1510793 (Refugee)

[2016] AATA 4240

1510793 (Refugee) [2016] AATA 4240 (26 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510793

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Mara Moustafine

DATE:26 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2016 at 11:40am

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. The [applicant]claims to be a citizen of Sri Lanka from [Village 1], [Town 1], North Western province, of Tamil ethnicity and Hindu by religion, born in [year], who worked as a[occupation].

2. The applicant fears that if he returns to Sri Lanka he will face serious harm from the Army over an altercation with his father’s employer in 2012.

3. The applicant arrived in Australia as an unauthorised maritime arrival [in] July 2012. He applied for a Protection visa [in] January 2013. A delegate of the Minister for Immigration refused to grant the visa [in] December 2013. On 15 January 2014 the applicant applied to the Tribunal for a review of that decision, a copy of which he provided to the Tribunal. A summary of the relevant law is set out at Appendix A. 

4. The applicant was invited to give oral evidence and present arguments at a hearing on 27 April 2015. He did not attend the scheduled hearing or contact the Tribunal to explain his failure to attend. On 27 April 2015 the Tribunal affirmed the Department’s decision not to grant the applicant a Protection visa as it was unable to be satisfied that the applicant was a person in respect of whom Australia has protection obligations.

5. [In] August 2015 the Federal Circuit Court remitted this decision to the Tribunal by consent for reconsideration.

6. The applicant appeared before the Tribunal on 22 July 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.

7. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Materials before the Tribunal

8. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal.  At the start of the hearing before the Tribunal the applicant affirmed that his evidence to date was true and correct and that he did not wish to change or add anything.

9. In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material, including the latest information prepared by the Australian Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes and that referred to in the delegate’s decision, relating to the situation of Tamils in Sri Lanka, as well as the treatment of failed asylum seekers who departed Sri Lanka illegally[1].

   Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka?

   [1] DFAT, Country Report Sri Lanka, 18 December 2015; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012; DFAT, DFAT Thematic Report: people with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); US Department of State 2016, Country Report on Human Rights Practices 2015 – Sri Lanka.

   Applicant’s claims

10. The following is a summary of the claims and information provided by the applicant in his Protection visa application:

    a.In or around April 2012 the applicant’s father borrowed some money from [a] fisherman, named [Mr A], but did not repay it and did not go to work because he was ill with the flu. After four days, [Mr A] came to their house wanting his father to come back to work so he could repay the money.  

    b.When his father was unable to repay the money, [Mr A] hit him. The applicant tried to assist his father and had a physical altercation with [Mr A], who then went to the Army to complain.

    c.An Army soldier came to the applicant’s place, hit his father and took the applicant to the Army camp in [Village 1], where he was held overnight. The soldier blamed the applicant for intervening when [Mr A] was hitting his father and in so doing assaulting the Army soldier.

    d.The day after the applicant returned home, a soldier again came to his home and asked the applicant to return to the Army camp. The applicant ‘refused and didn't go with the soldier’ as he was fearful that he was going to be killed. This is why he left Sri Lanka.

    e.The Army in Sri Lanka persecutes Tamils. He fears that if he returns to Sri Lanka he will face a real chance of persecution, including possible death or at least torture because he is a Tamil and a [occupation].

    f.He fears that if he is forced to return to Sri Lanka, he will be detained and face a real risk of serious harm from the Army (CID) as has already been detained once by the Army and they tried to detain him a second time.

    g.As the government is dominated by the Sinhalese the authorities will not protect him as there is a history of persecution of the Tamil people by the Sinhalese.

    h.As a Tamil it is not practical for him to move to another area of Sri Lanka as the authorities will be able to find him no matter where he resides as he is easily identifiable as a Tamil.

11. Key relevant points from the applicant’s hearing before the Tribunal were as follows:

    a.The applicant was born in [Village 1] and initially said it was the only place where he lived in Sri Lanka, but later said his family moved to [another location] for some years before returning to [Village 1]. Asked why he did not mention [that location] earlier in his evidence, the applicant said he forgot.

    b.Asked how many years education he had, the applicant initially said he studied up to year [grade], then said he only went to school for [number] months as he had difficulty talking. Asked how long he worked as a [occupation] with his father, he variously said five years, then five months, before confirming it was five years and that he was paid about Rs.[amount] a week.

    c.One day while his father was sick, [Mr B], the Tamil businessman who sold [their goods], came to their house in [Village 1] because he wanted his father to come back to work. As his father had a fever and could not go back to work, [Mr B] beat his father.

    d.The applicant beat the businessman in response. Later, the Army came and took him to the Army camp in [Village 1], where they detained him for a week. Upon his release, they told the applicant that he had to leave the country or they would kill him.

    e.The Army came back to his house together with the businessman the day before the applicant left for Australia, The applicant did not see them as he was in hiding at his [Relative 1]’s place in Colombo.  She had come by bus and taken the applicant back to Colombo after he was released from the Army camp because he was afraid the Army would kill him because of the problem with his father. He stayed there for a week.

    f.He learned about the Army’s visit from his mother, who came to Colombo to tell him that the Army and the businessman had come to kill him. She told the applicant that there was a boat going to Australia the next day from [Town 1] and arranged for him to travel on it.

    g.His parents[and siblimgs] were still living in [Village 1]. Asked what they were doing, the applicant said ‘eating and waiting’. His mother prayed that he should live in Australia because if he got a visa, they would have money. Otherwise, there would be no money. His brother was not working as he was only [age] years old and was [studying]. Both his parents were unwell.

    h.Neither he nor his family had ever been part of the LTTE. He had not been involved in anti-government activities in Sri Lanka or Australia and had no outstanding criminal matters.

    i.For the past month he has been working in a [company] in [suburb] [doing work]. Prior to that he stayed at home and was supported by his friends.

    j.His encounter with the Army over his father's problem with [Mr B] was the only problem he ever had with the authorities in Sri Lanka.

    k.His mother told him two months ago that the Army and the businessman were still looking for him and wanted to kill him, although he did not know why. His parents and siblings had not been harmed.

    l.He was afraid that if he returned to Sri Lanka now the businessman and the Army from the base at [Village 1] would torture him, jail him or kill him because he had beaten the businessman.  

    m.Asked if there were any other reasons he feared returning to Sri Lanka, the applicant repeated that if he went back he would be killed because of the incident with the businessman and said he could not live there.

    n.In response to the Tribunal’s question as to whether he still maintained his claim to fear harm on the grounds of being a Tamil and [occupation], the applicant confirmed that he would be affected because of his Tamil race.

    o.Noting that his problems were with the Army from the base at [Village 1], the Tribunal asked whether the applicant could live in Colombo with his [Relative 1]. He responded that it would not be like living with his mother as there was no one to look after him in Colombo. He added that he could not get work in Colombo as he could only work on the sea.

    p.The Tribunal asked if he could live and work on the sea in [location], where he said his family lived for a while, the applicant said he had no house or family there.

    q.Asked why he could not do some other kind of work in Colombo, like the [work] he was doing in [Australia], the applicant said he could not live there as he would be tortured because the businessman with whom he had a problem knew everyone In Colombo. 

    r.He said he came to Australia because of his father’s problem and also because he had to look after his family. Since he started working he was sending Rs.[amount] a week to his mother. He wanted to live in Australia.

    s.Asked what would happen to him if he arrived at Colombo airport, he said the CID would take him because this was what normally happened and that this would be because of his existing problem with the businessman from [Village 1], not something new.

    Consideration of applicant’s claims

12. On the basis of documentary evidence submitted to the Department, the applicant’s oral evidence and, in the absence of evidence to the contrary, the Tribunal is satisfied the applicant is a Sri Lankan national of Tamil ethnicity from [Village 1], North Western province, as claimed. The Tribunal assesses the applicant’s claims against Sri Lanka as his country of nationality and receiving country.

    Applicant’s experiences in Sri Lanka prior to his departure in 2012

13. The applicant’s claim for protection is premised on his assertion that he faces a serious risk of harm from the Sri Lankan Army, who detained him at their base in [Village 1] in April 2012 after he was reported by his father’s employer following a physical altercation and returned for him before he left Sri Lanka. He also fears harm because of his Tamil ethnicity.

14. For the reasons outlined below, the Tribunal did not find the applicant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he fears persecution there. The Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason; or that there is a real chance that he will suffer serious or significant harm on his return to Sri Lanka.

15. In making these findings the Tribunal has taken account of the applicant’s claim that he has difficulty with his speech and noted that the interpreter several times asked him to speak slowly and repeat his responses to questions. For this reason, periodically during the hearing, the Tribunal summarised the applicant’s evidence and sought his confirmation that its understanding of his claims was correct. The Tribunal is satisfied that the applicant’s ability to give evidence and present arguments at hearing was not compromised.

16. As discussed with the applicant at hearing, the Tribunal has serious concerns about inconsistencies in his evidence between the statement he submitted with his protection visa application and at hearing on key aspects of his claims. In particular, while the applicant identified his father’s employer, with whom he had an altercation, as ‘[Mr A]’ (paragraph 10.a) in his statement, at hearing he consistently called him ‘[Mr B]’ (paragraph 11.a). while he said in his statement that he was detained at the [Village 1] army camp overnight (paragraph 10.c), he told the Tribunal it was for a week at (paragraph 11.b). In each case, the applicant said he made a mistake because he was tense and elaborated that both men he named were businessmen, but [Mr B] was a good person who was now looking after his father, who did a little work for him.

17. Further, at hearing the applicant introduced new evidence that at the time the Army came back to his house looking for him after his release from detention, he was in Colombo with his [Relative 1] (paragraph 11.c). By contrast, in his statement, he indicated he was in [Village 1] but ‘refused and didn't go with the soldier’ (paragraph 10.d); and, according to the Department’s decision record, he told the Department at interview that his mother told the Army he was not at home, while he was actually at home, but hiding. The applicant again claimed that the inconsistencies arose because he was tense, did not know what he was saying and that he said whatever came into his mouth.

18. The Tribunal recognises that the stress of a hearing may lead to some inconsistencies and oversights in an applicant’s evidence. In this context, is prepared to overlook the inconsistencies in the applicant’s evidence about his background at paragraph 11.a and 11.b. However, the inconsistencies identified in paragraphs 16 and 17 above are more significant as they related directly to the substance of the applicant’s claims. As discussed with the applicant, at several points in the hearing, the Tribunal summarised his evidence on key issues, including the problems with [Mr B], and gained his confirmation that its understanding of his claims was correct. The Tribunal finds implausible that the applicant would, consistently throughout the hearing, confuse the names of a ‘good’ and ‘bad’ businessman, as well as the length of time he spent in Army detention. Rather, it is the Tribunal’s view that the inconsistencies in his evidence stem from the fact that it was untrue.

19. The Tribunal’s concerns about the veracity of the applicant’s evidence are compounded by the fact that his key claim that he was detained and targeted by the Army from the camp at [Village 1] in 2012 is inconsistent with country information. Significantly, DFAT advised in 2013 that, while there was an army camp in [Village 1] during the civil war, it was withdrawn following the end of the war in May 2009.

20. The Tribunal also notes that, as reported in the Department’s decision, the applicant’s reasons for leaving Sri Lanka evolved in the course of the protection visa process. In his first interview he mentioned difficulties making a living and with food; and at his entry interview referred to [occupational] difficulties. It was only in his protection visa application statement that he mentioned problems with his father’s employer and the Army from the [Village 1] camp. Invited to comment on this information, the applicant responded that he did not know what to say.

21. The Tribunal also finds it implausible that if, as the applicant claimed at hearing, the Army threatened they would kill him unless he left country (paragraph 11.d), they would still be looking for him two months ago (paragraph 11.k) when he had done as he was told.

22. In view of the multiple concerns addressed above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Sri Lanka and the reasons he fears returning to that country; or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant ever had a physical encounter or beat his father’s employer in April 2012 leading him to complain to the Army, nor that the Army took him to their camp in [Village 1], or detained him there, whether for a week or overnight. Nor is the Tribunal satisfied that the Army or his father’s employer threatened to kill the applicant unless he left Sri Lanka, returned to his house seeking him out after his release; or that this prompted him to leave Sri Lanka for fear he might be killed, as claimed.

23. As the Tribunal does not accept that the applicant was of interest to the Sri Lankan authorities at the time he left Sri Lanka in 2012, it follows that the Tribunal is not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face a real risk of serious harm, including being tortured, detained or killed, by the Sri Lankan Army or CID because he beat his father’s employer in [Village 1] in 2012, nor because the Army has already detained him once and tried to detain him a second time, as the result of any previous incident or for any other reason.

24. In the Tribunal’s view, the applicant fabricated his account in order to achieve a migration outcome. In this context, the Tribunal notes the applicant’s evidence at paragraphs 11.g and 11.r that one of the reasons he came to Australia was because he had to look after his family, to whom he has been sending money and that they hope he will get a visa to live in Australia as this will enable the applicant to provide them with money. 

    The applicant’s Tamil race/ethnicity and political profile

25. In his protection visa application, the applicant claimed that he would face a real chance of persecution in Sri Lanka, including possible death or at least torture, because he is a Tamil and a [occupation]. The applicant did not elaborate any such claims at hearing, although when asked if he maintained his written claims, confirmed that he would be affected because of his Tamil ethnicity (paragraph 11.n).

26. The Tribunal accepts that, at least up to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils, especially those living in the LTTE-dominated Northern and Eastern provinces, were at a risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. However, there is general consensus among independent sources, including UNHCR, the United Kingdom’s Upper Tribunal on Immigration and Asylum (UK Upper Tribunal) and DFAT[2] that since then, the security situation has changed considerably such that the risk of harm to Sri Lankan citizens on the basis solely of their Tamil ethnicity has substantially reduced. The Tribunal notes that the applicant originates from [Village 1] in the North West Province, which was not affected by the conflict in the same way as areas in the north and east of the country.

    [2] UNHCR, UNHCR Eligibility Guidelines, 21 December 2012; Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); DFAT, DFAT Country Information Report Sri Lanka, 31 July 2013, which is consistent with the latest DFAT Country Report Sri Lanka, 18 December 2015 and 16 February 2015.

1. The Tribunal notes that the guidance decision of UK Upper Tribunal[3] identifies persons at risk in Sri Lanka today to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism. The Upper Tribunal report also found that, in post conflict Sri Lanka, an individual’s past history would be relevant only to the extent that it is perceived by the authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government. The applicant did not offer any comment on the above country information when invited to do so.

   [3] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

2. By the applicant’s own evidence, neither he nor any of his direct family members were ever involved with the LTTE and he has never been involved in activities against the Sri Lankan government or the Sri Lankan state, either in Sri Lanka or in Australia (paragraph 11.h).  

3. In view of the above, the Tribunal is not satisfied that the applicant faces a real risk of serious harm, including torture or possible death, because he is a Tamil or a [occupation]. Nor is the Tribunal satisfied that the applicant has any profile that would put him at risk of harm in Sri Lanka today.

   The applicant’s illegal departure from Sri Lanka and his status as a failed asylum seeker

4. The applicant made no claims to fear harm on the grounds that he left Sri Lanka illegally by boat and sought protection in Australia. Although he feared the CID might take him on his return to Colombo airport, he thought this might happen because of his previous problems with the businessman in [Village 1], not anything new (paragraph 11.s). Nevertheless, the Tribunal drew to the applicant’s attention the consequences he might face on his return because of his illegal departure.

5. The information before the Tribunal, including from DFAT, the Upper Tribunal and the UNHCR indicates that standardised procedures apply to all persons returning to Sri Lanka, regardless of their ethnicity or circumstances in which they left the country. Returnees are routinely processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport.

6. DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.

7. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of immigration laws are arrested at the airport and brought before a court to apply for bail, which is routinely given. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available.

8. The Tribunal accepts that DFAT and various other groups have reported that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. The Tribunal is not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.[4]

   [4] DFAT 2014, Sri Lanka: Country Information Report, 3 October 2014.

9. DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, a returnee who pleads not guilty is granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor and may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. There is no general requirement to report to police or police stations between hearings. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act (PTA), although this has not been verified[5].

   [5] DFAT 2015, Sri Lanka: Country Information Report, 18 December 2015.

10. The Tribunal accepts that the applicant departed Sri Lanka unlawfully and that it will be known upon his return that he has unsuccessfully sought asylum in a Western country.  The Tribunal accepts on the basis of the information discussed above that the applicant would be subjected to such processes on return. The Tribunal has found that the applicant did not have any adverse political profile before he departed Sri Lanka. By his own evidence at paragraph 11.h, the applicant does not have any outstanding criminal matters that might make him a person of interest to the authorities.

11. Having considered the evidence as set out above, the Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country.

12. The Tribunal accepts that the applicant will face questioning at the airport, may be placed in remand for a short period and charged because he left Sri Lanka illegally. There is a possibility he will be held for a limited period in remand while awaiting bail in conditions that can be poor due to overcrowding and unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or applied for asylum overseas. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors that apply to the general population. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).

13. Having considered the independent evidence and the applicant's personal circumstances, the Tribunal is not satisfied that there is a real chance that he will suffer serious harm amounting to persecution in Sri Lanka for a Convention reason.

    Are there 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 that he will suffer significant harm?

14. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions.

15. The Tribunal has found above that it is not satisfied the applicant would suffer harm for a Convention reason. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any adverse political profile such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a Tamil who departed Sri Lanka illegally.

16. Nevertheless, the Tribunal has accepted that the applicant departed the country illegally, an offence under the Immigration and Emigration Act of Sri Lanka. The Tribunal, therefore, accepts that it is likely that the applicant would face questioning at the airport, arrest on charges of illegal departure, that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal accepts that the applicant may spend up to a fortnight in jail on remand in conditions that are cramped, uncomfortable and unsanitary. However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia.

17. The Tribunal also notes that, despite the large numbers of reported involuntary returnees to Sri Lanka, including young Tamil males from Australia and including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.

18. On the evidence before it, the Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

19. The Tribunal considers it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[6] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

    [6] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

20. Accordingly, the Tribunal 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 Sri Lanka there is a real risk he will suffer significant harm when he is questioned at the airport; during any period which he may spend in jail on remand; or upon return to his hometown, or indeed, elsewhere in Sri Lanka. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

21. Having considered these circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

    CONCLUSIONS

22. 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).

23. 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).

24. 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

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

    Mara Moustafine
    Member

    
    

    APPENDIX A: RELEVANT LAW

26. 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.

27. 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).

28. 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.

29. 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’).

30. 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.