1514996 (Refugee) - [2016] AATA 3882

1514996 (Refugee) [2016] AATA 3882 (26 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514996
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Christopher Smolicz
DATE:26 May 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 26 May 2016 at 10:11am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] April 2013 and the delegate refused to grant the visa [in] December 2013.
[In] January 2014 the applicant applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision. The applicant appeared before the RRT, differently constituted, on 23 January 2015 (the first hearing).
On 31 July 2015 the RRT affirmed the Department’s decision not to grant the applicant a Protection visa.[1]The applicant sought judicial review of the RRT decision to the Federal Circuit Court of Australia (FCCA). [In] October 2015 the matter was remitted by consent on the basis that the Member failed to consider the applicant’s claims based on being a returnee failed asylum seeker and failed to make any findings in relation to any risk of significant harm on his return to Sri Lanka.
[1] RRT decision ref. 1400558
The matter is now before the Tribunal differently constituted pursuant to the order of the FCCA.
The applicant appeared before the Tribunal on 14 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. The applicant was represented in relation to the review by his registered migration agent.
If the Tribunal is reconstituted following a remittal, the reconstituted Tribunal is not bound by any findings on the review made by the Tribunal as previously constituted. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
The Tribunal explained to the applicant at the commencement of the hearing that it was assessing his claims afresh and was not bound by the findings of the Department or the first Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal had taken 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 country information assessment on Sri Lanka dated 18 December 2015 prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that it is relevant to the decision under consideration.
The applicant’s factual claims and the Tribunal’s findings
The issues in this case are whether the applicant meets the refugee or complementary protection criteria because:
·     of his imputed or actual political opinion of being opposed to the United National Party (UNP)
·     he has been falsely charged with assaulting a UNP Member of Parliament (MP)
·     his [relative] is a member and candidate of the Janatha Vimukthi Peramuna (JVP) party
·     he departed Sri Lanka illegally and would return to Sri Lanka as a failed asylum seeker
·     a warrant has been issued in Sri Lanka for his arrest.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing and his entry interview, statutory declarations and statement of claim. Where relevant the applicant’s oral evidence at the first hearing is also referred to below.
Background
The applicant is a [age] married, Catholic, Sri Lankan Tamil from [name], [District 1], North West Province, Sri Lanka. He worked as a self-employed farmer before travelling to Australia. He arrived in Australia as an illegal maritime arrival [in] July 2012. His wife and [number] children have remained in Sri Lanka. He has [number] siblings living in the same village and a [sibling] who is living in [country].
Summary of substantive claims
The applicant claims that [in] February 2010 he attended a political rally for a local UNP MP called [name].[2] [Mr A]. The applicant said the rally was held before the Parliamentary elections and was attended by about 300 to 400 people. He attended the rally with some friends. The applicant said he has had no association with [Mr A] and had never heard of [Mr A] prior to attending the rally.
[2] Country information confirms the name of the UNP candidate was [name]
The Tribunal questioned the applicant about his role in the rally. The applicant said he is not a member of any political party. He attended as an ordinary member of the crowd and did not participate in any political activity.
After further questioning the applicant said his [relative] was a candidate for the JVP seeking election. He would occasionally help his [relative] but was not involved with the party or politics in Sri Lanka.
The applicant said that everyone in his area attends political rallies so that they don’t miss out on preferential treatment if the politician is elected.
The applicant said that soon after the rally commenced members of opposing political parties turned up at the rally and fighting broke out among the supporters. The Tribunal asked the applicant if he was able to identify the opposition parties involved. The applicant said he did not see and there were many different parties involved. As soon as the fighting erupted he left the rally and returned home. He did not take part in the fighting and was not attacked or injured. He did not witness any of the violence.
The Tribunal notes that the applicant’s original statement of claim provides a different description of the incident. For example the applicant stated that after the meeting started “members of the ruling SLP entered the meeting and said the meeting could not continue. [Mr A] was very angry and refused to stop the meeting. The conflict resulted in a fight between the two groups. As soon as the fight started I left the venue.”
The applicant said that about half an hour after he returned home he received a telephone call from a friend who told him that people were after him and if they caught him they would throw acid in his face.
The Tribunal asked the applicant to provide further information about the telephone call and explain why he was being targeted. The applicant was unable to provide further information. After further questioning the applicant claimed that [Mr A]’s body guards were after him. The applicant claimed that he was not the only one that was being pursued after the rally. The applicant said that [Mr A] was injured at the rally. The applicant said he was scared and feared for his life and went to hide in the jungle for three to four months.
He would return home for meals in the evenings because the people who were after him only attacked in open places.
The Tribunal referred the applicant to his evidence that he did not know [Mr A] and asked the applicant to explain how [Mr A]’s people knew his name and why they wanted to target him. The applicant said that he did not know how they knew his name and suspects that someone of his enemies may have been angry with him and told on him.
After further questioning the applicant said that he suspects that he may have been targeted because [Mr A] wanted to get at his [relative]. The Tribunal asked the applicant to explain what evidence he had to support his suspicions, for example, did he speak to his [relative] about the incident. The applicant responded by saying that [Mr A] cannot attack his [relative] so they attacked him instead and he believes this was the reason behind the threats. The applicant did not provide evidence that he spoke to his [relative] about his fears.
The applicant said his [relative] was called was “[Mr B]”. The Tribunal questioned the applicant about his [relative]’s role in the JVP and which election he took part in. The Tribunal found the applicant’s answers vague, evasive and lacking in detail. For example, the applicant first said that his [relative] held an elected position similar to a local [official].
He was unable to explain which election his [relative] took part in and after further questioning he said he was not successful in being elected.
Apart from the applicant’s claims, the Tribunal was not provided with any evidence from [Mr B] in support of the applicant’s evidence. There is no evidence that the applicant has spoken to [Mr B] and told him about the threats. There is no evidence that other members of the applicant’s family have been targeted by [Mr A].
In his written claims the applicant said that he fears that the next time there are elections in Sri Lanka it would become even more difficult for him and [Mr A] would come back and cause more difficulty for him and his family. The Tribunal notes that since the Parliamentary elections which were held on 8 April 2010 and 20 April 2010 the applicant was in Sri Lanka during Local Government elections[3] and did not report any further incidents.
[3] Local Government elections were held in Sri Lanka on 17 March 2011, 23 July 2011 and 8 October 2011
The Tribunal found the applicant’s evidence regarding his [relative]’s political association with the JVP lacking in credibility. The Tribunal does not accept the applicant’s explanation that false charges were laid against him and he was being targeted by [Mr A] because of his relationship with [Mr B] or because of his imputed political opinion as a supporter of the JVP and because he opposed the UNP.
Having considered the applicant’s evidence the Tribunal does not accept that he received any phone calls and had to go into hiding and [Mr A]’s people were looking for him and wanted to kill him and throw acid in his face. The Tribunal makes these findings based on the following facts. The applicant claims to be targeted after he attended a political gathering attended by hundreds of people. He is not a political activist and attended the rally as an ordinary member of the crowd. He is an ordinary Tamil farmer with no political profile. He had never heard of [Mr A] prior to attending the rally. He did not witness any violence or take part in any altercation. There is no evidence that [Mr A] or his supporters knew the applicant was even present at the rally. In the above circumstances the Tribunal does not accept that the applicant would be contacted shortly after he left the rally and told that his life was in danger. If his life was in danger as claimed, the Tribunal would have expected the applicant to speak to his [relative] to confirm the basis of the threats. This did not happen. The Tribunal does not find the applicant’s evidence credible that he chose to hide in the jungle for three months but would return home for evening meals.
Knife attack
The applicant claimed that after one of his court hearings he was attacked by about [number] unknown people and had his finger cut by a knife. He said he did not report the incident to the police because he did not want any more trouble. The applicant said he did not know who the attackers were but suspects they were sent by [Mr A]. The Tribunal asked the applicant to explain why he thought the attackers were associated with [Mr A]. The applicant claimed [Mr A]’s people knew the way he travelled home and they said they would attack him if they saw him alone.
The Tribunal asked the applicant if the attack could have been perpetrated by random criminals. The applicant maintained the attack was associated with [Mr A] but could not explain why. The applicant did not state if the attackers made any demands or knew his name or spoke to him. According to the applicant’s statement of claim he was attacked by [number] people and made no reference to the attackers being associated with [Mr A]. The delegate noted in the decision record striking inconsistencies between what the applicant said about the incident in his written claims and what was said in his protection interview and entry interview. The delegate found that the applicant claimed the incident occurred in early 2010, sometime in 2011, in January 2012 and in April/May 2012. He indicated in various statements that he was attacked by [number] people, [number] people and one person. He provided contradictory information about where the attackers came from.
The Tribunal told the applicant if found his explanation vague and speculative. The Tribunal does not accept the applicant’s claim he was attacked and cut with a knife and that it was arranged by [Mr A].
Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Sri Lanka because his [relative] is a member and/ or candidate of the JVP and/or because he is seen as a threat to [Mr A] and the UNP. The Tribunal does not accept the applicant’s fear of persecution in Sri Lanka because of his imputed political opinion is well-founded.
For the same reasons, the Tribunal also finds that there are not 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 suffer significant harm.
Charges and court hearings
The applicant said that after spending time hiding in the jungle he went to see a lawyer ([Mr C]). He attended at a police station with the lawyer and was charged and released on bail. The applicant claimed a “normal warrant” was issued and he had to attend court on a number of occasions. The applicant said that because he is now in Australia and has failed to attend court an “open warrant” has been issued for his arrest.
In support of this evidence the applicant provided an undated letter from “[Mr C] Attorney at Law”. The Tribunal notes that the letter refers to the applicant by the name of “[name]”.
According to the letter the applicant has been named as a suspect in a case before the [District 1] Magistrates’ court filed by “[Mr A]”, a council member at the [District 1] Urban Council and member of the North Western Provincial Council. The letter claims a bogus complaint was made against the applicant during the General Elections held on 8 April 2010. The letter claims there is an open warrant for the applicant’s arrest and that the applicant is facing harassment only because “he is working towards the betterment of his community”. No evidence was provided regarding the applicant’s involvement in the community or why he is being targeted.
[Mr C]’s letter also refers to a failed mediation session between the applicant and [Mr A]. The applicant provided a translated letter of an attempted mediation session which was not attended by [Mr A].
The Tribunal questioned the applicant about [Mr C]’s letter. The applicant said that he did not read the letter because it was in English. The Tribunal told the applicant it was surprised he did not go through the letter with his representative given that it is being produced in support of his claims.
The applicant said that he has spoken to [Mr C] by phone from Australia and the letter was written by his lawyer and his [sibling] sent the letter from Sri Lanka by post. The Tribunal asked the applicant’s representative if she has made contact with the lawyer. The agent confirmed that no contact had been made. The Tribunal discussed with the applicant the possibility of calling the lawyer and taking evidence from him at the hearing. The applicant agreed to call the lawyer using the telephone number detailed on the letter. The Tribunal dialled the number on two occasions and was advised the number was disconnected.
The applicant said he sought the assitance of a local political leader from the opposition party called [name] ([Mr D]). The applicant said he telephoned [Mr D] and told him he had problems. [Mr D] said he would help him but he did nothing. The Tribunal asked the applicant how he knew [Mr D]. The applicant said he did not know him and contacted him by telephone. The Tribunal told the applicant that it found it strange that he could call an unknown person and ask for assitance. The applicant said it was not uncommon in Sri Lanka to ask local politicians for help.
Court file
The Tribunal was also provided with a translated court file purporting to be from the [Town] Magistrates court related to the arrest and bail of the applicant and two other suspects. The Tribunal notes that the applicant is referred to in the court documents as “[name]”.
The Tribunal asked the applicant to explain the documents and the charges that have been laid against him. The applicant said the documents were obtained by his lawyer in Sri Lanka. The applicant said he did not know what he was charged with and had not looked at the documents. The Tribunal told the applicant it found it surprising that he is claiming that false charges have been laid against him and he does not look at the documents that are central to his claim for protection.

The Tribunal told the applicant that the court documents appear to contain inconsistent information. For example according to witness accounts detailed in the court documents the alleged incident occurred [in] March 2010. The Tribunal also notes that the court documents also purport that the complaint made by [Mr A] was made [in] March 2010. The Tribunal notes however that the arresting officer is purported to provide a report to the presiding Magistrate dated [in] May 2010 which refers to a complaint having been made [in] March 2010 by [Mr A] while another police report refers to the police investigating a complaint made [in] February 2010 regarding injury caused by an assault with a glass.
The Tribunal noted that the incident described in the court documents and witness statements is completely different from that described by the applicant. For example, according to the court document and annexed statements [Mr A] is said to have been campaigning at a [location] when [number] drunk men attack him with a glass. It is claimed that the applicant was one of the attackers.
According to the complaint [Mr A] was able to recognise the applicant and immediatley reported the incident to the police. The Tribunal put the inconsistencies to the applicant for comment. In response the applicant said that he was not familiar with the court document and that charges against him were bogus.
The Tribunal notes that DFAT’s most recent country information report provides the following information about document fraud in Sri Lanka:
5.51 Document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information. Government departments continue to keep most records in hard-copy format. Applicants are able to obtain genuine identity documents by submitting forged supporting documents. Counterfeit documents are the primary cause of fraud within the NIC, passport and driver’s licence issuance processes. DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers, and fraudulently obtained land title deed documents have also been presented as evidence of financial accumulation.
5.52 Other asylum-seeker destination countries have received fraudulent documentation from applicants. Attempts to use fraudulent documents are common. DFAT has received anecdotal reports of the recent existence of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications but cannot verify the credibility of these reports. [4]
[4] DFAT Country Information Report Sri Lanka 18 December 2015
The Tribunal discussed the information with the applicant at the hearing. The Tribunal told the applicant that it has concerns that the information he provided in support of his claim was not genuine. The applicant claimed he had the original documents. The Tribunal gave the applicant time to provided them after the hearing. The Tribunal notes that original stamped copies of the court file and the original [Mr C] letter were provided after the hearing.
The applicant also claimed in post hearing submissions that he could obtain [Mr C]’s telephone number if the Tribunal wished to contact him. The Tribunal found this submission surprising since the Tribunal specifically questioned the applicant about [Mr C]’s telephone number at the hearing and the applicant claimed that he had previously contacted [Mr C] on the telephone number detailed on the letter head. As stated above the Tribunal notes that the telephone number on [Mr C]’s letterhead was not active and it was unable to contact [Mr C] at the hearing.
Having considered the country information and the inconsistencies in the applicant’s evidence and the information contained in the court file, Tribunal finds the Sri Lankan court file, [Mr C]’s letter and Mediation Board’s report not to be genuine.
Electoral based violence
As discussed with the applicant at the hearing the Tribunal accepts that electoral violence is not uncommon in Sri Lanka. The Tribunal notes however, that while many political parties in Sri Lanka have employed violence and intimidation tactics during elections, a report prepared by Campaign for Free and Fair Elections (CaFFE) states that during the 2010 election campaign, 98 per cent of reported violence “involved members of the ruling party”.[5]
[5] Campaign for Free & Fair Elections 2010, 19,000 observers but not at counting centres, 4 April <>
The Tribunal notes that in 2010 the UNP was Sri Lanka’s main opposition party. Country information confirms many cases of intimidation, threats and assaults were directed at UNP members and supporters and by members and supporters of the ruling United People’s Freedom Alliance (UPFA), or its main party the Sri Lanka Freedom Party (SLFP), during election campaigns.
In light of the country information, the Tribunal finds it surprising that [Mr A] (an opposition UNP candidate) would be able to facilitate the police to trump up false charges and issue warrants seeking the applicant’s arrest in the lead up to the 2010 Parliamentary elections.
The Tribunal does not accept that [Mr A] initiated the Sri Lankan police to bring fabricated charges against the applicant. The Tribunal does not accept that the applicant was charged with any offence in Sri Lanka and that a warrant is outsanding for his arrest.
As stated above the Tribunal does not accept the applicant’s claims that the attack was motivated because his [relative] was a JVP political candidate. The Tribunal does not accept applicant’s fear of persecution because of his imputed political opinion is well-founded.
The Tribunal has also assessed the applicant’s fear of arrest in Sri Lanka against the complementary protection criteria. As stated above, the Tribunal does not accept that the applicant was charged or that a warrant has been issued for his arrest because he has failed to attend court hearings. Consequently, the Tribunal does not accept his name will be on a police/CID watch list or that he will be interrogated, apprehended or jailed for this reason on his return to Sri Lanka. The Tribunal is not satisfied 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 because he was falsely charged and a warrant was issued for his arrest.
Police attending at his home
The applicant provided a statutory declaration prior to the first Tribunal hearing. The declaration is not dated but was provided to the first Tribunal on 16 January 2015. According to the declaration the applicant claims to fear returning to Sri Lanka because the police are still looking for him. He claims that “one and half months ago” a person who paid his bail was arrested and imprisoned and was released when he repaid the bail money to the court. He claims the police were still looking for him and would summons him every few months by coming to his home. As stated above, the Tribunal does not accept the applicant’s claim that he was arrested, charged and bailed in relation to false charges initiated by [Mr A]. As a consequence the Tribunal does not accept that the applicant is still wanted by the Sri Lankan police or that the Sri Lankan police are still searching for him. Having rejected the applicant’s claims the Tribunal does not accept that if the applicant returns to Sri Lankan in the reasonably foreseeable future there is real chance that the applicant would face serious harm in Sri Lanka because of his outstanding court charges or because he has not complied with his bail agreement.
The Tribunal also finds that there are not 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 suffer significant harm (complementary protection criteria).
New partner in Australia
The applicant said he was in a relationship with a Tamil lady from Sri Lanka who had also travelled to Australia by boat. He said his wife in Sri Lanka was not aware of this relationship. The applicant said it is difficult for him to make long term plans about his new relationship because both their immigration cases in Australia are uncertain. He said the situation is causing him stress and worry. The Tribunal questioned the applicant about his new relationship. The applicant said that if he returned to Sri Lanka he would not tell his wife about the relationship.
Looking into the reasonably foreseeable future, the Tribunal does not accept there is real chance the applicant will face serious harm in Sri Lanka because he entered into a relationship with another Tamil woman in Australia.
For the same reasons, the Tribunal also finds that there are not 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 suffer significant harm.
Tamil ethnicity (race)
The Tribunal asked the applicant if he feared serious harm in Sri Lanka because to his Tamil ethnicity. The applicant said that historically Tamils faced problems in Sri Lanka if they were associated with the LTTE. The applicant said he had not association with the LTTE or Tamil separatist movements. He said that the situation for Tamils has since changed in Sri Lanka and he no longer fears harm because of his Tamil ethnicity. He has never lived in northern Sri Lanka and has always lived in the same location. He said that apart from the incident described above he has never had any problems with the authorities in Sri Lanka.
DFAT provided the following background information about the Treatment of Tamils in Sri Lanka which appears to be consistent with the applicant’s evidence at the hearing;
3.7 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees (see: ‘Arbitrary arrest and detention’ below).
3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.
3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.
Having regard to the applicant’s profile as a Tamil from [town], and having had regard to the country information detailed above. The Tribunal does not accept there is a real chance he will be persecuted because of his Tamil ethnicity (race) should he return to Sri Lanka in the reasonably foreseeable future. The Tribunal finds the applicant’s fear of persecution because of his race is not well-founded.
Failed asylum seeker who departed Sri Lanka illegally
The applicant has claimed he fears harm from the Sri Lankan authorities for having left Sri Lanka illegally.
The Tribunal has accepted that the applicant left Sri Lanka illegally. In departing Sri Lanka unlawfully the applicant is in breach of the Sri Lankan Immigrants and Emigrants Act (the I&E Act).
The Tribunal also accepts that it will be known upon his return that he has unsuccessfully sought asylum in a Western country. The Tribunal has considered the applicant’s fear of harm on the basis of his membership of a particular social group, being a failed asylum seeker from a Western country.
The Tribunal accepts that there are reports that Sri Lankan failed asylum seekers have suffered abuse on their return to Sri Lanka. However, the cases in relation to returnees overwhelmingly involve persons who are Tamil and have had connections with the LTTE or who are suspected of such connections, or persons who have criminal connections.
As stated above, the Tribunal has found that the applicant is not suspected of any LTTE connections and there is not a real chance he will be harmed for this reason upon his return to Sri Lanka.
As stated above, the Tribunal has found that the applicant did not have an adverse political profile at the time of his departure from Sri Lanka and does not accept he has previously come to the attention of the authorities in Sri Lanka or that there is an outstanding warrant for his arrest. He is not a facilitator or organiser of a people smuggling operation.
The DFAT Country Report – Sri Lanka provides the following information on the treatment of returnees:
5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.
5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat. If a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Entry Procedures
5.29 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.
5.30 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.
5.31 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.
5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling venture….
5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.
Facilitators and organisers
5.35 The Attorney-General’s Department typically distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.
5.36 Some returnees from Australia have been charged with immigration offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling. DFAT understands that, in several cases, returnees have been charged and convicted of immigration offences. As of March 2014, at least one charge had been upheld on appeal.

The Tribunal discussed the country information with the applicant at the hearing.
The Tribunal accepts the applicant will be questioned as per the standard procedures referred to above upon return at the airport and may be detained for up to a few days. The Tribunal accepts he will likely have to pay a fine. However, these procedures are part of a law of general application relating to illegal departures from Sri Lanka. The Tribunal accepts DFAT’s assessment that all Sri Lankans, regardless of ethnicity, are treated according to standard procedures. The Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm.
Having regard to the applicant’s profile, the Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group.
In conclusion, the Tribunal finds the applicant is an ordinary Tamil man who left Sri Lanka illegally. The Tribunal finds he will be processed upon return according to standard procedures that relate to a law of general application with the legitimate aim of managing the proper exit and entry of persons from Sri Lanka.
The Tribunal does not accept there is a real chance the applicant will be persecuted in the reasonably foreseeable future if he returns to Sri Lanka for reason of departing Sri Lanka illegally or because he is a failed asylum seeker from a western country. The Tribunal finds his fears of persecution are not well-founded.
The Tribunal has also considered the fact the applicant departed Sri Lanka illegally having regard to the Complementary Protection provisions.
The Tribunal has found above that it is not satisfied that the applicant would suffer harm of any kind on return to Sri Lanka for the reasons he has claimed such as his, race, particular social group, actual or imputed political opinion, being a failed asylum seeker or other matters identified above. As stated above, the Tribunal does not accept the applicant will be perceived as an organiser or people smuggler. Nevertheless, the Tribunal has accepted that the applicant departed the country illegally. Doing so is an offence under the I&E Act of Sri Lanka.
Illegal departure
In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand center and fined, the Tribunal has had regard to the five ‘limbs’ of the definition of ‘significant harm’ in s.36(2A). These require that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act requires that the pain or suffering be ‘intentionally inflicted’ on a person. Similarly, ‘degrading treatment or punishment’ is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of ‘torture’ also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.
The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A).
Having regard to the applicant’s profile, and looking at his claims cumulatively, the Tribunal is not satisfied that during any questioning at the airport that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’.[6] The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.
[6] See SZTKF v MIBP [2014] FCCA 282, 4 December 2014, in which Manousaridis, J, found that the intentionally placing the applicant, a Tamil citizen in remand whilst awaiting sentence did not establish that the harm was intentional such that it was significant harm. In an earlier decision, the Federal Circuit Court found that mere negligence without more, was not capable of amounting to intentional infliction of pain or suffering – see SZSPE v MIBP [2013] FCCA 1989.
The Tribunal finds that there are not 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 would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment. As stated above the Tribunal does not accept the applicant’s claims that he was falsely charged and arrested and warrant has been issued for his arrest.
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).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christopher Smolicz
Member