1514305 (Refugee)

[2016] AATA 4380

1514305 (Refugee) [2016] AATA 4380 (29 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514305

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:29 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 August 2016 at 10:18am

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] June 2012 and the delegate refused to grant the visa [in] October 2012.

3.    The review application was initially determined by another member of the Tribunal (`the first Tribunal’) [in]  May 2014. [In] June 2015, the Federal Circuit Court of Australia ordered that the decision of the Tribunal be quashed and the matter be remitted to the Tribunal to be reconsidered according to law. The matter is now before the current Tribunal.

4.    The applicant appeared before the Tribunal on 21 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

RELEVANT LAW

5. 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

6. 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).

7.    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.

8.    Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10.    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11.    Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12.    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13.    Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14.    In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15.    Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

16. 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’).

17.    ‘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.

18.    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

19.    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

1. The applicant claims to be a citizen of  Sri Lanka who was born in [City 1], in Gampaha district [date] . According to his protection visa application he lived in [City 1] in Gampaha district from [date] and from late [date] at various [addresses]. The applicant completed secondary school and is fluent in Tamil, can speak Singhalese and speak and read a little English. He described his occupation before coming to Australia as [Profession]. He worked in his father’s shop in Colombo from about 1999 to 2008. The applicant departed Sri Lanka legally in about 2009. He was in [Country 1]in mid-2009 for 5 days, in [Country 2] in mid-2009 for about 2 months or so and in [Country 3] from late 2009 to early 2012. His father is deceased. His mother, [siblings] are residing in Sri Lanka. He has a brother who is missing.  

2. The applicant presented his claims in his protection visa application [in] June 2012 (folios 28 and 29 and 49 to 80 of Department file [deleted]), a Departmental interview he attended [in] June 2012, submissions received by the Department and the first Tribunal and at his Tribunal hearings on 4 March 2013 and 21 April 2016. The applicant provided a copy of the primary decision record to the Tribunal for the purpose of the review, and is taken to be on notice of its contents, reasons and findings. The applicant was notified of the first Tribunal’s decision and is taken to be on notice of the contents, reasons and findings of the first Tribunal. 

3. The following is the statutory declaration made by the applicant attached to his protection visa application:

   1.I was born in Gampaha in Sri Lanka [date]. I am [age].

   2.I am Tamil and Muslim.

   3.I fear that if I was forced to return to Sri Lanka I would be at risk of being harmed because of my race and religion. I also fear risk of serious harm due to my imputed political opinion and membership of a particular social group because of my perceived involvement in terrorist activity and because I left Sri Lanka to seek protection.

   My family background

   4.I grew up in Gampaha where I lived with my family.

   5.My father had a shop in Colombo which is about an hour from our home. I attended school and worked in the shop as well. I have many[siblings] .

   6.One of my brothers, [name] , had supported the United National Party and had been involved in the campaign elections. I also sometimes helped my brother, but I was not as involved as him. For example, I would stick up campaign posters.

   Detention of my brother by the police

   7.My father had a shop. He passed away when I was at school. My brother, [name] , took over the business after my father passed away. After I finished school, I began working in our family business.

   8.My problems in Sri Lanka started in about late 2008. I was working in my family's shop with my [brother]. My other [siblings] were married and were employed elsewhere.

   9.As part of the family business, we used to do deliveries for customers. We had a storeroom with both our goods, as well as goods provided by other suppliers, that we would deliver to customers. The suppliers would leave their own items in boxes which were sealed and labelled by them. We did not have a practice of breaking open the sealed boxes and checking the contents of the boxes.

   10.In about late 2008, I was told that an armed group came to our store in a van. I was not there as I was out delivering goods, but my [brother], , was in the shop at the time. An employee was in the storeroom which is nearby to the shop. We thought that the men were from the Criminal Investigation Division (CID). The boxes were searched and I was told that the CID found arms in one of the large boxes.

   11.I am not sure why they came. It is possible that we were targeted because we are a Tamil owned business delivering goods to areas, including Tamil areas.

   12.The men questioned my brother. I was told that my brother tried to explain that we are only a delivery service for suppliers and do not check the contents of the boxes. During the questioning, my brother also mentioned that I was also in charge of the store. The men took my brother in the van and said that they were taking him to the police station. They left a message with the other employees who were in the shop that I must report to the police when I return to the shop.

   13.The employees in the shop telephoned me and told me about what had happened and said that I must come back to the shop immediately.

   Enquiries about my brother's whereabouts

   14.When I returned, I went to the police station to make an enquiry as to my brother's whereabouts. The police said that no one had dropped my brother at the police station and that so far they had not received any report. They said that they would contact me if they knew anything further and I gave them my details. I continued to ask about what had occurred to my brother. However, as I spoke to them, it became more heated. So I decided not to wait at the police station for my brother.

   15.I went home to my family's house and explained the situation.

   16.Afterwards, I went to the local police to enquire about my brother. The police were not willing to accept my enquiry. I tried to explain what had occurred and that I wanted to make an police entry, but the police started abusing me that I had been involved in terrorist activities and was assisting the LTTE. The local police threatened to arrest me, so I returned home.

   17.When I got home, my mother said that it was not a good idea for me to stay at home for a while given what had occurred. So I went and stayed elsewhere.

   Hiding from the Sri Lankan authorities

   18.A little while after I had been in hiding, my mother told me that an armed group had come in a van and were searching for me. They told my mother that they were looking for me and stated my name. My mother confirmed that I was her son, but said that I was not here. They told my mother that once I returned home, I must report to the police immediately and not hide myself.

   19.My mother was crying and told them that they have already taken one son and that she didn't know where he was. They told my mother that they have my brother in custody and that my brother will not be released until I report to them.

   20.My mother phoned me after the CID left and told me that I must not come home. She was scared that if came back then what happened to my brother would happen to me. My mother told me that the authorities continued to come to my mother's house frequently after that in search of me. They continued to threaten my mother. They told her that I must report to them and if I didn't and they caught me that they would shoot me. I had to remain in hiding and stayed in various places.

   21.Due to the problems, my family had to close the shop.

   22.I decided that I could not continue living in hiding in fear for my safety. I began making arrangements to leave Sri Lanka. I was [deleted] in my family and although I did not want to leave my country, I knew that I would not be safe if I stayed. My mother also encouraged me to leave as she was scared for me. We both feared that I would be detained or killed or subjected to enforced disappearance by the Sri Lankan authorities like my [brother].

   Seeking protection

   23. In about mid-2009, I flew to [Country 1] on a passport that had been issued when I was younger. I entered [Country 2] by land. I wanted to get to Australia in order to seek protection.

   24. I took a boat heading to Australia. When we were on our way, the [Country 3] authorities caught us. We explained to the [Country 3] authorities that we are refugees going towards Australia to seek protection. The [Country 3] authorities took custody of us. We refused to disembark the boat in[Country 3]. [information deleted].25.   I found out that this incident was reported in the media. In some of the media, it was reported that we were Tamils seeking protection from the Sri Lankan authorities. However, we found out that some of the Sri Lankan media reported that a number of Tamils were seeking protection, but that we were LTTE suspects and should be sent back to Sri Lanka. Our identity was published widely, including media clippings in the news in Sri Lanka. My family told me that they saw me on the Sri Lankan TV news.

   26.Eventually, I managed to get off the boat and swim to shore with some others. I lived in [Country 3]for some time.

   Living in [Country 3] and coming to Australia

   27.   When I was in[Country 3] , I approached the UNHCR for assistance.

   28.I heard that boats were going from [Counrty 3] to Australia and took one of these boats. I arrived [to a detention centre] [in] 2012.

   29.I also wanted clarify that my national ID card says it was issued [in] December 2009. I had applied for it much earlier before the problems began for me in Sri Lanka. It took a very long time for it to be issued. It was only issued while I was away from Sri Lanka. My family sent me a copy of it.

   What I fear would happen if I was forced to return to Sri Lanka

   30.I fear that I would be detained, tortured or even killed if I was returned to Sri Lanka. There is nowhere safe for me in Sri Lanka.

   31.Even though I left Sri Lanka some time ago, my brother is still missing. Since I have been away, my mother has informed me that the authorities have continued to search for me.

   32.Recently, when I was in Australia, my mother informed me that the authorities had come to her house asking for me. I am still of interest to the Sri Lanka authorities. I fear that I would be subject to serious harm if I was forced to return. My situation is aggravated by the fact that I left Sri Lanka after the authorities began searching for me and my disappearance would have increased my profile to the authorities.

   33.I also fear that I will face serious harm from the authorities as a Tamil who has left Sri Lanka seeking protection. I think that the authorities would be aware that I had sought protection,[information deleted]. I fear that the Sri Lankan authorities will target me because I will be perceived as expressing a political opinion against the Sri Lanka government or as a LTTE suspect.

   34.As I fear serious harm from the state authorities, there is no one to protect me in Sri Lanka. The harm that I fear is not localised to any particular area and I would face serious harm throughout Sri Lanka. The Sri Lankan authorities would be able to trace me. As a Tamil, we are looked at with suspicion. When we go to new areas, we are generally required to register with the authorities.

   35.For all of the above reasons, I ask the Australian government to protect me and not send me back to Sri Lanka.

23. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

2. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including copies of his birth certificate, his mother’s birth certificate, a Grama Niladhari certificate, a letter from [two organisations]. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

3. The applicant claimed in the hearing, when asked why he fears returning to Sri Lanka, that he is a problem person in Sri Lanka and it has nothing to do with his[siblings] . He explained that he and his brother were running a business in Sri Lanka which was started by their father. He claimed he was in charge of the store in the shop and his brother was in charge of the shop. One day when he was out making a delivery, some people arrived in a white van and searched the store and ammunition was discovered. His brother was arrested and taken away in the white van and is still missing. When asked what he thinks will happen if he returns to Sri Lanka, the applicant claimed that as he was in charge of the store and his brother has been taken away he will be targeted next by the people who came in the white van.  In response to the Tribunal’s question why these people would want to harm if he went back to Sri Lanka now, the applicant stated that his entire dossier is with them.

4. The Tribunal does not accept the applicant’s claims regarding the alleged problems he had from 2008, when his [brother] was allegedly taken by a group of armed men after arms were found in a box in their store in Colombo, are credible. The Tribunal finds the applicant’s evidence in respect of what allegedly transpired to be vague, inconsistent and implausible.

5. The Tribunal finds the applicant’s evidence in relation to who allegedly visited his family’s shop in Colombo and took his brother has changed over time. It notes in the applicant’s statutory declaration attached to his protection visa application, he stated that it was an armed group, who he thought were from the Criminal Investigation Division (CID), who came to the shop and took his brother and he repeatedly referred to them being CID. Similarly, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant described the people who allegedly searched his family shop and took his brother as being the CID. Yet, in the hearing the applicant explained that these people were paid servants of the government or a clandestine gang of men who help the government, who are not actually directly involved with the authorities.

6. The Tribunal does not accept the applicant’s claim made in the hearing, when asked why these people would want to harm him on his return to Sri Lanka, that his entire dossier is with these people. The Tribunal found the applicant’s evidence to be vague and internally inconsistent. In response to the Tribunal’s question about how he knew that his entire dossier or all his documents were with this group, the applicant stated that he was pretty sure the CID are still searching from him all over Sri Lanka. However, when the Tribunal asked the applicant if he was saying the CID had a dossier on him, the applicant stated he did not know who. He subsequently went on to say that there was a special branch of the government which kept all the dossiers of the “needed” people but he did not know where it is being kept.  The Tribunal finds the applicant’s evidence regarding the existence of a dossier which includes all the information on him to be ambiguous, somewhat incoherent and contradictory.

7. The Tribunal finds the applicant’s evidence regarding the alleged interest in his family’s shop and their activities by the authorities inconsistent. The Tribunal notes the applicant claimed in the hearing that prior to the incident when his brother was taken after ammunition was allegedly found in a box there, the police and similar authorities had dropped into the shop on numerous occasions and warned them against delivering [goods] to the [a particular] part of the [country]. He claimed that this happened two or three months before his brother was abducted. He could not say how often the police or authorities came as he explained that he was inside the store which was in a different location to the shop, which is where they came,  but he had seen on one occasion his brother discussing matters with them. However, the Tribunal notes the applicant had not previously made any claims regarding numerous visits to the shop and being warned against delivering goods to the [particular part]of the country.  According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had stated in his protection interview that prior to the day his brother was taken or since that day the CID have never come in search, or to search their shop. Yet, in a response from the applicant to information put to him by the delegate following the interview, the applicant claimed that the authorities had inspected their shop previously and found records that showed a delivery of batteries to a Tamil area and this may have led to the authorities suspecting that they may have provided batteries to the LTTE. Further, in the decision of the first Tribunal it was stated that the applicant had claimed that the shop’s activities were of concern to police due to its regular deliveries of electronics outside of Colombo and that he was not aware of any problems arising from these practices before 2008 and it was noted that he speculated that there was a possibility of minor problems which his father and brother may not have told him about.

8. The Tribunal also found the applicant’s evidence regarding what happened on the day when his brother was allegedly taken by these people in a white van to be discrepant. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application he claimed that he was told by the employee who was in the storeroom which was nearby to the shop, where his brother was at the time the group came, that during the questioning his brother had mentioned that he, the applicant, was in charge of the store and the men left a message with the other employees who were in the shop that the applicant must report to the police when he returned. However, the applicant did not raise during the current hearing either the fact that his brother had told these people that he was in charge of the store or that a message was left by these people for him to attend the police station. The applicant also claimed in the hearing that after returning to the shop and learning of what had happened, he rushed to [police station] and spoke to the guys in the “frontline”. He claimed that he told them his brother had been taken away and he wanted an enquiry and they responded that they were ignorant of this matter but asked him to wait while they spoke to their superiors and while they were communicating over the phone he suspected he would be taken in for questioning so he did not wait for their answer and scooted off. Yet, in the applicant’s statutory declaration attached to his protection visa application, he claimed that when he went to make an enquiry as to his brother’s whereabouts, the police said no-one had dropped his brother off at the police station and that so far they had not received any report and they would contact him if they knew anything further and he gave them his details. He also claimed that he continued to ask about what had occurred to his brother, however as he spoke to them, it became more heated so he decided not to wait at the police station for his brother.

9. Further, the Tribunal notes that in the hearing the applicant omitted the fact that when he went to his local police station, in [Suburb 1], that the police started abusing him that he had been involved in terrorist activities and was assisting the LTTE and that they threatened to arrest him, as he had previously claimed in his statutory declaration attached to his protection visa. Instead the applicant claimed that when he went to [Suburb 1] police station he explained the situation and they did not believe him. He stated that the police asked him to wait while they made some enquiries and while they were inside communicating with each other he sensed they might take him into custody and because of this fear he ran away. When the Tribunal put this discrepancy to the applicant in the hearing, he responded stating because he had already mentioned everything, he was giving his evidence today in a quick fashion rather than pinpointing every incident and that his mind was in much confusion. The Tribunal does not accept that the variation in the applicant’s account of what allegedly happened at the police station is either the result of him not providing detailed responses or because he was confused. The Tribunal notes as it did in the hearing, that it asked the applicant detailed questions to illicit the relevant information from him and in light of the fact the applicant has appeared before the Tribunal previously, it finds that the applicant would have an appreciation of the importance in providing a full response to the Tribunal’s questions. The Tribunal finds the inconsistency in the applicant’s evidence as to what transpired, particularly during this second visit to his local police station, to be significant. As the Tribunal put to the applicant in the hearing, it is of the view that he has altered his evidence about the alleged accusations made by the police that he was involved in terrorist activities and/or assisting the LTTE in light of the delegate’s and previous Tribunal’s findings regarding the implausibility of him being allowed to leave the police station in circumstances where such accusations had been made. The Tribunal finds the applicant’s initial claim that he was able to leave the police station, despite serious accusations of being involved in terrorist activities and supporting the LTTE made against him, to be unbelievable, particularly in light of the independent information about how those suspected of assisting the LTTE or engaging in terrorist activities were treated by the authorities at that time. The Tribunal has had regard to the applicant’s previous adviser’s submission that it was plausible that the applicant was able to depart the police stations because the police stations which the applicant attended may not have been aware the applicant was suspected of running LTTE weapons, the applicant voluntarily attended the police stations in search for his brother and his brother’s arrest may not have been formally recorded as he had been taken by paramilitary actors. However, it was the applicant’s own evidence that he was informed by the police that he was suspected of LTTE or terrorist activities and in these circumstances the Tribunal does not accept the adviser’s submission that the police were not aware of these allegations or that the applicant would not be detained for questioning and simply allowed to leave.

10. The Tribunal also finds it far-fetched that if the applicant had attended the police station and had been accused of being involved in terrorist activities and assisting the LTTE as he claimed in his statutory declaration attached to his protection visa application, that he would simply be allowed to leave the police station and then a few days later enquiries would be made about him. In the hearing the applicant claimed that it was a week after his brother’s abduction that his mother was approached by these people and that his mother was not astute enough to know who they were. He stated that these people told his mother that he was wanted by them and if she could please ask him to surrender himself to them. When the Tribunal queried how he could surrender himself to them if his mother did not know who they were, the applicant subsequently claimed that their wording was “ask your son to visit the police station in Colombo and report”.

11. The Tribunal found the applicant’s evidence in relation to the enquiries that were made about him after he allegedly went into hiding to be vague and contradictory and does not accept that he went into hiding as he claimed. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application he claimed that his mother told him the authorities continued to come to her house frequently in search of him and continued to threaten her. He claimed that they told his mother that if he did not report to them and if they caught him they would shoot him. However, his evidence to the Tribunal was that he came to know, not through his mother because she would not say anything to him, but through other people who know his mother, that they have been going to his mother’s house month after month. When the Tribunal queried who these people were that told him about these alleged visits, the applicant claimed that he initiated a friend of his to go and see his mother and get some information. The applicant was unable to tell the Tribunal how many times these people came looking for him, simply stating he believed it was many times in the night. However, he claimed that they were still enquiring about him now, some 7 years later, as recently about two months ago, which the Tribunal finds implausible given the passage of time. The Tribunal therefore does not accept that people came looking for him in the past or that they continue to do so.  

12. In regard to the applicant’s family shop, the Tribunal has some doubts about the existence of the applicant’s family shop, however is prepared to give the applicant the benefit of the doubt and accept that his family owned a business in Colombo. However, the Tribunal does not accept the applicant’s involvement in the shop based on a number of deficiencies in his evidence. It notes the applicant told the Tribunal that he and his brother were running a [business], with a lot of [goods] and that he was in charge of the store and his brother the shop. He claimed that they had between 2 to 4 staff and their roles were customer service, shifting and shuffling things from here to there and delivering to the vehicles. There were also men who did the deliveries. Yet, later in the hearing, when discussing what happened to the business after his brother allegedly went missing and he went into hiding, the applicant claimed that there was a manager who was appointed by his brother to look after the business. The Tribunal has serious doubts that if the applicant was involved in this business, particularly in the manner that he had described, that the applicant would fail to mention the existence of a manager who was purportedly running the business in his and his brother’s absence when specifically asked earlier in the hearing about the role of the employees in the business. The Tribunal also notes the applicant explained in the hearing that the store was in a different location to the shop, in the same suburb; the shop was at one address and the store a little further away. However, in his statutory declaration attached to his protection visa application, the applicant stated that the storeroom was nearby the shop. Further, in relation to the closing of the business, the applicant’s evidence in the hearing was that his mother had decided to close the business. When asked who actually closed it, the applicant stated once the shop was closed it was closed; “that is all”. However, when the Tribunal queried who would have got rid of whatever was left in the shop, paid the suppliers and made other arrangements to close the shop, he claimed it was the manager who had the responsibility of winding up the shop. Yet, according to the delegate’s decision, his evidence was that he had called the suppliers and explained that they could not continue with the business and arranged for items to be refunded and he closed the shop.

36.    The Tribunal has also taken into consideration the applicant’s legal departure from Sri Lanka in 2009. The Tribunal has considered the applicant’s evidence regarding the alleged assistance he received in departing Sri Lanka on his own passport. In the hearing the applicant claimed that he had to bribe a lot of people to get out of the country. When asked who he had bribed, the applicant stated that a friend of his helped him organise someone who works in the airport to make the arrangements. It notes that he claimed in the hearing his [friend] told him that there was a person at the airport who could organise his departure from the country if he paid him. The applicant stated that he had forgotten the person at the airport’s name but confirmed that he was a Sinhalese national. The applicant stated that this person sat behind a counter and stamped his passport and did everything for him to board the plane. He paid this person 600,000 rupees. The Tribunal notes the applicant had not provided these details regarding the assistance he had allegedly received in departing the country prior to this hearing. Further, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had previously claimed he left the country using an agent [named] who was a customs officer from the same village. Given the discrepancy in the applicant’s evidence in relation to the assistance he received, the Tribunal finds the applicant departed Sri Lanka on his own passport without paying any money to an agent or customs officer or anyone else to facilitate his departure.

37.    For the reasons discussed above, namely the vague and inconsistent nature of the applicant’s evidence and implausibility of aspects of his claims, the Tribunal does not accept the applicant’s claims regarding the problems that either he or his brother experienced from 2008 are credible. The Tribunal does not accept that an armed group, either the CID, paramilitary forces or a clandestine gang of men assisting the government, came to the applicant’s family business in 2008 and searched the premises and found a box with arms or ammunition in it, questioned the applicant’s brother and then took him in a van, purportedly to the police station. The Tribunal does not accept that prior to this incident, the applicant’s family shop was visited by the police or any other authorities and they were warned against delivering goods to [a part] of the country, particularly[city], or that the shop had been inspected previously and records were found showing that they had delivered batteries to a Tamil area.

38.    As the Tribunal does not accept that the applicant’s family shop was ever visited or searched by the authorities or any other group of people or that the applicant’s brother was taken in a van by the CID or a clandestine gang of men helping the government, the Tribunal does not accept the applicant’s brother is missing. The Tribunal also does not accept that the applicant was asked to go to the police station or that he went to the police station to enquire about his brother’s whereabouts. It does not accept that when the applicant allegedly attended the police station he was accused of being involved in terrorist activities and assisting the LTTE and that he was threatened with being arrested before leaving the police station and returning home, as he claimed in his statutory declaration, or going and staying at a friend’s place in [City 1]. It therefore follows that the Tribunal does not accept that the applicant went into hiding in various parts of the country between this incident and his departure from the country or that the applicant’s mother received any visits from this armed the group, the CID or anyone else looking for the applicant including up until recently. Similarly, the Tribunal does not accept that because the applicant left Sri Lanka when the authorities began searching for him, that his disappearance has increased his profile to the authorities as he claimed in his statutory declaration attached to his protection visa application.

39.    Given the Tribunal’s findings, the Tribunal does not accept that either the applicant or his brother have ever been of any interest to the authorities or anyone else in the past, for any reason including on suspicion of have connections with the LTTE or because they have a dossier on the applicant. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm on his return to Sir Lanka because of his perceived involvement in terrorist activity or an imputed political opinion in support of the LTTE.

40.    Nor does the Tribunal accept that the applicant faces a real chance of persecution as a wealthy Muslim business-owner in Colombo, on his return to the country.  As discussed above, the Tribunal does not accept that the applicant was involved in the running of this shop with his brother as he claimed. Further, the applicant’s evidence was that this shop was closed in 2008 or 2009 and there is nothing before the Tribunal to suggest that the applicant or his family owns any other business or that the applicant would establish and operate a business on his return to Sri Lanka, now or in the reasonably foreseeable future. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm as a Tamil businessman or a perceived wealthy Tamil businessman, now or in the reasonably foreseeable future, on his return to Sri Lanka.

41.    The Tribunal notes the applicant raised for the first time during the hearing with the previous Tribunal that his family holds significant wealth from the former Colombo business and that there had been fraud or extortion of his brothers’ [Bank 1] account. His evidence to the first Tribunal was that he had discovered the fraud through a close family friend at the bank, who was subsequently forced to resign. The applicant claimed his knowledge of the fraud and future action to expose this activity will result in him facing harm or death. When asked about this in the hearing, the applicant claimed that a sizeable amount of money in his brothers’ bank account with the[Bank 2], as opposed to the [Bank 1]as he had previously claimed, had disappeared. Further, in response to the Tribunal’s question as to how he learnt about the loss of this money, the applicant claimed someone had checked his brother’s bank balance and the money was not there. When asked who had checked, the applicant stated he did not know who went and checked. He stated someone must have done it but not his mother. The Tribunal notes that there was nothing in the applicant’s evidence in the hearing to suggest that the person who advised him about the alleged disappearance of this money was a close family friend who worked in the bank, as he had previously claimed. Given the inconsistency in the applicant’s evidence regarding this claim, the Tribunal does not find it to be credible. The Tribunal has also taken into consideration the applicant’s delay in raising this until the hearing with the first Tribunal. While the applicant explained that he was not aware of what he had to say when he first arrived in Australia, as the Tribunal put to him, its concern was the he did not mention anything about the alleged loss of money from his brother’s account either in his application for protection, which he had the assistance of a lawyer in preparing or in the submissions received from his adviser. Nor did it appear that he raised this during his interview with the Department based on the delegate’s decision, a copy of which was provided to the Tribunal. The Tribunal also does not accept the applicant’s claim that he never thought about the money missing from his brother’s account because it was his brother’s account. The difficulty the Tribunal has with this explanation is that the applicant claimed that it was his knowledge of this fraud and his possible future actions that would lead him to face harm and death, therefore in these circumstances it has direct relevance to the applicant and his alleged fears on return to Sri Lanka.

42.    Given the applicant’s delay in raising this particular claim and the discrepancies in his evidence as discussed above, the Tribunal does not accept the applicant’s family holds substantial wealth or that the applicant’s brothers’ bank account has been defrauded by the government as part of the targeting of wealthy Muslim businessman, as submitted by the applicant’s previous adviser, or anyone else and that the applicant will seek to expose this fraud and recover the money on his return to Sri Lanka. As the Tribunal does not find the applicant’s claim regarding the confiscation of his brother’s money is credible, the Tribunal does not accept that the applicant is at risk of harm or death as a result of any future action he would take to expose this alleged fraud.

43.    The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application he claimed that his brother supported the United National Party (UNP) and had been involved in campaign elections and he also sometimes helped his brother but was not as involved as him. In the hearing the Tribunal asked the applicant about his and his brother’s support of the UNP. The applicant stated that his brother would pay for posters, banners and things like that and would decorate his shop with them. In relation to his own activities in support of the UNP, the applicant claimed that he was not that much involved; he pasted posters and distributed leaflets during elections. When asked how many elections he engaged in those activities, the applicant stated once he helped his brother. The Tribunal asked the applicant if he ever had any problems as a result of his brother’s support of the UNP. He stated that there were always some petty problems that erupt but they did not take much notice of that. When asked if he had ever had any problems, the applicant stated that he was not that much involved and at that time he was not worried about that much. The Tribunal specifically asked the applicant if he had any fears in relation to his brother’s association with the UNP and he responded not much of a fear. The Tribunal finds on the applicant’s evidence that he does not have a subjective fear of harm based on his brother’s support of the UNP or his own very limited support of the party. Nor does the Tribunal accept on the evidence before it, that there is a real chance of the applicant facing serious harm on his return to Sri Lanka for his very limited support of the UNP during one election sometime in the past.  

44.    The applicant also claimed in his statutory declaration that he fears that he will face serious harm from the authorities as a Tamil who has left Sri Lanka seeking protection. The applicant claimed that as a Tamil, “we” are looked at with suspicion. Firstly, the Tribunal does not accept that the applicant is Tamil as he claims. The Tribunal asked the applicant if he identified as Tamil and the applicant responded that he is Tamil but his religion is Muslim. The Tribunal has taken into consideration information put to the applicant in the hearing which suggests that Muslims are not Tamils. As the Tribunal put to the applicant, sources provide that Muslims in Sri Lanka have their own ethnic identity as descendants of Arabs, but generally speak Tamil or Sinhala depending on where they live on the island. According to UK Home Office 2009, Country of origin information report: Sri Lanka, 26 June the population of Sri Lanka is comprised of Sinhalese (73.8 per cent), Sri Lankan Moors (Muslims) 7.2 per cent, Indian Tamil 4.6 per cent, Sri Lankan Tamil 3.9 per cent, other 0.5 per cent and an unspecified 10 per cent (2001 census provisional data) of other. In a 2007 paper for the East-West Center, Washington, McGilvray and Raheem mention that Sri Lankan Muslims have their own identity, separate from the Sinhalese and Tamils:

In the post-independence period, the Muslim leadership at the national level abandoned their colonial identity as Arabs ("Moors") and adopted a religious identity as Muslims, clearly defining their ethnicity as neither Sinhala nor Tamil (McGilvray, D. & Raheem, M. 2007 ‘Muslim perspectives on the Sri Lankan conflict’, East-West Center Washington).

45.    An article by Ameer Ali originally published in the Journal of Muslim Minority Affairs in 1997 also states “that the Muslim community had a separate identity and that they were neither Tamils nor Sinhalese but Moors of Arab origin”. A 2006 International Crisis Group report comments on the difficult position of the Muslim communities during Sri Lanka’s conflict,  stating that “Muslims have a bitter joke about their role in the conflict: ‘It’s like a football match. One side is the LTTE, the other is the government. We Muslims are the football’” (International Crisis Group 2006, ‘Sri Lanka: The failure of the peace process’, ICG website, 28 November

46.    Based on the independent information before it, the Tribunal does not accept that the applicant’s ethnicity is Tamil or that he would be imputed with Tamil ethnicity or that as a Tamil he would be imputed with an anti-government political opinion, including being imputed with support for the LTTE. This is further supported by country information the Tribunal discussed with the applicant which suggests that in general, Muslims were said to be more supportive of the Government than of the LTTE and, during the war, had felt safer in Government controlled areas as opposed to LTTE controlled areas.  It also provides that Muslims were generally opposed to Tamil aspirations for a separate state, were the victims of LTTE attacks and that there were significant tensions between the Tamil community and Muslims. In the article by Ameer Ali referred to above, which detailed the history of Muslim and Tamil relations in the context of the Tamil separatist struggle, it was stated that “in spite of the language affinity with the Tamils, the Muslims are obviously not sympathetic towards a division of the country along ethnic lines”. The Tribunal therefore finds that while the applicant is a Tamil speaking Muslim, he is not ethnically Tamil and as such, it does not accept that he is a Tamil or a Tamil male or that as a Tamil, he would be imputed with an anti-government political opinion. Nor does the Tribunal accept that the applicant would be perceived to be Tamil because he speaks the Tamil language or for any other reason given his name clearly identifies him as a Muslim.  

47.    The applicant raised in the hearing that recently there have been incidents in Sri Lanka where Muslims have been specifically targeted, including Muslim businesses being burnt down and being attacked by authorities. The applicant referred to the group Bodu Bala Sena (BBS), which he claimed was initially affiliated with the government, who have been responsible for attacking Muslims. The Tribunal notes the applicant’s evidence that he was able to practice his Muslim religion and that he attended the mosque in his area.

48.    As the Tribunal put to the applicant in the hearing, according to the DFAT report on Sri Lanka dated 18 December 2016, the Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism a ‘foremost place’. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment. The report provides that the Muslim community is the fastest growing ethnic community in Sri Lanka. Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million. 98% of Muslims are Sunni. Most Muslims speak Tamil as their first language. Muslim communities are found throughout Sri Lanka, including in Colombo and Kandy, but larger communities exist in the east in Ampara, Batticaloa and Trincomalee and in the west in Mannar and Puttalam. At the date of the report, the Sri Lanka Muslim Congress (SLMC), the largest Muslim political party in Sri Lanka, had seven members of parliament and is part of Sirisena’s coalition government. The All Ceylon Muslim Congress is another Muslim party with elected members of parliament. There are also Muslim Members of Parliament in the two major parties, the SLFP and the UNP, including in ministerial positions. Although most Muslims sided with the Sinhalese Government forces during the civil conflict, there has been a recent rise in religious tensions between Muslims and the Sinhala-speaking Buddhist majority, particularly with nationalist groups such as Sinhala Ravaya (Sinhalese Roar) and the BBS. The report noted that there have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses. According to the SLMC there were at least 241 anti-Muslim attacks and 69 anti-Christian attacks during 2013. In June 2014, Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that was blamed by many for inciting violent riots between Buddhists and Muslims in Aluthgama. At the time, the BBS operated with support from the Rajapaksa government. However, its activities have drastically decreased in 2015 as a result of the change of government. DFAT assessed that, given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka. DFAT also assessed that, like other religious groups, Muslims in Sri Lanka are not subject to official discrimination and are generally able to practise their faith freely. DFAT was told that religious tensions and violence in 2013 and 2014 had reduced in 2015, but DFAT assessed that there remains a moderate risk of societal discrimination against Muslim Sri Lankans, however the Tribunal does not accept that such discrimination amounts to serious harm within s.91R(1).  

49.    While the applicant discussed an incident that he thought occurred in 2007, when one of the heads of the mosque in [City 1] was attacked by a Sinhalese mob and after the attack the Muslim community demonstrated because of perceived inaction by the police (although he also claimed the police had apprehended some Sinhalese men who were accused of this attack), which the Tribunal accepts may have occurred, the Tribunal does not accept the applicant’s claims that as a result of his participation in these demonstrations, the local Sinhalese people came to know who he was and were not happy with him. The Tribunal finds it implausible that the applicant as one of many people from his community would have attracted the attention and disquiet of the Sinhalese people in his area. The Tribunal also found the applicant’s evidence regarding his alleged notoriety unconvincing. While initially claiming that “they” rose up to attack him, when asked if he was attacked, he stated that they were planning to attack him, and others, but he slowly left the area. After other questions to determine whether the applicant was actually attacked, he confirmed he was not attacked by Sinhalese mobs. The Tribunal also does not accept the applicant’s contention that he avoided being harmed by these Sinhalese men living in areas surrounding [City 1]by not going on the side of the path, behind his home where Sinhalese people live. The Tribunal finds it implausible that for most of the applicant’s life, which he spent residing in[City 1], that he took one particular route and did not go anywhere behind his house. The Tribunal does not accept the applicant would face a real chance of serious harm on his return to Sri Lanka, now or in the reasonably foreseeable future, because of this incident in 2007, some nine years ago, given the long passage of time.

50.    Having regard to the independent information discussed above which suggests while there was a period of increased violence against Muslims this has decreased, the applicant’s ability to practice his religion and his evidence that he actually had not experienced any harm in the past because of his Muslim faith, the Tribunal does not accept that the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, if he returns to Sri Lanka for reasons of his Muslim religion or that he is at a heightened risk of harm as a Muslim because of his profile as a Muslim businessman.   

51.    The Tribunal has serious doubts about the applicant’s claimed presence on [a] boat. The Tribunal notes that there is nothing before it to suggest when the applicant actually departed Sri Lanka or whether he transited lawfully through [Country 1] and [Country 2] in 2009 before travelling to [Country 3] and boarding [a] boat. While the applicant claimed in the hearing that he left Sri Lanka on [in]  July 2009, according to the applicant’s protection visa application he claimed he departed in “about 2009”. Further, the applicant’s national identity card shows that it was issued in December 2009, which suggests that the applicant had not left Sri Lanka prior to that date. Although the applicant claimed that his family posted the national identity card to him from Sri Lanka once it was issued, in light of the Tribunal’s findings regarding the credibility of the applicant’s claims and his evidence generally, the Tribunal questions the reliability of the applicant’s assertions regarding the timing of his departure from Sri Lanka. The Tribunal also notes the applicant claimed for the first time during the hearing that he registered himself with IOM and they have all the details that he was on the boat. Despite the applicant’s insistence that he had mentioned this before this hearing, the Tribunal finds that the applicant had not previously raised registering with IOM but had instead spoke about approaching UNHCR in [Country 3] for assistance and that his delay in mentioning this raises serious doubts about his credibility.

52.    However, even if the Tribunal accepts that the applicant was a passenger on the [boat], the Tribunal does not accept that his presence on the vessel has become known to the authorities and that he will be harmed on his return to Sri Lanka due to imputed LTTE connections or because he will be imputed with anti-government opinions through his presence on the boat. [information deleted].

53.    [Information deleted].  

54.    Based on the above the Tribunal does not accept that there is a real chance that the applicant will be identified by the Sri Lankan authorities[information deleted] , including on suspicion of terrorist activities or assisting the LTTE, the Tribunal finds the chances of the applicant being seriously harmed by the government or the authorities for reasons of an imputed political opinion in support of the LTTE or an anti-government profile, remote.

55.    The applicant also provided a photograph which he claims is of him arriving [to a detention centre]. He claimed that a friend of his found this picture online and posted it on his Facebook page. The Tribunal notes the photograph shows the back of a man. This person’s face is obscured and not visible. While the applicant insisted that this was a picture of him, the Tribunal does not accept that this is a photograph of the applicant. However, even if it is him, the Tribunal does not accept that the applicant would be recognised or identified from this picture given that it only shows his back and his face cannot be seen.

56.    The Tribunal accepts that the applicant will face some brief questioning on his return to Sri Lanka to establish his identity, right of entry and general background. According to DFAT’s report dated 18 December 2015, which the Tribunal discussed with the applicant in the hearing, upon arrival in Sri Lanka, involuntary returnees, 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. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters. 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. The reports also suggest that persons without any adverse profile are released at the airport without further interest.

57.    While the Tribunal accepts, as it put to the applicant in the hearing, that there are some reports by human rights organisations such as Amnesty and Human Rights Watch suggesting some examples of serious harm to returnees, the Tribunal finds that these appear to be isolated examples where individuals have had particular adverse profiles. The Tribunal also refers to the decision of the UK Upper Tribunal in GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), as put to the applicant in the hearing, which noted that the cases reported by organisation such as Human Rights Watch, Freedom from Torture and Tamils Against Genocide in their reports were not a representative sample. The Tribunal has also had regard to the article the applicant submitted at hearing from the Tamil Guardian dated 30 September 2014 titled Tamil asylum seekers deported from Australia raped and tortured. The Tribunal notes that this article refers to several accounts of rape and torture of people who had been accused of being associated with the LTTE or had experienced political problems, after being deported to Sri Lankan. Given the Tribunal’s findings above regarding the applicant’s profile, as a Muslim male  who departed the country legally and was of no previous interest to the authorities or the government for any reason, the Tribunal does not accept that the applicant will face any prolonged administrative detention or interrogation on his return to Sri Lanka or that he faces a real chance of serious harm during the return process.

58.    In regard to the applicant’s claim that he will face harm as a failed asylum seeker, the Tribunal has taken into consideration DFAT’s advice , as discussed with him in the hearing, that significant numbers of Sri Lankan have been returned involuntarily to Sri Lanka from Australia and other countries and the independent sources do not indicate that returnees as identified as someone who had sought asylum in Australia or another western country would face a real chance of serious harm. The Tribunal does not accept that it will be assumed that the applicant had criticised the Sri Lankan government overseas, particularly in light of his profile and the fact that there is nothing in the applicant’s evidence to suggest that he has publicly criticised the government or been politically active against the government in the past. As discussed above, while the Tribunal has serious doubts the applicant was aboard the [boat] as he claims, even if it accepts this, for the reasons outlined previously, the Tribunal does not accept that he was identifiable and therefore does not accept that this would have any consequences for him on his return to Sri Lanka. While the applicant accepts that the Sri Lankan government may deduce from the applicant’s lengthy absence from the country and return from Australia that he had sought asylum here, the Tribunal does not accept on all the information before it, and his accepted profile, that the applicant faces a real chance of serious harm on his return to Sri Lanka as a failed asylum seeker or an imputed political opinion critical of the government as a failed asylum seeker.

1. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted for a Convention reason including his perceived involvement with the LTTE, an imputed anti-government opinion, his alleged Tamil ethnicity, as supporter of the UNP or as a returned or failed asylum seeker. Nor does the Tribunal accept that the applicant faces a real chance of being seriously harmed as a businessman or wealthy Tamil/Muslim businessman or the alleged government’s confiscation of his brother’s business profits or as a Muslim or as a result of his presence on the [boat]. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

2. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

3. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

4. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant’s claims regarding either his or his brother’s problems associated with the shop/store that they allegedly ran together in Colombo are credible. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the police, the CID, the Sri Lankan authorities or government or clandestine gangs helping the government because of an imputed political opinion of support for the LTTE or a perceived association with the LTTE.

5. Based on the findings of the Tribunal above regarding the applicant’s past experiences in Sri Lanka and the country information discussing the situation for Muslims in the country, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as a Muslim or Tamil speaking Muslim. Nor does the Tribunal accept that any societal discrimination the applicant may be subjected to as a Muslim amounts to significant harm as defined in s.36(2A) of the Act.  

6. The Tribunal also does not accept, for the reasons discussed above, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm as a Muslim businessman or a wealthy Muslim businessman or a wealthy Muslim.

7. Nor does the Tribunal accept that applicant’s past limited support of the UNP or his brother’s association with the UNP, which resulted in the applicant experiencing no problems or difficulties in the past, would lead to a real risk of significant harm to the applicant on his return to Sri Lanka.

8. The Tribunal is also not satisfied on the country information and its earlier findings and reasons regarding the applicant’s profile, that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a failed [asylum seeker].. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as outlined in s.36(2A) of the Act . The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to as a result of his absence from the country or as a failed asylum seeker/returnee.

9. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

10. 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 the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

11. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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

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

    Sydelle Muling
    Member