1512270 (Refugee)

[2016] AATA 4051

1512270 (Refugee) [2016] AATA 4051 (1 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512270

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Glen Cranwell

DATE:1 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 01 July 2016 at 3:04pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas [in] July 2010 and the delegate refused to grant the visas [in] January 2012.

3. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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.  There is a country information assessment published for Sri Lanka, which the Tribunal has had regard to where relevant.

    Member of the same family unit

19. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicants.  The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.  This material includes:

    ·application for protection visa;

    ·copies of identity documents, including the applicants’ marriage certificate;

    ·statement of the first named applicant (the applicant) dated [in] July 2010;

    ·various media reports;

    ·representative’s submissions to the Department (undated);

    ·recording of interview with delegate dated [in] November 2010;

    ·material provided to the Tribunal, as listed in paragraphs 16-18 of the decision of the Tribunal as previously constituted.

21. The applicants claim to be Sri Lankan nationals.  Based on the copies of their passports, the Tribunal finds that Sri Lanka is their country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

22. The applicant’s claims are summarised in his statement provided to the Department:

    I am a Sri Lankan Tamil speaking Muslim born in Colombo and lived with my parents at [address in] Kandy in Sri Lanka. My father left abroad to [another country] when I was young and he was visiting us during holidays and hence we never faced financial difficulties. My mother and [sibling] were living in the above residence and I completed my studies at [a named] College in Kandy. I had many Sinhalese and Tamil friends as the college had Sinhalese and Tamil [students]. As I am a Tamil speaking Muslim I had many Muslim and Tamil friends rather than Sinhalese friends. While at college the combat between the LTTE and the SLA had a tgreat impact on the students and we all feared for the security officers who visited our college in lsearch of LTTE supporters. In fact I had no connections with the LTTE. The Tamil and Muslim students spoke high of LTTE Leader as it continued to block the SLA advance into their territory in Vanni district. Most of the youth including Sinhalese youths considered the LTTE leader as an intelligent and brave person. This discussion intimidated the Sinhalese students who passed false information to the authorities against the students and the authorities took them for interrogation as having LTTE involvement. Many Tamil and Muslim students were taken away and they never returned to college. We all feared that we could be taken away as well. We always stayed away from discussing any LTTE issues with Sinhalese students. Still the Sinhalese students felt that we Tamil speaking Muslims have close association with the LTTE supporters and further that we wished that separate state for Tamils should be granted as we speak Tamil. Around [year] after the LTTE attack on [a specified town] the authorities arrested, many Muslims for interrogation and I was questioned as to my involvement in the LTTE. Most of the students were released by the college. I was once again arrested around [year] when [a major event in the war occurred]. The college students were at awe hearing the brave attack by the LTTE. The Sinhalese officers when questioned me asked me repeatedly whether I supported the separate state for Tamils Tamil Ealam. I always gave the negative reply in fear of assault. I was released by the Muslim politician before I was taken away to [a named] prison where I had to face the army officers injured in the combat in Jaffna.

    When I completed my studies my parents advised me that I should work along with [Member of Parliament, MP1] as it was dangerous for me move around as a youth in midst of police check. As I had already been arrested my father wanted me to stay in touch with the MP so that he could help me. [MP1] is a good friend of my father. I started to work in his office and became well known as a person of influence among my colleagues. I had helped many Tamil families and youths who approached me for assistance and with the MP's help I got them released. I felt safe working under the MP. During these days I came to know a Tamil speaking Muslim youth known as [Mr A] at the grocery shop who needed board and lodging as he was from [a district] and had fled from [there] due to combat. He was very kind towards my mother and [sibling] and with their, insistence I permitted him to stay with us. Unfortunately, during the general election campaign in Kandy in 2001, the ex-Deputy Defence Minister General Anurudhaa Ratwatte and his two sons Lohan and Chanuka Ratwatte were involved in campaigning against the Muslims and blamed the Muslims to have LTTE affiliations. On the day of the election 10 Muslim civilians were taken away and were killed in an execution style. The Muslim youth [Mr A] was taken away on the same day and we lost contact with him. After this incident the Muslim Congress started to campaign against the atrocities against the Muslims and urged us to become members. The police officers took Muslims for interrogation after the massacre of the 10 Muslims. When the officers came home to question about [Mr A] they said that we should not mention to anyone as to [Mr A’s] disappearance. They threatened that they had to take all of us into custody and would prosecute us if we disobeyed their orders. Except [MP1] no one else was told about [Mr A’s] disappearance.

    I always feared to get involved in politics. After the peace accord was signed between the LTTE and the GoSL the Muslims feared that we could be ignored by both the Tamil and Sinhalese ethnic groups if a peace deal was struck. The Sri Lankan Muslim Congress (SLMC) started to recruit many Muslim youths to canvass and to join new Muslim members into the above party. I became interested in politics after the peace accord was signed as there were no police check or sentry points and it was free to move around and to discuss politics freely. Even the LTTE cadres were found in Kandy who were once involved in the bombing. The case against the Ratwatte family was continuing and GoSL was trying hard to get the case dismissed as soon as possible. My friends [Friend A], [Friend B], my [Relative A] and I always played [a pastime] together. We always had constant contacts with one another after the murder of the 10 Muslims, Unfortunately, [Friend A] was involved in the case and was ordered to give evidence against the accused. We were all shocked when we heard that he was abducted and murdered. I started to fear for my life as I received telephone calls from unknown persons warning me to stay away from involving in any investigation as to my friend's death. I was told that I would have to face the same consequences if I attempted to inform anyone. My two friends were threatened as well. My friends left Kandy immediately and [MP1] told me to stay away from my friends as I could be taken along with them and murdered if they made mistakes. We seldom met but spoke to one another by phone. After the 2004 election, I continued to work for [MP1] and I became interested in politics. Muslim villagers, neighbours and [MP1] too urged me to contest in [a local] election. I was afraid to involve in fear of [Senior Official 1’s group], their thugs and of police investigation.In the mean time Anurudhaa Ratwatte and his [associates] were released and they once again started to canvass against the Muslims. [One named associate, Mr B] was canvassing fort for the general election and within a short period of time all the Sinhalese gave their full support for him him knowing that he is a criminal.

    [MP1] was giving me first hand information as to the severity of any situation so that I could take steps to stay away from the area. My name was registered in the list of candidates who would be contesting in [a local] election. [Mr B] who was one of the accused in the murder of 10 Muslims threatened that if I contested in [a local] Election, I would be abducted and killed. After his threat, the police officers arrested me and questioned me as to my LTTE affiliations in Kandy. [MP1] had to convince the officers for my release. When I came out of the police station, [Mr B] was at the entrance warning me that he would send his men to follow me and would get rid of me if I ever attempted to contest in the election. He said that I should have been killed along with my friend [Friend A] and warned that he will deal with me later on. I was in great fear and left the place immediately with my friends.

    [MP1] advised that I should find a job and stay away from politics. I joined [a service company] fully owned by Muslims. I joined as a [professional] and later as I found it hard to travel around due to frequent assault by [Mr B’s] Sinhalese thugs, I was promoted as [a position]. I seldom travelled outside the office during office hours. When I travelled to the office by bus [his] thugs humiliated me constantly. I always maintained silence as I feared that they could abduct me if I retaliated, They constantly joked in front of the public that I did not suit for the position of a [local position]. They called me by fowl names trying to warn me no to involve in politics. My parents advised me that I should leave the country if I feared for these men. They wanted me to marry my fiencee and in June 2007 I got married and stayed with my mother and [sibling] at my father's residence. I couldn't leave my [sibling] and mother on their own. My wife's parents had some influence among the [various MPs] and through them and with the help of [MP1] I stayed in Kandy travelling by private auto after marriage to avoid the thugs.

    When the LTTE was captured by the SLA with the help of foreign forces, most of the Muslims in Kandy were concerned as to the plight of the innocent Tamils caught in between the combat. When we heard about the genocide of thousands of Tamils we all came forward to assist them financially. As we are Tamil speaking Muslims and had lived among the Tamils for a long time we felt that it was our duty to serve them. Many displaced arrived in Kandy and we gave them accommodation at our Muslim homes. Around October 2009, The Muslim Congress decided to appeal to the Rajapakse government to release the detained displaced Tamil civilians and permit them to return to their homeland. The senior member of the SLMC contacted me through [MP1] that I should get as many Muslims to sign the petition to the government in this regard. We were asked to visit all the Muslim homes to collect signatures so that the SLMC could make an appeal as soon as possible. This was country wide. I as usual contacted few of my college friends and they came forward to collect signatures along with me. I was travelling to homes during weekends and in December 2009, while I was with my friends in Kandy the police officers arrested us and took us to the [named] police station. We were detained the whole night during which time we were sexually abused and humiliated. The officers questioned us individually what we were doing at that time and when we said about our aim they asked us why we were interested in helping the displaced. They said that we would be handed over to a group who would interrogate us. Three Tamil boys came to meet us in the room. They said [Mr B] had ordered that we should be taken away and killed for involving in the displaced Tamils' issue and if we wished to live we should pay [amount] Lakhs each or leave the country for good. They said that they had been ordered to kill us and to watch over us whether we were once again involved in Tamil displaced issues. My friends pleaded with them to pay the money to get released. I had to do the same as I feared that [Mr B] could kill me as he killed my friend. I knew that these boys were paramilitaries working for the politicians. My [specified relatives] from abroad made arrangements to arrange money to get us out of the country as students.

    My wife wanted to leave the country immediately and with the help of an agent she got the visa and I left Sri Lanka with the hope of returning back when at a later stage when the problems are over. I had to leave my [child] who was very young with my mother. My wife and I stayed Australia and heard from my mother that the police officers confirmed with her whether I had left the country and after that the police never visited them. In Australia my wife gave birth to the second child and my mother wanted to see our child. As it was too long since I left Sri Lanka, my wife and I decided to travel to Colombo where we could meet my mother and [sibling] and my wife's parents to show our baby. When we landed at the Sri Lankan airport [in] June 2010, the situation had dramatically changed. The check up at the airport was so strict that my wife and I were separated and were questioned as to our visit to Australia. When I said that my wife is a student, the officers asked me for my passport and went inside and after nearly two hours, came back with two Tamil boys who asked me in Tamil why I had come back. I told them that I liked to show my new born baby to my mother and in laws. The Tamil men told me that they had been asked to take me to [Camp 1] for further interrogation as they had checked with my local police in Kandy and that they wished to interrogate me. I was in great fear and felt sorry for returning back. I was taken away separately but my wife was released.

    While at [Camp 1] [a number of] police officers came to see me from Kandy Police station. They told me that I was ordered to stay away from Sri Lanka and why I had returned back. I told them the truth but they said that [Mr B] had ordered them to take me away and kill me. I pleaded with them to permit me to speak to [Mr B]. The police officer called [Mr B] in the mobile phone and gave it me. [Mr B] told me that he was aware that I set my friend

    [Friend A] to give evidence against them and I should face the same consequences as my friend faced. He said that he fears that I could give evidence against him at the Courts if I am allowed to stay in Sri Lanka. I should leave the country immediately or to face death. He told me that the same men who murdered my friend [Friend A] would come in search of me to kill me in a short period of time. I cried and begged him to permit me to leave and that I would never return back to Sri Lanka in the future. He said that if I failed to leave the country immediately my [sibling] would be taken away. He demanded me to pay [amount] lakhs of Rupees to the officers and to leave the country immediately. He said that his men would follow me till I flee from Sri Lanka. He said that this is a Sinhalese country and Muslims have to obey their orders. The police officers brought me to the airport where I met my wife and leaving my second baby with my mother we left Sri Lanka immediately. The Tamil men had told my wife to meet me at the airport and she was in great fear till she met me alive. Please do not send me back to that chauvinistic country and please take the above facts into consideration and grant us the protection of this country Australia.

1. The Tribunal notes the delegate made the following findings of fact:

   Race

   The applicant claims that while he was studying in Sri Lanka he was arrested on a number of occasions because of his race. In [year] a [public location] was attacked by the LTTE. As he was a Tamil in the area the authorities took him in for questioning as they suspected he was linked to the LTTE and therefore responsible for the bombings. Approximately [number range] young Tamil males were taken into custody for three to four hours and subsequently released after the authorities were satisfied they did not have links to the LTTE. He was further arrested in [year] during [a major event in the war]. At the time the authorities attested the applicant while he was at school. He was further interrogated at Kandy police station and while the authorities threatened to take him to a camp, his parents received assistance through a politician ([MP1]). The applicant was not charged and was released within a day.

   During the interview the applicant was questioned in relation to any potential links he may have had with the LTTE. He claimed he did not have any involvement with them nor did he have any links with the organisation.

   Country information indicates that the non-international armed conflict which lasted almost 30 years came to an end in May 2009 with the Sri Lankan authorities defeating the Liberation Tigers of Tamil Eelam (LTTE). In an effort to prevent any violent separatist resurgence, the government continued to search for and detain persons it suspected of being LTTE sympathizers or operatives. (US Country Report on human Rights Practices 2009 — Sri Lanka, dated 11 March 2010). Based on this country information I accept that the applicant may have been presumed to be a LTTE sympathisers by the Sri Lankan authorities based on the Convention ground, race. As such, I am willing to accept that the applicant's arrests on both occasions were based on racial profiling by the authorities.

   …

   Political Opinion

   The applicant claims that after he finished school in [year] he began working for a local politician, [MP1]. His role within the party was to help with creating posters, organise meetings, and promote the party's campaign. He also used to organise the signing of petitions against the government in order to have Tamils released from camps. During the early years of 2000 many people went missing in Kandy including some of his friends. As he was involved in politics, the applicant knew the government parties who were kidnapping these people however he was forced not to tell anyone their whereabouts. Many of his friends re-located within Sri Lanka because of this and some even went overseas. The applicant chose to stay in Kandy as he was protected by the political party he was working for. He was threatened never to give evidence before a trial as his opposing political party members would kill him.

   In 2005, the applicant ceased working in politics and began working in [a service] company. Since then he has not faced any threats of harm from anyone until he was arrested in 2008 because he was helping Tamils by organising another petition for their release. After this arrest the applicant decided to leave Sri Lanka and his wife (Applicant 2) applied for a student visa to come to Australia. During his arrest in 2008 he was released within a day with no charge. The applicant claimed during the interview that if he were to return to Sri Lanka he would not return to politics.

   … I am willing to accept the applicant's claims in relation to his involvement in politics, his arrest and various threats made against him …

2. The Tribunal, as previously constituted, made similar (albeit narrower in certain respects) findings of fact:

   Race

   The Tribunal accepts the first named applicant is Tamil. His identity documents record him as Tamil. He conducted his interview with the delegate and the hearings with the Tribunal using the Tamil language.

   …

   The first named applicant claims he was arrested in [two specified years] when he was a school boy. He says this was in response to attacks by the LTTE in his home city. The Sri Lankan authorities arrested all young Tamil men. Both times he was released after questioning, the second time after his parents sought the intervention of a local politician, [MP1]. The first named applicant made no claims he was harmed on either occasion of arrest. His evidence consistently (in his written statement, interview and hearing) was he had no contact with the LTTE. Given the civil war in Sri Lanka was ongoing at this time and the first named applicant’s home city is one in which LTTE activity occurred, his claims are consistent with country information of Sri Lanka at that time. On that basis, the Tribunal accepts the applicant’s claims occurred as stated.

   …

   Political opinion

   As noted above, the Tribunal is mindful there is an interrelationship between the first named applicant being a Tamil and a Muslim in his political activity. SLMC is a political organisation arising from the interests of Muslims, the majority of whom in Sri Lanka are Tamils. The Tribunal acknowledges too a persecutor may be motivated by multiple convention reasons. The Tribunal considers the claimed fears of the first named applicant relate largely to his political opinion being involved with SLMC or an imputed involvement with the LTTE.

   …

   In respect to the SLMC, the applicant claimed his first job after leaving school was with a local Muslim politician, [MP1]. His work included organising party activities and assisting the families of missing, detained and displaced Muslims and non-Muslim Tamils. He provided evidence of that role, being a supporter card of [MP1] dated from 2001. He remained involved in politics until he quit in 2005 to work for [a service company] company. In 2008, he became re-involved in assisting the families of missing Tamils and obtaining petition signatures. He said he would not become involved in politics again were he to return to Sri Lanka.

   …

   The Tribunal accepts the first named applicant worked with [MP1] and had some role with the SLMC, including assisting families with the release of detained, disappeared and displaced Tamils. It accepts too that he obtained petition signatures to assist displace Tamils in 2008, towards the end of the civil war.

3. The Tribunal respectfully adopts these findings, for the reasons set out therein.

4. As to how the applicant might be perceived if he is returned to Sri Lanka, there is reliable information from the Department of Foreign Affairs and Trade (DFAT) and other sources that deportees to Sri Lanka are routinely questioned on re-entry at Colombo. All are regarded as being of “security interest” and are questioned by the CID or State Intelligence Services at the airport.[1] Checks against intelligence and police databases are made. It is common for the person to be held until checks are made with the returnee's local police station.[2]  

   [1] DFAT 2012, DFAT Report no. 1446 – Sri Lanka: RRT Country Advice Information Request LKA40999, 22 October

   [2] Ibid

5. In 2015 DFAT reported that upon arrival in Sri Lanka involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.[3] DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[4]

   [3] 2015, DFAT Country Report, Sri Lanka, 16 February

   [4] Ibid

6. The Tribunal accepts that the applicant will be subjected to the above procedures and will not be harmed at the airport.  However UNHCR has indicated that returnees who have voluntarily returned to Sri Lanka are visited by the military or police at home after arrival[5] and the Tribunal accepts that the applicant would as a matter of routine be likely to receive such a visit. 

   [5] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p.8

7. According to DFAT[6] in late 2014 there was a “moderate” risk of torture or mistreatment of “high profile” former LTTE members suspected of committing serious crimes. The applicant does not fall into this category. DFAT also says there is a “lower” risk of torture or mistreatment for the “majority” of low-profile people with links to the LTTE. However DFAT further notes that Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. “Watch” lists include names of people whom the security services consider to be “of interest”, including for “separatist” activities. They are not likely to be detained, including on arrival at the airport, but are likely to be “monitored”.

   [6] 2014, DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam, 3 October

8. There are some factors that have the potential to draw official attention to the applicant if he is returned to Sri Lanka, and to differentiate him from the majority of other deportees from Australia. These are that:

   ·He is a Tamil male of combatant age at the time of the civil war;

   ·He has previously been arrested on the basis of suspected links with the LTTE;

   ·He has resided in Australia (a nation with a large Tamil diaspora) for a significant period of time;

   ·He would be classed as a failed asylum seeker if forcibly returned to Sri Lanka;

   ·He has undertaken activities on behalf of the Sri Lankan Muslim Congress, a political organisation arising from the interests of Muslims, the majority of whom in Sri Lanka are Tamils; and

   ·There is growing discrimination against Muslims within the police force (among others).[7] Recently an escalation in the number of attacks against minority religious groups, including Muslims, has been widely reported by governmental and non-governmental organisations and by the media. An extremist Sinhalese nationalist group is reported to have been an instigator of anti-Muslim protests and ‘hate speech’. The U.S. Commission on International Religious Freedom has expressed[8] increasing concern about this. There have been numerous attacks against religious minority com­munities, including Muslims, and many reports that government officials and police did not stop religiously-motivated attacks and in some cases participated in them, did not provide adequate protection for minority communities and even harassed religious minority communities.

   [7] 2013, DFAT Country Information Report Sri Lanka, 31 July

   [8] 2014, United States Commission on International Religious Freedom 2014, United States Commission on International Religious Freedom Annual Report 2014, 30 April, pp.161-162

9. In short the Tribunal accepts that the applicant’s re-entry to Sri Lanka will prompt particularly thorough scrutiny of official records about him, and enquiries of police, about him. All of that is standard procedure according to the evidence above.

10. In the Tribunal’s view as a result of that scrutiny the applicant is likely to be interrogated at some point in the reasonably foreseeable future because of his particular history and characteristics listed above. The Tribunal has accepted that he will not be harmed at the airport. However the enquiries made by officials at the airport of police in his previous or present home areas will alert those police to his return.

11. In 2015 DFAT stated that it had no information on the overall incidence of torture among people with suspected links to the LTTE. However it appeared that DFAT accepted that torture was still being used in Sri Lanka to “extract information or confessions from suspects”. The prevalence and apparently routine use of serious ill-treatment including torture by the authorities of people suspected of links with the LTTE leads the Tribunal to conclude that during any process of questioning the applicant may again be subjected to some serious harm.

12. It may be that the applicant will again be successful in persuading the police or CID of his innocence at some point. However old habits die hard, and in the course of questioning the evidence of routine ill-treatment under such circumstances satisfies the Tribunal that it is likely that either local CID or other police officers will subject him to serious ill-treatment. Although the fact that the applicant was able to re-enter and leave Sri Lanka in his own identity in June 2010 may suggest that he was not suspected at all of any anti-government or pro-LTTE activity, it may also be the case that the brevity of his trip did not afford the local police sufficient time to come to his home.

13. Relying on this evidence the Tribunal finds that the applicant has a fear of harm constituting persecution, in the sense that it is serious harm, systematic and discriminatory, and that there is a real chance it will occur in the reasonably foreseeable future.

14. The Tribunal finds that the essential and significant Convention reason for that persecution is “political opinion”, in the sense that support for the LTTE will be imputed to the applicant.

15. For these reasons the Tribunal finds that the applicant has a well-founded fear of being persecuted in Sri Lanka for a Convention reason.

    Conclusion

16. The Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

17. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the applicant’s spouse and is a member of his family unit for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

18. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Glen Cranwell
    Member