1510267 (Refugee)

1510267 (Refugee) [2016] AATA 3919 (20 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510267
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Sydelle Muling
DATE:20 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 May 2016 at 10:12am

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

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).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] August 2013.
The review application was initially determined by another member of the Tribunal (`the first Tribunal’) on 15 July 2014. [In] June 2015, the Federal Circuit Court ordered that the decision of the Tribunal be quashed and the case be determined according to law. The matter is now before the current Tribunal.
The applicant appeared before the Tribunal on 18 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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.
Refugee criterion
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a citizen of Sri Lanka who was born in [Town 1], in [City 1], [DOB]. According to his protection visa application he lived in [Town 2], [City 2] from birth until [date] March 2012. The applicant completed ten years education and is fluent in Tamil. He described his occupation before coming to Australia as [occupation 1]. The applicant departed Sri Lanka legally [in] March 2012. His [parents and siblings] are residing in Sri Lanka.
The applicant presented his claims in his protection visa application [in] November 2012 (folios 36 and 71 of Department file [number]), a Departmental interview he attended [in] June 2013 (between folios 135 and 136 of Department file [number]), submissions received by the first Tribunal and the current Tribunal from the applicant’s adviser and at his Tribunal hearing on 18 February 2016.
The following is the statutory declaration made by the applicant attached to his protection visa application:
Background:
My name is [name] and I am a [age] old male born in [Town 1], [City 1], Northern Province, Sri Lanka.
My ethnicity is Tamil and my religion is Hindu. My parents and siblings remain in Sri Lanka.
Why I left my country:
In around December 2007, I finished my O Levels at school and was on school break. In February 2008, I made some new friends. At the time I did not know that they were involved with the LTTE, but found this out only when the Sri Lankan Army (SLA) arrested them later that month.
In around late February 2008, I was with two boys from the group and we were approached by the SLA. The SLA arrested the two members I was with. They asked me to follow them to the [location] in my area. At the [location] they took my details then let me go.
After this incident I heard nothing from them until December 2011.
In around December 2011, the CID called me and insisted that I report to a particular place. They called me this several times. The first time they called, I attended, and they asked me if I knew the people that were arrested in 2008. I told them that I only met them not long before they were arrested and did not know who they were. They pointed a gun at me and told me that I was lying and that I knew these boys and that they were involved with the LTTE. They let me go and said they would see me later.
Around two weeks after the first incident, I received another phone call. I met them and they interrogated me again and asked me the same questions. They also asked me who else worked for the LTTE. They threatened me at gun point.
After this incident I became too scared to leave the house. I would travel between [City 1] and Colombo as I thought Colombo would be safe. However, even in Colombo I was scared and avoided leaving the hotel, unless it was to get food.
Around one week later, I received a third call. I met them and again they threatened me at gun point and interrogated me.
In late January 2012, they called again. I was too scared to go and see them so I told them that I was not in my area I was in Colombo. They said that I had to return to my area and see them. I hung up the phone.
After being in Colombo for around ten days, I again received a phone call from the CID. The man on the phone said "we know where you are and you must return to your area and see us". I responded "okay" and then hang up, but I was so scared and had no intention to return or go and see them.
I received a lot more calls like this, and I realised that they would not leave me alone until I went to see them. There was no information that I could give them and I was scared for my safety. I was too scared to study or work or leave the house. I decided that I had to leave Sri Lanka.
What I fear might happen if I go back to my country:
I fear that I will continue to be threatened or that they may harm me or kill me.
Who I think will harm or mistreat me if I go back:
The CID.
Why I believe they will harm or mistreat me if I go back:
I was there when the two boys were arrested and suspect that they suspect I am involved with the LTTE and know information about the LTTE.
Why I believe that the authorities in my country will not protect me if I go back:
No the authorities cannot protect me. It is the government authorities that is doing this to me.
Why I believe I will suffer significant harm:
I suspect that the CID suspect I am involved with the LTTE and know information about the LTTE. Everyday people are kidnapped and disappear. I fear that this will happen to me also.
Other matters that I would like the Department to take into account:
I am a young Tamil male and the Sri Lankan authorities often target us because they suspect we are involved in the LTTE. I am concerned that this is another reason that they will not leave me alone.
The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including copies of his birth certificate, national identity card, family ration card and educational documents. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.
The applicant claimed in the hearing that he fears returning to Sri Lanka because of an incident that took place; if he goes back, even after so long, it can happen again. When asked who he fears would harm him if he returns to Sri Lanka, he stated the CID and army. In response to the Tribunal’s question as to why the CID or army would want to harm him now if he went back to Sri Lanka, the applicant claimed in 2008 when they took his friends while he was with them, they took his details and again in 2011 they came back so based on those details they can detain him. When asked why they would want to detain him now, the applicant stated at that time they threatened him and he has left the country and come to Australia.
The applicant claimed that in late 2007, after completing his A levels and while on vacation, he made some new friends. He claimed that these boys used to stand near the junction and he would pass them. He went to the boys and talked with them and got to know them. While the applicant described these boys as friends, the Tribunal does not accept on his evidence in the hearing that these boys were anything more than acquaintances given the applicant’s limited knowledge about them. The Tribunal notes the applicant claimed in the hearing, when asked if these boys lived nearby to him, that he was not aware of where they lived. Similarly, when asked about how old these boys were, the applicant stated that they were in their [age]. In response to the Tribunal’s question as to whether they were in their early, mid or late [age], the applicant stated he did not know their age and suggested they were probably [age]. Further, the Tribunal has taken into consideration the applicant’s evidence in relation to what he did with these boys after meeting them. He claimed he would meet up with them, once in a while, at the junction and they would talk casually. He confirmed that this was the only place he would meet these boys.
The Tribunal accepts that the applicant may have got to know some boys who used to hang around the junction and that he would talk to them occasionally. The applicant claimed in February 2008, while he was talking to the boys at the junction, the army came on their field bikes and pulled the two boys and got them on their bikes and asked him to follow them. The Tribunal notes when it asked the applicant if the army officers said anything to the two boys when they came on their field bikes, the applicant stated they spoke in Sinhalese which he did not understand. However, he claimed when they asked him to follow them they said this to him in Tamil. When the Tribunal questioned the applicant as to why the officers would speak to him in Tamil and the other boys in Sinhalese, the applicant reiterated that they threatened them and told them to get on the bike and told him to come behind them. In response to the Tribunal’s question as to whether the boys were threatened and told to get on the bike in Sinhalese or Tamil, the applicant subsequently stated that he was unable to recall because it happened quickly and quite unexpectedly. While the Tribunal has some concern that the army officers would speak to the applicant in Tamil but speak to the two other Tamil boys in Sinhalese and also in the discrepancy in the applicant’s evidence regarding which language the officers spoke to these boys in, the Tribunal accepts as plausible that while the applicant was talking to these boys at the junction, the army may have come on their field bikes and taken the two boys with them and asked the applicant to follow them.
The applicant’s evidence in the hearing was that the two boys were taken to [a location 1] and he followed them to the [location 1] on his bicycle. He claimed that he did not go inside the [location 1] but was kept outside and he was not questioned. He was simply asked for his name and address and then let go. The Tribunal notes the applicant claimed that he had no contact with the authorities, including the army, prior to this incident in February 2008.
The applicant claimed that he experienced no problems until December 2011 when he received a call from the CID asking him if he had contact with those two boys and to meet them at the [location 2]. The Tribunal notes that the applicant did not know how the CID had got his number. He claimed in the hearing that he met the CID at the [location 2] in the evening, between [the time]. The people he met were in normal clothes and he was at the [location 2] for about [time] during which they spoke to him and later made him sit down while they talked to someone on the phone and then they threatened him and left. When asked what they did when he said they threatened him, the applicant stated that they held him by the shirt and kept a gun to his head and kept asking about those two boys.
The Tribunal does not accept that the applicant was contacted by the CID in December 2011 as he claimed. Firstly, taking into consideration the fact that the applicant was never questioned by the army in February 2008 and was not even taken into the [location 1] but simply asked his name and address, the Tribunal finds it far-fetched that some 3 years and ten months later, the CID would be pursuing the applicant for information about the two boys he had a short acquaintance with. While the applicant claimed that these boys were probably high profile people or they had done something, the Tribunal finds that this is purely speculative and given the applicant was not taken into the [location 1] or questioned at the time the boys were taken to the [location 1], the Tribunal finds it implausible that nearly four years later he would be sought in relation to information about them. The Tribunal notes the applicant’s response that he was in the local area and his school was inside the [location 1] so whenever he was going and coming back they would have seen him and known about him and additionally the [location 1] was situated 500 metres from his house. The Tribunal finds that this raises further doubts that the CID would have had any interest in him in relation to those two boys. The Tribunal notes the applicant’s evidence that he never saw the two boys again after the incident in February 2008 and if, as he suggested the army was aware of his movements, it finds it implausible that they or the CID would believe he would have any information about them nearly four years later.

The Tribunal also finds it implausible that if the CID wanted to get information from the applicant about these two boys or had any interest in the applicant as a result of his previous association with these two boys that the CID would simply call the applicant and ask him to meet them instead of coming to his home and questioning him or detaining him and questioning him. The Tribunal does not accept the applicant’s response that this was what usually happened in his village. As the Tribunal put to the applicant in the hearing, taking into consideration the independent information regarding the practices of the CID, including information provided by the applicant’s previous and current adviser, the Tribunal finds it implausible the CID would ring the applicant in advance and request he attend meetings with them either at a [location 2] or late at night outside his house.
The Tribunal also finds it doubtful that if the CID had contacted the applicant and asked to meet him, particularly at a [location 2], that he would not have told anyone about these calls or requests. The applicant claimed that he did not want to make it a major matter by telling others. However, as the Tribunal put to the applicant, given the independent information about the activities of the CID, including the information provided by the applicant’s advisers regarding the activities of white vans and the abduction and killing of people, in addition to the applicant’s own evidence in the hearing regarding many incidents of people going missing after being asked by the CID to go to the sea or beach, it finds it implausible that the applicant would willingly go to a [location 2] at the request of what was essentially unknown persons in the first place and particularly without informing his family or anyone else. The Tribunal notes the applicant’s response that if he told his family they would get scared and he did not have friends but finds this unconvincing. The Tribunal finds it unbelievable that if the applicant was so scared that he did not have any other option but to allegedly meet the CID, as he claimed in the hearing, that he would not advise his family of his interaction with the CID, given the possibility that he may not have returned from this meeting based on his evidence regarding the tendency of people being asked to such meetings going missing.
As the Tribunal does not accept the applicant was contacted by the CID in December 2011 asking him questions about the two boys who were taken to the [location 1] in February 2008 and asked to meet them at a [location 2], it does not accept that after this alleged meeting and between the next time the applicant allegedly met the CID outside his home, he received any calls from the CID asking for the details of these boys or that there were any further requests for him to meet with the CID, either outside his house or at the [location 2] a second time or any further calls either while he was in his home area or in Colombo.
The Tribunal notes the discrepancies in the applicant’s evidence in relation to his level of contact with the CID. In the statutory declaration attached to his protection application, the applicant claimed that in around December 2011 the CID called and asked him to report and that this was the first time they had called and he attended. He then claimed that around two weeks after the first incident he received another phone call and he met them and they interrogated him again and asked him the same questions. They also asked him who worked for the LTTE and threatened him at gun point. The applicant claimed it was after this incident he became too scared to leave the house and he would travel between [City 1] and Colombo because he thought Colombo would be safe. He then claimed around one week later he received a third call and he met them again and they again threatened him at gun point and interrogated him. Then in late January 2012 they called him again and he told them he was in Colombo because he was too scared to go and see them and they told him he had to return. He claimed he then received a lot more calls like this and realised they would not leave him alone. As the Tribunal put to the applicant in the hearing, there was nothing in his statutory declaration indicating that he received a lot of calls between either his alleged first and second meeting with the CID or the second and third meeting with the CID, as he claimed in the hearing. Instead, what he had initially claimed was that he allegedly received a lot of calls from the CID after he went to Colombo. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to bolster his evidence regarding the level of interest the CID allegedly had in him and for this reason, it is further satisfied that the applicant was of no interest to the CID from December 2011 onwards and did not receive any calls or requests for him to meet them as he claimed.
Additionally, the Tribunal finds that the applicant’s evidence regarding the level of interest the CID allegedly had in him is not consistent with their alleged actions. The Tribunal has had regard to the applicant’s representative’s submission at the conclusion of the hearing that the fact the CID might have operated in the applicant’s case, in a way which was not as harsh or as strong as in other cases, does not detract from his claim because they are really a law unto themselves and do not necessarily operate within a logical framework, as might be expected here. While the Tribunal appreciates that the CID’s practices differ somewhat to law enforcement agencies in Australia, considering the weight of the independent evidence before the Tribunal regarding the activities of the CID in Sri Lanka and how Tamils suspected of involvement with the LTTE are treated, the Tribunal has serious doubts that the CID would have behaved in the manner claimed by the applicant. The Tribunal finds it implausible that the CID would frequently call the applicant over a period of several months, as he claimed in the hearing, and threaten him by holding a gun to his head on the occasions that he allegedly met with them but subsequently just let him go, to resume calling him frequently to ask the same questions. The Tribunal finds it far-fetched that if the CID were interested in the applicant to the extent that he claimed, that nothing more serious would have happened to him such as being detained and questioned.
The Tribunal also finds the applicant’s evidence regarding his residence in Colombo to not be credible. Firstly, the Tribunal finds it implausible that if the applicant was too scared to leave the house as a result of his alleged contact with the CID, as he claimed in his statutory declaration, that he would travel back and forth to Colombo. According to his evidence in the hearing, the applicant made the 8 to 9 hour bus journey from [City 1] to Colombo, where he would stay for two days and then return, several times. The Tribunal does not find such behaviour to be consistent with the applicant’s claimed reluctance to leave his house out of fear. Further, the Tribunal notes according to the applicant’s protection visa application he stated that he resided at an address in [Town 2], [City 2], from birth until [in] March 2012, the date on which he departed Sri Lanka. He also confirmed in the hearing that he lived at this address and nowhere else in Sri Lanka at the beginning of the hearing. Yet his subsequent evidence was that he was residing in Colombo for more than one month, from February 2012, and he did not return to his home. While the applicant suggested that he had included his address and that his letters are received by his mother at that address, the Tribunal does not accept that if the applicant was living in Colombo from February 2012, that he would state in his protection visa application that he was residing at his family’s address in [City 2] until the day he departed the country in March 2012.
For the reasons provided above, while the Tribunal accepts that the applicant may have given his name and address to the army in February 2008 when he was made to wait outside the [location 1] for a short period of time, the Tribunal does not accept that over three years later, in December 2011, the applicant was contacted on his mobile phone by the CID, who requested that he meet them at a [location 2]. The Tribunal does not accept that at the [location 2], the applicant was questioned about the two boys he was acquainted with in February 2008 or that he was threatened with having a gun pointed at his head. Nor does the Tribunal accept two or three weeks later the CID called him at midnight and asked him to come outside, where he was asked the same questions regarding the two boys he knew more than three and a half years earlier and again threatened with a gun or that ten days after this alleged visit to his home by the CID, he was again contacted by the CID and they asked him again to come to the [location 2], where he was asked the same questions and threatened to shoot him.
As the Tribunal does not accept that the applicant was of any interest to the CID in the past in Sri Lanka, particularly from December 2011 onwards, it does not accept that in addition to receiving these calls requesting that he meet the CID, the applicant frequently received calls either between the alleged meetings he had with the CID or after his third meeting with the CID, while he was either travelling between [City 1] and Colombo or while he was allegedly residing in Colombo, up until he departed the country.
Based on the Tribunal’s findings that the applicant was not of any interest to the CID prior to his departure from the country, as he has claimed, the Tribunal does not accept that any of the enquiries that have been made from his mother purportedly by his friends, which he discussed during the hearing, were made by the CID or any other authorities.
Given the Tribunal does not accept that the applicant was of any interest to the CID as a result of the incident that occurred in February 2008, the Tribunal does not accept that if the applicant returns to Sri Lanka now, that he will be threatened, harmed or killed by the CID. The Tribunal does not accept that the CID suspected that the applicant was involved with the LTTE or that he has information about the LTTE because he was there when the two boys were arrested by the army in February 2008, as he claimed in his statutory declaration attached to his protection visa application. The Tribunal finds that the applicant was of no interest to the authorities, including the army, despite the one instance in February 2008 when he was required to give his name and address. As such the Tribunal does not accept that if the applicant returns to Sri Lanka, he faces a real chance of persecution from the CID, the army or any other authorities for an imputed association with the LTTE based on his short acquaintance with two boys over eight years ago.
The Tribunal has taken into consideration whether the applicant faces a real chance of persecution based on his Tamil ethnicity or as a young Tamil male or young Tamil male from the north. The Tribunal notes in the applicant’s statement attached to his protection visa application he claimed that the Sri Lankan authorities often target young Tamil males as they suspect them of being involved in the LTTE and this was another reason they would not leave him alone. The Tribunal notes when it asked the applicant in the hearing if he had any problems because he is Tamil, he stated no. In response to the Tribunal’s question whether he feared he will have any problems on his return because he is Tamil, the applicant stated yes, they will pick up all the old problems. When asked what old problems he was referring to, the applicant stated the problems that initially happened in 2008.
The Tribunal has taken into consideration the country information it put to the applicant in the hearing, from sources including DFAT Country Information Reports for Sri Lanka dated 18 December 2015 and 15 February 2015, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, dated 5 July 2010 and 21 December 2012, UK Home Office Operation Guidance Note for Sri Lanka dated July 2013 and UK Home Office Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August 2014, which suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009.
While UNHCR in their guidance dated 2010 does refer to some reports that young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE, they also stated that there was no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity. In the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicates that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm due to imputed links with the Liberation Tigers of Tamil Eelam (LTTE). As the Tribunal put to the applicant in the hearing, UNHCR provides that people with “more elaborate links to the LTTE” may require protection. This includes persons who held senior positions with considerable authority in the LTTE civilian administration, former LTTE combatants or “cadres”, former LTTE supporters involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists or persons with family links or who are dependent on or other otherwise closely related to persons with the above profiles. DFAT assesses that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE may be monitored by Sri Lankan authorities but are at a low risk of being detained or prosecuted. The Tribunal does not accept that the applicant falls within any of the profiles identified by UNHCR as being at risk of serious harm. The applicant’s evidence in the hearing was that neither he or any of his family members had any involvement or association with the LTTE and based on the Tribunal’s findings above, it does not accept that he was ever suspected of having links with the LTTE in the past.
The Tribunal has also taken into consideration the guidance decision GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) made by the Upper Tribunal (Immigration and Asylum Chamber) in the UK. As the Tribunal put to the applicant in the hearing, according to this decision the current categories of persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. As the Tribunal put to the applicant in the hearing, looking at his profile and experiences, it does not accept he will be perceived as a present risk to the Sri Lankan state or government and as such this decision suggests he does not fall within the category of persons at risk of serious harm.
In regard to the security situation in the north, which is where the applicant is from, the Tribunal notes the information it put to the applicant from the DFAT report dated 18 December 2015, provides that security situation in the north and east has greatly improved since the end of the conflict. However, military and security forces maintain a significant presence in the Northern Province, including Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In July 2015, DFAT observed a low-level but visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula, also known as the ‘High Security Zone’. Most check-points have been removed in the north, and the main checkpoint on the highway between the north and south, the Omanthai checkpoint, was removed on 29 August 2015. Restrictions placed on persons, including foreigners, visiting the north that were introduced in October 2014 have been lifted. The Sirisena government appointed two retired senior civil servants as Governors in the Northern and Eastern provinces to strengthen civilian administration. These posts were previously held by retired military personnel. The Sirisena government has publicly claimed that military involvement in civilian activities has ceased. The government has returned thousands of acre of land confiscated during the war by the military in the island’s east and north, has allowed 39 suspected former Tamil rebels, who had been in prison for years accused of abetting terrorism, to be released on bail and have decided to release another 20 to undergo rehabilitation and receive vocational training and has recently lifted a ban imposed by Rajapaksa on 8 Tamil organisations and 267 individuals who were accused of being a threat to national security. DFAT assessed that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life. The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the conflict. DFAT further assessed that monitoring and harassment of Tamils has decreased under the Sirisena government and on a day-to day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by the authorities, if such activities occur.
The Tribunal finds that the country information before it, including the information provided by the applicant’s previous adviser in a submission received on 25 October 2013 and the extensive amount of independent information provided by his current adviser spanning over a period from 2006 to 2016, including the Human Rights watch Report, ‘We live in Constant Fear’ dated October 2015 and the report from International Truth and Justice Project ‘Silence: Survivors of torture and sexual violence in 2015’, does not suggest that currently all Tamils face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils were connected with the LTTE. The Tribunal also does not accept that the independent information before it suggests that all young Tamil males or all young Tamil males from the north are subject to additional suspicion. Taking into account the applicant’s particular profile as someone who had no involvement or association with the LTTE and has not been of any interest to the authorities in the past due to any suspected or perceived links with the LTTE, and the country information regarding the improved situation in Sri Lanka, the Tribunal does not accept that the applicant faces a real chance of serious harm from the authorities or anyone else, for reason of his Tamil ethnicity or for his membership of a particular social groups of “ young Tamil males” or “young Tamil males from the north”. The Tribunal also does not accept that the applicant faces a real chance of persecution based on an imputed political opinion, including a pro-LTTE or an anti-government opinion, arising from his Tamil ethnicity and/or his age and his origins from the north of the country or as a young Tamil male from the north who has travelled to Australia.

The Tribunal notes that it was also claimed that the applicant would face harm on his return to Sri Lanka as a failed asylum seeker and/or a returnee from a western country. When asked what he believes will happen if he returns to Sri Lanka for this reason, the applicant stated that all those who have gone back have been tortured. The applicant’s adviser submitted that the applicant’s concern was that people on return may be tortured and forced to make a false confession.
The Tribunal has considered the information from DFAT it put to the applicant in the hearing, which noted that significant numbers of Tamils have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm. Based on the country information the Tribunal put to the applicant from various sources including DFAT, other foreign governments and UNHCR (see Sri Lanka: Treatment of Failed Asylum Seekers and Returns Issue Paper dated May 2015) regarding people returning to Sri Lanka as failed asylum seekers, the screening process is the same for all persons returning there – whether voluntary or by escort and the process is not impacted by ethnicity. The independent country information available contains reports indicating that returned asylum seekers are usually kept at the airport for some hours while their identity is checked. They may be questioned during this period. The reports suggest that persons without any adverse profile, for example a criminal record or outstanding warrants, are released at the airport without further interest.
The Tribunal has considered the country information provided by the applicant’s previous and current advisers, including the UK Home Office Report on the Treatment of Returnees dated December 2012, which refers to reports by some human rights organisations such as Freedom from Torture and Human Rights Watch. The Tribunal finds that the examples of serious harm to returnees referred to in these reports appear to be isolated examples where individuals have particular adverse profiles such as a criminal record, outstanding warrants or actual association with the LTTE. The Tribunal refers to the decision of the Upper Tribunal, as discussed with the applicant in the hearing, which noted that the cases reported by organisations such as Freedom from Torture, Human Rights Watch and Tamils Against Genocide in their reports, were not representative and that the sample groups were small, distorted by its origin and unverifiable. The Tribunal also noted that evidence given to the Upper Tribunal from representatives of Human Rights Watch and Tamils Against Genocide was that they did not consider every Tamil returning to Sri Lanka was at risk.
The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities. While the Tribunal accepts on the country information before it that the applicant may face questioning on his arrival in Sri Lanka, before being able to depart the airport, the Tribunal does not accept that any questioning the applicant may be subjected to amounts to serious harm as defined in s.91R(1) of the Act. Considering the information put to the applicant in the hearing, as well as the extensive amount of information provided by the applicant’s adviser including three recent internet articles reporting of the return of failed asylum seekers to Sri Lanka, and the applicant’s profile as someone who was of no interest to the authorities and was not suspected of having links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of persecution, including being tortured and forced to make a false confession, on his return to Sri Lanka, now or in the reasonably foreseeable future as a failed asylum seeker or a Tamil failed asylum seeker or as a returnee from a Western country or as a member of a particular social group of Tamil failed asylum seekers without a passport. Nor does the Tribunal accept the applicant’s return to Sri Lanka without a passport and as a Tamil failed asylum seeker would impute him with an LTTE political opinion or an anti-government political opinion, particularly given the Tribunal’s findings, as discussed above, regarding his profile and past experiences in Sri Lanka.
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the CID, the army or any other Sri Lankan authorities or anyone else because of an imputed political opinion of supporting the LTTE based on his short acquaintance with two Tamil boys in 2008, his Tamil ethnicity, his membership of a particular social group of young Tamil males or young Tamil males from the north, an imputed political opinion based on his Tamil ethnicity, origins and/or age or his return to Sri Lanka as a failed asylum seeker without a passport, his attempt to seek asylum in Australia, or his membership of the particular social groups of failed Tamil asylum seekers or Tamil returnees or Tamil failed asylum seekers without a passport. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
Complementary protection obligations
On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).
As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. While the Tribunal accepts that the applicant may have made an acquaintance with two Tamil boys who used to hang around a junction in his home area and that on one occasion in February 2008 these two boys were taken to the [location 1] and the applicant was asked to follow but was not questioned and was made to stay outside the [location 1] and just provide his name and address, for the reasons discussed above, it does not that the applicant was subsequently contacted by the CID from December 2011 and questioned about these boys or any association with the LTTE. For the reasons discussed above, the Tribunal does not accept that in December 2011 the applicant was contacted on his mobile phone by the CID, who requested that he meet them at a [location 2]. The Tribunal does not accept that at the [location 2], the applicant was questioned about the two boys he was acquainted with in February 2008 or that he was threatened with having a gun pointed at his head. Nor does the Tribunal accept two or three weeks later the CID called him at midnight and asked him to come outside, where he was asked the same questions regarding the two boys he knew more than three and a half years earlier and again threatened with a gun or that ten days after this alleged visit to his home by the CID, he was again contacted by the CID and they asked him again to come to [location 2], where he was asked the same questions and they threatened to shoot him. For the reasons discussed above, the Tribunal does not accept that in addition to receiving these calls requesting that he meet the CID, that the applicant frequently received calls either between the alleged meetings he had with the CID or after his third meeting with the CID, while he was either travelling between [City 1] and Colombo or while he was allegedly residing in Colombo, up until he departed the country. The Tribunal does not accept that the applicant was of any interest to the CID in the past in Sri Lanka, particularly from December 2011 onwards. The Tribunal finds the applicant’s claims that he was of interest to the authorities in the past to not be credible. As such, for the reasons discussed above, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the CID, the army or any other authorities as a perceived supporter of the LTTE.
In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or any combination of these factors. The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war and UNHCR have said that that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within. Considering the applicant’s profile and his past experiences in Sri Lanka, in addition to the country information put to the applicant regarding the changes that have occurred since the cessation of the conflict in Sri Lanka, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm based on his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or as a young Tamil male or a young Tamil male from the north or an imputed political opinion based on his age, ethnicity and/or origins.
The Tribunal also does not accept on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka as failed asylum seeker or Tamil failed asylum seeker or Tamil failed asylum seeker without a passport or as a result of an imputed political opinion as a Tamil failed asylum seeker without a passport. As discussed above, the Tribunal accepts that the applicant, as a failed asylum seeker or Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subjected to on his arrival in the country.
Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
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.
Sydelle Muling
Member

[2016] AATA 3919

20 May 2016

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Immigration

Administrative Law

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