1512102 (Refugee)

[2018] AATA 1302

1512102 (Refugee) [2018] AATA 1302 (27 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512102

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:27 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 27 March 2018 at 4:01pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Complementary protection – Vulnerability due to serious mental illness – Being subjected to criminal processes on re-entry – Lack of state protection – Ethnicity – Tamil – Political opinion – Liberation Tigers of Tamil Eelam – Particular social group – Failed asylum seeker – Applicant not competent to give oral evidence

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 190

Migration Act 1958, ss 5(1), 36, 48A, 65, 424A, 499

CASES

AMA15 v MIBP [2015] FCA 1424

D v United Kingdom (European Court of Human Rights), Application No 30240/96, 2 May 1997

Kalinoviene v MIAC [2011] FMCA 760

MIAC v MZYYL [2012] FCAFC 147

MIAC v SZQRB (2013) 210 FCR 505

SZGIZ v MIAC (2013) 212 FCR 235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant first applied for a protection visa [in] April 2011 which was refused by the Department [in] February 2011.  The applicant lodged an appeal of that decision with the former Refugee Review Tribunal (RRT), differently constituted, and the Department decision was affirmed [in] 2011. The applicant requested Ministerial Intervention [in] October 2012: this request was refused [in] October 2012.

3. From 24 March 2012 a new alternate criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.

4. [In] December 2013 the applicant applied for a further protection visa (the current application under review), pursuant to the Federal Court of Australia decision in SZGIZ v MIAC (2013) 212 FCR 235. The delegate refused to grant the visa [in] August 2015.

5. The Full Federal Court in SZGIZ held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to the complementary protection criterion contained in s.36(2)(aa).

6. The applicant appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. The applicant’s then psychologist – [Ms A] - attended the hearing and provided evidence. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

7. The Tribunal notes on 28 September 2017 this case was reconstituted to a different Member. In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.190(4) of the Administrative Appeals Tribunal Act 1975.

   COMPLEMENTARY PROTECTION CRITERION

8. 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’).

9. ‘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.

10. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

11. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

12. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

13. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

14. 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

15. 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.

    Competence to give evidence

16. The applicant appeared before the Tribunal on 17 March 2017 along with his representative and psychologist, however the hearing was adjourned after about an hour when the applicant became upset.  When he returned from the short adjournment he was unresponsive to the Tribunal’s questions.  [Ms A] expressed her significant concern as to the mental health of the applicant and stated in her opinion he was not capable of continuing. The Tribunal proposed that the hearing be concluded, and that, given the circumstances, it would write to the applicant with a list of questions and issues that it had with the applicant’s claims. These questions would take the place of the hearing. The applicant’s agent and the psychologist agreed that this would be a preferential process than conducting a hearing.

17. At the hearing the Tribunal asked the representative to provide updated medical evidence with respect to the applicant’s mental health status, which was agreed.

18. On 23 March 2017 the Tribunal received an email from the applicant’s representative who advised that according to information from the applicant’s psychiatrist, [Dr B], he had been in contact with the Crisis Assessment and Treatment Team (CATT) team following the Tribunal hearing that were assessing whether or not to admit the applicant to hospital.  On 24 March 2017 the representative provided to the Tribunal letters from [Ms A][1], and [Dr C][2] ([named health service]) confirming that due to significant concerns about the applicant’s mental health he was admitted to [Hospital 1] on [date] March 2017. 

    [1] Dated 24 March 2017

    [2] Dated 24 March 2017

19. On 27 March 2017 the representative submitted a report from [Dr B], dated 17 March 2017.  In that report [Dr B] states, among other things, that he first met the applicant in the lead up to the Administrative Appeals Tribunal (AAT) hearing and he was extremely agitated and distressed as a result; that he was preoccupied with getting a negative outcome and being deported; [details deleted]; he finds the refugee status determination (RSD) process extremely distressing; and that he has a pattern of deteriorating mental health when due to be interviewed.  In his report [Dr B] provides an additional note following a meeting with the applicant on 20 March 2017 in which he verified the applicant’s deterioration in the context of the AAT hearing, resulting in admission to an acute psychiatric facility. 

20. On 11 April 2017 the Tribunal wrote to the applicant, including a letter pursuant to the provisions of s424A of the Act, and a lengthy letter detailing the issues, questions of the Tribunal and some relevant country information for the applicant to respond to, as promised at hearing.

21. On 29 May 2017 the representative provided a written submission to the Tribunal providing an update about the applicant’s mental health and his capacity to engage with the review process.  He advised that the applicant was still hospitalised and too unwell to give instructions about responding to the Tribunal’s letters, despite his attempts.  He said the applicant was re-hospitalised after his psychologist discussed these matters with him.  The representative requested additional time to respond to the letters, which the Tribunal agreed to.  Attached to the submission was another letter from [Ms A][3] who states that the applicant’s psychological presentation had improved slightly after he was discharged from the psychiatric inpatient unit on [date] March 2017, however he continued to present with [specified symptoms].  She met with the applicant on 4 and 11 May  where he refused to view the letters from the AAT, and his  [symptoms] increased when he found out he needed to respond to the AAT by 29 Mary 2017.  As a result the applicant’s psychiatrist called the CATT and the applicant was admitted to the psychiatric unit on [date] May 2017. 

    [3] Dated 24 May 2017

22. Also submitted was a letter from [Dr D], Consultant Psychiatrist, [Hospital 1], dated 25 May 2017 who confirmed the applicant’s diagnosis and inpatient status at [Hospital 1] since [date] May 2017.

23. On 2 June 2017 the Tribunal received an email from the representative who states that he spoke to the applicant on 31 May 2017 in hospital; the applicant was too unwell to put forward a response to the Tribunal’s questions; and he instructed that he did not want the Tribunal to make a decision on his case.  The representative sought an extension until 30 June 2017 for the applicant to be discharged and prepare a response. The Tribunal agreed to the request.

24. On 8 October 2017 the Tribunal received a further email from the representative who advised that the applicant had been admitted to [Hospital 2] [in] September 2017 due to a further deterioration of his mental health.  The representative states that the applicant instructed that he is unable to respond to the Tribunal’s correspondence, has not indicated when he believes he will be able to do so and becomes highly agitated when pressed for further instructions. 

25. The Tribunal received another email from the representative on 15 December 2017 (after the Tribunal had contacted them seeking an update about the applicant’s mental health) who states the applicant has avoided contact with them regarding his legal matters, instructed them not to provide further submissions, but instructed them to provide an updated medical report from his psychiatrist ,which the representative attached to his email.  In that report, dated 14 December 2017, [Dr B] provides an update on the applicant’s mental health and treatment since March 2017 (his last letter).  The key points in [Dr B]’s letter were as follows:

    ·The applicant was distressed following the Tribunal hearing in March (2017) and developed [specified symptoms].  He was admitted to [Hospital 1] from [date] to [date] March 2017.  He was admitted again to [Hospital 1] from [date] to [date] May 2017 in the context of [related symptoms]. 

    ·The applicant’s long term psychologist [Ms A] has terminated her therapeutic care due to her emotional distress and not being able to effectively manage the applicant. 

    ·The applicant was referred for counselling at [a specialised refugee support service] and attended an appointment in August, however he did not engage and was assessed as too acutely [unwell].

    ·There has been a clear deterioration of the applicant’s mental state since his hearing.  [Dr B] has been reviewing him on a weekly basis but he has been very difficult to engage him in effective treatment due to his overall heightened level of distress and enduring sense of hopelessness.  The applicant does not take medication regularly; [details of condition deleted].

    ·His triggers relate to the RSD process and his fear of being returned to persecution.  On the one hand he wants the process to be hastened yet on the other he finds it too traumatising so he avoids contact with his legal team.  The applicant is preoccupied with the protracted process and his lack of ‘human rights’.

    ·[Dr B] is concerned that the applicant’s state of mental distress is such that he does not have the capacity to engage with the RSD process in his best interests, and he fluctuates in his trust of others to assist him with this process.

    ·As the RSD process continues, [Dr B] does not envisage that the applicant will be able to make any psychiatric recovery and his prognosis is poor.  Multiple services and agencies have tried to provide mental health care however these attempts have been unsuccessful due to the severity and complexity of the applicant’s psychiatric presentation, particularly against a background of trauma.  [Details deleted]. 

    ·The applicant was further admitted to [Hospital 2] from [September] to [October] (2017), [reasons deleted].  He refused many assessments that followed, stating that he felt unsafe and that the questioning was prejudicial: he felt interrogated.

26. It is clear to the Tribunal from the medical evidence before it that the applicant suffers from serious mental health problems which are complex, long standing and worsening.  He has been diagnosed with [details of condition deleted].  Whilst in Australia he has been admitted to psychiatric inpatient care in hospitals a number of times, as recently as September/October 2017.  This included an admission to [Hospital 1] shortly after the Tribunal hearing in March 2017.  He has avoided contact with his legal representatives and become increasingly reluctant to engage in therapeutic care.  

27. The Tribunal has formed the view on the evidence before it that the applicant is unfit to participate in the hearing and is expected to be unfit for the foreseeable future: Kalinoviene v MIAC [2011] FMCA 760. The medical evidence before the Tribunal indicates that the applicant suffers from serious mental health problems, has done so for many years, and his mental health has deteriorated. Given this evidence the Tribunal is of the view that the applicant’s mental health is unlikely to change in the foreseeable future and the Tribunal is not satisfied the applicant currently has the competence to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

28. The applicant is a [age] year old Tamil man from [Jaffna district].   He lived in Colombo before he came to Australia [in] February 2011 on a Sri Lankan passport, a copy of which he has provided to the Department, along with his identity card. The delegate notes in their decision record he changed his given name in Australia [in] October 2013, which is reflected in a ‘change of name’ certificate from [the] Registry of births, deaths and marriages provided to the Department.  The delegate had no concerns with the applicant’s identity and claimed nationality and the Tribunal accepts that Sri Lanka is his receiving country for complementary protection purposes.

    Complementary protection assessment

29. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. The Tribunal notes that the threshold of the ‘real risk’ element in the complementary criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

30. The applicant told the delegate at his interview [in] February 2015 that he was relying upon his written protection claims set out in his initial written statement (and supporting documents) provided with his first protection visa application and a statutory declaration[4] provided with the current application.  These claims, along with his oral claims at interview, were accurately summarised by the delegate in her decision record[5] as follows:

    [4] Dated [February] 2015

    [5] The applicant provided a copy of the decision record to the Tribunal on review. 

    ·He is a Tamil from Jaffna.

    ·Between 1996 and 2000 he was tortured on suspicion of being linked to the LTTE.  He and his family move to Colombo due to these conflicts.

    ·He had difficulties at army checkpoints in 2007 and 2008.

    ·He was arrested, tortured and threatened on more than one occasion.

    ·He fears being arrested or abducted and being subjected to inhuman and degrading treatment.  He fears possible death from the Sri Lankan government.

    ·He fears the Sri Lankan authorities and pro-government militia groups.  He has been imputed was a supporter of the LTTE.

    ·He is still at risk despite the change in government in Sri Lanka.  Tamil political prisoners arrested ten years ago are still in jail under the Prevention of Terrorism Act.

    ·He will be questioned about his time in Australia if he returns to Sri Lanka.

    ·In around April 2011, his father was sent court documents and an arrest warrant by the Karuna group.  The applicant does not know if the documents are genuine.  The RRT told the applicant that the Sri Lankan authorities had stated the documents were fabricated.

    ·He has additional fears about returning to Sri Lanka because DFAT communicated with the Attorney General of Sri Lanka about him.

    ·He does not have faith in the Sri Lankan government.

    ·He believes he was able to leave Sri Lanka despite the arrest warrant due to a lack of a centralised system.

    ·He has been receiving counselling and psychiatric care. 

1. The delegate had concerns about the applicant’s credibility in large part because documents - a ‘Journal Entry’ and an arrest warrant ordered by [a] Magistrate's Court - provided by the applicant in support of his case were determined to be fraudulent documents with invalid case numbers following their referral to DFAT in Sri Lanka by the first Tribunal.  She did not accept he was a person of interest in Sri Lanka and concluded that he did not face a well-founded fear of persecution there or a real risk of significant harm. 

2. The applicant provided a written statement[6] to the current Tribunal claiming, among other things, that they were not fraudulent documents.  He argued that the court had an incentive to lie because it would reveal that the Sri Lankan Army (SLA) arrested him under the terrorism act.  Further, the number may not have been recorded because it was a terrorism case. He also believes he remains a person of interest to the Karuna Group on return to Sri Lanka. 

   [6] Dated 21 February 2017

3. The applicant also raised a new claim about his [relative], who left Sri Lanka when he was around 8 or 9 in [year] because of problems with the authorities, [is] in [Country 1], where he was granted refugee status.   The applicant provided information about [the relative] involved in the diaspora, including articles from 2006. It was stated that his [relative]’s association with [an organisation], now inactive, which was banned by the [Country 1] government [because] it was believed to be providing funds to the LTTE. It was submitted that the applicant had not known previously about his family involvement in this, as he had not been able to contact his family.

4. The Tribunal notes the written submissions as provided to the Department identify the applicant’s claims arising from this ethnicity; his imputed political opinion as a Tamil born in the north of Sri Lanka and suspected of supporting the LTTE; his membership of particular social groups as a Tamil failed asylum seeker returning from a western country, and Tamil failed asylum seeker whose confidential information has been communicated to the Sri Lankan authorities by the Australian authorities. His claims for complementary protection were presented in the alternative, based on the same information.

5. In the current case the applicant’s representative provided a new submission prior to the Tribunal hearing. It claimed that the applicant was owed protection for the following ‘refugee’ grounds:

   ·Ethnicity, as a member of the Tamil ethnic group

   ·Political opinion, as a person with an actual/imputed pro-LTTE political opinion

   ·Membership of a particular group, being:

   o   Failed asylum seeker/returnee from a Western country whose details have been released to the Sri Lankan Authorities;

   o   People imputed with a pro-LTTE political opinion in Sri Lanka;

   o   Male Tamils from the north of Sri Lanka that left directly after the war ended; and/or

   o   Family member of a public LTTE supporter.

   a.He is a Tamil male born in Jaffna, North Western Province, to Tamil parents, based on a copy of his passport provided to the Department.

   b.He entered Australia without a visa and by boat and therefore would be returning to Sri Lanka as a failed (Tamil) asylum seeker.

   c.He departed Sri Lanka illegally by boat.

   d.He has serious and deteriorating mental health problems. 

6. The representative submits,[7] among other things, that the applicant’s severe mental health issues would result in him being subject to significant harm in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment if returned to Sri Lanka; that he suffers from [details deleted] for which he requires ongoing treatment; and his mental health would rapidly deteriorate if returned to Sri Lanka and he would not be able to access medical treatment.  Country information is referenced about the poor treatment of mental health in Sri Lanka, as well as the stigma and discrimination attached which acts as a barrier to treatment.   

   [7] In a written submission to the Tribunal dated 29 May 2017

7. As well, the representative refers to a case in the European court of Human Rights[8] that found the removal of a severely ill person, in circumstances where they are reliant on medical treatment, can amount to inhuman or degrading treatment of punishment where removal would expose him or her to serious and distressing consequences.  It is submitted that this is a case where removal of the applicant to Sri Lanka would have such serious and distressing consequences for his mental and physical health that it would amount to significant harm in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment, occasioned in many ways, including by the Sri Lankan authorities in questioning and detaining him for any amount of time in inadequate prison facilities.  

   [8] D v United Kingdom (European Court of Human Rights), Application No 30240/96, 2 May 1997.

8. The Tribunal has considered these submissions as well as independent country information about the treatment of returnees to Sri Lanka, including those who departed the country illegally as follows.

9. The Department of Foreign Affairs and Trade’s (DFAT) most recent advice about the treatment of returnees is as follows:

   Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department.  These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.[9]

   [9] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.19

10. 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 processing at the airport.[10]

    [10] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.20

11. DFAT also state that during 2008-2015, over 1,500 failed asylum-seekers were returned  from Australia to Sri Lanka, in addition to the many Sri Lanka asylum seekers who have been returned from other countries, including the US, Canada, the UK and other European countries.  As well, DFAT state that the majority of these returnees are Tamil and although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to Colombo and other urban areas.[11]  

    [11] Ibid at 5.27

12. With respect to the potential consequences of the applicant’s illegal departure from Sri Lanka on return, country information indicates that he is likely to be questioned and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  DFAT advises that it had been informed by the Sri Lankan 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.  Also that in practice most penalties (which can include imprisonment of up to five years) are almost always a fine, that fine amounts vary on a case by case basis (but can be up to 200,000 Sri Lankan rupees/AUD2000) and can be paid by instalment.  Further, DFAT advised that if a person pleads guilty, they will be fined and are then free to go.  In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[12]

    [12] Ibid at 5.21 – 5.26

13. It is submitted that given the applicant’s significant vulnerability due to his poor mental health, the screening processes on re-entry, interrogation by the authorities, being held for a period of time on remand for illegal departure and being subjected to criminal processes could lead to significant harm in Sri Lanka. 

14. Based on what is accepted of the applicant’s mental health status and circumstances, the Tribunal considers there to be a real risk that, on the applicant being processed in the manner described above on his return to Sri Lanka, and being charged for breaching Sri Lanka’s departure laws, the applicant may act in a way that draws adverse attention to himself from the authorities: either through being non-verbal as evidenced at the Tribunal hearing in March 2017, and/or becoming agitated and possibly aggressive, as indicated in the medical evidence provided.  The medical evidence before the Tribunal confirms the applicant has experienced such symptoms and responses in different settings on numerous occasions in the past in Australia and that stress is often a precursor.  The Tribunal notes the applicant’s treating psychiatrist in his most recent report provided observes the applicant’s increasing inability to regulate his emotions, noting that he quickly comes to a stance of paranoia and perceived persecution; his cognitions are distorted; he becomes demonstrative with his emotions and distress; he sometimes raises his voices and screams; [details deleted]. 

15. Further, the Tribunal notes that whilst it has not made a finding as to the applicant’s claims of past experience of significant harm in Sri Lanka against himself, including allegations of being tortured, these past experiences of persecution are a dominant and recurring theme throughout the applicant’s psychiatric history as indicated in the medical evidence submitted, and in his refusal to cooperate with people trying to assist him in Australia, whom he sometimes alleges are interrogating him.   This indicates to the Tribunal that the applicant himself believes he has been persecuted in the past.  Given these constant ruminations, combined with the fact that the applicant suffers from serious mental illnesses which impact on his judgement and behaviour, the Tribunal considers it is not out of the question that he may criticise the government on return and do so in a demonstrative and possibly aggressive manner.  The Tribunal accepts the applicant does not have the judgement to know when he can express certain views or an appreciation of the impact of what he is saying.

16. In these circumstances it is not a remote or farfetched possibility that the applicant would suffer significant harm if he was to make comments that were perceived to be anti-government/pro-LTTE on return to Sri Lanka, either during the processing at the airport, or on remand regarding charges under the I&E Act for his illegal departure.  

17. Given these considerations and having regard to the country information set out above, the Tribunal is of the view that the applicant will be questioned by the authorities on return to Sri Lanka as a failed asylum seeker and is likely to be charged under the I&E Act because of his illegal departure years before.  The country information set out above indicates that for most returnees charged under the I&E Act they are fined then free to go (if they plead guilty) or immediately granted bail on the basis of personal surety or through a family member acting as guarantor.  However in the applicant’s case the Tribunal considers it plausible that he may be held for a longer period than others given his serious mental health problems.  It is also unclear to the Tribunal whether or not he has the support of his family members in Sri Lank who could act as guarantor if needed or help him pay the fine.  In these circumstances there is a real chance the applicant will not be released immediately and is likely to be kept in remand for longer than usual.  In such a context the Tribunal considers there is more than a remote chance the applicant will face harassment and possibly significant  harm from the authorities given his profile as a Tamil, failed asylum seeker, and serious mental health problems whilst in remand.  The Tribunal notes in this regard country information which indicates that that the security forces continue to detain individuals they suspect of having LTTE connections. If detained by security forces, there remains a real risk of ill treatment or harm requiring international protection.[13]

    [13] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 2.3.39 and 2.3.40

18. For these reasons, and when considering all aspects of the applicant’s case, including as someone with serious mental health issues, the Tribunal is satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm by the authorities on account of his imputed political opinion when detained in the form of assault and/or torture.  The Tribunal is satisfied that the harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation which is unreasonable. The Complementary Protection Guidelines refer to consideration of factors such as the circumstances and particular characteristics of the victim (such as sex, age, state of health) when determining whether physical or mental pain or suffering amounts to cruel or inhuman treatment or punishment[14]. This is particularly relevant in the applicant’s case given his serious mental illnesses as discussed above. The Tribunal is therefore satisfied that the treatment that the applicant will be subjected to amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined in s.5(1) of the Act.

    [14] Department of Immigration, PAM3 ‘Complementary Protection Guidelines’. Section 22, as re-issued 21 May 2015.

19. Under s.36(2B)(b) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147. In this case, as the perpetrator of the harm feared is the authorities themselves the Tribunal finds that the applicant would not be able to obtain from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm and therefore s.36(2B)(b) does not apply in this case.

20. The Tribunal finds 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 that he will suffer significant harm.

21. With respect to whether or not the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the perpetrators he fears are the authorities who exist nationally. The applicant’s poor and deteriorating mental state is also relevant in the context of relocation. Therefore internal relocation is not a viable option in the applicant’s case in the applicant’s case and finds therefore that s.36(2B)(a) does not apply.

22. The Tribunal is satisfied that the significant harm the applicant faces is one faced by him personally and not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.

23. Therefore, the Tribunal finds that the applicant is not precluded by the operation of s.36(2B)(a), (b) and (c) of the Act.

24. The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than his receiving country, Sri Lanka. The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

25. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(aa).

26. Given the Tribunal’s findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.   

27. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a)(a).

    DECISION

28. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

    Nicole Burns
    Member