1515521 (Refugee)

[2017] AATA 275

1515521 (Refugee) [2017] AATA 275 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515521

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:David Corrigan

DATE:13 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2017 at 4:36pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Political opinion –UNP supporter – Previous harm to family – Long passage of time – No further incidents – Relocation reasonable

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91
Migration Regulations 1994, Schedule 2

CASES
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] October 2015.

3. The applicant appeared before the Tribunal on 13 February 2017 to give evidence and present arguments.  

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

    Relocation

15. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

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

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

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

    Relocation

19. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has 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 any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant’s claims can be summarised as follows.  He was born in [Town 1], Sri Lanka in [year].  He is Sinhalese and can speak, read and write English.  He arrived in Australia on a [temporary] visa in February 2007.

22. The applicant’s father was an active member and organiser of the United National Party (UNP).  His father and the whole family have had ongoing life threats since Rajapaksa became president of Sri Lanka in November 2005.  Before the applicant’s departure, his family were attacked several times by government agents.  A few days after Mahinda Rajapaksa was elected president, windows of his family house were broken and his father was brutally beaten and taken away by attackers and returned home the next day.  The applicant retaliated by assaulting the person he believed was responsible for the damage, assault and kidnapping.  This person suffered broken [bones] and was hospitalised.  The applicant moved to Negombo with his [relative] to hide and the person’s friends came to his family house to look for him and threatened to kill him.  His father consulted an agent who procured an Australian visa for him.

23. In 2008 or 2009, the applicant’s parents’ business (which was a [store] attached to the front of their home) was burnt down by government supporters.  His father ceased to be actively involved in the UNP and the family moved to Negombo.  In March 2014, after his visa to remain in Australia was refused, the applicant made preparations to return to Sri Lanka.  However, his father told him that he should not return to Sri Lanka until there is a change of government because they will take him from the airport and kill him. 

    Country of reference

24. The applicant has claimed to be a citizen of Sri Lanka.  He has provided a copy of his passport that supports this claim.  On the basis of this evidence, I find that he is a national of Sri Lanka and that this is also his receiving country.

    Assessment of claims

25. I found the applicant to be an overall credible witness who gave generally consistent evidence about his and his family’s experiences in Sri Lanka.  I accept that the applicant was born in a hospital in [Town 1] and lived in [Town 2] until he was [age].  I accept that he then did high school studies in [location] and returned to [Town 2] to live with his parents.  I accept that his father was an active member and organiser of the UNP and there were occasions where rocks were thrown at his house and windows broken.  I accept that in November 2005, a few days after Rajapaksa was elected president that supporters of the then president came to the applicant’s father and captured his father. I accept that his father was physically assaulted and suffered [injuries] and was released the following day.  I accept that his father reported this incident to the police but they did not take any action.

26. I accept that the applicant retaliated by assaulting a person he believed was responsible for the damage, assault and kidnapping.  I accept that this person suffered broken [bones] and was hospitalised.  I accept that the next day the friends of this person came to his family house to look for him but he was not there.  I accept that the applicant moved to Negombo with his [relative] to hide and the person’s friends came to his family house to look for him and threatened to kill him.  I accept that due to the attacks his family were still concerned for his safety [and] in 2007 his father consulted an agent who procured an Australian visa for him. 

27. I accept that in 2008 or 2009, the applicant’s parents’ business (which was a [store] attached to the front of their home) was burnt down by supporters of the then government.  I accept that his father ceased to be actively involved in the UNP and that the family moved to Negombo after this incident.

28. I accept that the applicant’s father worked as [occupation] and that he was falsely accused of bribery because of his UNP involvement.   I accept that he was suspended without pay and had to take the matter to court and was given his job back.  I accept that his father then worked for a year and then retired.   I accept that in March 2014, the applicant’s father told him that he should not return to Sri Lanka until there is a change of government because they will take him from the airport and kill him. 

29. Though I have accepted all of the applicant’s claims of past events, I find that the chance or risk that the applicant will now or in the reasonably foreseeable future be seriously harmed or significantly harmed by political opponents, the government or anyone else on account of this above history and his imputed particular opinion (pro-UNP) and membership of a particular social group consisting of his family is remote.  I am of this view for a number of reasons:

    ·It now over 11 years since the incidents in November 2005 and at least eight years since his family’s business was burnt down and also many years since there were occasions where rocks were thrown at his house and windows broken and threats were made against him and given this very long passage of time, I consider it remote that political opponents of his father (including the individual he fought with and his friends and family) would seek to target him now or in the reasonably foreseeable future.

    ·The applicant told the Tribunal that he was never himself involved in UNP activities and that after 2008/09 his father ceased to be actively involved in the UNP though he remained a member.  I consider that this further subtracts from the risk or chance that political opponents of the UNP would seek to target him now or in the reasonably foreseeable future.

    ·The applicant’s father was able to get his job back in the public service and is now retired and I do not consider that these past events would be of any adverse consequence to the applicant now or in the reasonably foreseeable future.

    ·Country information indicates a very substantial change in the political circumstances of Sri Lanka with the defeat of Rajapaksa and the UNP becoming a key part of the Sri Lankan government.  In the January 2015 presidential elections Maithripala Sirisena defeated Rajapaksa.  Sirisena had the support of Ranil Wickremesinghe who was the leader of the UNP and Sirisena subsequently appointed Wickremesinghe as Prime Minister.  In the August 2015 parliamentary elections, the United Front for Good Governance a coalition of parties including the UNP won 106 seats (the most of any group) and formed the government.[1]  A very authoritative and recent source, the Australian Department of Foreign Affairs (DFAT) has stated that all political parties in Sri Lanka operate freely subject to general restrictions and that this freedom applies to low-profile party members and volunteers.  They also assess that there are no official laws and policies that discriminate on the basis of political opinion nor is there systemic political discrimination against any particular group.[2]

    [1] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 2.22-2.23, 24 January 2017. 

    [2] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 3.25-3.26, 24 January 2017. 

30. In relation to these above factors, the applicant commented at hearing that things were better now in Sri Lanka but he has called his father and his parents were worried something would happen to him.   I appreciate the concern of his parents towards their son, however, given all the above factors and considering the country information and the applicant’s individual circumstances on a cumulative basis, I find that he does not face a real chance of persecution in the reasonably foreseeable future for reasons of his actual or imputed political opinion or membership of a particular social group consisting of his family or any other Convention reason from any non-state or state actor.

31. Considering the country information and the applicant’s individual circumstances on a cumulative basis, I find 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 on these bases.

    Relocation

32. In the alternative, if I considered that the applicant did face a real chance or real risk of serious harm or significant harm from political opponents of the UNP (including the person he fought with and this person’s friends and relatives) in the applicant’s home area of [Town 2], I consider that this is localised to that town.  I am of this view for the following reasons:

    ·Though his evidence was that he was in hiding at his [relative]’s it was also his evidence that nothing happened to him when he lived in Negombo from November/December 2005 until his departure for Australia in February 2007.

    ·The applicant’s evidence was that his parents had moved to Negombo and have been in hiding after the burning of their [business] but it also that they have not been subject to threats or harm there which indicates that they are no longer of adverse interest to anyone.  The only harm they suffered was the father being falsely accused of bribery and being suspended without pay; however the father was able to get his job back and has now retired.

    ·Given the long passage of time since the 2005 and 2008/09 incidents and that the applicant’s father has not been actively involved in the UNP for a long period of time and the applicant has never been involved in the party, I consider it remote that political opponents in [Town 2] (or elsewhere) would seek to target him outside this area.

    ·Sri Lanka has a substantial population (22 million)[3] and has cities such as Negombo (142k)[4] and Colombo (2.3m)[5] with large populations and I consider that it is remote that these past political opponents would even be aware of his return to Sri Lanka let alone be able to find him.

    [3] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 2.4, 24 January 2017.

    [4] City Population, Negombo (Divisional Secretariat), 

    [5] Geohive, Sri Lanka, 

1. At the hearing, the applicant commented on these above factors and said that in Sri Lanka that if they really wanted to find him they could and that it did not matter who was in power and that persons in opposition could find him.  I have considered his comments; however in light of all the above factors, I find that there is no appreciable risk of the persecution (or significant harm) outside his home area of [Town 2].  I find that now and in the reasonably foreseeable future there is not a real chance that he would face persecution outside his home area and that there is not a real risk that he would suffer significant harm outside his home area.

2. The applicant at the hearing did not raise any factors that would make it unreasonable for him to relocate outside his home area of [Town 2].  As I put to him there are a number of factors that strongly indicate that it would be reasonable.  These are:

   ·DFAT have stated that there are no official restrictions to internal relocation in Sri Lanka.[6]

   ·He is Sinhalese who are the largest ethnic group in Sri Lanka (74.9%)[7] and he can speak, read and write Sinhalese and English.

   ·Whilst DFAT have indicated that internal relocation options can be limited by the absence of family connections or the lack of financial resources,[8] the applicant has lived previously in Negombo and his parents and family live there. The applicant has no children of his own to support and he has a significant education and employment history.  As he told the Tribunal, he has obtained a [qualification] and worked in a number of jobs in Australia including [occupations] all of which supports that he could find employment upon his return.

   [6] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 5.2, 24 January 2017.

   [7] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 2.5, 24 January 2017.

   [8] Department of Foreign Affairs, DFAT Country Information Report Sri Lanka, 5.14 January 2017.

3. Considering his individual circumstances and the country information considered as a whole, I find that it would be reasonable for the applicant to relocate outside his home area of [Town 2] to avoid any fear of serious harm there.

4. Considering his individual circumstances and the country information considered as a whole, I find it would be reasonable for the applicant to relocate to other areas of the country where there would not be a real risk that he will suffer significant harm and that therefore s.36(2B)(a) applies in his case.

   Overall assessment

5. Considering the applicant’s individual circumstances and country information on a cumulative basis, I find there is not a real chance that now or in the reasonably foreseeable future he would be persecuted for reason of race, religion, nationality, membership of a particular social group (including his family) or actual or imputed political opinion.  His fear of persecution is not well-founded and he is not a refugee.

6. Considering the applicant’s individual circumstances and country information on a cumulative basis, I find 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.

   Conclusions

7. 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).

8. 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).

9. 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

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

    David Corrigan
    Member