied that for some reason [Mr C] did not harm him before he left for Australia but that he would send threats.

19. The applicant told the Tribunal that it was his father’s idea to send him to Australia to study and to live.  The Tribunal asked whether he had any other fear of returning to Sri Lanka; the applicant replied he does not and that the threats from [Mr C] are the only reason he fears returning to Sri Lanka.

20. The applicant told the Tribunal that he found out that [Mr C] is a convicted murderer but he was released after 2 years of imprisonment because of political intervention.  He said that [Mr C]’s earlier offence was as a result of elections in the 1990s.

21. The Tribunal invited the applicant to comment on the delegate’s decision record.  The applicant said it was pretty upsetting that the delegate did not believe his claims.

22. The Tribunal then referred the applicant to the various grounds set out in the delegate’s decision record where the delegate sets out the reasons for making adverse credibility findings in respect of the applicant.

23. The Tribunal invited the applicant to comment on the delegate’s findings of fact in respect of his credibility.  It referred to the delegate’s finding that the applicant’s reasons why the claimed harm occurred appears to have changed between his making his written statement of claims and the time when he attended the protection visa interview.  The delegate found that the statement of claim referred to the applicant’s voting preference for the UNP being the reason thugs threatened him and his family.  Whereas, during interview the applicant stressed he was not politically active and was assaulted [in] November 2005 through ‘pure coincidence’. The applicant responded by telling the Tribunal that he had someone assist him to complete his written statement of claim.  He said the person who assisted him was a fellow asylum seeker.  The applicant told the Tribunal that he had spoken about his sexual abuse with a mental health nurse at [an organisation].The applicant then said the organisation was in fact called [a different name][1].  When asked if he had any report from [the organisation] that he could provide the Tribunal, the applicant said the relevant nurse left that organisation and he did not obtain a report.  The Tribunal put it to the applicant that it understood that if he had someone assisting preparing the written application he might not want to provide all the detail, however, it also put it to him that this did not appear to explain why he did not make at least a general reference to having been assaulted in Sri Lanka.

    [1] [information deleted].

24. The Tribunal invited the applicant to comment on the delegate’s finding that the applicant had provided inconsistent evidence as between his written statement of claim and his protection interview on the detail of the reasons for seeking protection.  The applicant commented that just his father knows he was involved in a verbal argument.  He said his father does not know that he was raped but was told the applicant was involved in a verbal argument.  The applicant also said that [Mr B] was told by [Mr C] that [Mr C] raped the applicant.

25. The Tribunal referred the applicant to the delegate’s decision record where the delegate found that the written claims make no mention of the abduction or assault in November 2005.  It invited the applicant to explain why this is so.  The applicant said he did not state that he was kidnapped or abused in his written statement and he did not know why he failed to do so.  The Tribunal asked the applicant why he did not raise the abduction and assault in the bridging visa interviews where he also had the opportunity to raise these matters.  He replied that he did not feel comfortable speaking about these matters over the telephone.  He said that on one occasion there was a [detention] officer present in the room during the interview.  The Tribunal asked the applicant why in those previous interviews he did not simply refer to having been assaulted without necessarily giving detail if he was embarrassed to provide detail.  The applicant said that he is not scared of living in Australia and he does not live in fear.

26. The Tribunal referred the applicant to the delegate’s decision record and the delegate’s finding where the applicant was unable to reliably state what injuries he received from the claimed assault as compared to injuries received from [sport] training. It invited the applicant to comment.  The applicant said that his elbows and knees were scratched as a result of the claimed assault.

27. The Tribunal referred the applicant to the delegate’s findings on the applicant’s claimed witnessing of a fight at a pre-election gathering in 2005.  The applicant said he witnessed what was going on, but he was not attending as a member of the UNP.  He said they threatened to harm him.  When asked who “they” are, he said by "they" he means supporters of the People’s Alliance party.  The Tribunal asked the applicant why those people would still want to harm him some 10 years later.  He replied that [Mr C] was insulted because of having been given a bloody nose, and further even after 10 years the applicant does not want to take the risk.

28. The Tribunal put it to the applicant that it appeared he remained in Sri Lanka, and remained living in his same home address from the time of the claimed assault occurred in 2005 until he entered Australia in October 2007 and that it appeared he was not harmed during this period.  The applicant commented that he was always in groups and he did not let his guard down during the period of time.

29. The Tribunal invited the applicant to comment on the fact that the applicant arrived in Australia in October 2007 but yet did not apply for a protection visa for almost 7 years.  It put to the applicant that such a protracted delay may lead the Tribunal to conclude that he did not hold real or grave fears about returning to Sri Lanka.  The applicant began by stating that the 7 years went by very quickly and he was very happy in Australia, but now the ghosts of his past haunt him again.  The Tribunal asked the applicant why he remained an unlawful non-citizen for almost 4 years as indicated by the delegate’s findings and why he did not seek a protection visa in that time.  He replied he did not think it was a big issue, and added that he was going to get married but then the relationship had problems.

30. The Tribunal put it to the applicant that it appears he was quite willing to ignore or breach immigration law by working as he claimed he did while an unlawful noncitizen and while not having work rights.  The Tribunal put it to the applicant that with such a track record of disregard for migration law, it might conclude that it is not satisfied that he is being truthful about his claims now.  The applicant replied that he is telling the truth.  He added that he has not broken any other laws while in Australia.  The Tribunal referred the applicant to the delegate’s finding that the applicant had breached an apprehended violence order (AVO) which suggested the applicant had indeed broken at least one other law while in Australia.  The applicant agreed and then withdrew his submission that he had not broken other Australian law. 

31. The Tribunal referred to the UNHCR guidelines and put it to the applicant that he did not appear to be a person with any political profile such that he would be targeted for harm for reasons of his political opinion.  The applicant replied that his fear of harm is based on the personal motivation of [Mr C] as well as his political opinion.  The applicant then said he was not politically active and that he was in the wrong place at the wrong time.

32. After explaining the essential features of the complementary protection regime, the Tribunals invited the applicant to make relevant submissions on this.  He replied that he thinks he may be tortured.  He said that he is certain that [Mr C] will torture him and treat him inhumanely or punish him. 

33. The applicant also said that he believes the authorities in Sri Lanka will ask questions about his time in Australia.  The Tribunal referred to country information which indicates that while the Sri Lankan immigration authorities may ask questions upon his return, the country information did not indicate that he would be targeted for harm for reasons of being a failed asylum seeker returning from Australia.

34. The Tribunal agreed to allow until 12 August 2015 for written comment on the adverse information put to the applicant during the course of the hearing.

35. On 11 August 2015, the Tribunal received written submissions from the applicant.  To a significant extent, it repeats the applicant’s claims and evidence given at the Tribunal hearing, and makes some further claims also.  Under the heading “My profile in Sri Lanka and why I would become to the immediate attention upon my return”, the applicant repeats his claim of his activities with the UNP and the attack [in] November 2005.  He repeats the claim that [Mr C] is a convicted murderer and a known thug and has told people “…my days are limited and I’m living on borrowed time.”

36. Under the heading “Why did my written claims and the testimony on [date] of April has (sic.)a different tone”, the applicant refers to living free in Australia for seven years, and to his relationship and fathering of a [child].  He repeats he was assisted in his written application by a fellow detainee and that he did not want to write his rape claim because he was ashamed. Significantly, the applicant writes here “…I was ashamed by the fact that being a man and was being raped by another man at Knife point.”  The Tribunal notes at the hearing the applicant referred to the claimed attacker having a pistol. 

37. In respect of his physical scars, the applicant writes that his knees and elbows were scratched badly during his assault.  The applicant writes, amongst other things that the delegate may have misunderstood him and that the incident happened 10 years ago.

38. In respect of the claim that he witnessed the pre-election fight in the town of [Town 1], the applicant writes that he did not get involved with the fighters but witnessed the fight from a distance and then [certain] men then threatened him.  He writes he thereafter ran away from the rally.

39. Under the heading as to the reasons why [Mr C] did not harm the applicant in the period 2005-2007, the applicant writes he managed to escape [Mr C] on 3 occasions when he was with his team.  He writes [Mr C] never caught the applicant off guard because he was thinking ahead and because he was also lucky.  He also writes that [Mr C] “knew my address he sent his boys in search of me he threat my mother once, but for some unexplained reason he did not got his hands on me (sic.)”    

1. Under the heading as to why there was a delay in applying for a protection visa, the applicant repeats that he was “living care free” after the ordeal he went through.  He writes that he forgot the fact that he was living unlawfully and that he was aware that the day would come to do something about it.  He writes that he was being selfish and adds, “in my mind I did justify it by thinking I have gone through some horrific stuff in life and I deserved to live as a person who has dignity and respect.”

2. The applicant then sets out a number of claims as to why Sri Lanka is not safe for him to return to.  He refers to Sri Lanka having been unsafe for 25 years due to ethnic, religious and political clashes.  He repeats his claim of assisting his friend in putting up posters.  He refers to election violence and candidates having been shot.  He refers to corruption in politics in Sri Lanka.  He claims he fears it is unsafe because he is returning on an expired student visa and that he fears he will be arrested at the airport and detained as other returnees have been detained.  He claims he is known as a UNP supporter and therefore is at risk from any of the PA supporters.

3. The applicant refers to the election to be held on 19 August and claims that if Mr Rajapaksa wins there will be several years of retribution against UNP supporters, Sirisena supporters and minority religious groups.

4. The applicant claims if he is deported from Australia he will not ever be eligible for another visa to come to Australia to see his [child] and that this is unfair to his [child] who was born in Australia. 

   Relevant law

5. The relevant applicable law in this review is set out at Appendix A of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies the criteria for a protection visa as a refugee, and if not whether he satisfies the requirements for a protection visa in accordance with the complementary protection provisions of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of Reference and Third country protection

7. The Tribunal considered the documentary evidence provided to the Department by the applicant and referred to in the delegate’s decision record.  In particular, the applicant has provided a copy of his passport issued in his name by Democratic Socialist Republic of Sri Lanka.  Having regard to this evidence, the Tribunal finds the applicant is a national of Sri Lanka. 

8. Based on the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is Sri Lanka.

9. There is no evidence before the Tribunal to suggest the applicant has a present right to enter and reside in any other country than Sri Lanka.  The Tribunal therefore finds the applicant is not prevented from protection in Australia by s.36(3) of the Act.

   Credibility considerations

10. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

11. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

12. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, 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 established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

13. Having carefully considered all of the claims and evidence in this case, the Tribunal finds the applicant to be an unreliable witness.  As will be discussed in further detail in following paragraphs, the Tribunal finds the applicant has been inconsistent on a very significant matter and this undermines his claim that he is in need of protection against returning to Sri Lanka.  The Tribunal also finds the fact that the applicant remained in Sri Lanka from November 2005 until 2007 without being harmed undermines the credibility of his claim that he faces a real risk of harm in Sri Lanka.  Further, the Tribunal considers the significant delay between the applicant arriving in Australia in October 2007 and making the application some seven years later in August 2014, raises significant doubts about his claim to have a subjective fear of returning to Sri Lanka, and questions the gravity of the harm he claims he faces.  Having regard to all the evidence, and in light of these findings, the Tribunal assessed the applicant to be an unreliable witness who has exaggerated, if not fabricated, his protection claims so as to remain in Australia.  

    Assessment of claims.

14. The Tribunal considers the applicant’s individual protection claims in the following paragraphs.

15. The applicant initially claimed to fear serious harm if he returns to Sri Lanka because of not being in the same political party as the ruling party in Sri Lanka.  He claims in his written statement that he was threatened by thugs from the government because he and his family voted for the UNP.  Subsequently, the applicant has modified his claim before the delegate by stating that he was not a political activist, and then claimed he was putting up posters when confronted by opposition members who assaulted him, including sexually assaulting him.

16. The Tribunal finds the applicant’s evidence in respect of his claim to have been politically active, and to have been attacked for the claimed political activity, to be inconsistent in critical areas.  For example, in his written statement he simply claims he and his family were threatened, whereas subsequently he claimed he was abducted and raped.  When this inconsistency was put to the applicant at the hearing, he sought to explain not having raised the abduction and sexual assault earlier by claiming a fellow detainee assisted him preparing the written application and that he did not want that person to know about the claimed rape.  As put to the applicant at the Tribunal hearing, while the Tribunal may accept he might  be embarrassed to tell his fellow detainee that he was raped, the Tribunal does not accept that he would not have disclosed that he was abducted and assaulted in a general way had he in fact experienced that.  The Tribunal also notes the applicant’s inconsistency in terms of the weapon he claims his attacker held while assaulting him.  At the Tribunal hearing he claimed his attacker was armed with a pistol, whereas in the written submission received after the hearing he refers to being raped at knifepoint.  Having regard to all of the evidence, and in particular to the inconsistencies the Tribunal has found in the applicant’s evidence, the Tribunal rejects his claim that he was politically active in Sri Lanka, or that he and his family were known to be UNP voters.  Based on all of the evidence before it, the Tribunal finds the applicant does not have a profile as a political activist or a dissident or of any kind that would attract adverse interest in him by members of opposing political parties of by members of the Sri Lankan government, or anyone else. Based on the applicant’s inconsistent evidence, and having regard to its assessment of the unreliability of his evidence, the Tribunal rejects his claims that he was involved in putting up posters upon the request of [Mr B] who the applicant claims worked for a member of parliament.  The Tribunal cannot, on the evidence before it, positively dismiss the possibility that [Mr B] exists and works for an MP, however, having regard to all of the evidence the Tribunal does not accept the applicant became actively involved in putting up UNP posters during the 2005 election.  These findings, coupled with the applicant’s evidence that he remained living in his own home with his parents in Sri Lanka for almost two years after the claimed attack, and the 7 years delay in applying for protection after arriving in Australia, all lead the Tribunal to reject the applicant’s claim that he was abducted and raped as he claims in November 2005, or at any other time while in Sri Lanka. In arriving at this finding, the Tribunal carefully considered the applicant’s responses when these adverse factors were put to him at the hearing where he said, for example, that he was not aware of protection visas, and that “for some reason” [Mr C] did not harm him during the two years he remained in Sri Lanka after the claimed rape.  The Tribunal does not find his attempted explanations credible.    

17. The Tribunal also considered the claim where the applicant declared that while escaping from [Mr C] after the purported rape, he kicked [Mr C] in the face and [Mr C] thereby suffered a bloody nose.  The applicant claims that as a result of this, [Mr C] has threatened to kill the applicant for causing a bloody nose and for escaping.  As the Tribunal does not accept that the applicant was abducted and sexually assaulted by [Mr C] or anyone else, it also rejects his claim that he kicked [Mr C] in the face and caused his nose to bleed.  The Tribunal does not accept based on the evidence before it that if [Mr C] exists that he would have any motive for wanting to seriously harm the applicant as claimed.  Based on the evidence before it, and having regard to the unreliability of the applicant’s evidence, the Tribunal is not satisfied that [Mr C] is a convicted murderer or that he told the applicant’s friend [Mr B] that he raped the applicant.  On the evidence before it, and finding that [Mr C] does not have a motive to seriously harm the applicant, the Tribunal rejects the applicant’s claims where he asserted that [Mr C] menacingly wagged his finger at him, or that [Mr C] communicated through the applicant’s friends that he would harm him.  The Tribunal rejects this entire aspect of the applicant’s claim as a fabrication designed so as to bolster his protection claims.       

18. The Tribunal considered the applicant’s claim that he witnessed political violence in the lead up to the elections in Sri Lanka in 2005 and that while observing this he was threatened with harm.  Even though the Tribunal formed the view that the applicant is not politically active and does not have a profile which would bring him to the attention of opposing political parties, the Tribunal is prepared to accept the claim that he witnessed some form of violence between opposing parties in 2005.  It will even accept the applicant may have felt threatened as a result of this violence.  However, given the Tribunal’s assessment of the applicant’s lack of political activism or profile in Sri Lanka, and given the passage of 10 years since the claimed incident, the Tribunal rejects the claim that he was threatened by PAP supporters when he witnessed the political violence between opposing parties in 2005.  Further, having regard to all of the evidence, the Tribunal does not accept the applicant faces a real chance of serious harm because of witnessing the claimed event, or because of being imputed with an opposing political opinion, or because of being viewed as a political activist.  The Tribunal had regard to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (2012) and finds this supports its assessment that the applicant is not of a profile which in particular circumstances may require protection. 

19. The Tribunal considered the applicant’s likely behaviour in the reasonably foreseeable future should he return to Sri Lanka.  It finds, as already discussed, the applicant has not been politically active in the past in Sri Lanka, and also finds there is no evidence to suggest the future would be any different to the past in terms of the applicant’s level of political activity.  On this basis, the Tribunal is satisfied that the applicant’s future level of political involvement or activity in Sri Lanka now or in the reasonably foreseeable future would not be of a degree to give rise to a real chance of serious harm,   

20. The Tribunal considered the applicant’s claim where he argues that youths in Sri Lanka are threatened if they are not of the same political party as the government.  Having regard to the country information before it, including the DFAT Country Report (Sri Lanka) 16 February 2015 and the Eligibility Guidelines published by the UNHCR, the Tribunal finds no reference in these to support the applicant’s claims in this respect.  Accordingly, and having regard to the evidence and country information before it, even if the Tribunal were to accept the applicant would be characterised as a youth given his present age, the Tribunal rejects the applicant’s claim that as a member of a cohort of persons who are youths in Sri Lanka that he would face a real risk of serious harm if he returns to Sri Lanka now or in the reasonably foreseeable future.

21. The applicant also claims to fear returning to Sri Lanka as a failed asylum seeker.  As put to the applicant at the hearing, country information from the Department of Foreign Affairs and Trade (DFAT) Country Report (Sri Lanka) 16 February 2015, and from other sources such as the UK Home Office, indicates that the mere fact that a person had applied for asylum in Australia does not, without more, give rise to a real chance that the applicant will be targeted for harm by the Sri Lankan authorities upon return to that country.  The Tribunal also notes that the applicant departed Sri Lanka lawfully and as the holder of an Australian Student visa.  Based on this evidence, the Tribunal is satisfied the applicant would not be liable for prosecution for illegal departure under the Immigrants and Emigrants Act of Sri Lanka.  Further, based on the evidence and country information before it, the Tribunal finds that upon return to Sri Lanka it is likely that he will be questioned about his overstay in Australia. However, because the Tribunal finds the applicant is not a person of interest or profile of any kind in Sri Lanka, and because the Tribunal does not accept mere application for asylum in Australia gives rise to a targeting for serious harm in Sri Lanka, the Tribunal rejects the applicant’s claim that he faces a real chance of serious harm as a failed asylum seeker if he returns to Sri Lanka.  The Tribunal accepts, that the applicant may feel some apprehensiveness about finding suitable employment and experience some minor difficulty in re-establishing himself in Sri Lanka, however, the Tribunal notes the applicant continues to have close family in Sri Lanka and that he would benefit from that familial support there.  Further, there is no evidence before the Tribunal to suggest the applicant could not find gainful employment in Sri Lanka, or that he would be denied employment such that it prevented him from earning a living.  Having regard to all these circumstances and to all the evidence before it, the Tribunal does not find that the circumstances the applicant has claimed he will experience if he returns to Sri Lanka amount to ‘serious harm’ as that term is contemplated in s.91R(2) and s.91R(1)(b) of the Act. 

22. In his written application, the applicant claims he fears being taken into police custody and being released to thugs who will ask for ransom money from his parents.  The Tribunal accepts country information reports indicate that there is a degree of abduction and that ransom demands in Sri Lanka.  For example, the DFAT Country Information (Sri Lanka) Report, 16 February 2015 states, at paragraph 4.10, that incidents of kidnapping for ransom have been reported and notes that no particular group has been the target of these attacks.  However, based on the evidence before it, the Tribunal finds the applicant faces no more than a remote chance of being abducted for ransom. It considers on the evidence before it that the applicant faces no more risk or chance of this than the general population in Sri Lanka.  The Tribunal therefore rejects the applicant’s contention that he faces a real chance of abduction and being held to ransom, or that he faces a real chance of serious harm at the hands of persons referred to as thugs by the applicant. 

23. The applicant has also claimed he has been threatened by members of the opposition party and the People’s Alliance Party (PAP).  The Tribunal considered this as a separate and additional claim put forward in addition to the applicant’s claim that he was threatened while observing political violence in 2005.  The Tribunal accepts that there is country information indicating the occurrence of political violence and the targeting of political activists, politicians, and various persons with other profiles as identified, for example the UNHCR Eligibility Guidelines.  However, having regard to all of the evidence before it and to the unreliability of the applicant’s evidence, the Tribunal does not accept he has been the subject of threats by members of the opposition parties or members of the PAP.  Further, the Tribunal does not accept the applicant’s claim that he may be targeted by members of the opposition parties because it does not accept he has any sort of profile which would give rise to him being targeted.  The Tribunal notes the applicant’s inconsistent evidence in this respect where, for example he asserts a fear of harm from the People’s Alliance party, but that at the Tribunal hearing then stated that he has no other fear of returning to Sri Lanka than the claimed threats from [Mr C].

24. The Tribunal considered the applicant’s claim that since his arrival in Australia, his mother told him that four agents were looking for him in relation to a traffic violation.  The applicant argues that the claim as to a traffic violation is a pretence to the underlying threat of harm due to his past political and other related activities in Sri Lanka.  As the Tribunal has found the applicant has not been a political activist, and is not perceived to be a political activist in Sri Lanka, and having regard to all of the Tribunal’s findings in this decision record and its finding that the applicant is not of interest for targeting for serious harm in Sri Lanka for reasons he has claimed, or for any other reason, the Tribunal rejects his claim that four men visited his house inquiring about him or in relation to a traffic violation as he has claimed.   

1. Having regard to all of the evidence before it, and based on the Tribunal’s findings set out in the preceding paragraphs, the Tribunal finds that there is not a real chance that the applicant will be seriously harmed for reasons of his past political activities or for reasons of his actual or imputed political opinion should he return to Sri Lanka now or in the reasonably foreseeable future.  Nor does the Tribunal find, based on the evidence before it, that the applicant faces a real chance of serious harm for reasons of returning to Sri Lanka as a failed asylum seeker, or for any other reason he has claimed.  The Tribunal therefore finds his fear of persecution for a Convention reason is not well founded. 

2. As the Tribunal finds the applicant does not have a well founded fear of persecution for one or more of the Convention Grounds, it considered whether, pursuant to s.36(2)(aa) of the Act, there are 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’.

3. The term ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

4. The Tribunal considered the applicant’s claims that he fears being tortured or killed by [Mr C].  The Tribunal accepts that if this is in fact the case, the harm amounts to ‘significant harm’ for the purposes of the complementary protection provisions of the Act.  However, for similar reasons set out in the Tribunal’s assessment of the applicant’s refugee protection claims, the Tribunal rejects that the applicant has been abducted or raped while in Sri Lanka or that he caused [Mr C] a nose bleed or escaped from his abduction.  The Tribunal therefore does not accept that [Mr C] has threatened to harm the applicant, or intends to harm the applicant in any way should the applicant return to Sri Lanka.  Further, and for the same reasons set out in its consideration of the applicant’s refugee claims, the Tribunal rejects the applicant’s claim that he would suffer significant harm for reasons of his political activities or for his political opinion, or due to his circumstances in terms of access of accommodation or access to employment, or on any of the other the bases submitted.  

5. The Tribunal considered the applicant’s claim to have a [child] in Australia and his claim that if he is deported from Australia he will not ever be eligible for another visa to come to Australia to see his [child] and that this is unfair to his [child] who was born in Australia.  While the Tribunal is prepared to accept the applicant has fathered a [child] in Australia, it does not accept this means he would not be able to ever see his [child] again if he wanted to.  In the circumstances of this case, the Tribunal does not find that the applicant’s removal from Australia and separation from his [child] amounts to ‘significant harm’ to the applicant as that term is defined in the Act.

6. For all these reasons, the Tribunal finds it is not satisfied that there are 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 will suffer significant harm. 

7. Therefore, 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).

8. 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).

9. 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

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Tony Caravella
    Member

    
    

    Appendix A

    RELEVANT LAW

11. 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.

    Refugee criterion

12. 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).

13. 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.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

18. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

19. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

20. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

21. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

22. 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’).

23. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

24. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

25. 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.