1513698 (Refugee)

[2017] AATA 1035

1513698 (Refugee) [2017] AATA 1035 (25 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513698

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Magda Wysocka

DATE:25 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 25 May 2017 at 5:38pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Complementary protection – Particular social group – Sinhalese Buddhist – LTTE supporter or sympathiser – Imputed political opinion – UNP supporter – Arrest, abduction and interrogation – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48A, 65, 499
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

AMA15 v MIBP [2015] FCA 1424

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] October 2015. A copy of the delegate’s decision record has been provided to the tribunal by the applicant.

3. The applicant appeared before the Tribunal on 4 April 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. The applicant has previously applied for a protection visa [in] December 2009, which was refused by the department [in] March 2010. The Refugee Review Tribunal (as it was then known, or RRT) affirmed the decision on 8 July 2010.

5. The current application has been made following the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235 on 3 July 2013. The Full Federal Court in SZGIZ held that the operation of the statutory bar in s.48A (preventing a non-citizen making a further protection visa application while in the migration zone in circumstances where a previous protection visa application has been refused), as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. 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).

   Complementary protection criterion

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

10. Relevant to this case, torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).

11. However, 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.

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

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

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

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

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

17. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant is owed complementary protection obligations by Australia.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

19. The applicant has provided a copy of his current Sri Lankan passport biodata page to the department, on the basis of which the tribunal accepts that he is a citizen of Sri Lanka. It has therefore assessed his claims against that country.

    Claims

20. The applicant is a Sinhalese Buddhist born in [year] in [Colombo], Sri Lanka.  He arrived in Australia [in] November 2009 on a [temporary] visa and has remained in Australia since then. The applicant made brief claims in his most recent protection visa application form but his protection claims remain materially the same as in his original 2009 protection visa application, according to a 13 March 2015 submission from his representative to the department (which summarises those claims).[1] The tribunal has had regard to the evidence and submissions provided by the applicant and his representative to the department for the purpose of the current protection assessment. It has also had regard to evidence provided by the applicant in his original protection visa application, consisting of his written statement of claims of [December] 2009 (referred to as his ‘2009 statement’ and summarised in the delegate’s decision record regarding the current protection visa application) and various news articles, as well as the applicant’s evidence to the RRT in 2010. 

    [1] The tribunal notes that although the applicant’s current protection visa application form refers to a further statement to follow, no further statement was provided.

21. In summary, the applicant claims that he was suspected by Sri Lankan authorities of LTTE support, including transferring money from overseas for the LTTE, because of his association with Tamil friends whom he worked with at [his employer] from 1996 until approximately 2000. He claims that he was arrested in 1999 and 2007 and abducted in 2009 as a result of those suspicions. He further fears that he will be targeted upon return by the people who abducted him in 2009 in order to prevent him from telling anyone that they demanded money from him in exchange for his release.

22. The departmental delegate did not find the applicant’s claims to be credible and did not accept that he was ever arrested or accused of supporting the LTTE. 

    Credibility concerns

23. While the applicant has provided a generally consistent account of his key claims (with the exception of some discrepancies set out below), the tribunal holds significant concerns about the credibility of his account due to the implausibility of key aspects of his claims and the discrepancies between his evidence and country information.

24. Submissions from the applicant’s current representative to the department refer to the applicant’s previous visa application and ‘MRT appeal processes’ (which the tribunal takes to mean the previous RRT process) containing ‘numerous misunderstandings, confusions and misinterpretations’ which resulted in a failed application. No reference has been made in either written submissions or in the applicant’s oral evidence to what those specific misunderstandings or misinterpretations were and the applicant’s evidence to the present tribunal has remained essentially the same as his earlier claims. In the absence of any specific detailed evidence, the tribunal is not satisfied that the concerns it holds about the applicant’s evidence has resulted from any misunderstanding or misinterpretation of the applicant’s evidence in the past and gives little weight to this generalised assertion.

    The applicant’s suspected LTTE support and Tamil connections

25. The applicant claims that suspicions against him arose because he was friendly with Tamils with whom he worked [at Locations 1 and 2] of [his employer] from 1996 until approximately 2000.

    Tamil colleagues at [employer]

26. The applicant referred to three Tamil friends at the tribunal hearing ([name], [Mr A], [name]) whom he met working at [Location 2 of his employer]; his 2009 statement refers to a fourth. According to the applicant, more than half of the [employees] at [Location 2] were Tamils and about [number] were Sinhalese.  While the applicant has referred to Tamils he met at [Location 1], his evidence has only referred specifically to Tamil colleagues he knew from [Location 2]. That [location] was mostly staffed by what the applicant referred to as ‘outstation people’ ie, [employees] not resident in the area. The applicant claimed that he and most of the other [location] employees (including his Tamil friends) also lived together in the same quarters for six nights a week and socialised outside of work.

27. According to the applicant’s claims, before his own arrest in 1999, his Tamil friends/colleagues were arrested several times on suspicion that they were using [their employer's facilities] to send money from overseas to the LTTE. The applicant comes from a family of UNP supporters with political connections; his parents are [occupation] and his late father was [an official] when [Mr B] was [a senior official]. The applicant’s family became close to [Mr B] and the applicant would ask his mother to use her political connections through [Mr B] to release his Tamil friends. He was unable to recall how many times his friends had been arrested and stated that many workers [at his employer] had that problem.

28. The tribunal accepts that the applicant worked, lived and socialised with Tamil work colleagues at [Location 2]. Given the context of the civil war which was ongoing at the time, the tribunal is willing to accept that the applicant’s Tamil colleagues at [Location 2] may have been arrested for suspected LTTE support and mistreated during these arrests. The tribunal accepts the applicant’s consistent and plausible evidence regarding his family’s background including their connections to [Mr B]. The tribunal is willing to accept as plausible that the applicant may have asked his mother to use her political connections, including her relationship with [Mr B] to help secure his friends’ release.

29. While his 2009 statement of claims states that the authorities suspected that his friends were LTTE members who had obtained military training, the applicant’s evidence does not indicate that his Tamil colleagues were actually involved in the LTTE. Widely available country information indicates that Tamils, and in particular Tamil males, were harassed by the authorities on suspicion of LTTE support during the civil war. The applicant advised that he does not think that his friends were LTTE supporters and that many workers at [his employer], not just his friends, had the same problems. He further gave evidence the authorities thought that his Tamil colleagues were engaging in money transactions [using the employer's facilities] to send money from overseas to the LTTE. The tribunal is of the view that if the authorities held such serious suspicions and suspected his friends of being LTTE members, it is likely their employment would have been terminated. The applicant’s evidence does not suggest this occurred. The tribunal does not accept that the fact that [the employer] needed employees who spoke Tamil, as the applicant has claimed, would have prevented the [employer] from terminating his colleagues’ employment if they were seriously suspected by the authorities of using their [positions] to transfer money to the LTTE.

    1999 arrest

30. The applicant claims that he was first arrested in 1999, on his way home from [work], taken to a police station and questioned about all the [workers], whether people supported the LTTE and if they did money transactions [using the employer's facilities]. He claims that his mother (and her political connections) secured his release. The applicant has been inconsistent in his account of this incident in key aspects. The applicant told the tribunal that the police wanted to know about his friends and that they questioned him about all the [workers]. His account at the hearing was that they spoke to him, then he spoke to his mother and thinks that she spoke to [Mr B] who got him released. He claimed that he was not harmed during this incident but that the police just shouted very loudly.

31. This account of that 1999 arrest is inconsistent with the applicant’s previous evidence including in his original 2009 statement that he was beaten and abused during this incident. When this discrepancy was put to him, the applicant referred to the police shouting and banging but that they did not beat him.

32. Furthermore, at his previous tribunal hearing the applicant stated that he was arrested after a lot of his friends left the [employer] and when he was arrested he was questioned about where they had gone. At his hearing before the tribunal, however, the applicant stated that all three of his friends had resigned from [their positions] after he left [Location 2] (and in fact, he claimed that [Mr A] left [his position] in 2006).

33. Given these discrepancies, the tribunal is of the view that the applicant has significantly exaggerated his evidence. While, given the context of the civil war and his colleagues’ arrest, it is plausible that the applicant may have been questioned by police for information about his Tamil colleagues, the tribunal does not accept that he was arrested in 1999 as he claimed, beaten or abused, or that his mother and her political connections were required to secure his release. 

34. The applicant claimed that he subsequently applied for a transfer to Colombo and then in March 2000 he transferred to [another location] where he claims there were few or no Tamils. Given that the tribunal does not accept that the applicant was arrested or abused in 1999, it does not accept that he did so in order to get away from the problems he was facing in [Location 2]. The applicant claimed that he kept in touch with his Tamil friends, who, apart from his friend [Mr A], had gone overseas, but did not face any further problems until an arrest in 2007, which is discussed below. The lack of any further problems for the applicant (until at least 2007 as he has alleged) leads the tribunal to find that the authorities had no adverse interest in the applicant.

    2007 arrest

35. The applicant has given evidence that from 2005 he regularly travelled to [Country 1] and [Country 2] to buy [goods] for his [shop], which the applicant opened prior to his employment at [his employer] (and continued to run concurrently with his [job] for some time).

36. The applicant claims that he was arrested in January 2007 when returning to Sri Lanka from one such trip to [Country1] with a Tamil businessman whom he was friendly with from [a] market. According to the applicant’s evidence, the police at the airport arrested both of them, separated them and took them to the police station where the applicant was questioned about why he was travelling overseas and accused of collecting money from overseas and giving it to the LTTE through his friends. According to the applicant, he contacted his mother who was able to secure his release through [Mr B].

1. The tribunal finds the applicant’s claims regarding this incident lack credibility for a number of reasons.

2. When questioned about why the authorities would accuse the applicant of collecting overseas funds for the LTTE, the applicant claimed that he had gone to [City 1] in 2002 and that during his 2007 arrest, the police mentioned that they know he went to [City 1]. According to the applicant, his Tamil friends who were by then overseas (including [country] and Australia) had returned home in 2002 due to peace talks between the LTTE and Sri Lankan government. They invited the applicant to travel with them to [City 1] and the applicant travelled with them and also took his brother along.

3. The tribunal is willing to accept that the applicant may have travelled to [City 1] in 2002 with his Tamil friends and brother. However, the applicant’s evidence is that this trip lasted a total of two days, that they went to [another city] and only went to [City 1] on a day trip. The applicant further claimed that he did not face any problems in [City 1] but that some ‘LTTE people’ asked for money from his Tamil friends and in his 2009 statement referred to his friends being threatened to do so. The applicant has provided very limited evidence about his friends’ alleged payment of money to people who he believed to be LTTE or in what context that occurred, which leads the tribunal to reject this aspect of his evidence. Given these circumstances and the very limited nature of his trip, the tribunal finds it very difficult to accept that the applicant would be questioned or that suspicions would be raised about his day trip to [City 1] five years after it occurred. The tribunal finds that if the authorities held concerns about the applicant’s travel to [City 1], they would have had ample opportunity to question him about this between 2002 and 2007. As put to the applicant, his former representative made submissions to the previous tribunal that many people including Sinhalese travelled to [City 1] after the 2002 peace accords without problem. The applicant told the tribunal that he did not know why he was of interest.

4. The applicant also indicated that the authorities were suspicious about his frequent overseas travel. However, the applicant has indicated that he travelled frequently to [Country 1] and [Country 2] between 2005 and 2007 without incident. The tribunal finds that if the applicant’s travel overseas was of concern, there would have been ample opportunity for the authorities to question him after his previous trips overseas.

5. The tribunal further notes that in his 2009 statement the applicant claimed to have been beaten during this alleged arrest and interrogation. However, his evidence to the tribunal was that the only time he was harmed was in 2009 (discussed below).

6. The tribunal notes that the applicant has made claims that after the end of the ceasefire, many Tamils fled [City 1] and his friends’ relatives and friends faced hardship. His Tamil friends asked the applicant to help their relatives if they ever came to Colombo. In his 2009 statement the applicant claimed to have assisted some of his friends’ relatives to settle in [Locations 1 and 2]. In that statement and in his evidence to the tribunal, he claimed that he never received money from his friends for their families and always refused his friends’ request to help them send money to his relatives. Information set out in March 2015 submissions to the department from the applicant’s representative appears to contradict the applicant’s evidence. Those submissions state that the applicant was approached by Tamil friends to help organise money transfers and that the applicant was [able] to provide this kind of assistance. Given the applicant’s evidence to the tribunal, the tribunal does not accept that he ever received or passed on money to his Tamil friends’ relatives. The tribunal is willing to accept that the applicant may have provided assistance to his friends’ relatives in finding accommodation in the [Location 1 and 2] area. The tribunal does not accept that such assistance would have given rise to a suspicion of LTTE support, including transferring financial support, by the authorities, particularly given information discussed with the applicant at hearing that there is limited evidence that Sinhalese would be viewed as LTTE supporters.[2]  

   [2] CX32168: “CIR 377/98. Source doc: Sri Lanka: Sinhalese LTTE supporters)” Undefined 13 October 1998.

7. The tribunal also has concerns that despite the applicant’s claims that he was of such interest to authorities in January 2007 as to be detained by police directly upon his return to Sri Lanka and that the January 2007 arrest made him fearful of travelling outside of Sri Lanka, the applicant travelled to [Country 2] in May 2007, just a few months later, without being prevented from doing so or being questioned or detained either before or after his return. Given the numerous concerns the tribunal holds about the applicant’s claims including in relation to his 2007 arrest, the tribunal does not accept his explanation that he avoided problems when travelling to [Country 2] in May 2007 because he travelled there with a very powerful businessman.

8. The tribunal further finds the applicant’s evidence that he had no further problems with the authorities after January 2007 until his alleged kidnapping in 2009 to be inconsistent with the authorities’ adverse interest in him in 2007. Given its concerns about the credibility of the applicant’s claims, the tribunal does not accept that this lack of police interest resulted from the applicant staying away from Tamil friends, leaving his business in his wife’s hands or him not travelling to [a specified location] (where his Tamil wholesaler contacts were). If the applicant were of such adverse and long-term interest to the authorities, the tribunal finds that he would have been subjected to further questioning, detention and arrest. The tribunal also finds the applicant’s evidence that maybe the authorities were secretly following him vague and far-fetched.

9. The tribunal also finds that, if the applicant were suspected of transferring or receiving overseas money for the LTTE, it would be reasonable to assume that inquiries would be made at [his employer], where the applicant continued to work until he resigned from his position after he arrived in Australia. This is particularly so given that the applicant has claimed at various stages that the authorities suspected him of involvement in collecting LTTE funds [using his employer's facilities]. However, the applicant stated that the authorities never came to his [employer's premises] to question him and his evidence regarding the 2007 and 2009 incidents indicates that he was arrested while engaging in other activities – namely returning from a business trip to [Country 1] in 2007 and abducted while meeting a friend at a railway station in 2009.

10. The tribunal accepts that the applicant had a [business] that he continued to operate concurrently with his [main] job for some time and accepts that he travelled to [Country 2] and [Country 1] to buy wholesale goods for that business. Given the discrepancies and concerns set out above, the tribunal does not accept that the applicant or any Tamil businessman that he was travelling with were arrested in January 2007 upon returning to Sri Lanka from [Country 1]. The tribunal further does not accept that the applicant was beaten or interrogated by police including about his 2002 trip to [City 1] or trips overseas or that he was accused of receiving money from overseas for the LTTE. Given that the tribunal does not accept such an arrest or interrogation occurred, it does not accept that the applicant was released only after his mother contacted her political connections including [Mr B].

    2009 abduction

11. The applicant claimed that in October 2009, his old friend from the [employer], [Mr A] called him because he was in trouble. According to the applicant’s evidence, [Mr A] told the applicant over the phone that he was having trouble from paramilitaries who were demanding money from him. The applicant claimed that, while they were in regular contact, he had not seen [Mr A] in person since 2002 and agreed to meet him in front of [a] railway station in [Colombo]. They met on the roadside and [Mr A] explained that paramilitaries (whom he did not name) accused him of helping the LTTE by transferring and distributing funds from overseas. [Mr A] told the applicant that he had helped friends overseas send money to relatives through his account and thinks this is the reason why paramilitaries had accused him of helping the LTTE. They wanted [number] lakhs from him and [Mr A] wanted the applicant’s mother to help him. However, before they could finish their discussion [people] wearing white coloured uniforms pushed them both into a white van. They took the applicant and [Mr A] to a place they claimed was CID headquarter and separated them. According to the applicant, two men questioned him about his relationship with [Mr A], told the applicant that [Mr A] had claimed the applicant helped him with money transactions at [his employer] and that they will kill [Mr A] because he is with the LTTE.  The applicant claims that he was later transferred to another ‘secret place’ where the same two men got drunk, beat him and raped him.

12. The applicant claimed that his mother figured out that he had gone missing and spoke to [Mr B] who contacted the applicant’s abductors, who in turn contacted his mother to demand money for the applicant’s release. They also demanded that the applicant leave the country because they would get in trouble if the applicant told anyone that they had demanded money. The applicant was released after his mother paid [number] lakhs.

13. The tribunal finds it difficult to accept that within approximately half an hour of meeting his Tamil friend, whom the applicant had not seen in seven years, the applicant and [Mr A] would both be abducted outside of a busy railway station by men in a white van. This is particularly so, given that the tribunal has not accepted the applicant’s claims to have been arrested or of interest to the authorities in the past. The applicant suggested at hearing that the authorities may have been following him since 1999. He further suggested that [Mr A] may have set him up or that the authorities may have followed [Mr A]. The tribunal finds these suggestions to be far-fetched and speculative. They do not explain why the applicant, a Sinhalese man, would be of adverse interest to the authorities for suspected LTTE support, particularly over such a lengthy period of time. The tribunal does not accept that his friendship or work association with Tamils, his travel to [City 1] in 2002 or the assistance he gave to his Tamil friends’ relatives would have been sufficient to give rise to the level and length of adverse interest the applicant is claiming he received from the authorities.  As discussed with the applicant at hearing even during the decades of civil war, many Sinhalese and Tamils worked and lived together in Sri Lanka, and the Tamil population of Colombo alone was reportedly over half a million.[3] As previously noted, the applicant has stated that he did not believe his friends to have ever been involved with the LTTE, nor did he ever support or become involved in the LTTE himself. Furthermore, country information discussed with the applicant indicates that it would not be ‘credible’ for an ethnic Sinhalese to be accused of LTTE support.[4] As discussed with the applicant, while a 2012 Amnesty International report makes reference to the severe treatment of Sinhalese arrested on suspicion of LTTE support, this report cites the highly publicised arrests of Sinhalese activists accused of LTTE links in 2007.[5] The applicant has no such profile.

    [3] DFAT Country Information Report No. 67/99, dated 5 March 1999, CX35499.

    [4] DFAT cable CL605, dated 15 May 1997, CX22852; DFAT Country Information Report No. 377/98, dated 13 October 1998, CX32168.

    [5] Amnesty International Locked away: Sri Lanka’s Security Detainees, 13 March 2012, available at: p16, p 56 and footnote 33.

14. The tribunal also notes that the applicant has been inconsistent in his evidence about his abduction in 2009. In his previous tribunal hearing, he described spending about an hour at what he was told was ‘CID headquarters’ and then another hour in the second place he was taken to. However, at the hearing before the current tribunal, the applicant described the whole incident as lasting ten hours. When questioned about this discrepancy, the applicant stated that he could not remember the timing. While the tribunal acknowledges that this incident occurred several years ago, this discrepancy in time adds to the tribunal’s concerns.

15. Given its concerns the tribunal does not accept the applicant’s claims that he was contacted by his friend [Mr A] in October 2009 because paramilitaries wanted to extort money from him and [Mr A] wanted help from the applicant’s mother. The tribunal does not accept that the applicant and [Mr A] were kidnapped by unknown men in a white van outside of [a railway] station [in] October 2009 and does accept that they were taken to CID headquarters. Given these findings the tribunal does not accept that the applicant was interrogated about his links to [Mr A] or the LTTE, does not accept that he was accused of supporting the LTTE or transferring money for the LTTE and does not accept that he was told [Mr A] was an LTTE member who would be killed. Given the tribunal has rejected these claims, it follows that it does not accept the applicant was transferred to another place where he was beaten, abused, molested or raped by the same two men who questioned him.

16. On the basis of its concerns and above findings, the tribunal further does not accept that the applicant’s mother learnt of his detention through [Mr B] or other political contacts.

17. Given the above findings the tribunal also does not accept that the applicant was released upon payment by his mother of [number] lakh rupees and under the agreement that he leave Sri Lanka and report to a police station. The applicant’s evidence about this reporting condition has been inconsistent and unclear. He originally claimed that he was required to report twice a week but told the current tribunal that he had to report just once a week. The tribunal also questions why the applicant would be required to report to a police station when his abductors made him promise to leave the country. When questioned about this, the applicant suggested that it may have been to keep tabs on him and that if he did not report, then they would have known he had left the country. The tribunal finds the alleged requirement that the applicant report to police contradictory to the requirement that he leave the country. It further does not accept that after the applicant’s departure, the same people contacted his mother on two or three occasions to find out why he had stopped reporting to police.

18. Given its above findings, the tribunal does not accept that the applicant faces a real risk of significant harm from men who abducted him in 2009 including because these men fear the applicant will accuse them of abducting or extorting money from him, as he has claimed.

    Future risk of significant harm

19. The tribunal has considered the future risk of significant harm to the applicant, given its findings above.

20. As discussed with the applicant at hearing, the situation in Sri Lanka has changed since the end of the civil conflict between the government and the LTTE. The LTTE is now a spent force and there have been no terrorist incidents since the end of the civil war in May 2009.[6] The situation for Tamils in Sri Lanka has improved since the end of the war and particularly since the election of the current Sirisena government.[7] Some of the positive changes noted are the replacement of military governors in the Northern and Eastern Provinces with civilians, releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA, and the reestablishment of independent commissions, in particular the Human Rights Commission.[8]

    [6] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

    [7] DFAT Country Information Report Sri Lanka (24 January 2017).

    [8] DFAT Country Information Report Sri Lanka (24 January 2017).

21. The tribunal discussed with the applicant information indicating that the  scope of the Sri Lankan authorities’ focus had narrowed since the end of the war, as were the findings in the country guidance decision of GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) where the UK Upper Tribunal relevantly identified individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state as among the current categories at risk of serious harm.[9] This guidance decision, as well as other country information, has informed current UK Home Office policy advice that past membership or connection to the LTTE does not warrant protection unless an individual is perceived to have a significant role in post-conflict Tamil separatism or appears on an airport ‘stop list’.[10] The tribunal does not accept that the country information suggests that Tamil ethnicity, or friendship or association with persons of Tamil ethnicity, gives rise to a real risk of significant harm.

    [9] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

    [10] UK Home Office Country Information and Guidance- Sri Lanka: Tamil Separatism (March 2017) at 3.1.3.

22. The tribunal accepts that the applicant had Tamil colleagues at [his employer] whom he was friendly with, to the extent that he requested his mother use her political connections to release them after having been arrested in the late 1990s. It accepts that the applicant may have been questioned by police in approximately 1999. The tribunal further accepts that the applicant travelled to [City 1] for a day trip with his Tamil friends in 2002 and accepts that he may have provided some non-monetary assistance to some of their relatives to settle in central Sri Lanka. The tribunal further accepts that the applicant had contact with Tamil wholesalers and customers in the context of his [business], as he has claimed, and on at least one occasion in 2007 travelled overseas with a Tamil businessman. While the applicant has provided very little detail about this, the tribunal is willing to accept the applicant’s evidence that in the past he may have accompanied his brother on trips to [various locations] in the course of his brother’s [work].

23. Taking all of these findings into consideration, noting that it has rejected the applicant’s claims of past harm and adverse interest and having regard to the current country information, the tribunal does not accept that the applicant’s past business and social connections with Tamils would result in him facing a real risk of significant harm including due to any perceived LTTE support from the Sri Lankan authorities including the CID, or from government-associated militias and paramilitaries.

24. The applicant’s 2009 statement made reference to him fearing persecution based on his race, religion, nationality, membership of a particular social group. As noted, the tribunal has considered the applicant’s claims only in relation to s.36(2)(aa). The applicant has referred in his evidence to the authorities and/or his abductors threatening him because he was a Sinhalese Buddhist sympathiser of the LTTE and a Sinhalese Buddhist who helped Tamils. Given that the tribunal does not accept that the applicant was ever arrested, harmed or abducted in the past, it does not accept that he was ever threatened, including with death, for being a Sinhalese Buddhist LTTE supporter or sympathiser or Sinhalese Buddhist who helped Tamils. The applicant has made no other claims as to why he would face harm due to his religion or ethnicity. The tribunal does not accept that he faces a real risk of significant harm as a Sinhalese Buddhist, including as a Sinhalese Buddhist suspected of LTTE support or Sinhalese Buddhist who helped Tamils.

1. The applicant’s evidence is that he carried on his [business] while still employed by [his employer] but did not disclose his business to his employer because, as [an] employee, he was restricted from carrying on a private enterprise. The tribunal is willing to accept such regulations exist and, given it accepts the applicant ran a [business], accepts that the applicant may have contravened [his employer's] regulations by continuing to run his business. The applicant has not provided any evidence to indicate that this would result in significant harm to him in the future, nor does his evidence suggest he was targeted for reasons of running a private business. The tribunal does not accept he faces a real risk of significant harm due to having run a private business while employed at [his employer].

2. The tribunal has also considered the evidence before it regarding the applicant and his family’s UNP associations. The tribunal accepts that the applicant’s family has supported the UNP and has ties with former UNP politicians such as [Mr B] although at hearing the applicant described these connections as being on a personal level rather than political. The applicant has provided unclear evidence about his and his family’s level of involvement with the party. The applicant told the tribunal that he has no interest in politics himself although at the previous tribunal hearing he stated that although he was not supposed to have political involvement due to his [specified] employment, he supported the UNP whenever possible including giving money and attending political meetings when not working.

3. While he has previously referred to himself and his family as strong UNP supporters, the applicant’s evidence at the hearing was that his family did not participate in rallies or other public support for the UNP but donated some money to the party. However, the applicant later told the tribunal that his family now support former president Rajapaksa’s Freedom Party and that this is because the politicians that his family support (including [Mr B]) changed parties.

4. Despite the somewhat confused and evolving nature of the applicant’s evidence, the tribunal accepts that the applicant’s family may have in the past provided financial support to the UNP and accepts that their loyalties may lie with individual politicians such as [Mr B] rather than the political party itself, and is willing to accept that his family may now support the Sri Lanka Freedom Party (SLFP).  Given the inconsistencies in the applicant’s evidence and his evidence to the tribunal that he has no interest in politics, the tribunal does not accept that the applicant is or ever was a strong UNP supporter or that he ever donated money to the party or attended political meetings. The applicant told the tribunal that he had no other fears of returning to Sri Lanka apart from the authorities’ alleged imputation of LTTE support. It was discussed with the applicant that the most recent parliamentary elections in August 2015 ushered in a ‘national unity’ government and that a coalition of party’s including the UNP and President Sirisena’s SLFP faction won a majority of seats.[11] As discussed with the applicant, the evidence before the tribunal does not suggest that supporters, including financial supporters of the UNP or the SLFP are targeted. The applicant has not indicated that he or his family were ever targeted in the past due to their support for the UNP or any other political party. The tribunal does not, therefore, accept that the applicant faces a real risk of significant harm due to any real or perceived UNP support or due to his family’s switch to support SLFP politicians. 

   Findings on complementary protection

   [11] DFAT Country Information Report Sri Lanka (24 January 2017).

5. Having regard to the evidence before it, the tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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

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

   Magda Wysocka
   Member