1512349 (Refugee)

1512349 (Refugee) [2016] AATA 4902 (4 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512349
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Luke Hardy
DATE:4 August 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 04 August 2016 at 4:58pm

CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party (UNP) – particular social group – failed asylum seeker – illegal departure – suspected involvement with people smuggling – physical assault – fear of killing – political violence – decision under review affirmed

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

CASES
MIAC v SZQRB [2013] FCAFC 33
MIBP v WZAPN; WZARV v MIBP [2015] HCA 22
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant [is] a Sinhalese Catholic citizen of Sri Lanka. He entered Australia as an unauthorised boat arrival on 18 July 2012 ([boat number]). He participated in an entry interview on 12 September 2012. He lodged a protection visa application on 11 November 2012 and the delegate refused to grant the visa on 21 January 2014. He subsequently sought review by the Refugee Review Tribunal which affirmed the delegate’s decision on 8 April 2015. [The applicant] sought judicial review of the previously-constituted Tribunal’s decision and [in] August 2015, the Federal Circuit Court issued consent orders for the matter to be remitted to the Tribunal, now merged into the AAT, for reconsideration.
The matter is before the presently-constituted Tribunal. On 2 August 2016, [the applicant] appeared, via video [link], to give evidence and present arguments before the Tribunal in Sydney. He was accompanied by his adviser, a registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
Introducing the hearing, I explained to [the applicant] that this is a fresh, de novo review of his claims. I made it clear to him that the findings of the previously-constituted Tribunal do not exist and that I must make my own findings in this case. I nevertheless advised him that evidence he had given the previously-constituted Tribunal is evidence before me, to which I may have regard. I also advised him that the claims and evidence contained in the delegate’s decision record, which he and his adviser submitted to the Tribunal for the purposes of the review, was also evidence to which I may have regard.
The issue in this case is whether or not [the applicant] is entitled to protection in Australia either as a refugee or on complementary protection grounds. Another significant issue in this case is [the applicant’s] reliability as a witness.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
[The applicant] claims he will be persecuted in Sri Lanka for reasons of his support for the United National Party (UNP). He claims he will be persecuted by members and supporters of the Sri Lankan Freedom Party (SLFP) which led a coalition government in Sri Lanka up to and for some time after his departure from Sri Lanka. These claims correspond with the Convention-related factor of “political opinion”.
[The applicant] also claims fear of persecution for reasons of having left Sri Lanka illegally and having sought asylum abroad. These claims relate to imputed “political opinion” and also to “membership of a particular social group”: “Sri Lankan illegal emigrants” and “failed Sri Lankan asylum seekers”.
While he does not fear being imputed with links to the banned Tamil separatist movement, the LTTE, [the applicant] has claimed fear of being linked to the people smugglers who organised his journey from Sri Lanka to Australia.
[The applicant], though Sinhalese, has claimed to be part-Tamil on his father’s side. As noted in the delegate’s decision record which [the applicant] submitted to the Tribunal for the purposes of this review, he originally claimed at his entry interview that he is Tamil. He has given various explanations for this claim over time. He has said that on his own birth certificate his father’s ethnicity was erroneously entered as “Tamil”. He nevertheless told me he is considered part-Tamil in his village. In any event, he made it clear to me that he does not fear persecution in the reasonably foreseeable future for reasons of being Tamil, but he speculated that if security conditions in Sri Lanka ever decline again, he might suffer some discrimination due to being part-Tamil. Through his adviser, he said that he is not currently claiming fear of persecution for reasons of ethnicity.
[The applicant] is a Catholic but makes no claims at all in relation to the Convention-related factor of “religion”.
Claims to the Department and the previously-constituted Tribunal
A useful summary of [the applicant’s] claims, including the evidence he provided along with his protection visa application, at his protection visa interview with the delegate and at the hearing conducted by the previously-constituted Tribunal, appears in the previously-constituted Tribunal’s decision record:
CONSIDERATION OF CLAIMS AND EVIDENCE
20. The issue in this case is the applicant, a Sri Lankan citizen who is an ethnic Sinhalese claimed to have supported a political party candidate (the UNP) in 2009-10 when that party was in opposition to the Sri Lankan Freedom Party (SLFP). He claimed that, as a consequence of his support he was targeted by the SLFP members and supporters in his area. He fears serious harm at their hands if he returns.
21. He further fears the consequences of his illegal departure as a failed asylum seeker who
departed illegally.
…
Applicant’s protection visa application and the delegate’s decision
24. In his application for a protection visa the applicant provided the following details:
·He was born in [his home town], Sri Lanka in [year].
·He is Tamil and Catholic.
·He has had [number] years of schooling.
·He speaks Sinhalese.
·He has never been married.
·In Sri Lanka, he has variously been employed in [one industry] and in fishing.
·In [year] whilst fishing in Indian waters, he was arrested by Indian police and
incarcerated for 8 months in India.
25. He provided to the Department:
·A copy of his Sri Lankan National Identity Card;
·A copy of his Fisheries Identification;
·A copy of his birth certification;
·A copy of his school leaving certification; and
·A copy of his Sri Lankan passport issued in 2011 and valid until 2021.
26. He also provided a signed statutory declaration made on 6 December 2012 which carried a
declaration that the contents had been truly and accurately interpreted to him by a Sinhalese
interpreter. In relevant part, it stated:
7. At the age of [age] I moved with my family to [another village] [in Northern Province] in [[Town 1]], [in a] [district in North Western] Province, Sri Lanka. Our family moved from [the home town] to [the other village] because we were receiving threats from the LTTE.
8. From 1999 until April 2011 I worked as [an Occupation 1] in [[Town 1]]. During that period I would also go fishing for a month at a time if the conditions were good. We would
also go fishing even if the conditions were not good as means of avoiding danger.
For example if the polling dates are approaching and we discover that our names
are on a list that the Sri Lankan Freedom Party (‘SLFP’) has of people they wish to
harm then we would go to sea to safeguard ourselves.
Why I left that country
9. In 2009 I began supporting the United National Party in Sri Lanka. I worked for the
Member of Parliament in my village, [named]. I was not paid any money
but I was promised rewards such as food rations if the United National Party
(‘UNP’) came into power.
10. I am one of the leaders of the village youth front in support of the UNP. It is not an
official body but we have a presence in the village which makes me a natural target for opposing political parties.
11. In April 2009, I was returning to my home in [[Town 1]] from my work as [an Occupation 1] on my bicycle at around 10pm. I didn’t notice it at the time, because it was dark, but
ahead of me there was a high roofed van. Three people exited the van. I was grabbed by the neck by one of the people that had exited the van and I was told that if I supported the UNP again I would be killed. They tore my shirt. I did not say anything as I did not wish to be further harmed. The three people got back in their vehicle and drove off. I did not recognise the three people so I suspect they were from a different village and supporters of the Sri Lankan Freedom Party. I suspect that someone from my village who knows that I support the UNP would have pointed me out to the three people so that they knew who to target as is common practice in Sri Lanka.
12. As my family has been supporting the UNP for generations I did not contemplate
ceasing my support.
13. A few weeks before the April 2010 election I was assaulted. I was with approximately three other UNP supporters and a UNP coordinating officer in [[Town 1]] putting up pro-UNP posters. Ten to fifteen people who were supporters of the SLFP attacked us. I know they were supporters of the SLFP because a friend rang me and told me supporters of the SLFP were coming towards us. We were assaulted with “two by four” clubs. I ran off to avoid being injured. I managed to escape the assailants and ran for about 5 km and hid for approximately two to three hours in the jungle before returning home. I rang a friend called [who] was also posting pro-UNP posters to see if it was safe to return home.
14. In April 2011 I was fishing near the Indian Sri Lankan border. The Indian Navy apprehended us and took us into custody at [a specified] Police Station in India.
We were taken into custody because we were fishing in Indian Territory. We were
held in custody for eight months. We were taken to a Fisheries Court in India and convicted of illegally fishing in Indian waters. The sentence was an eight month sentence in [a specified] jail.
15. In December 2011 I returned to Sri Lanka and recommenced working as [Occupation 1] in [[Town 1]].
16. In June 2012 I heard that there was likely to be a provincial election shortly. I was
afraid that members of the SLFP would follow through on the death threats they had made previously. The lead up to an election in Sri Lanka is a dangerous time and my life would have been at risk. Having already been fortunate to escape serious harm in the past I decided the best option was to seek protection in Australia.
What I fear may happen to me in my country
17. I fear that I could be killed, tortured, kidnapped or seriously harmed by members of the ruling party in Sri Lanka because I am a supporter of the UNP.
Why I will be harmed
18. I will be killed, tortured, kidnapped or seriously harmed if returned to Sri Lanka due to:
a. being opposed to the ruling party as shown by my support of the UNP
(political opinion); and
b. being a failed asylum seeker from Australia.
19. I would be recognised as a failed asylum seeker because I would be required to provide an explanation as to where I’ve come from and why to Sri Lankan authorities if returned to Sri Lanka.
20. My sister has told me that two of my friends have been deported from Australia and they were charged a fine of 500,000 Sri Lankan rupees each. Nobody knows what has happened to them since then.
Do I think the authorities of my country can and will protect me or my
accompanying family members, where applicable, if I/we work to go back?
21. The authorities, including the local police, would not protect me because they
follow out the ruling party’s instructions whom I fear.
Do I think that there is a place in the country where I could be safe?
22. Wherever I go in Sri Lanka I will actively and publicly support the UNP. This will
always mean that I will be targeted by the ruling party and other parties that oppose
the UNP.
23. I will not be safe in any part of Sri Lanka because the Sri Lankan authorities, who
are answerable to the ruling party whom I fear, are active throughout Sri Lanka.
Other reasons I cannot returned to my home country — Complementary protection
24. Due to my political opinion I face a real risk of being killed, arbitrarily arrested or
tortured by supporters of the ruling party or the Sri Lankan authorities. This
satisfies the definition of ‘significant harm’ and engages Australia’s
complementary protection obligations.
25. Furthermore, if I were to be returned to Sri Lanka the authorities would kill,
imprison or torture me because I am a failed asylum seeker from Australia. This
also satisfies the definition of ‘significant harm’ and engages Australia’s
complementary protection obligations.
27. The applicant was interviewed by the Department on 12 September 2013 with the assistance of a Sinhalese-speaking interpreter. Following that interview the delegate proceeded to make the decision to refuse to grant the visa.
28. With respect to the applicant’s ethnicity, he explained to the delegate at interview that both of his parents were Sinhalese but that his family name was a Tamil name. The applicant was
asked if he considered himself Tamil or Sinhalese and he stated that he considered himself
Sinhalese.
29. With respect to his political opinion and activities, the applicant told the delegate during
interview that he was very much involved in the party and that he had been working a lot for
the party during election periods. However, the delegate found that the applicant was unable
to explain what the party believed in or wished to change about the government.
30. The applicant described the work he did for the UNP party as putting up posters, building
stages from meetings, taking villagers’ problems to the senior members of the party, and
canvassing supporters by going door to door. The applicant claimed to do this in relation to
the provincial council elections held in 2009. The delegate found that these elections were
held on 14 February 2009 and not in April as the applicant had claimed.
31. The delegate accepted that the applicant was a ‘very low level’ UNP supporter. The delegate concluded from the applicant’s answers to questions asked that the applicant had never officially joined the party and did not have a membership card.
32. The applicant reiterated the claims made in the application for protection, as well as his
reason for leaving Sri Lanka in June 2012. However, the delegate noted that the applicant’s
account was vague and sometimes inconsistent with elements of the accounts in his statement
of claims. For example, during the interview the applicant claimed that he was with 15 other
UNP supporters during the 2010 assault contrary to the applicant’s statement of claims in
which he said that he was with “three other UNP supporters and a UNP coordinating officer.”
The delegate also noted that this entire incident was not mentioned in the applicant’s entry
interview.
33. With respect to the time that passed between the 2010 assault and the applicant’s departure from Sri Lanka in 2012, the applicant explained that he had fled to India because his life was in danger. He was there eight months. It was only after his return from India that he realised he needed to depart to Australia. The delegate pointed out that between the assault in April 2010 in the fishing trip to Indian waters was a period of about one year. The delegate did not accept that if the applicant genuinely believed his life to be in danger, he would have
remained in his village for a year after the April 2010 incident.
34. The delegate had regard to independent information indicating that election-related violence in Sri Lanka is relatively common and that the government detained and imprisoned a small number of persons for political reasons in 2009. The information also indicated that there
were numerous cases of police arresting persons for putting up or simply possessing posters
critical of the government. The delegate noted that the applicant had not been arrested by
police during the time he assisted the UNP.
35. The delegate considered it unlikely that the applicant would face persecution given his lowlevel role with the UNP. Further, the delegate did not accept that the applicant’s account of
the alleged incident of April 2010 was credible, particularly given that he waited a year
before attempting to flee.
36. Following his arrest and return from India, the applicant was able to obtain a passport and
visa to India in order to collect the boat that was seized by the Indian authorities and he
returned to Sri Lanka with no difficulties. The delegate considered that this was strongly
indicative of the fact that the applicant was not of interest to the Sri Lankan authorities for his
political opinion.
37. After considering all of the elements in the application, together with the independent
material, the delegate found that the applicant did not have a well-founded fear of persecution
based on his political opinion.
38. The delegate also considered the applicant’s claims that as a member of the particular social group of ‘Sri Lankan failed asylum seekers’, he would face persecution upon his return. The delegate was satisfied that the identified group constitutes a particular social group for the
purposes of the Convention.
39. However, the delegate considered the independent information of governmental and nongovernmental groups, including the UNHCR, to find that the applicant does not have a wellfounded fear of being persecuted by State authorities or pro-government paramilitary groups within the reasonably foreseeable future of his return to Sri Lanka for reason of his
membership in a particular social group defined as ‘Sri Lankan failed asylum seekers’.
40. On the basis of the findings in respect of s.36(2)(a) and finding no evidence to support the
claim of serious harm on Convention grounds the delegate further found there were not
substantial grounds for believing that, as a necessary and foreseeable consequence of being
returned to Sri Lanka as the receiving country that there was a real risk of significant harm.
Application for review – written submissions
41. Just prior to the Tribunal hearing, the Tribunal received a submission, dated 29 January 2015 from the applicant’s representative.
42. The submission referred to several reports on political violence and the attacks on political
activists. It was submitted that there was a real chance of serious harm to the applicant for
reasons of his political opinion.
43. The submission identified new claims.
New claims
44. The representative submits that the applicant received threats of serious harm or death “in the period prior to his departure” from his opponents. The applicant was said to believe that the
threats were based on his opposition to political activities in his village during this time.
Further, the applicant is said not to have previously provided the information as no one had
previously asked him about it directly.
45. With respect to the effect of the recent elections in Sri Lanka in which the UNP won a
number of seats and was able to form government, the representative submits that the
applicant continues to fear harm because of the increased animus towards UNP supporters
having won the recent elections.
Addressing the delegate’s credibility concerns
46. The representative submits that despite the applicant’s low-level roles in UNP activities, he is nevertheless subject to harm for those roles.
47. With respect to the April 2010 incident and the number of people the applicant was with at
the time, the representative submits that “initially there were fifteen of them, but once the
scuffle began, only he and two others were left behind.” According to that submission, his
statutory declaration reference to three persons related to “how many people were present
when the attack took place.”
48. With respect to the time passed between the April 2010 incident and the applicant’s
departure, the representative submits that the applicant could not leave his country earlier due
to financial constraints.
Tribunal hearing
…
50. The applicant reiterated his earlier background and claims with the following clarifications.
He said that his family moved from [his home town] to [Town 1] because of land availability.
When asked if there had been any LTTE-related reason, the applicant said that he had heard
that his paternal grandfather, a fisherman, had had some involvement in providing or moving
goods for the LTTE. The Tribunal notes that these explanations differ somewhat from the
explanation the applicant gave as set out in paragraph 7 of his statutory declaration, quoted
above.
51. The Tribunal sought to clarify the applicant’s ethnicity. The applicant advised that he speaks no Tamil, nor do his parents. His family only speaks Sinhalese. His only link with Tamil
ethnicity he says is that his birth certificate states that his father’s race is Tamil. The applicant
advised that this is a mistake. His father is not Tamil. However, the applicant advised that it
has not been possible to correct the birth certificate. The applicant further advised that this
error or questions about his ethnicity had never caused him any difficulties.
52. In apparent contradiction to the applicant’s evidence, the representative submitted, at the end of the hearing, that the applicant is in fact half Tamil and half Sinhalese, the applicant’s father being Tamil. The representative further advised that the applicant’s mixed ethnicity has
always been a matter of confusion and concern to him because he hasn’t been accepted by
either group.
53. The applicant said that his entire family had been UNP supporters but up until the problems
he had in 2009, none of his family had ever experienced any problems directly. He explained
that his sister, with whom he had lived, was threatened two or three times prior to his
departure from Sri Lanka, but these threats appeared to have been made in relation to the
applicant rather than in relation to his sister.
54. The applicant advised that he only became active in politics in 2009 when he was [age] years old and that was also the first year that he voted.
55. The applicant said that he became involved with the UNP because of the combination of
family and friends who were involved. His involvement was limited to his village and nearby
areas.
56. When asked what he did for the UNP he replied that that, on election days, he was at a
polling booth directing people to stand in line properly, where to go and how to vote. The
Tribunal enquired about who told him which booth to go to and he said that it was older
people and the village.
57. The Tribunal asked him who gave him the posters to put up and he said that the politicians
would come to town with their inner circle. People in the inner circle would assign people
like him to put the posters up.
58. The Tribunal asked if there were any other duties he undertook for the UNP. He said that he helped to erect the stages and organise the loudspeakers for meetings. The Tribunal asked if he was a liaison in any way between people and the Minister and he said that sometimes
people would tell him things, like where a road should go and he would then pass that on to
the politician’s inner circle.
59. The Tribunal asked if he had ever met the politician on whose campaign he worked. He said that he had, as part of a group of young people from the village, but the politician did not
know him.
60. The applicant states he left Sri Lanka because he received death threats because he had
worked for the election.
61. The Tribunal inquired about the incidents of harm or threatened harm he had experienced.
62. With respect to the April 2009 van incident, he confirmed that he was riding his pushbike
when, a van pulled in front of him and stopped. People exited from that van, grabbed the
front of his shirt, tearing it and threatened him, telling him not to work for the UNP any more
or they would come after him and kill him. He said the whole incident took about 15 to 20
minutes.
63. The Tribunal asked about the poster incident, which was said to have occurred the following year. The applicant said that he was one of 15 or 16 UNP people putting up posters. They had started around 10 pm and he estimates that the event occurred around 12 or 12:30 am. He said that between 20 and 25 people from an opposition group from another village approached them. They were carrying clubs or sticks and the UNP people were hit with them. The applicant states that he was hit twice in the back.
64. The applicant and his companions were on pushbikes. He states that his group (comprised of him and three others) left their belongings and fled into the scrub. They did not report the
incident to the police. The applicant was not sure whether his companions sought medical
help but knew that “some of us” went to an Ayurveda place for oils.
65. The Tribunal asked the applicant about the Indian fishing incident. The applicant said that
his reasons for going on the fishing trip were mixed. It was for economic reasons as well as
for reasons of not being around when people were looking for him.
66. The applicant said he was on one of two boats that were fishing together. There were five
people in each boat. The other boat had a different owner to the boat he was on. Both boats
and their crew were caught by the Indian Navy fishing in Indian waters. The navy towed their
boats to land and the crew remained on their respective boats. They were then taken to a
police station and that evening, there were taken to jail onshore. After 21 days, they had a
court hearing by video link. Because the boat’s owner was not present, the applicant and
others were unable to be bailed. After three and a half months, there were released from the
jail but had to remain in police custody in a room rented and paid for by the boat owners. He
was in India a total of eight months.
67. Upon his release, the Indian Navy took the applicant and others to the sea border where they were met by the Sri Lanka Navy, who brought the applicant and others to shore. They were detained by the Sri Lanka Navy for between six and seven hours at the Navy camp before being released. A month later, the applicant was made to return to India together with the boat owners in order to sail the boats back. In order to do this, he had to obtain a passport and visa which was paid for by the boat owners. They flew to India out of Colombo airport. The
group had to stay three months in India while the release of the boats was being secured.
68. The applicant states that he was not seeking or thinking about seeking the protection of India at that time because of the potential effect on the boat owners and others there.
69. The applicant was asked whether he experienced any other problems. He indicated that he
had. The SLFP were trying to divert a river somewhere so he was part of a protest. He was
threatened because of his involvement in the protest. The Tribunal remarked that this
appeared to be the first time he had mentioned this and he said that he had never been
questioned about this.
70. He added that whilst on the journey to Australia, he took turns with others driving the boat.
He advised that this could present additional problems for him upon his return to Sri Lanka.
71. The Tribunal asked that applicant what he believed would happen to him upon his return to
Sri Lanka. He stated that he would be targeted and jailed or somebody might kill him or do
something else.
72. The Tribunal asked why he believed he would be jailed and he said it was because he left
illegally and they would put him in jail. He was aware that they had done that to others. He
said he knew of some people who went back to Sri Lanka from the camp and others who
were released from the camp before they went back. He said they were jailed six months and
fined, but he did not know how much. He had not heard of anyone being fined but not jailed
or being fined and not heard from again.
73. The Tribunal set out concerns to the applicant and provided the applicant and his
representative with a brief adjournment to allow for the two to confer with the assistance of
the interpreter. When the hearing resumed, the representative spoke on behalf of his client in
response to the concerns put by the Tribunal.
74. With respect to the Tribunal’s concern about new claims raised, such as the river protest, the representative asserted that applicants are directed by the questioning. The new claim was
raised because the Tribunal made the inquiry.
75. With respect to the Tribunal’s concern about the applicant’s inconsistent statements about his ethnicity, the representative asserted the applicant was half-Tamil and struggled to accept it.
76. With respect to the Tribunal’s concern about the applicant’s failure to seek the protection of
India, the representative claims that India’s protection would not have been a permanent
solution for him and at any rate given his legal issues, he was unable to apply for protection.
77. With respect to the Tribunal’s concern about the effect of the recent elections, the
representative asserted that they will either have no bearing or perhaps will make matters
worse for the applicant in subsequent elections because, given the track record of violence at
elections and the expectation that SLPF will seek a resurgence of power, it is reasonable to
expect the applicant would suffer harm.
78. With respect to the Tribunal’s concern about relocation within Sri Lanka, the representative
asserted that the applicant would continue his political involvement and would thus be
persecuted wherever he is in Sri Lanka.
79. With respect to the Tribunal’s concern about the treatment of failed asylum seekers upon
their return, the representative asserts that the applicant would be perceived as a people
smuggler, having assisted with driving. Other passengers could identify him and he may be
perceived to have been part of the smuggling group. The representative further asserts that
the applicant is likely, in the circumstances, to receive a harsh and lengthy sentence. In light
of the prison conditions in Sri Lanka, this could well give rise to Australia’s complementary
protection obligations.
Evidence to the presently-constituted Tribunal

[The applicant’s] claims about harassment and persecution from members and supporters of the SLFP rely on his claims about having been locally a leading, active supporter of the UNP. He claims his active participation in the UNP and its campaigns grew out of his family’s history of active support for the UNP. However, he only claims to have begun actively supporting the UNP, and only locally in his own village, at the age of [age]. Somehow, according to his claims, he went from not being active with the UNP, in spite of his family purportedly being active with the party, to leading its youth group, all at the age of [age] and in time for the Provincial Council elections of 2009.
When I asked [the applicant] for more detail about his family’s historic involvement with the UNP he was vague. He told me with his mother, [and specified family members] continue to live in [Town 1]. However, he merely said he had heard “from sources” that his mother’s side of the family worked for the UNP. He mentioned his [relatives] specifically. When I asked him to describe their activities with the UNP he said they were the same as his. Since he claimed to be the leader of the local UNP youth group, I asked him to be more specific about the activities his close relatives performed, since his aunt would be a generation older than him and perhaps unlikely to be leading a youth group, and in reply he said it was difficult for him to say. Ultimately, he said, “I know they voted, but I don’t know how they supported the UNP.” When I reminded him that one of these activists is his own sister and that she and his aunt should have been helping the party fight elections in the same village where he was active, he said that women are not involved in political activities. Ultimately, [the applicant] provided a vague, contradictory and unsatisfactory account of the purported family context within which he claims to have become an active supporter of the UNP.
I questioned [the applicant] not commencing his active support for the party until the age of [age]. In particular, I asked him how he could suddenly have become the local youth leader at [age] as they party would surely have wanted to be cultivating membership, activism and leadership amongst younger persons: the voting age in Sri Lanka is 18[1], so parties would likely be trying to engage support and cultivate leadership amongst much younger people. When I asked [the applicant] if [his age] was not a bit too old to be a youth leader (let alone in one’s first role with the UNP), he said he was given that role because the party does not discriminate. I asked [the applicant] what activities he performed as youth leader, and he said he used to attend meetings to discuss with political leaders and councillors such subjects as planned roads and other infrastructure. I asked him if he could provide any documentary evidence of having been designated a youth leader in the UNP and he said that in his village there was no such thing as taking notes. His evidence about his activities was vague and unsupported and it struck me as implausible that the people with whom he discussed such issues at meetings would never have made any record of his attendance if, as he claims, he played even a nominally important role in the consultations described.
[1]
[The applicant] told me that the UNP was defeated in his province, district and village in the 2009 Sri Lankan Provincial Council elections. I asked him to give me an estimate of the population in his village and he said it was about 250 to 300 up to when he was last living there. I asked him if he could estimate how many people supported the UNP in his village at the time he was active there, and he said, “I don’t know.” I asked him how many votes the UNP received in his local electorate in the 2009 election in which he claimed to have actively participated and he said, “I don’t know how others voted. I was involved in the youth section.”
[The applicant] confirmed that he never joined the UNP. I asked him how and why the UNP put him in charge of its local youth group if he was not a member of the party, and he said, “Young people were not involved in that way; we supported the UNP.”
As noted, throughout this application, [the applicant] claims he started supporting the UNP at the age of [age] in 2009 in time to help campaign in the 2009 Provincial Council elections. He claims, and confirmed the claim at the hearing, that those elections were held in April 2009. [The applicant] did not turn [age] until [later in] 2009, which was some time after April 2009. This is arguably a minor discrepancy on its own, but I have considered it together with other problems in [the applicant’s] evidence. For a start, according to the Sri Lankan Department of Elections, the 2009 Provincial Council elections were conducted in Sri Lanka on 14 February 2009. This is confirmed in an independent report about the conduct of those elections:
The Provincial Council Elections for the Central and North Western Provinces were held on 14th February 2009. They were won by the UPFA which polled 59.53% of the votes in the Central Province and 69.43% of the votes in the North Western Province. Consequently the UPFA obtained 36 of the 58 seats in the Central Provincial Council and the UNP got 22
seats. In North Western Province, the UPFA obtained 37, the UNP 14 seats and the JVP 01 seat. Voter turnout in both provinces was 60%.
The two Provincial Councils were dissolved on 25th December 2008 before their respective terms expired. The reason for the dissolution advanced by the Governors of the respective
[2] “Final Report on Election Related Violence: Provincial Council Election Central & North Western 2009”, CENTRE FOR MONITORING ELECTION VIOLENCE [CMEV], July 2009,
Provinces was that the Councils were unable to function or carry out programmes because of a lack of a clear legislative majority in support of the executive.[2]
It appears from this evidence that campaigning could have started as early as late December 2008; in any event, it is reasonable to observe that there would have been very little time for [the applicant] to come on board with the responsibilities of an active UNP campaigner and youth leader (with no evident experience) in the first six weeks of 2009.
I asked [the applicant] when the 2009 Provincial Council elections were held, not least because the timing of the elections in that year was evidently a critical factor in the alleged claimed attack on him in April 2009: he said he was attacked by SLFP supporters in April 2009 because he and others were, or were accused of, pasting UNP campaign posters over SLFP campaign posters. In response to the question, he said those elections were held in April 2009. I put to him that his answer was incorrect, and I reminded him that he has been put on notice about this error before. I put to him that given his earlier evidence about assisting at the polling booth on election day it seemed reasonable he should be able to remember more correctly when the election was conducted. I reply, he said he only helped with the campaign when he was not working, and that when he was working he was sometimes away from the village for a long time. He told me that he used to fish for a month or more at a time, the reason for this being that he and other fishermen needed to go far out to sea due to overfishing and competition closer to shore. He told me that in April 2009 there was no fishing so he was back on shore working as [an Occupation 1]. At one stage he said he only worked as [an Occupation 1] by day and worked for the UNP at night, but when he described the April 2009 attack on him, he said it happened at or around 10:00 pm when he was walking home from his [work].
I brought [the applicant] back to the point, being that the 2009 Provincial Council elections were not held in April 2009 as claimed. I put him that he seemed more able to provide plausible detail as to why he was absent from Sri Lanka during this time than he was providing with regard to his political activities. I put to him that April 2009 evidently did not even fall within the campaign period, and he did not respond, so I invited him to comment and he said the election was held in April 2009. Eventually I put to him that the election was held in February 2009 and that it was long over by April 2009 when he said he was being targeted in campaign violence. In reply, he said that according to his knowledge it was supposed to be held in February 2009 but had to be postponed to April of that year. I then put to [the applicant] that the elections are independently reported to have been held on 14 February 2009 and that they were certainly not postponed to April. I put to him that on the detail provided I might more easily accept that his time was divided between fishing and [Occupation 1] in 2009 than that he was actively involved in the Provincial Council election campaign, and he said, “I’m the one who knows.”
Whereas [the applicant] has previously claimed that he was actively occupied in April 2009 with an election campaign, he explained to me that he was ashore in April 2009 because he did not go fishing and therefore needed to work as [an Occupation 1]. Again, I put to him that he did not sound like he seems to have been preoccupied with work at that time making it hard to accept that he would have been actively involved in election work during the 2009 campaign (which ended in February 2009, not April), and he said he could not always depend on fishing.
Later in the hearing, the adviser suggested that [the applicant] might have erroneously cited “April” as the month in 2009 when the election and attack occurred because the parliamentary elections in 2010, which also affected him violently, were held in April of that year. He is correct about the month in which the 2010 parliamentary elections were held, and I undertook to consider his explanation for [the applicant’s] discrepant evidence. However, on reflection, I find that he has had oportunities since the delegate’s interview to explain the discrepancy and yet his explanation at the hearing before me was that the intended February elections were postponed two months, a claim that, not to put too fine a point on it, flies in the face of widely-reported historical fact.
Working with the suggestion that the 2009 attack on [the applicant] occurred during the Provincial Council election campaign, I asked him for more detail. I asked [the applicant] if he could tell me how long after he started covering SLFP posters with UNP posters the attack occurred, and he said it was difficult to say. I asked him if it was a matter of hours or days or weeks and he said it was difficult to say. I put to him that his evidence was vague and he said it was difficult to give a date for the poster-hanging: “We just did it in our spare time
I put to [the applicant] that, if the attack occurred in April, it was hard to see what the SLFP supporters would have been angry about, or still angry about, because their party had won the election resoundingly two months earlier. In reply, contradicting evidence he has previously given in his own statement to the Department, he said his attackers on that occasion in 2009 “weren’t coming directly for me”. He said they just happened to be passing by and picked him out randomly. When I put to him that this contradicted what he had said in his statement to the Department, he made what appeared to be a generalised statement: “When people say someone did something wrong, then they think about it and attack [a//the?] person.” His response was vague and confused and did not help to resolve the discrepancy with earlier evidence about the attack.
I asked [the applicant] if he ever reported the attack to the authorities and he said he did not, but reported it to “someone in my village”. He then said he reported it to his sister, and then said he reported it first to someone in his village and then his sister. Later, he said the “someone” was a UNP figure.
In all of his evidence about the attack, [the applicant] did not suggest that his attackers ever even mentioned posters, and he could not provide any information to me that suggested why he himself made a subjective link between posters and the attack. When I drew this apparent problem to his attention, he said, “I can’t exactly tell you whether it was about the posters.” I then put to him that earlier in the hearing he appeared to have wanted me to note that the attack was specifically about the posters and that he now seemed to be contradicting this. He did not respond.
Looking at all of the evidence from the hearing before me, as discussed up to this point, I find that [the applicant’s] evidence about having been an active supporter of the UNP who was targeted by members or supporters of the SLFP, and/or its coalition partners, is riddled with inconsistencies small and great. Taken together, these inconsistencies lead me to disbelieve confidently that [the applicant] and his family were ever involved in politics beyond perhaps voting from time to time, let alone that they were identified as active supporters of the UNP, let alone that anyone had any reason to target him, or that anyone ever did.
For this reason, I do not believe that [the applicant] was attacked whilst having posters during the election campaign of 2010; I do not believe any story he has told about being punished for hanging posters. I do not accept on his evidence to me that he ever went to sea with fishing fleets to avoid trouble, let alone any potentially relevant trouble. Whereas I can accept that he prefers the UNP to the SLFP, I do not believe, on the evidence before me, that [the applicant] had any significant profile with people who voted for other parties, let alone in such a way for his name to have been placed on a list of persons that the SLFP wished to harm, let alone that any such thing had anything to do with why he would occasionally work at sea.
For reasons of [the applicant’s] overwhelming lack of credibility in relation to the claims so far discussed, I do not accept that the SLFP was looking for him in 2012. Thus I find that when I asked him why he left Sri Lanka for Australia in 2012, he gave an answer that I do not accept as truthful. In addition to this, to illustrate [the applicant’s] lack of reliability in further detail, I will add here that he told me that when he returned from India in 2012, his [sister] told him that another election was imminent, that the SLFP might target him “again” and that for his safety, because she worried about him, he should flee Sri Lanka (he thus effectively claims not to have known about the election cycle but for his sister telling him, which further argues that he was not closely involved with the UNP). I asked [the applicant] which elections were held in 2012 and he said they were the 2012 Provincial Council elections. I checked with independent sources: according to Sri Lanka’s Department of Elections, Provincial Council elections were held in September 2012, but they were only held in three provinces[3], none of them North Western Province, i.e., [the applicant’s] own province; this means that his sister could not have been warning him about Provincial Council elections in their home province. When I put to him he did not suggest his sister was talking about any other elections; rather, he made a general statement to the effect that political parties sometimes send activist to other provinces to help with elections there, and seemed to imply that the SLFP might try to harm him to prevent him from moving across Sri Lanka to another province to help with campaigning there. Overall, [the applicant’s] evidence about fear of violence during 2012 elections as a trigger for his departure to Australia struck me as inconsistent with independent facts and very far-fetched.
[3] See also “Sri Lanka Provincial Council Elections 2012” Verité Research Research Bulletin, Vol. 02, No. 04, September 2012, see also
I discussed with [the applicant] available independent country information regarding the issue of investigating and prosecuting returnees to Sri Lanka who previously departed the country illegally as part of an overall assessment of the chance of being persecuted on return.
Relevant independent country information relating to Sri Lankan nationals facing possible return to Sri Lanka in the reasonably foreseeable future
I have had regard to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012, HCR/EG/LKA/12/04, In particular I have had regard in this matter to UNHCR’s non-exhaustive information about potential risk profiles:
A.1 Persons Suspected of Certain Links with the Liberation Tigers of Tamil
Eelam (LTTE)…
A.2 Certain Opposition Politicians and Political Activists…
A.3 Certain Journalists and Other Media Professionals…
A.4 Certain Human Rights Activists…
A.5 Certain Witnesses of Human Rights Violations and Victims of Human Rights
Violations Seeking Justice…
A.6 Women in certain circumstances…
A.7 Children in certain circumstances…
A.8 Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Individuals in
certain circumstances…
Addressing LTTE links in closer detail, UNHCR draws attention to:
… previous (real or perceived) links that go beyond prior residency within an area controlled
by the LTTE continue to expose individuals to treatment which may give rise to a need for
international refugee protection, depending on the specifics of the individual case. The nature of these
more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
[my emphasis]
[The applicant] claims no imputed links with the LTTE. The little contact he claims his family have had with the LTTE was some local pressure that caused them to move from Northern Province to North Western Province when he was [age], although he seemed to undermine or at least de-emphasise this claim somewhat, in later evidence, when he said his family moved away due to a land availability issue.
[The applicant’s] claims appear to relate closest to the non-exhaustive category identified above as “A.2” with some characteristics that may be shared with “A.4” and “A.5”. On the evidence before me overall, however, I do not accept that [the applicant] would be imputed to fall within any of these categories. Furthermore, I note that this non-exhaustive list was made during the tenure of the previous government. Since then there have been significant political developments in Sri Lanka with the voting out of the SLFP-led government of Mahinda Rajapaksa. Meanwhile, various independent reports indicate that the new government of Maithripala Sirisena has commenced implementing its undertaking to investigate past excesses and illegal behaviour by all parties in the civil war including individuals associated with state parties, paramilitary groups and the LTTE:
In an important turning point, the resolution on Sri Lanka titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ presented at the 30th session of the UN Human Rights Council in Geneva, was adopted on October 1. The resolution, which secured the support of 25 countries including the US, was passed after no country sought a vote on the text.
On September 30, Sirisena pledged to follow a process of truth seeking, justice, reparation and non-recurrence. Addressing the 70th session of the United Nations General Assembly in New York, Sirisena said it was imperative that Sri Lanka adopts a new social, economic and political approach to rise up to the challenges of the 21st century.
“In this regard, reconciliation receives priority attention in my country,” he said.
Detailing his vision, Sirisena said Sri Lanka involves wants to achieve the twin objectives of sustainable development and reconciliation.
“A fundamental requirement in this context is dealing with the past honestly and building a modern Sri Lankan Nation. In dealing with the past, we will follow a process of truth seeking, justice, reparation and non-recurrence. Sri Lanka remains committed to fulfil this responsibility. In this respect, we intend implementing a new program and plan of action in Sri Lanka to advance human rights,” he added. [4]
[4] “After dodging war crimes probe, Lanka focuses on truth, reconciliation”, Asia Times, 12 October 2015,

In its Country Report: Sri Lanka, 16 February 2015 report, DFAT observes:
3.10 The new Sirisena government has reportedly asked for a list of all detainees held under the [Prevention of Terrorism Act] for review, and has said it is willing to work with the International Committee of the Red Cross in providing greater access to detainees and establishing a comprehensive database on detainees.
In light of the change of government and the initiatives of the new president, whose Prime Minister is the UNP leader, it seems less likely that actual or imputed critics of Rajapaksa’s human rights record or people who were merely active in opposing him politically would face serious harm in the reasonably foreseeable future. I discussed this with [the applicant] and his adviser and I have considered the responses I received.
I note that IOM has reported the apparently safe return of several hundred former asylum seekers to North Western Province, the common perception there reportedly being that they left for economic reasons.[5]
[5] “The Dream of Finding ‘Greener Pastures’: Safe migration awareness campaign,” The Island, 22 February 2013,
Regarding the treatment of returnees to Sri Lanka, UNHCR reports that the mere fact that a person is an adult Tamil male from the north or east, on its own, no longer places that person at risk of persecution: whereas “Tamils Originating from the North or the East of Sri Lanka” constituted a risk group in UNHCR’s April 2009 “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” ( they were not included in the “Risk Profiles” in the updated 2012 Guidelines. UNHCR published a report in 2011 to the effect that most Tamil refugees who had formerly sought asylum abroad (mainly in India) were returning to the East of Sri Lanka in and around “the eastern district of Trincomalee followed by Mannar, Vavuniya and Jaffna in Sri Lanka’s north.[6] Overall, the UNHCR Guidelines have evidently moved on from suggesting that merely being a Tamil male from the north or east of Sri Lanka is sufficient to give rise to a real chance of serious harm.
[6] “UNHCR helps first group of Sri Lankan refugees return by ferry from India” UNHCR News, 12 October 2011, .
That said, UNHCR in 2012 did observe that in dealings with the police, the Tamil-speaking population appeared to be at a disadvantage: despite ongoing efforts to increase the number of Tamil-speaking police staff, particularly in Tamil majority areas. The 2012 UNHCR Guidelines also referred to reports relating to some cases, in the years between 2009 and 202, in which “former Sri Lankan (in particular Tamil) asylum-seekers … were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka.[7]
[7] Human Rights Watch has reported thirteen cases of arbitrary arrest and torture of failed Tamil asylum-seekers, upon their return to Sri Lanka, most recently in February 2012. See: Human Rights Watch, “UK: Halt Deportations of Tamils to Sri Lanka. Credible Allegations of Arrest and Torture upon Return ”, 25 February 2012, and Human Rights Watch, “UK: Suspend Deportations of Tamils to Sri Lanka. Further Reports of Torture of Returnees Highlight Extent of Problem”, 29 May 2012, Freedom from Torture has documented 54 cases of Sri Lankans (predominantly Tamils), who experienced torture in detention in the post-conflict period (i.e. after May 2009), including cases of individuals who were tortured after having voluntarily or forcibly returned from the United Kingdom to Sri Lanka. See: Freedom from Torture (formerly the Medical Foundation for the Care of Victims of Torture), Sri Lankan Tamils tortured on return from the UK, 13 September 2012, The total of 54 cases includes 35 cases of post-conflict torture in Sri Lanka documented earlier, including of 14 individuals who returned to Sri Lanka after a period abroad (in three cases the person was forcibly returned from a European State, upon rejection of the asylum claim). See: Freedom from Torture, Freedom from Torture submission to the Committee against Torture for its examination of Sri Lanka in November 2011, undated, last accessed November 2012, See also Amnesty International, Sri Lanka: Briefing to Committee Against Torture, October 2011, detailing the case of two brothers who were arrested,
I note the following comments provided in the DFAT Country Report: Sri Lanka, 16 February 2015:
Torture or mistreatment of returnees
4.1 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.
4.2 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention. It is too early to make an assessment as to whether this will change under the Sirisena government.
I have had regard to quite recent information from DFAT about the handling of returnees to Sri Lanka in instances where they are suspected of having left illegally:
Treatment of Returnees
5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.
5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat. If a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Entry Procedures
5.29 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 (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.
5.30 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.
5.31 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.
5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).
5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.
Facilitators and organisers
5.35 The Attorney-General’s Department typically distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.
5.36 Some returnees from Australia have been charged with immigration offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling. DFAT understands that, in several cases, returnees have been charged and convicted of immigration offences. As of March 2014, at least one charge had been upheld on appeal.[8]
[8] DFAT, Sri Lanka Country Report, 18 December 2015
Discussion with [the applicant] regarding procedures affecting returnees
[The applicant] essentially acknowledged that it would be highly unlikely for him to be construed to have any link to the LTTE, even on account of having left Sri Lanka illegally and having sought asylum abroad. When I put to him that he did not appear to have engaged in or aided in people smuggling he also concurred. He told me he played no part in organising the illegal departure of others from Sri Lanka.
I discussed with [the applicant] the DFAT and other material relating to the process of interviewing returning asylum seekers who have left Sri Lanka illegally. Focusing on the conditions under which returnees are remanded, I put to [the applicant] that, depending on the day of the week on which a returnee arrived at Colombo airport, and also on the time of day, he might be remanded for a few hours or over the weekend before transfer to the Negombo court. I also put to him that depending on the duration of remand, and also perhaps on the number of returnees arriving on a given day, conditions in remand could be or become crowded and unsanitary. I put to him that I could not find any evidence to suggest that such conditions were intended to cause harm or intended to act as a deterrent, the evident purpose of remand being, rather, merely to transfer persons charged under the I & E Act to the bailing court as soon as possible. In response, [the applicant] did not suggest that there would be any intention to harm or degrade him in the process of charging, remanding, or prosecuting him. He did not suggest that the fine would be particularly onerous or that it would be set at an amount such as might cause him serious or significant harm, let alone intentionally.
I put to [the applicant] that the laws under which illegal emigrants are interviewed, charged, remanded, bailed, fined and in some cases placed on reporting conditions in their home districts all appear to be laws of general application that are not enforced in a discriminatory manner. However, I also invited him to say if he thought these laws and this process might be implemented in such a way as to discriminate against him. Although I gave him multiple opportunities to address this issue in detail, his responses were very generalised and baldly speculative: essentially he said that one never knows what false stories others might tell the authorities about one that might lead to the authorities singling one out for differential and discriminatory treatment. I emphasise here that I asked [the applicant] for examples of things he might be accused of, by anyone, that might lead to his being singled out for persecution or some other more serious punishment than the monetary fine referred to in independent evidence.
[The applicant] did say that he had “lots of friends” who had returned to Sri Lanka who were remanded for three to four months before their trial for illegal departure came up. He also said that they were later placed on reporting conditions in their home districts and placed under a five-year embargo on departing Sri Lanka again. He acknowledged that the reporting conditions appeared to apply under laws of general application and did not suggest that these conditions would be differentially or discriminatorily applied in his case for any reason. As to the alleged longer periods of remand, I asked him for more evidence about this claim, and in reply he said, “I don’t know. A friend said, ‘This is what happened to us’.” He thus clearly indicated for the second time in the hearing that he heard this first-hand for from a person or persons (“lots of friends”) to whom this had happened. However, when I asked him for more detail, he said that the people who had discussed this with him had heard it from other people. In this way, he changed his evidence and I drew this problem to his attention as it seemed to form a pattern with changes and inconsistencies in his evidence about his claimed involvement with the UNP. In response, he said that this was a subject that people cannot talk about “all the time”. [The applicant] also said he had heard of people having to pay bribes at the airport. His adviser said that the Swiss refugee Council and the British Bar Council report that returnees to Sri Lanka are viewed as on a spectrum, with some being more harshly punished than others, but the evidence before me does not suggest that the spectrum relates to anything other than checking if a personal has unspent convictions, LTTE links or involvement in people smuggling, etc.
I note that [the applicant] has previously claimed to have been one of the passengers on the boat who helped to steer it for part of the journey to Australia. Although I gave him several prompts to raise this with me at the hearing, he repeatedly failed to do so. This was of interest to me because he had previously claimed it was a fact that he had steered the boat and that it was a real possibility that someone might inform on him to the Sri Lankan authorities that he had done so, with the result that he might be prosecuted and jailed and suffer the degrading treatment that reportedly comes with being jailed, say, over longer periods in Sri Lanka. At the hearing before me, though, he just kept saying that he might be framed by the authorities with an offence he did not commit, because this, he said, can happen in Sri Lanka, or falsely accused of something – anything – by a third party. I asked [the applicant] what might happen in his own case that could lead to more serious charges on his return and he said, “I can’t make up in my own mind what the something else is.” I asked him what false story might be told or concocted against him and he said, “Anything. I don’t know.” He repeatedly said at the hearing that he departed illegally and would be charged with illegal departure, but time after time that was the only specific issue he raised. I put to him that he had made a very concrete claim to the previously-constituted Tribunal about the possibility of being charged with an offence over and above illegal departure, and he said the situation has changed and is different now. He went on to say, “I know I left illegally. If more than that happened …” he then said he feared he might become confused whilst being interviewed at the airport and accidentally say something detrimental to himself which might lead to a false accusation. When I asked him for an example of the kind of false accusation that might be made he again said, “I don’t know.”
At this point I reminded [the applicant] of his previous claim to the effect that he participated in helping to steer the boat on which he travelled to Australia. I put to him that, on the evidence he had given to me at the hearing so far, he did not sound like that was a true experience of his. In reply, he said he did help to steer the boat. I asked him why he did not tell me until I told him about the claim and he said, “I told things last time according to that time. Now I don’t know what may happen.” I put to [the applicant] that facts are facts and truth is truth, and that it seemed he might be talking about fashioning claims according to what he thinks the times demand. In reply, he said, “Yeah, so they [will] charge us for leaving Sri Lanka illegally.”
Consideration of [the applicant’s] profile as a failed asylum seeker and returnee

I accept on the evidence before me that [the applicant] may be investigated at the airport after arrival in Sri Lanka and prosecuted under the I & E Act in the manner described in the DFAT Country Report. I have considered the adviser’s arguments about information from the other sources he cited but I am not satisfied that [the applicant] would face anything more than a monetary fine for leaving Sri Lanka illegally, let alone face a custodial sentence.
On the evidence before me, I do not accept that [the applicant] has been truthful about helping to steer the boat that brought him to Australia and I am not satisfied on the evidence before me that he would be imputed, in this or any other way, to have been involved with the operation of the smuggling operation that brought him here.
I am not satisfied on the evidence before me that [the applicant] would be accused or charged on or after return to Sri Lanka with offences he did not commit. I give no weight to his suggestions that he might face a penalty in excess of a monetary fine.
On the evidence before me, I am not satisfied that [the applicant] would face a real chance of persecution in the reasonably foreseeable future for separate or cumulative reasons of having sought asylum abroad or for being perceived to be being a failed asylum seeker.
On the evidence before me, I am not satisfied that [the applicant’s] problems with the fishing boat that was intercepted in Indian waters would give rise separately or cumulatively to a real chance of differential treatment on return, let alone to a real chance of persecution in Sri Lanka in the reasonably foreseeable future.
Having regard to the remand element in the prosecution of illegal emigrants returning to Sri Lanka, and in light of recent guidance from the High Court of Australia[9], I have made a qualitative assessment of the evidence presented in this case in my consideration as to whether the period and conditions of remand in this case would amount to “serious harm”. I have taken into account the evidence as to the brevity of remand for returnees who are charged with having left Sri Lanka illegally. I have considered [the applicant’s] own comments on the issue when I raised it with him. The evidence indicates that the purpose of remand is to gather persons charged with breaching the I & E Act for expeditious transfer to the bailing court, and I give some weight to this. I give weight to the evident consequence of remand being to release the detainee on bail, on conditions usually no steeper than their own recognisance, those persons who have been charged under the I & E Act in a matter involving no greater penalty than a monetary fine.
[9] MIBP v WZAPN; WZARV v MIBP [2015] HCA 22, High Court, French CJ, Kiefel, Bell, Gageler and Keane JJ, M17/2015 & P10/2015, 17 June 2015
I have duly considered that the conditions in which [the applicant] might be remanded could be very basic, uncomfortable, unsanitary and crowded, depending on the day and time of day of his arrival, and on the number of other similar persons arriving on that day, but having regard to the evidence overall, I am not satisfied that his being held for questions at the airport, or being held in remand even in the poor conditions alluded to here detention in any case would rise to the level of serious harm instanced by s.91R(2)(a) of the Act.
On the DFAT evidence before me, I find that the process of interviewing and prosecuting Sri Lankans who previously departed illegally is implemented under laws of general application: for example, they apply equally to Sinhalese and Tamils and members of other ethnic groups. I am not satisfied on the evidence before me that the law, in particular the I & E Act, would be enforced in a discriminatory manner. I am not satisfied on the evidence before me that in the event of [the applicant] being detected to have left Sri Lanka illegally and sought asylum abroad that the law would be applied, exploited or manipulated in any way as to discriminate against him.
I am not satisfied that the process of being investigated, remanded, bailed or prosecuted for illegal departure would involve or lead to a real chance of persecution in [the applicant’s] case, even if he is also monitored in his home district and/or placed on reporting conditions there. I am not satisfied on the evidence before me that he would be remanded any longer than it would take to transfer him to the bailing court. I give weight to the evidence to the effect that he would likely be bailed on his own recognisance. I am not satisfied on the evidence before me that his bail conditions would be any steeper. I find on the evidence before me that [the applicant] would be allowed to return to his home district. Overall, I am not satisfied on the evidence before me that he would suffer serious harm at the hands of state or non-state agents (meaning anyone) during his remand or at any other stage of the process of being persecuted for illegal departure, or for that matter after his return to his home area. I am not satisfied on the evidence before me that the fine he would pay would be so onerous as to amount to persecution. I am not satisfied on the evidence before me that he would be prevented from returning to his life and his usual lines of work in his home district. I am not satisfied on the evidence before me that he would be barred from travel abroad for any period.
Even though he claims to have lived until the age of [age] in the predominantly Tamil north of Sri Lanka, I am not satisfied on the evidence before me that [the applicant] is or would be imputed in Sri Lanka to be part-Tamil let alone linked to the LTTE. I find that the chance of [the applicant] being imputed with a link to the banned LTTE is very remote; I find the chance of being persecuted for such a link is therefore also very remote. I give no weight to the speculations provided in this case about possibly being mistreated at some stage in the future for reasons of his actual or perceived ethnicity. I am not satisfied that [the applicant] faces a real chance of persecution for separate or cumulative reasons of ethnicity or “race”.
On the evidence before me I am not satisfied that [the applicant] faces a real chance of persecution for separate or cumulative reasons of his religion, actual or perceived.
Having considered all of the evidence before me, separately and cumulatively, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution in Sri Lanka in the reasonably foreseeable future. His claimed fear of Convention-related persecution is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).
Findings in relation to s.36(2)(aa) and the rest of s.36
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa) which a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
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.
Essentially, [the applicant’s] complementary protection claims rely on the same facts as his refugee claims. His main claims generally failed for lack of credibility and for not meeting the “real chance” test. Those of [the applicant’s] claims under s.36(2)(a) that have failed on credibility grounds, as shown above, must also fail here. Those of his claims that have failed to meet the “real chance” test also fail to meet the “real risk” test.
One particular aspect of [the applicant’s] claims relates to how he may be treated in the likely event of being recognised and charged as a person who left Sri Lanka illegally to seek asylum abroad. Specifically there is the issue of being charged and remanded in the matter of breaching the I & E Act and the question of whether remand and the possible conditions experienced within the place of remand might amount to significant harm.
With particular regard to this aspect of [the applicant’s] claims, I have had regard to policy guidelines prepared the Department of Immigration, particularly in its Procedural Advice Manual 3 “Refugee and humanitarian - Complementary Protection Guidelines” and country information from DFAT. In particular I have had regard to the following PAM3 guidelines:
2.19 To meet the definition of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, an act or omission must be intended to cause harm. In some circumstances it may be appropriate to infer an intention to inflict harm if it is evident that such harm was or may be knowingly inflicted.
2.20 When assessing whether or not an applicant's claims meet the complementary protection criterion the decision maker must establish if the applicant will personally be at risk from suffering one of the forms of significant harm outlined above, bearing in mind that the existence of a consistent pattern of human rights violations in a country does not in itself constitute sufficient grounds for determining that there is a real risk of significant harm upon return to that country.
2.21 Decision makers should be aware that lawful sanctions can constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. For example, almost all forms of corporal punishment, including caning, whipping, flogging and stoning constitute cruel or inhuman treatment or punishment. An extremely mild form of corporal punishment may not be inconsistent with Article 7, however, this is a very narrow window.
2.22 Particularly harsh conditions of detention may also constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity. When assessing whether particular prison conditions amount to torture, cruel, inhuman or degrading treatment or punishment, decision makers should consider all the circumstances of the case, including the nature and context of the detention, its duration, physical and mental effects as well as the characteristics of the applicant, including their gender, age and state of health. (refer also to 2.19)
[my emphasis]
Relevant to this issue, I have considered submissions from [the applicant] and his adviser including country information reporting detention conditions and alleging use of torture by authorities in Sri Lanka. I have considered the evidence in this case as to the nature and context of detention, both during questioning and in the implementation of remand, having regard to the evidence as to its brief duration, to possible physical and mental discomfort due to crowding and sanitary conditions, and to other relevant factors.
On the evidence before me, I am not satisfied that there would be an intention on the part of the authorities to harm [the applicant] by detaining and remanding him under the I & E Act upon his return to Sri Lanka. I have considered the evidence about authorities exploiting detention to torture detainees, as exemplified in reports about the treatment of some Tamils, including those suspected of LTTE links, in the aftermath of the civil war, but I am not satisfied on the evidence before me that there is a real risk that [the applicant] would be tortured. I am not satisfied on the evidence before me that there is a real risk that [the applicant] would suffer significant harm of any kind from other people during detention or remand. On the evidence overall relating to detention and remand on return to Sri Lanka, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that [the applicant] will suffer significant harm.
I have also considered other aspects of the process of being prosecuted for illegal exit, taking account of the likelihood of a fine and reporting conditions, but also of the process involving likely freedom to return home to family, and on the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that [the applicant] will suffer significant harm at the hands of the authorities or anyone else. In particular, I am not satisfied that a monetary fine in [the applicant’s] case would be so onerous as to amount to significant harm, and he certainly did not argue that it might be.
Having considered all of [the applicant’s] claims I am not satisfied, on the evidence overall, that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Luke Hardy
Member

ATTACHMENT A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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.

imprisoned for 8 months and reportedly tortured in 2009 after having been deported to Sri Lanka from Australia. They were reported to be re-arrested in August 2010. The same case has been reported in more detail in the Asian Human Rights Commission’s report, Police torture Cases, 1998 – 2011, Sri Lanka, case 299, page 379,

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1512349 (Refugee) [2016] AATA 4902

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Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

[2016] AATA 4902

4 August 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Remedies

Standing