1512240 (Refugee)

[2018] AATA 378

1512240 (Refugee) [2018] AATA 378 (2 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512240

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Dr Colin Huntly

DATE:2 February 2018

PLACE OF DECISION:  Perth

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

Statement made on 02 February 2018 at 3:41pm

CATCHWORDS
Protection visa – Sri Lanka – Race – Tamil – Particular social group – Young Tamil Male – Mixed marriage – Imputed political opinion – Suspected involvement with Liberation Tigers of Tamil Eelam (LTTE) – Resistance to Karuna faction – Forced recruitment – Returnee status – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (1997) FCA 1198
Iyer v MIMA (2000) FCA 52 (4 February 2000)
Iyer v MIMA (2000) FCA 1788 (15 December 2000)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA (2003) FCAFC 65 (11 April 2003)
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMIA (1999) FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (1998) FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs (1999) FCA 76

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] August 2015.

3. The applicant was invited to attend a hearing with the Tribunal on 5 September 2017 at 9:30 am.  When the applicant failed to attend the scheduled hearing, the tribunal made an interim decision to dismiss the applicant’s application for review.  The applicant was notified of this interim decision, and was invited to apply for reinstatement within 14 days.

4. The applicant applied for reinstatement of his application for review by email on 25 September 2017.  The applicant indicated that, although he had notified the Department of his change of address details, he had omitted to notify the tribunal of his changed address.  The tribunal accepted the applicant’s reasons for failing to attend the scheduled hearing and reinstated the applicant’s application for protection.

5. The applicant was subsequently invited to attend a hearing with the Tribunal on 30 October 2017 and again on 14 December 2017.  The applicant appeared before the Tribunal on both occasions 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 not represented in these proceedings by a registered migration agent.

6. At the first hearing with the Tribunal, the applicant expressed dissatisfaction with the quality of the interpretation services that were being provided.  At this point, the Tribunal suspended proceedings, with a requirement that the applicant provide the Tribunal with written submissions relating to any confusion regarding evidence from the applicant regarding the circumstances of his marriage.  The Tribunal also required the applicant to provide it with written submissions about his specific concerns about the interpretation services that were provided during the course of the hearing.

7. The applicant subsequently made written submissions to the Tribunal dated 13 December 2017.  While those submissions did provide information relating to the applicant’s marriage, the Tribunal notes that the applicant provided no information about any concerns relating to the quality of the interpretation services at the first hearing.  Accordingly, the Tribunal finds that the applicant did not have a substantial concern relating to the quality of interpretation services provided at the first hearing.  This failure on the part of the applicant to identify specific interpretation problems from the first hearing, despite having suggested at the first hearing that this was a substantive issue, reflects poorly on the applicant’s credibility as a witness.

   RELEVANT LAW

8. The law relevant to this application for review is discussed at Appendix A to this Decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant is owed protection obligations either under the refugee criteria or for complimentary reasons.  The tribunal notes that the delegate in his record of decision identified the applicant’s “(imputed) political opinion, his Tamil ethnicity and Hindu religion together with his membership of a particular social group, (namely ‘young Tamil male’), and fear of ‘harm, being abused or killed, by members of the Karuna faction on account of his (imputed) or actual political opinion of being anti-Karuna or pro-LTTE. 

10. The Tribunal notes that the applicant’s original application for protection includes a statement, signed and dated by the applicant [in] September 2013, which includes the following sentence: “I wish to emphasise that as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned I submit that for the most part they are indistinguishable from each other.”

11. Notwithstanding the above statement, the Tribunal notes that the detailed claims provided by the applicant in his application for protection identify two grounds for fearing persecution if the applicant were returned to Sri Lanka now, or in the reasonably foreseeable future.  These are fears of persecution because of the applicant’s actual or implied LTTE profile; Association with activist [Mr A]; and/or suspected LTTE Cadre membership, and fear of harm from members of the Karuna faction and Vinayagamoorthy Muralitharan in particular (Karuna). 

12. In addition to these grounds for protection, the Tribunal has also considered the implied claims of the applicant relating to his Tamil ethnicity, interfaith marriage and his potential status as a returnee.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

14. According to the applicant’s movement record, he arrived in Australia using a Sri Lankan passport.  The applicant first entered Australia [in] October 2011, travelling on a [Student] visa (granted [in] October 2011, ceased [in] August 2013).  The Tribunal has reviewed the applicant’s Sri Lankan passport together with the evidence relied upon by the Department contained within the departmental file relating to the applicant’s application for protection.

15. On the basis of the above evidence, the Tribunal finds that the applicant is a man born [date] and is a citizen of the Sri Lanka.

16. The Tribunal therefore finds that the country of reference and the receiving country, is Sri Lanka for the purposes of s.36(2)(aa) of the Act.

17. Having regard to all the evidence, the Tribunal finds the applicant does not have a right to enter and reside in a third country. The applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.

    Applicant credibility issues

18. A number of aspects of the applicant’s application raise questions for the Tribunal with respect to the credibility of the applicant.  The legal principles relevant to the assessment of credibility in the context of an application for review are discussed at Appendix A to this Decision.

    Assessment of claims and evidence

    LTTE profile; Association with activist ‘[Mr A]’; and/or, suspected LTTE Cadre membership

19. A statement, signed and dated by the applicant [in] September 2013 was included with the applicant’s original application for protection.  This statement claims that, in 2012 when the applicant returned to Sri Lanka he was taken to CID headquarters.  While there, the applicant was informed that; “they had information in the system that I was an LLTTE (sic) cadre who had escaped from being captured by the SLA during the war.”

20. The same statement includes a claim, relating to the applicant’s association with his former [associate], named [Mr A].  “Within a week, I was arrested in [City 1] and was taken for interrogation by the army.  I was questioned as to [Mr A’s] and my involvement in the LTTE in [District 1] and I was remanded for further interrogation.”  Based on the applicant’s evidence taken collectively, this statement appears to refer to events that took place in the year 2007.

21. The applicant also claims that, in late 2011, he persuaded his then school friend named “[Mr B]”, who had campaigned for former President Rajapakse, to arrange for the release of [Mr A] from detention.

22. In a statutory declaration made by the applicant [in] October 2013, he states that: “I was unfairly accused of having involvement in the Liberation Tigers of Tamil Eelam and I fled from Sri Lanka before I was captured by the paramilitaries to serve them involving in criminal activities in and around Sri Lanka.”

23. The applicant’s [October] 2013 statement further claims that he returned to Sri Lanka in August 2012 to renew his Sri Lankan Driver’s Licence.  The applicant claims that, prior to his return, he was reassured by his friend [Mr B] that his safety would be assured on his return.  Despite this, the applicant claims that on approaching immigration at Colombo Airport:

    Within minutes, three police officers came with the officer and took me along with them to the CID head quarters.  I was beaten severely by the officers and they took my photos and fingerprints.  [Mr B] found out that I was taken away and he came to the CID headquarters and spoke to the officers for nearly an hour.  The officers asked me whether I was a LTTE cadre and was involved in the war with the SLA.  They said they had information on the system that I was an LLTTE cadre who had escaped from being captured by the SLA during the war.

24. The applicant further states that, following this treatment at CID headquarters:

    [Mr B] released me on the condition that I left the country immediately.  [Mr B] help me to get the license renewed through his influence and I fled the country immediately when the flights were confirmed.

25. The Tribunal notes that a significant portion of the further detailed information provided by the applicant in his application for protection (and also at subsequent hearings and interviews relating to that application) refers to the above LTTE-related claims.

26. In response to an invitation by the Tribunal to advise it of any changes in the applicant’s circumstances, the applicant wrote to the Tribunal by letter dated 25 October 2017.  In this letter the applicant stated as follows:

    My [Relative A] and father said that Karuna had given photos of [Mr A] on the LTTE boat along with other LTTE cadres.  My father fears that Karuna could have told the authorities by showing one of the paramilitaries resembling me on the photo to convince the authorities to arrest me.  This is the reason why I was taken away to the CID headquarters when I returned back to Sri Lanka.  My father told my wife not to allow me to come back to Sri Lanka in the future as I could be killed by Karuna and authorities.  …

    The Sri Lankan army, police and the CID work along with Karuna to arrest former LTTE cadres.  …  The authorities are aware that I had been working with [Mr A] for the LTTE and I could be arrested on my return back to my country.

27. At the second hearing with the Tribunal on 14 December 2017, the applicant was asked if he had ever provided service to, or had ever been a serving member of, the LTTE.  The applicant answered in the negative.

28. The applicant was also asked if any of his family members had either provided service to, or had been a serving member of, the LTTE. The applicant answered in the negative.

29. The applicant was also asked if either himself or any member of his family had ever provided service to, or served in, the Sri Lankan army.  The applicant answered in the negative.

30. At the same hearing before the Tribunal, the applicant was asked when he discovered that [Mr A] had a connection with to the LTTE.  The applicant indicated that it was not until he was told this in 2008 or 2009 by then Colonel Karuna during his interview while a student in [City 1].

31. On the basis of the foregoing, the Tribunal accepts the applicant’s evidence that neither he nor any of his immediate family have ever had any involvement with the LTTE or the SLA.

32. Also at the second hearing with the Tribunal, the applicant was asked to describe the events that occurred when he returned to Sri Lanka to renew his drivers’ licence in August 2012.  At the hearing, the applicant stated that he went through immigration and was arrested by police, immigration and CID.  The applicant stated that he was taken to [City 1], or that the officials wanted to him to [City 1].  The applicant stated that his friend [Mr B] was at the airport at this time and that when his friend spoke to the CID and other officer colleagues, the applicant was let go at the airport.  The applicant also stated that he only stayed in Colombo for [number] days before returning to Australia.

33. The Tribunal pointed out that the applicant’s evidence at the hearing about what happened to him on his return to Sri Lanka in 2012 was materially different to his previous written statements.  Specifically, he made no mention of having been taken to CID headquarters, fingerprinted, photographed, beaten or interrogated. 

34. In response, the applicant denied that his evidence was inconsistent with his earlier written statements.  The Tribunal advised the applicant that it found the applicant’s evidence on these matters to be inconsistent and lacking in credibility.

35. The Tribunal also notes that certain key elements of the applicant’s evidence relating to the applicant’s LTTE-related claims are illogical, leading the Tribunal to form the view that those claims lack credibility.  For example, the applicant asserts that, on multiple occasions over a period of five years (from the time of the civil war into the post-civil war period), Sri Lankan officials detained and questioned him for suspicion of involvement with the LTTE without either charging him under the Prevention of Terrorism Act, or requiring him to undergo any process of rehabilitation.  This is not consistent with the applicant’s claim to have been actively pursued by representatives of the Sri Lankan state since approximately 2007 for the essential and significant reason of his actual or imputed involvement with the LTTE.

36. In each case, the applicant states that he–and, in one case, a known LTTE operative–was released either as a result of the payment of bribes of undetermined sizes, or as a personal favour to the Applicant, on the instructions of a teenaged friend who worked as a campaign worker during the election campaigns of former President Rajapakse.  The Applicant also asserts that a key agent of harm (former Minister Karuna), has operated, and continues to operate in conjunction with agencies of state to persecute the applicant, despite country information indicating that he was charged with official corruption in November 2016 and subsequently removed as a Minister from the Siresina government. 

37. The Tribunal also notes that while the applicant claims to have feared for his life in Sri Lanka when he “fled” Sri Lanka in 2011 (and at all times since then), he voluntarily returned to that country for the purposes of renewing a drivers licence.  These inconsistencies and illogical assertions persuade the Tribunal that the applicant’s claims to fear persecution in Sri Lanka now, or in the reasonably foreseeable future for the essential and significant reason of having or being imputed to have an LTTE profile; Association with activist ‘[Mr A]’; and/or, suspected LTTE Cadre membership are not credible.

38. The Tribunal notes a 14 July 2017 ITJP press release and the ‘Unstopped’ report referred to in that press release.  The Tribunal notes the following relevant comments from that report:[1]

    An analysis of these [abduction and torture] cases shows that all but four were low level LTTE cadres or child soldiers, forcibly recruited in the final stages of the war.  Many were involved in low level political work for Tamil parties or in protests around human rights issues, especially that of the disappeared.

    [1]International Truth and Justice Project, Unstopped: 2016/17 Torture in Sri Lanka, July 2017, at p.10, ‘Risk Profile Base on Accepted Cases’.

39. The Tribunal notes that country information contained in DFAT Country Information Report: Sri Lanka[2], dated 24 January 2017, also supports the view that the security situation generally, and with respect to the Tamil population in particular, is improving and has improved considerably over recent years.  In particular, the Tribunal notes the assessment of DFAT that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination.[3]  Also, that same report assesses that Tamils in day-to-day life are monitored and harassed significantly less under the Sirisena government than previously.[4]  However the Tribunal does note that ‘high profile individuals with links to the LTTE would continue to be of interest to the Sri Lankan authorities and may be subjected to monitoring’.[5]

    [2]DFAT Country Information Report Sri Lanka, 24 January 2017.

    [3]DFAT Country Information Report Sri Lanka, 24 January 2017 at [3.4].

    [4]Ibid at [3.9].

    [5]DFAT Country Information Report Sri Lanka, 24 January 2017 at [3.31].

40. The Tribunal notes country information suggesting that ‘the Sirisena government has publicly encouraged Sri Lankans living overseas to return or invest in the Sri Lankan economy.  In general, DFAT assesses that Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka depending on their risk profile.’[6]

    [6]Ibid at [3.46].

41. With respect to the treatment of returnees, the Tribunal notes DFAT’s assessment as follows:[7]

    Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment.  Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the immigrants and emigrants act.  Overall monitoring has reduced under the Sirisena government and community fear of mistreatment has also decreased.

    [7]Ibid at [4.22].

42. The Tribunal notes that the United Kingdom’s Upper Tribunal found, in the 2013 case of GJ and others (post-civil war: returnees) Sri Lanka CG, that an ongoing risk category of relevance in assessing asylum claims for that jurisdiction was as follows:[8]

    Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or 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

    [8]GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at [7].

1. The Tribunal also notes that, in the same decision, the UK Upper Tribunal found that:[9]

   In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government.

   [9]Ibid at [8].

2. The Tribunal also notes the UK Home Office’s June 2017 advice that:[10]

   Unlike in the past, returnees who have a previous connection with the LTTE are able to return to their communities without suffering ill-treatment.  Civil society groups on the ground did not report recent issues of ill-treatment.  The police interest, if any is not any privet previous involvement with the LTTE, but on whether the person has committed any criminal act.  This is because many had left the country using forged identities and the police were therefore seeking to established the true identity of the returning person and whether they wanted for any criminal acts in a tent in addition to leaving the country with false documents

   With respect to “stop and watch lists”, the Tribunal notes that the UK Upper Tribunal has identified persons on such lists as constituting an identifiable risk category of returnees.  In this respect the Tribunal notes the following UK Home Office advice:[11]

   … the airport maintains a list of persons of interest by law enforcement agencies that have violated Sri Lankan law, which is updated regularly.  Those on the ‘watch list’ are persons that are of interest to the authorities for minor offences or former LTTE cadres; those on the stop list are persons who have committed serious crimes, have a warrant outstanding, or perceived to be connected to terrorism.

   [10]UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017 at [2.3.11].

   [11]        Ibid at [2.3.35].

3. The same UK Home Office publication states that:

   3.1.2A person being of Tamil ethnicity would not in itself warrant international protection.

   3.1.3Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state.

4. On the basis of the foregoing, the Tribunal finds that the applicant was not detained or questioned by officials on his return to Sri Lanka in August 2012, beyond what would occur routinely for any Sri Lankan national returning from abroad.  The Tribunal further finds that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his LTTE profile; Association with activist ‘[Mr A]’; and/or, suspected LTTE Cadre membership are illogical, inconsistent, lacking in credibility in material respects and are not genuinely held by the applicant.

   Fear of harm from members of the Karuna faction generally and Vinayagamoorthy Muralitharan (Karuna) in particular

5. According to the statement that was signed and dated by the applicant [in] September 2013 and included with the applicant’s original application for protection, the applicant became the subject of attention by the Karuna faction in around 2007.  At the time, the applicant claims to have been detained and interrogated by the SLA in [City 1].  According to that statement, the applicant claims that his father:

   … had to approach Karuna -the ex LTTE Batticaloa Commander working along with the army, for my release and he came to meet me in the army camp and spoke to me personally.  He said that I could be taken away and killed for my involvement in the LTTE and if I was willing to serve him he could release me and save me from being murdered any moment.  In fear of death, I readily agreed.  My father had to pay Karuna huge amount of money for my release.  My father pleaded with Karuna to permit me to complete my studies before I could serve him.  Karuna wanted me to contact him after I complete my studies.[12]

   [12]        At 8.

6. According to the same statement, the applicant claims that, around the middle of 2008, Karuna and his forces arrived at the college in which the applicant was living and studying. At this time, the applicant claims that Karuna questioned the applicant about his involvement with [Mr A].  According to the statement:

   Karuna wanted me to join his cadres and serve him immediately but I told him that I could serve him after I completed my studies and that I did not wish to obtain military training.  He said that he would speak to my father and if he agreed I should not refuse to join his cadres. I pleaded with him to let me go and when I came home I immediately called my father and my father told me that if he paid money to Karuna he could be silenced.

7. According to the same statement, the applicant claims that the applicant’s school-friend named “[Mr B]” arranged for the applicant to be relieved from his obligation to the then national government Minister Karuna to serve Karuna on completion of his studies.  According to the applicant’s statement; “[Mr B] told me that he could get the security officers to silence anyone who troubled me.” 

8. The applicant’s [September] 2013 statement also claims that, in late 2011, he was taken to meet then Minister Karuna, who insisted that the applicant “could work for him after hours along with his cadres.”  The applicant’s statement continues as follows:

   Within a few weeks, the Karuna cadres arrived home and asked me to come out of the house.  When I came out they said that Karuna wanted to speak to me and gave me their mobile phone.  Karuna told me that the time has come to serve him.  He said that [Mr A] had managed to escape from prison and that I should go along with his cadres the following day to Jaffna to abduct [Mr A] and shoot him down.  I was shocked at the orders of Karuna and told him that he should get his cadres to do that and I was not prepared to involve in any criminal tasks.  He said that if I failed to act according to his orders and tried to tell anyone about this secret orders, his cadres would kill me instead.  He ordered me to give the phone back to the cadres. The cadres asked me to be ready tomorrow to travel to Jaffna with them and left the place.

9. According to the applicant’s statement, at some later date; “The Karuna’s cadres had arrived home and questioned my father about me and my father told them that I was missing from home.  I was lucky to get my visa to Australia and fled from Sri Lanka in October 2011 with the intention not to return.” 

10. Later in this statement, the applicant claims that, while resident in Australia on a Student visa: “I was studying hard but unfortunately, my Sri Lankan car license became invalid and I couldn’t drive any further in Australia.  I had to travel back to Sri Lanka to renew my license.  I feared to return back to Sri Lanka as Karuna’s cadres could be at the airport.  I contacted [Mr B] and he came forward to receive me at the airport and not to worry.”

11. The applicant also claims in this statement that he was motivated to apply for protection in Australia because:

    My parents and [Relative A] advised me to apply for protection visa as I had no other choice but to return back to Sri Lanka permanently and sentenced to prison and eventually killed by Coruna card raise working for the authorities. In fear of returning back to Sri Lanka in the future, I had to apply for protection of this country. If the apostrophe no further stay’ condition on my passport was waived I could have completed my studies and got my permanent residence status and also could have helped [Relative A] to proceed with his studies in Australia as he planned. I have no protection in Sri Lanka. [Mr B] has left the country and he also advised me not to return back to Sri Lanka as it could be difficult to convince the authorities against the Minister Coruna. He said that the politicians and authorities are aware that Coruna was involved in the abduction and murders of civilians and for political reasons they are unable to get rid of him.

12. In response to an invitation by the Tribunal to advise it of any changes in the applicant’s circumstances, the applicant wrote to the Tribunal by letter dated 25 October 2017. In this letter the applicant stated as follows:

    … My [Relative A] and father told my wife what happened to them lately.  They said that Karuna visits our [business] and demand free [products] for his paramilitaries and for him and had told [Relative A] that he knew from the beginning that [Mr A] and I had been working for the LTTE for a long time up until 2009.  …

    He told my family that [Mr A] and I had travelled to [Country 1] under LTTE leaders orders to transport arms from [Country 1].  When my father and [Relative A] refused to agree, Karuna said that he had photographs of the boat in which we were travelling and he could produce them to the authorities.

    He said that he wanted to employ me under him to fight the LTTE and to arrest [Mr A].  When [Mr A] was arrested, Karuna wanted to kill him but he came to know that I had managed to release him from the prison through my influence.  …

    Karuna said that he had already given the evidence to the authorities and that I would be arrested at the airport.  When I was arrested at the airport on my return to Sri Lanka, I escaped before I was transferred to [City 1] to be handed over to Karuna. Karuna said that next time when I arrived in Sri Lanka, I would be taken to prison and killed for deceiving him and for releasing [Mr A] from the prison and also for not killing [Mr A] as he wished.

    My [Relative A] and father said that Karuna had given photos of [Mr A] on the LTTE boat along with other LTTE cadres.  My father fears that Karuna could have told the authorities by showing one of the paramilitaries resembling me on the photo to convince the authorities to arrest me.  This is the reason why I was taken away to the CID headquarters when I returned back to Sri Lanka.  My father told my wife not to allow me to come back to Sri Lanka in the future as I could be killed by Karuna and authorities.

    After new president come to power, Karuna is still at loose and is involved in crimes against Tamils in Sri Lanka.  Karuna had not been taken into prison to be tried for the murders he committed in the past while he was with the LTTE and after he left the LTTE.  People still fear for Karuna as he is trying to contest in the next local elections he is still with ex President Rajapkase say and his brother Gothabaya who are protecting him.  Sirisena the present president who was the Minister under Rajapkase government will not let Karuna or Rajapkase to face trial courts.  I fear for my safety if I’m sent back.

    Even now Karuna visits our [business] and question my family members whether I had obtained my permanent resident status in Australia or my visa was refused et cetera.  My family members, my wife and I fear that if I am rejected, I could be sent back to Sri Lanka where I would be killed.

    The Sri Lankan army, police and the CID work along with Karuna to arrest former LTTE cadres.  Even now Karuna has wide powers under President Sirisena government.  Due to political pressure Karuna’s involvement with President Sirisena is covered from the media and public.  Karuna acts secretly visiting Tamils homes and demanding money.  My father told me that he had been giving money to Karuna on a regular basis before and after I left the country Sri Lanka.  The authorities are aware that I had been working with [Mr A] for the LTTE and I could be arrested on my return back to my country.

13. The Tribunal notes that the applicant substantially repeated the foregoing claims relating to Karuna in his written submission to the Tribunal dated 13 December 2017.  In addition, this submission contains the following:

    In my case, Karuna would kill me if I go back to Sri Lanka because of his personal grudge against my [associate] [Mr A] and myself that I have already stated in detail in my statement of claims and in my submissions.  Till Rajapkase, Gothabaya and Karuna are taken into custody and face trial, there is no guarantee for my safety if I return back to Sri Lanka.  Please note that Sirisena is protecting the above people.

14. The Tribunal notes that the applicant asserts that former Minister Karuna is a criminal thug directing a private paramilitary force which operates outside the law in Sri Lanka.  The applicant asserts that these persons act with impunity because of an ongoing relationship of influence with the present and former President of Sri Lanka.  The Tribunal notes that such an assertion is not consistent with country information indicating that Karuna has been charged with official corruption and was removed from office by President Sirisena in early 2017. 

15. The Tribunal also notes the applicant’s assertion that he was both suspected by former Colonel Karuna of being an associate of a wanted LTTE operative but was permitted to remain at liberty and was not forcibly recruited as an active cadre member by that person because the applicant wished to complete his schooling.  The Tribunal also notes that, while the applicant claims that this was because of bribes paid to Karuna by the applicant’s father, the applicant has provided no details of what these bribes were, or how they were paid. 

16. The applicant claims to have simply refused the demands of Karuna cadre members while in his late teens, despite these paramilitary thugs being armed and acting on orders issued by their commander.  The Tribunal further notes that the applicant has not suggested that his father has faced harassment or persecution by agents of the Sri Lankan state on the basis that he afforded lodging or employment to [Mr A].  This is more suggestive of an absence of ill-will on the part of the Karuna faction than of any particular animus against either the applicant or any member of his immediate family in Sri Lanka.

17. The Tribunal also notes the UK Home Office’s June 2017 advice referred to above, which states that:[13]

    With respect to “stop and watch lists”, the Tribunal notes that the UK Upper Tribunal has identified persons on such lists as constituting an identifiable risk category of returnees.  In this respect the Tribunal notes the following UK Home Office advice:

    … the airport maintains a list of persons of interest by law enforcement agencies that have violated Sri Lankan law, which is updated regularly.  Those on the ‘watch list’ are persons that are of interest to the authorities for minor offences or former LTTE cadres; those on the stop list are persons who have committed serious crimes, have a warrant outstanding, or perceived to be connected to terrorism.

    [13]UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017 at [2.3.35].

18. The same UK Home Office publication states that:

    3.1.2A person being of Tamil ethnicity would not in itself warrant international protection.

    3.1.3Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state.

19. The Tribunal further notes its finding above that the applicant experienced no more than the normal administrative inconvenience on return to Sri Lanka and being processed by immigration authorities in August 2012.  Accordingly, this is not consistent with the applicant’s assertion that he would be “taken into custody and face trial, there is no guarantee for my safety if I return back to Sri Lanka.”  The Tribunal therefore finds the foregoing claims by the applicant to be inconsistent, illogical, not consistent with country information and are generally lacking in credibility.

20. On the basis of the foregoing, the Tribunal finds that the applicant has not been, and is not now, the subject of any adverse attention by former Minister Karuna or any individuals or groups associated with that person.

21. It follows, therefore, that the Tribunal finds that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of persecution by former Minister Karuna or any individuals or groups associated with that person are illogical, inconsistent, lacking in credibility in material respects and are not genuinely held by the applicant.

    Tamil ethnicity

22. In support of his claims for protection made in the original application for protection, the applicant attached a statement, dated [in] September 2013 in which he states that:

    The Amnesty International has given wide and detailed information with references to the atrocities committed against the minority Tamils by the present Sri Lankan Rajapkase government and the applicant’s wish to tender and submit this report along with their own references below as evidence to their statement of claims together with their own relevant claims and documents.

23. This statement, on the same page states: “please take into consideration the references made by the Amnesty International in the above report as evidence for my statement of claims.” The applicant statement thereafter recounts more than 20 news reports and other information sources relating to harm experienced by persons of Tamil ethnicity within Sri Lanka up to the date of the statement. The Tribunal has referred to each of these in turn.

24. The Tribunal notes that in the same statement at page 8 the applicant states: “I am a Sri Lankan Tamil born in [District 1] and lived with my parents at [address].  …  In [District 1] there were many Tamils from eastern and northern provinces settled and the army and police officers were in search of LTTE cadres infiltrated among the Tamils.”

25. In a statutory declaration made by the applicant [in] October 2013, the applicant states as follows: “as I am a Sri Lanka Tamil and fled from Sri Lanka in fear of persecution, I lodged an application for protection visa [in] September 2013.”

26. Accordingly, although not specifically articulated as such by the applicant in his original application for protection, the Tribunal has considered the applicant’s implied claim to face a well-founded fear of persecution on the basis of his Tamil ethnicity now or in the reasonably foreseeable future if he were to be returned to Sri Lanka.

27. The Tribunal notes that the applicant has not sought to draw particular parallels with any of the referenced material to the claims he has made in his application for protection.  The Tribunal further notes that the applicant has not referenced any of the more recent country information referred to by the Tribunal in reaching this decision.  In particular, the Tribunal notes the following passage from the 24 January 2017 DFAT Country information Report Sri Lanka:

    3.4DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing.  However, DFAT further assesses that societal discrimination on the basis of ethnicity can occur

    Tamils

    3.5Tamils are the second largest ethnic group in Sri Lanka.  According to the most recent census in 2012, the Tamil population was 3.1 million compared to 2.7 million in 1981.  Thirty-two per cent of Tamils reside in the Northern Province, where they constitute approximately 93 per cent of the population. Twenty per cent of Tamils reside in the Eastern Province and 12 per cent in the Western Province (which includes the district of Colombo).  Twelve per cent live in the Central Province.  The remaining Tamil population is present in small numbers in the Southern, North Western, North Central, Uva and Sabaragamuwa provinces.

    3.6Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015.  There are a number of Tamil political parties, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA).  The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council.  The TNA leader, Rajavarothiam Sampanthan, is leader of the National Opposition.

    3.7Monolingual Tamil speakers, including in the Northern Province, can have difficulty communicating with the police, military and other government authorities. DFAT assesses that these practical difficulties are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict, and the legacy of earlier discriminatory language policies rather than official discrimination.

    Monitoring, harassment, arrest and detention

    3.8During the civil conflict more Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity

    Since 2015 the Sirisena Government has reviewed and released some PTA detainees, including Tamils.  DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict.

    3.9DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable (and largely idle) military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities.

1. The Tribunal also notes that it has had the benefit of more recent country information that that on which the applicant originally relied in his application for protection.  This more recent country information was discussed with the applicant at the hearing.  The Tribunal notes that the applicant disagreed with the content and conclusions of the country information presented by the Tribunal.  The Tribunal has considered the views expressed the applicant in this regard and finds that the country information surveyed in this decision should be preferred as a basis for making its decision on this application.

2. The Tribunal notes that, with the exception of the integers of his claims addressed above, the applicant has presented no evidence to suggest that he faced persecution at any time while living in Sri Lanka on the basis of his Tamil ethnicity.  Rather, the Tribunal notes that the applicant has stated in his submissions that, with respect to his life in Sri Lanka that: “We had never faced any financial difficulties”.  In addition, the applicant has been the beneficiary, both in Sri Lanka and Australia, of a high quality education, including the; “[a period at a privileged college].  [Many] rich and famous politicians and businessmen sent their children [there]”.

3. The Tribunal has found above that the applicant’s claims of persecution on account of his actual or imputed LTTE involvement by both the Sri Lankan state and by the Karuna faction lack credibility.  Accordingly, and on the basis of the foregoing findings and country information, the Tribunal finds that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his Tamil ethnicity are illogical, lacking in credibility in material respects and are not genuinely held by the applicant.

   Interfaith marriage

4. In response to an invitation by the tribunal to advise it of any changes in the applicant’s circumstances, the applicant wrote to the Tribunal by letter dated 25 October 2017. In this letter the applicant stated as follows:

   The change of circumstances are that, I married my wife [name], who came to Australia as a student after the interview with the Department.  She is a Sinhalese lady and her parents refused to accept our marriage.  As I had lodged a protection visa application, I couldn’t visit Sri Lanka after marriage.  My parents wanted me to send my wife and wanted me not to return back as the situation has worsened since.  My father’s fear to speak by phone the details as the authorities checked the phone calls in Sri Lanka.  My wife went to Sri Lanka to meet my parents in December 2015.

5. At the hearing with the Tribunal on 30 October 2017, the applicant stated that he and his wife had, in fact, received the acceptance and blessing of both their parents after their marriage.  His spouse’s family gave their acceptance and blessing around September-October 2014 by telephone (and some weeks later) the applicant’s parents gave their acceptance and blessing of the marriage by telephone.

6. During the course of the applicant’s first hearing, the Tribunal asked the applicant when it was that he and his wife first decided to marry.  The applicant’s evidence on this point was variable and was not given in a straightforward manner.  The Tribunal put it to the applicant that his responses lacked credibility and suggested to the tribunal that he was being evasive in his evidence.  At this point in the hearing, the applicant raised concerns about the quality of the interpreting services.  Before adjourning the hearing, the Tribunal required the applicant to make submissions in writing explaining his concerns about the quality of the interpreting services at the hearing, and providing an answer to the Tribunal’s question about when he and his wife first decided to marry.

7. Following the applicant’s first hearing with the Tribunal on 30 October 2017, the applicant provided the Tribunal with a written submission dated 13 December 2017. In this written submission the applicant states as follows:

   Both my wife and I are very conservative and though we both come from Sri Lanka, we hail from two different ethnic groups, my wife is Sinhalese and I am Tamil.

   When I heard that my wife was coming to Australia as a student, she asked to stay with me she didn’t know anyone else in Australia. We were afraid that our parents would not give their approval for our marriage and decided to give the notice of marriage to the registrar to have a registration of marriage in August 2017, as we loved each other dearly.

   As this was not a proposal marriage, my wife and I decided we were still obliged to get our parents permission before we legally got married as my wife’s father was the sponsor for my wife.  We called our parents in August 2014 and our parents realising that we were living under one roof, gave their permission for us to get married stop we were married [in] August 2014.

8. As indicated above, the applicant did not address any submissions to the Tribunal following the first hearing about the quality of the interpreting services, and accordingly the Tribunal has drawn an adverse inference about the applicant’s credibility at having called those services into question at the first hearing.

9. The applicant’s written submission, dated 13 December 2017, so far as it relates to the Tribunal’s question, is as follows:

   You asked me to explain in detail as to my wife and my relationship.

   I met my wife in 2010 at college and as we were both students, we developed a friendship. In 2012, when I returned back to Sri Lanka I was arrested at the airport and I had to flee from the country back to Australia. At this point of time, I did not meet my wife before I fled from Sri Lanka.

   In January 2013, I met my wife in [another country] and we spent time with one another and decided that we would get married in the future provided we both obtained approval for the marriage from our parents.  We never had any physical relationship or pre-marital relationship at that time.  We never exchanged rings to signify a formal engagement however as we planned to get married with our parents approval, this could be considered an engagement according to western culture.  Both my wife and I are very conservative and though we both come from Sri Lanka, we hail from two different ethnic groups, my wife is Singhalese and I am Tamil.

   When I heard that my wife was coming to Australia as a student, she asked to stay with me as she didn’t know any one else in Australia. We were afraid that our parents would not give their approval for our marriage and decided to give the notice of marriage to the registrar to have our registration of marriage in August 2017, as we loved each other dearly.

   As this was not a proposal marriage, my wife and I decided we were still obliged to get our parent’s permission before we legally got married as my wife’s father was the sponsor for my wife. We called our parents in August 2014 and our parents realising that we were living under one roof, gave their permission for us to get married. We were married [in] August 2014. We started our martial relationship as husband and wife [that date]. I understand that there was confusion in my first interview as to my wife and my relationship, our engagement and our marriage. Hope the above information would have cleared any doubts.

10. At the second hearing, the Tribunal pointed out to the applicant that he had still not provided a straightforward response to the basic question of when he and his spouse had first decided to marry.  The Tribunal one again attempted to obtain a straightforward response to this question.  Despite these various opportunities to provide a response to the Tribunal’s question, no satisfactory response was provided by the applicant.  This lack of candour by the applicant about a basic fact of his domestic life, together with the Tribunal’s adverse credibility finding above relating to the applicant’s assertion at the first hearing that the interpreter services were not adequate, lead the Tribunal to find that the applicant did not provide truthful evidence and that, particularly relating to his domestic affairs, he is not a credible witness.

11. In addition to the foregoing credibility issues, while the applicant has given evidence that his spouse is Singhalese and that he himself is a Tamil, he has provided no evidence that suggests that theirs is, in fact, an interfaith marriage.  To the extent that the applicant’s evidence is consistent, the Tribunal finds that that, while his marriage is cross-cultural in ethnic terms, it has received the belated blessing of both families.

12. The Tribunal further finds that the applicant has failed to particularise any agents of harm or types of harm that he has either experienced or fears experiencing in Sri Lanka for the essential and significant reason of being in a cross cultural marriage. 

13. Accordingly, the Tribunal finds that the applicant does not genuinely hold a subjectively well-founded fear of persecution now, or in the reasonably foreseeable future in Sri Lanka for the essential and significant reason of being in a cross cultural marriage. 

    Returnee Status

14. As discussed above, the Tribunal has had regard to more recent country information than that referred to by the Tribunal as previously constituted, in particular the 14 July 2017 ITJP press release and the related Unstopped report.  The Tribunal notes the following pertinent comments from that report:[14]

    Eight of the 2016/17 victims [interviewed] had returned to Sri Lanka from abroad, either as students going home to see family or because they finally thought it would be safe to go back to the country after many years waiting abroad after the end of the war.

    [14]International Truth and Justice Project, Unstopped: 2016/17 Torture in Sri Lanka, July 2017, at p.14, ‘Returning from Abroad’.

15. The Tribunal does not dispute the findings of the ITJP report, which is based on interviews with torture survivors.  However, the Tribunal once again notes that country information contained in DFAT Country Information Report Sri Lanka, dated 24 January 2017, discussed above, supports the view that the security situation generally, and with respect to the Tamil population in particular, is improving and has improved considerably over recent years.  In particular, the Tribunal notes the following extract from this DFAT publication:

    4.18DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored.

    4.19DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.  DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.

    4.20Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police.  The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

    Torture and mistreatment of returnees

    4.21DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.

    4.22Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment.  Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.

16. The Tribunal notes that, DFAT has not issued a revision to its DFAT Country Information Report Sri Lanka since January 2017.

17. The Tribunal notes that the applicant made no further submissions on this integer of his claims in any of his written submissions or in either of the hearings with the Tribunal beyond those which have been specifically addressed above. 

18. On the basis of the foregoing evidence and findings, together with the country information discussed above, the Tribunal finds that the applicant does not hold a subjectively well-founded fear of persecution now or in the reasonably foreseeable future for the essential and significant reason of being a returnee.

    Additional Credibility Concerns

19. The Tribunal is entitled to consider whether the applicant objectively has a well-founded fear of persecution, before considering whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

20. If the Tribunal finds, on the evidence, that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.  The Tribunal notes that in Iyer[15] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[16]

    [15]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

    [16]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

21. The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of persecution.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. 

22. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[17] 

    [17]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

23. The Tribunal has found that none of the applicant’s foregoing claims for protection are well founded, either because they are not subjectively and genuinely held by the applicant, or–in the case of his implied claim relating to his potential status as a returnee–is not objectively well founded.

24. In addition to the foregoing credibility issues, the Tribunal notes that the applicant voluntarily returned to Sri Lanka in 2012 despite claiming that he first started to fear for his safety in Sri Lanka immediately after the arrest of [Mr A] in approximately 2007.  The Tribunal finds that this return visit was voluntary and supports a conclusion that the applicant does not have the necessary fear of persecution required by someone seeking refugee status. 

25. The Tribunal further notes that, despite claiming to have “fled” to Australia from Sri Lanka [in] October 2011 and again [in] August 2012, the applicant did not apply for protection until [September] 2013.  The Tribunal has considered the applicant’s repeated evidence to the effect that:

    My parents and [Relative A] advised me to apply for protection visa as I had no other choice but to return back to Sri Lanka permanently and sentenced to prison and eventually killed by Karuna cadres working for the authorities.

26. The Tribunal notes his evidence is not entirely consistent with the applicant’s other evidence that:

    When I arrived in Australia, I was relieved but still never wished to apply for protection visa as my [Relative A] wanted to come to Australia for further studies and my parents also wished to visit me in the future.

27. The Tribunal does not accept that a reasonable person in the applicant’s claimed position would have delayed in seeking protection in Australia unreasonably.  The Tribunal finds that, if the applicant held a genuinely well-founded fear of persecution in Sri Lanka based on the claims contained in his application for protection, the latest reasonable time that he would have sought protection was immediately on his return from Sri Lanka in August 2012. 

28. The applicants delay in lodging his application for protection until September 2013 is, therefore, an unreasonable delay in all the circumstances.  This unreasonable delay is more consistent with the absence of a genuinely well-founded fear of persecution in Sri Lanka based on the claims contained in his application for protection than it is consistent with a person holding a genuinely well-founded fear of persecution in Sri Lanka based on the claims contained in his application for protection, and suggests that those claims lack credibility.

    CONCLUDING PARAGRAPHS

29. The Tribunal has found above that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his LTTE profile; Association with activist [Mr A]; and/or, suspected LTTE Cadre membership are illogical, inconsistent, lacking in credibility in material respects and are not genuinely held by the applicant.

30. The Tribunal has also found above that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of persecution by former Minister Karuna or any individuals or groups associated with that person are illogical, inconsistent, lacking in credibility in material respects and are not genuinely held by the applicant.

100.   The Tribunal has further found above that the applicant’s claims to fear persecution in Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his Tamil ethnicity are illogical, lacking in credibility in material respects and are not genuinely held by the applicant.

101.   In addition, the Tribunal has found above that the applicant does not genuinely hold a subjectively well-founded fear of persecution now, or in the reasonably foreseeable future in Sri Lanka for the essential and significant reason of being in a cross cultural marriage. 

102.   Finally, the Tribunal notes that it has found above that the applicant does not hold a subjectively well-founded fear of persecution now or in the reasonably foreseeable future for the essential and significant reason of being a returnee.

103. For the reasons given above, including the credibility concerns raised by the Tribunal relating to the applicant and certain aspects of his evidence, 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).

104. 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).

105. 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

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

Dr Colin Huntly
Member

APPENDIX A – RELEVANT LAW

107. 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

108. 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).

109.   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.

110. 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.

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

112. 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.

113.   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.

114.   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.

115.   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.

116.   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.

117.   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

118. 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’).

119. ‘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.

120. 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

121. 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.

Applicant credibility

122.   The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[18]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

[18]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

123.   In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[19] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[20]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

[19](1996) 40 ALD 445.

[20]At 482.

124.   The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[21] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[22]

[21](1996) 185 CLR 259.

[22]At [25].

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

125.   The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[23]  Nevertheless, as Burchett J counselled,[24] it is necessary to:

[23][1997] FCA 1198 ( accessed 15 February 2017).

[24]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

126.   The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[25]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[26]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[27]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[28]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[29]

[25]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).

[26]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

[27]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

[28]MIMA v Rajalingam (1999) 93 FCR 220.

[29](1999) 197 CLR 510 at [191].

… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

127.   If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.  The Tribunal notes that in Iyer[30] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. 

[30]        Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

128.   The court confirmed that the Tribunal had applied the direct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[31]

[31]        Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

129.   The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.