1514418 (Refugee)

[2017] AATA 2083

1514418 (Refugee) [2017] AATA 2083 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514418

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Louise Nicholls

DATE:16 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2017 at 6:01pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Tamil – Social Discrimination– Disappearance of a family member – Credibility issues

LEGISLATION

Migration Act 1958, ss 5J(2), 36, 36(2)(a), 36(2)(aa), 36(3), 65, 91R(i) (b)-(c), 91R(2), 499

Migration Regulations 1994, Schedule 2

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. The applicant claims to be a citizen of Sri Lanka and is [age]. He claims he was born in [Town 1] in the north of Sri Lanka. [In] September 2014 he arrived in Australia travelling on a Sri Lankan passport with an Australian sponsored visit visa.

2. The applicant applied for a protection visa [in] November 2014. He provided a number of documents with his application, including;

   ·Statutory declaration made by the applicant [in] November 2014.

   ·Extract of applicant’s Sri Lankan passport issued [in] 2008.

   ·Copies of applicant’s national identity card, certificate of birth and marriage certificate. 

   ·Applicant’s family member’s personal status and identity documents.

3. The applicant attended an interview at the Department of Immigration [in] May 2015.

4. The delegate of the Minister for immigration refused a protection visa because the delegate was not satisfied that the applicant met the requirements for a protection visa.

5. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

6. The applicant provided further documents together with the application for review, including;

   ·A copy of the delegate’s decision record of [October] 2015.

   ·Submissions made by the applicant dated [October] 2015.

   ·Various media reports on the country situation in Sri Lanka. The media reports refer variously to; the recommendation by the UN Commissioner for Human Rights to disband the Sri Lankan Commission on Forced Disappearances (30 September 2015), a statement by the UN Human Rights Council on setting up agencies to provide justice and reconciliation for victims of the Sri Lankan conflict, Amnesty International Report on Sri Lanka (2014/2015), a report from The Hindu newspaper outlining concerns with the draft resolution by Sri Lanka to be adopted by the UN Human Rights Council (30 September 2015), a further report on the resolution in the Sunday Leader, a report on a protest in the Sri Lankan Parliament on 6 October 2015 published in the Colombo Gazette, calls for the Commission on Forced Disappearances to be disbanded (11 October 2015), reports criticising the Rajapaksa government’s attitude to impunity, a report that 70 scholars opposed the 2015 UN resolution on Sri Lanka, a report on the targeting of the leader of the LTTE in the Island Online, several reports on the lack of accountability for war crimes and corruption; Sunday Leader, The Island, the Daily FT and the Hindu (2015).

7. The applicant was invited to attend the Tribunal on 21 July 2017 and he failed to appear. His application was dismissed but was reinstated after the Tribunal considered submissions made by his son in law as to the reasons for the applicant’s failure to appear.

8. The applicant appeared before the Tribunal on 9 October 2017 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.

9. The applicant is [age] and is a fluent Tamil speaker. The Tribunal observed that he was articulate and coherent in giving evidence and provided responsive answers to the Tribunal’s questions. When discussing his grandson’s disappearance he became distressed and was given a short break and was composed when he resumed his evidence.

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

    CONSIDERATION

11. The relevant law is set out in Attachment A.

12. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.

    What is the country of reference?

13. The applicant claims he was born in the northern district of Sri Lanka and is a citizen of Sri Lanka. He provided a copy of his Sri Lankan passport which was issued on [date] 2008 as well as other identity documents. He has consistently claimed that he is of Sri Lankan nationality and at the hearing spoke Tamil fluently and was familiar with the geography and culture of Sri Lanka.

14. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purposes of s.36(2)(aa).

    What are the applicants’ claims?

15. The applicant’s claims are set out in a statutory declaration of [in] November 2014, further discussed in the delegate’s interview of [May] 2015 and repeated in submissions made to the Tribunal on 24 October 2015. The applicant discussed, and elaborated on, his claims in oral evidence given at the hearing of 9 October 2017.

16. Essentially the applicant claims that if he returns to Sri Lanka he faces serious harm from government authorities in Sri Lanka because of;

    ·His Tamil ethnicity, and

    ·His inquiries into the disappearance of his [grandson] in December 2013. He claims that upon learning of his grandson’s disappearance he travelled from his home in Colombo to his daughter’s home in [Town 1] and made immediately made enquiries of certain [government officials] for the Northern Province as well as asking the Commission for Missing Persons to look into the disappearance.

17. As a result of his request to the Commission, he claims he was visited by authorities on 3 occasions, threatened, physically abused and that his grandson’s identity documents were destroyed. At the Tribunal hearing he also claimed that due to these enquiries, his son- in law from Colombo was detained by authorities in 2015, tortured and died as a result of his treatment in detention.

18. He claims that if he returns to Sri Lanka he will be tortured and killed by Sri Lankan authorities because he has previously made enquiries about his grandson’s disappearance.

    Background

19. The applicant is [age] and is a widower. He was born in [Town 1] in the north of Sri Lanka. After he finished school he joined his father in [a certain industry] and continued to work [in geographical area in] Jaffna District. Jaffna District is the northernmost region of Sri Lanka and is located on the northern peninsula.

20. The applicant also worked in [other] industries for many years. He also explained that during the worst of the civil conflict in Sri Lanka he and his family were displaced from their home on a number of occasions and lived in a number of different locations.

21. He married in [year] and he and his wife had [children]. His wife and his eldest [child] have passed away. [Details of children deleted].

22. After a series of displacements and his subsequent [retirement], the applicant went to live with his daughter and husband in Colombo in 2000 after his wife passed away. His daughter moved to [Country 1] in 2002 but he remained living in her home with other relatives. She returned in 2005 and he was living with her at the time he departed for Australia in 2014. Subsequently his Colombo son in law passed away in 2015 and he stated that his daughter then moved to the [Country 1].

23. With respect to his personal circumstances the Tribunal accepts that the applicant has been living with his second daughter [since] his arrival in Australia in September 2014 and that he was previously living in Colombo with family members from 2000 to 2014. After his son in law died in 2015 the applicant stated his youngest daughter has returned to live in [Country 1]. His eldest daughter currently lives in [Town 1] with her family.

    Assessment of claims

24. In the statutory declaration of [date] November 2014 the applicant set out his personal circumstances, recounted his personal history in the context of the civil conflict in Sri Lanka and his claims for protection.

25. He referred to the Sri Lankan Army’s activities in his village, the occupation of the family home and his family’s displacement during the conflict and subsequent move to live in Colombo in about 1997. He moved between Colombo and the northern areas until he returned to live permanently in Colombo in 2000.

26. Between 2006 and 2009 he described the security situation in Colombo and the rest of Sri Lanka.

27. He claimed that after the end of the civil conflict he hoped that the situation for Tamils would be resolved and that they would no longer face discrimination and harassment. However, he claimed that human rights violations continued and that Tamils were deprived of their property.

28. [In] December 2013 his [grandson] went missing [in] [Town 1]. The applicant claimed that he sought assistance from [high] profile individuals. He also went to see the Governor of the Northern Province and complained about the disappearance.

29. He went to the Commission of Missing Persons and travelled to Killinochi to give witness before this commission [in] January 2014.

30. He claimed that officials from this commission later visited him at home 3 times and warned him against making any further complaints. He was pushed, slapped and threatened with being killed in the event of any further complaint or appearance.

31. The officials confiscated the identity documents of his grandson and took the applicant’s fingerprints and photograph for their records.

32. The applicant claims he was a spiritual person and this experience affected him badly and his second daughter invited him to visit Australia to revive his spirits and seek consolation. He claims that if he returns to Sri Lanka he fears for his life and fears he may be arrested and tortured to death under the current regime. He claimed that more people have given witness to the Commission and have been arrested. He stated that the media reported that the Sri Lanka government was suppressing dissent and journalists were targeted for abuse. He claims that he has lost his fundamental human right to seek fair justice to investigate the disappearance of his grandson.

33. The applicant also claimed more generally that many Tamils have been mistreated in the post conflict era and that life for Tamils is still unsafe. He claimed that under the emergency law Tamils are vulnerable for arrest as terrorists or assisting terrorists.

34. In the interview with the delegate he outlined his personal circumstances. He repeated his claims that he feared he would be harmed if he returned to Sri Lanka because he had taken steps to contact parliamentarians and went to Killonochi to make a complaint to the Commission on Missing Persons. He claimed that officials came to his home and threatened him and took his grandson’s identity documents.

35. The applicant was living with his youngest daughter in Colombo when he left Sri Lanka. She had previously been living in [Country 1] but returned to live in Colombo in 2012.

36. He stated that whilst he was in Australia his youngest daughter’s husband died in 2015 of [an illness] in Colombo. His daughter wanted to return to live in [Country 1] after her husband’s death. Her children were studying in [Country 1] and she wanted to return to [Country 1] and when asked what would happen to her home he stated she would allow another relative to occupy her home.

37. In submissions to the Tribunal of 24 October 2015 the applicant stated that Sri Lanka has engaged in discriminatory conduct towards its Tamil population since the end of British colonial rule. He referred to the causes of the civil conflict and submitted that since the end of the conflict the situation for Tamils remains unsafe. He also submits that there is no process for accountability for war crimes and referred to his complaints about his grandson’s disappearance and appearance before the Commission. He also claimed he had been threatened, abused and assaulted.

38. The applicant confirmed that he had travelled to Australia on his own passport and had previously travelled to [another country] in 2008 on his own passport.

39. During the Tribunal hearing the applicant gave evidence that he came to Australia in 2014 because of his problems with the Army. When questioned further about his intentions when he visited he stated he did not intend to stay but after he arrived he learnt of many killings and disappearances in Sri Lanka so he decided to apply for protection.

40. The applicant stated he feared he would be arrested, tortured and killed if he returned to Sri Lanka because his [grandson] had been taken by the Sri Lankan Army in December 2013 and the applicant had made complaints to Members of Parliament and other educated people. He also went to a Commissioner of Jaffna to ask for help in finding his grandson.

41. He explained that at the time of the disappearance his eldest daughter and her husband were living in [Town 1] and their son [disappeared]. The applicant was living in Colombo with his youngest daughter and when the applicant found out about the disappearance he left for [Town 1] and the day after his arrival he attended the offices of parliamentarians and other high profile persons seeking information about the disappearance.

42. His daughter and son in law made a complaint to the local police station about the disappearance but heard nothing further from police.

43. He stated that people in his daughter’s village told her that the Army had taken his grandson but he was not aware of the reason. He stated that informers may have told the Army his son was involved with the LTTE. He agreed that his grandson was quite young during the civil conflict being [age] at the end of the conflict in 2009.

44. After the disappearance the applicant stayed with his daughter in [Town 1] for about 1 month to 6 weeks before he returned to Colombo. He stated he went to Killonochi during this period to make an enquiry to the Commission on Missing Persons about his grandson’s disappearance. He stated that after his enquiry people came to his home and mistreated him. When asked to give further details about this incident/s at first he stated these people were from the Army and were in uniform. He was in his daughter’s home when they came 3 times to his home and threatened him and beat him. They told him he would be in trouble if he made any further complaint. He also claimed that these people took his grandson’s photograph and identity documents and burnt them.

45. When the Tribunal asked him to describe what happened in as much detail as possible he essentially repeated the general claims he had made in his written statement. He could not give any further detail and could not describe the nature of the incident or give any other contextual detail. The Tribunal put it to him that it appeared he had memorised the claims from his written statement but was not describing events he had experienced.

46. He later agreed he had memorised his statement but pointed to his age as the reason he had done so.

47. The Tribunal asked him whether he had returned to Colombo from [Town 1] in early 2014 and remained there until he left for Australia in September 2014. He stated he had returned to Colombo and not revisited [Town 1] again before he left for Australia.

48. He then stated that in 2015 some people came looking for him in Colombo and took his son in law who was severely beaten and died as a result of his beating in detention. He agreed that this was the first time such a claim had been made. He claimed that his daughters had initially told him that his son in law had died from illness because they did not want to upset him but had now revealed the true cause of his son in law’s death.

49. The Tribunal told the applicant it had a problem with this evidence as it was the first time the claim had been made despite him making an application for protection in 2014 and having many opportunities to raise this claim at an earlier stage. He stated that his daughters had not told him and further he did not wish to use his son in law’s death to support his protection claim. The applicant provided the Tribunal with a Tamil language death notice for his son in law which was read and interpreted at the hearing. The notice stated that his son in law died [in] February 2015 and mentioned a number of relatives mourning his loss. There was no mention of any cause of death in the death notice. The applicant said they had not mentioned the cause of death in the notice to avoid trouble.

50. The Tribunal discussed country information set out in the current DFAT report with the applicant. He referred to a protest in Sri Lanka over the continued detention of LTTE activists, the unwillingness of the current government to discuss past wrongs and that members of the previous government were still involved in the current government.

51. The Tribunal accepts that the applicant is an [age] Tamil male born in the Jaffna district of Sri Lanka. It accepts that the applicant was affected during the civil conflict in Sri Lanka; it accepts he observed fighting and violence, experienced shelling, was displaced many times and together with others in the civilian Tamil population experienced security checks and insecurity during the conflict.

52. The Tribunal finds that the applicant obtained an Australian sponsored visit visa in 2014 and departed Sri Lanka legally using his own passport and arrived in Australia [in] September 2014.

53. The Tribunal also accepts that the applicant’s [grandson] disappeared in 2013 causing great distress to the applicant and his family. It accepts that the family still do not have any knowledge of what happened to his grandson. The applicant claimed, and the Tribunal accepts, that shortly after his grandson’s disappearance the applicant travelled to his daughter’s home in [Town 1] and made enquiries of local Members of Parliament, high profile members of the community and the Commissioner of the Northern Province. These enquiries did not establish his grandson’s whereabouts or condition.

54. The applicant claims, and the Tribunal accepts, he then presented himself to the Commission for Missing Persons in Killinochi to make enquiries about his grandson’s disappearance. He told the Tribunal he made an oral and written enquiry of the Commission but did not get a copy of any document he submitted to this Commission. He was not able to provide any further detail about his interactions with the Commission.

55. Country information from the 2015 DFAT Country Report on Sri Lanka noted that

    4.6 Sri Lanka’s Presidential Commission to Investigate into Complaints regarding Missing Persons has a mandate until 15 February 2016 to receive complaints relating to persons who went missing during the war period between June 1990 and May 2009. As at 25 August 2015 the Commission had received 18,099 complaints from civilians and 5,000 from security forces. At the 30th session of the Human Rights Council (HRC) in September 2015, the UN High Commissioner for Human Rights stated that this Commission should be disbanded due to widespread concerns regarding its credibility and effectiveness. In their response at the same HRC session, the Government of Sri Lanka committed to establish an Office on Missing Persons ‘based on the principles of the families’ right to know, to be set up by Statute with expertise from the ICRC, and in line with internationally accepted standards’. On 10 December 2015, Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearances.

1. The Tribunal does not accept the applicant’s claim that as a result of his enquiry/complaint about his grandson’s disappearance to the Presidential Commission, persons came to his home 3 times and mistreated and threatened him. At the hearing he also made a fresh claim that his son in law had been beaten and died in 2015 as a result of the applicant’s earlier enquiries. The Tribunal also does not accept this claim.

2. Firstly, as discussed with the applicant, the oral evidence he gave about these events appeared to be memorised from his statement and rehearsed. The applicant stated that he had memorised his statement and this was due to his concern about his age and forgetfulness. Whilst it is understandable that the applicant wished to refresh his memory of his earlier statement before the Tribunal hearing, the Tribunal would also expect that he could provide further detail of the claimed events when questioned. That he could not do so indicated he had not experienced the events as claimed. If the applicant had been beaten and threatened as claimed this would have been a very traumatic event and the Tribunal would expect that he would have been able to give some context and some further evidence of the encounter. He was not able to do so and kept reiterating the learnt material.

3. Further, in his written claims he stated that officials from the Commission came to his home 3 times and mistreated him whereas at the hearing he vacillated between claiming they were officials or Army personnel in uniform. In his written statement he had not indicated where and when these encounters took place. At the hearing he told the Tribunal he stayed in [Town 1] for 1 month to 6 weeks and these persons came to his daughter’s home in [Town 1] where he was staying.

4. The Tribunal also does not accept that the claim that persons (or Sri Lankan authorities) had come to his home in Colombo after he departed for Australia and took his son in law away, detained him, beat him and as a result his son in law died in 2015. The applicant could not satisfactorily explain why this claim had not been made earlier in the process or why he had told the delegate his son in law died as a result of illness. The death notice provided by the applicant and interpreted from the Tamil language at the hearing did not refer to a cause of death. The Tribunal does not accept the later version of events and considers the applicant has fabricated this evidence in an attempt to strengthen his claims for protection.

5. The applicant has pointed to his age as a reason for some issues with his evidence. The Tribunal has taken into account the applicant’s age in considering his evidence. However, whilst occasionally distressed during the hearing, overall he was quite articulate and vigorous in giving evidence. His evidence was coherent and lucid and he responded to the issues raised by the Tribunal in a rational manner.  

   Does the applicant meet the refugee criterion?

6. Taking into account the findings set out above, the Tribunal does not accept there is a real chance that the applicant will face harm for reasons of his Tamil ethnicity or for imputed antigovernment political opinion if he returns to Sri Lankan now or in the foreseeable future.

7. As set out above the Tribunal accepts that the applicant is an older man of Tamil ethnicity. The applicant has set out a history of how he and his family were affected by events before and during the civil conflict which ended in 2009. This involved displacement by the Sri Lanka Army on a number of occasions, exposure to shelling and other military activities, arbitrary raids and inspections at security checkpoints. However, until his departure from Sri Lanka he was living in Colombo for 14 years.

8. As discussed with the applicant at the hearing the Tribunal must consider whether the applicant faces serious harm in Sri Lanka now or in the foreseeable future. In this respect and taking into account the applicant’s evidence and relevant country information the Tribunal does not accept there is a real chance the applicant will face serious harm if he returns to Sri Lanka for reasons of his Tamil ethnicity. The country information in the latest Department of Foreign Affairs report on Sri Lanka[1] notes

   3.5 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census in 2012, the Tamil population was 3.1 million compared to 2.7 million in 1981. Thirty-two per cent of Tamils reside in the Northern Province, where they constitute approximately 93 per cent of the population. Twenty per cent of Tamils reside in the Eastern Province and 12 per cent in the Western Province (which includes the district of Colombo).

   [1] DFAT Country Information Report on Sri Lanka 24 January 2017

9. With respect to governance and security the report notes;

   2.2 In July 1983, conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE). In May 2009, the Sri Lankan Government announced its military victory over the LTTE and complete territorial control over Sri Lanka. During the course of the long civil conflict, hundreds of thousands of people were displaced and tens of thousands of people were killed on both sides of the conflict.

   2.3 Under the leadership of current President Maithripala Sirisena, who was democratically elected in January 2015, the Sri Lankan Government is focused on post-conflict reconciliation, transitional justice, and governance and economic reform.

   ….2.37 Since the conflict ended in May 2009, the security situation in Sri Lanka has greatly improved. The Sri Lankan Government–through its military, intelligence and police–exercises effective control over the entire country.

10. The Tribunal accepts that Tamils have faced discrimination in Sri Lanka in the past, including barriers to education and employment for some members of the Tamil community, predominantly in the north and east of the country.

11. The current DFAT report notes that Sri Lankans of all backgrounds have a low risk of experiencing official discrimination but that some societal discrimination may occur in relation to monolingual Tamil speakers in the Northern Province who may have difficulty communicating with government authorities. However, DFAT considers this arises from the lack of language resources in the north rather than official discrimination.[2]

    [2] DFAT Country Information Report on Sri Lanka 24 January 2017 3.4-3.9

12. DFAT also reports that previous monitoring and harassment of the Tamil population has decreased significantly under the Sirisena government and members of the Tamil community describe a positive shift in the nature of interactions with authorities.[3]

    [3] DFAT Country Information Report on Sri Lanka 24 January 2017 3.8, 3.9.

13. The UK Home Office report in June 2017 concludes that “a person being of Tamil ethnicity would not in itself warrant international protection.”[4]

    [4] UK Home Office Report on Sri Lanka Tamil separatism June 2017 p.3.1.2

14. The applicant is [age] and has lived in Colombo until 2014. He has not claimed to have experienced any recent harm for reasons of his Tamil ethnicity alone and there is no current country information which would support such a claim. Whilst there is country information indicating that some societal discrimination continues to exist in Sri Lanka the Tribunal does not accept that the applicant would be significantly affected by such discrimination or that it would amount to serious harm. He is not seeking employment or education, he has family members in Sri Lanka and his application form indicates he speaks Tamil and English and he has been able to function quite competently in Colombo since 2000.

15. The Tribunal also does not accept that there is a real chance the applicant will face serious harm if he returns to Sri Lanka for the reason that he has made several enquiries regarding the disappearance of his grandson in 2013 or that he has lodged an enquiry/complaint with the former Presidential Commission to Investigate into Complaints regarding Missing Persons.

16. The country information indicates that over 20,000 complaints had been made to the former Commission regarding missing civilians and members of the security forces.

17. The applicant provided a number of reports, one of which was an Amnesty International Report for 2014/2015 which in its introduction summary stated “Human rights defenders and family members of people subjected to forced disappearances were threatened and arrested…”. However there is no reference to the issue of threats to family members in the body of the report.

18. The UNHCR in reporting on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka[5] noted that prior to the election of the Sirisena government that widespread disappearances took place and that some family members of the disappeared persons were subject to reprisals and denied the right to an effective remedy. It noted credible criticism of the Former Presidential Commission and recommended that the Sri Lankan government

    (r)       Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;

    [5] Report of the Office of the United Nations High Commissioner for Human Rights on promoting Reconciliation, Accountability and Human Rights in Sri Lanka (16 September 2015)

19. The Tribunal has accepted that the applicant made a complaint to the former Presidential Commission on Missing Persons. Whilst it accepts that some family members of persons who disappeared may have been subject to reprisals for making complaints, as reported by the UN, it does not accept for reasons set out above that the applicant was mistreated by officials of the Commission or Army personnel in 2014. It does accept that complaints may not have been effectively dealt with and it accepts that the applicant may have unwilling to take further action given the discouraging environment at the time he made his complaint. The evidence indicates the applicant returned to Colombo from [Town 1] in early 2014 and remained there without incident until he left for Australia in September 2014.

20. The applicant departed Sri Lanka in September 2014 and in January 2015 the Sirisena government was elected. This election marked a significant change in the government’s approach to reconciliation and accountability for human rights abuses during and following the civil conflict. DFAT reports[6]

    2.29 The Sirisena Government has prioritised human rights and reconciliation and has made significant progress, including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era back to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA; and engaging constructively with the United Nations. The Government also established an Office of National Unity and Reconciliation (ONUR) to develop a national policy on reconciliation.

    ….2.32 On 18 December 2015, the Sri Lankan Cabinet approved the formation of the Secretariat for Coordinating Reconciliation Mechanisms within the Prime Minister’s Office to oversee mechanisms for advancing truth, justice and reconciliation in Sri Lanka; an Office on Missing Persons; an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a Special Counsel. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms to conduct public consultations on the design of the four mechanisms, with a final report to the President expected in 2017. DFAT assesses that if implemented effectively these mechanisms will provide a platform to achieve genuine reconciliation.

    [6] DFAT Country Information Report on Sri Lanka 24 January 2017

21. With respect to disappearances, DFAT reports that

    2.33 On 11 August 2016, the Sri Lankan Parliament passed a Bill to establish the Office on Missing Persons (OMP), the first permanent and independent body established to address the issue of missing persons in Sri Lanka. Members of the OMP are appointed by the President on the recommendation of the Constitutional Council. The OMP has the power to investigate disappearances and trace missing persons, including the power to search detention centres, obtain documents and summon people within Sri Lanka. The OMP has a mandate to investigate cases that occurred in the lead-up to and during the civil conflict and in the post-conflict period when Rajapaksa was still President (May 2009 - January 2015). It will also cover earlier periods of violent political disturbance in the 1970s and 1980s. The OMP does not have a prosecutorial mandate. The previous Presidential Commission to Investigate into Complaints Regarding Missing Persons collected over 23,000 cases during its term; the volume of cases submitted to the OMP would likely exceed this amount. At the time of writing, the OMP was still being established and had not yet begun staff recruitment. The OMP does not have a pre-determined end date and is expected to take years to complete its work.

    ….2.35 The Human Rights Commission of Sri Lanka (HRCSL) is the national human rights institution, is headquartered in Colombo and has 10 field offices. Citizens can petition the HRCSL about breaches of their fundamental rights. The HRCSL maintains comprehensive inquiry and investigation processes for matters involving executive or administrative action. It also publishes annual reports on the number of complaints received and resolved. The majority of complaints received refer to alleged discrimination in school admissions and public sector promotions but can include complaints about torture, disappearances, extra-judicial killings, deaths in custody and arrest and detention practices.

22. Whilst some commentators have reported that progress in implementing changes has been slow, the commitment to establishing an Office of Missing Persons (OMP) has recently been implemented. Media reports note that the legislation setting up the Missing Persons Office has been passed and the office has been established. The Daily News reported

    President Maithripala Sirisena signed the Office on Missing Persons (OMP) Act a short while ago, the President’s Media Division said.

    Tweeting at the end of the event the President said ‘I signed the Office of Missing Persons Act today. This marks another step forward in Sri Lanka's path to sustained peace.’

    Sri Lanka introduced a bill to establish the OMP on the 22nd of May and the Bill was gazetted on the 27th of May 2016.

    On June 21, the Office on Missing Persons Bill, presented by Prime Minister Ranil Wickremesinghe, was passed unanimously in Parliament.

    In signing the OMP Act, the President passes into law the first of four specific mechanisms towards transitional justice adopted by the consensus Resolution  ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’ adopted at the United Nations Human Rights Council, in 2015.[7] 

    The International Center for Transitional Justice noted

    The UN today lauded Sri Lanka for setting up the Office of Missing Persons (OMP), terming it a “significant milestone” for all searching for nearly 20,000 people who are still missing eight years after the end of nearly three-decade-long brutal civil war. Sri Lankan President Maithripala Sirisena signed the gazette on the OMP on Thursday, a move which has drawn praise from the international community.

    Farhan Haq, Deputy Spokesman for UN Secretary-General Antonio Gutereres, said that establishment of the OMP was a “significant milestone” for all Sri Lankans still searching for the truth about their missing loved ones. “The United Nations stands ready to support the process and that the Secretary-General looks forward to the OMP becoming operational as soon as possible, starting with the appointment of the independent commissioners,” Haq said quoted Guterres as saying in a statement.[8]

    [7] President signs Office on Missing Persons Act 20 July 2017 Daily News

    [8] ICTJ UN Hails Sri Lanka for establishing Office of Missing Persons 24 July 2017

23. The Tribunal does not accept that the applicant will be detained, tortured or killed as a result of his previous enquiries. Many thousands of Sri Lankans have lodged enquiries regarding the disappearance of relatives and many enquiries remain outstanding. There is no current information suggesting a pattern of reprisals or threats to family members of those who have disappeared.

24. The Tribunal finds that if the applicant returned to Sri Lanka he would not face serious harm for reasons of his conduct in making a previous complaint to the former Presidential Commission. It also considers he could renew his enquiries when the Office of Missing Persons becomes operational and he would not face serious harm if he chose to do so. The country information notes the large number of outstanding cases before the former Commission and estimates that even larger numbers will be before the OMP. Given the number of cases it is estimated remain to be investigated and the apparent commitment by government to set up and operate the OMP as recommended by the UN, the Tribunal considers that the applicant would not face serious harm for reasons of his previous complaint or if he decides to pursue the issue in the future.

25. Based on all the evidence before it, the Tribunal is not satisfied that that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real of chance of persecution for reasons of his Tamil ethnicity or for any imputed anti-government political opinion arising from complaints made to authorities about the disappearance of his grandson in 2013. The Tribunal is not satisfied that he has a well-founded fear of persecution for any Convention related reason.

    Does the applicant meet the complementary protection criterion?

26. The Tribunal has considered whether on the evidence before it, that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

27. There is some country information suggesting that there is a level of social discrimination against the Tamil community, particularly those living in former LTTE controlled areas in the north and east. However, the information suggests that since the end of the civil conflict that the situation has been gradually improving for the Tamil community; there are significant numbers of Tamil members of parliament, civilians have been appointed as governors in the northern provinces, more land has been released to the Tamil population and the current government of President Sirisena has taken concrete steps towards genuine reconciliation[9].

    [9] DFAT Country Report on Sri Lanka 24 January 2017 pp. 3.1-3.9

28. The Tribunal does not accept that the social discrimination which the applicant may be subjected to amounts to the type of significant harm contemplated in s.36(2A).

29. The applicant claims he will be detained, tortured and suffer significant harm if he returns to Sri Lanka. For the reasons set out earlier in this decision, the Tribunal does not accept that he will be mistreated as claimed or that he has a profile which will bring him to adverse attention of Sri Lankan authorities. He is an older, retired Tamil male who has lived in Colombo with his family from 2000 until 2014.

30. He left Sri Lankan legally on his own passport in 2014 and has not claimed to have committed any offences in Sri Lanka which would bring him to the attention of the Sri Lankan authorities on his return.

31. For all the reasons set out above the Tribunal is not satisfied 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 that he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

    CONCLUSION

1. 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 does not satisfy the criterion set out in s.36(2)(a).

2. 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).

3. 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

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

   Louise Nicholls

   
   

   Senior Member

   ATTACHMENT A

   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.

100.   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.

101.   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

102. 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’).

103. ‘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.

104. 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

105.   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.