1516988 (Refugee)

[2016] AATA 4692

1516988 (Refugee) [2016] AATA 4692 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516988

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Chris Thwaites

DATE:25 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 25 October 2016 at 8:58am

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] December 2012.

3. [In] March 2013 the delegate refused to grant the visa.

4. On 28 March 2013 the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision, and on 25 August 2015 the RRT affirmed the decision of the delegate not to grant the applicant a protection visa.

5. The applicant’s subsequent application to the Federal Circuit Court for judicial review of the Refugee Review Tribunal decision was successful and [in] November 2015 Judge McGuire ordered the decision of the RRT be set aside and the matter be remitted to the Tribunal for reconsideration according to law.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s files relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicant.

7. The applicant’s initial written reasons for claiming protection are contained in a statutory declaration dated 8 December 2012 provided to the Department as an attachment to his visa application forms. In summary the applicant declares that he was born in [year] in [Town 1] and is a Sri Lankan citizen, an ethnic Sri Lankan Moor, and a Tamil Muslim. The applicant declares he fears returning to Sri Lanka. He left Sri Lanka because sometime in April 2012 he started working [for] “[Mr A]”, a Tamil person who is in the business of [fresh produce]. His place of work was situated in an area called [town name]. One morning in April [Mr A] asked the applicant to accompany him to get some [supplies]. [Mr A] then drove to an area outside [Town 2] to an area the applicant was not familiar with, parking the van close to some shops. The applicant was asked to wait in the van while [Mr A] went somewhere. A while later a motorbike approached the parked van. The applicant saw two men wearing black helmets and black jackets stop their bike in front of the van. It seemed the men were making notes recording the registration number of the van. The way the men behaved made the applicant believe they were CID officers. [Mr A] arrived a while later after the men left. He said there was no [supplies] available and they returned to their workplace. The following night the applicant was at work at the [business] and received a call on his mobile. His father informed him that two unknown people had come in search of him and were threatening to harm him if they found him. His father told the applicant that he believed the persons who came searching for him were CID officers. His father advised him to be cautious and hide in the [hiding place] which was a fair distance, where his [relative] was working. The applicant subsequently learnt through his father that [Mr A] was a people smuggler. The applicant stayed with his [relative] a few weeks, and while he was with his [relative] he received a call from his father who told him that he had made arrangements through an agent for him to travel by boat to a safe country as his life was in danger. [In] June 2012 the applicant fled Sri Lanka and eventually reached [Australia] by boat.

8. The applicant declares that he believes he is at risk of being harmed if returned as the authorities have come in search of him. The applicant declares it is possible that the authorities think he may be involved in people smuggling and a close associate of [Mr A]. The applicant declares he fled Sri Lanka illegally and claimed asylum in Australia and as he is a Tamil Muslim he believes he would be at risk of being harmed for these reasons.

9. The applicant indicates he does not think the authorities will protect him if he were to return to Sri Lanka as it is the authorities who target Tamils and Tamil Muslims like him. The applicant declares the slightest suspicion is enough for a Tamil or a Tamil Muslim to be treated harshly by the Sinhalese authorities. The applicant also declares that he has lived all his life in [Town 1], though he did travel for a short period of time to [Country 1]. He declares it is not possible to relocate as his family, relatives and friends reside in [Town 1].

10. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates the applicant attended an interview with the delegate and spoke about the reasons he left Sri Lanka and claimed that if he returns to Sri Lanka he will be harmed by the authorities as they believe he is involved in people smuggling. He claimed he will be harmed because he is a Tamil and a Muslim. The applicant’s agent submitted he will be harmed because of his membership of the particular social groups ‘failed asylum seeker’ and ‘persons involved in people smuggling activities’.

11. [In] March 2013 the delegate refused to grant the applicant a protection visa because the delegate did not accept the applicant’s father was approached by the CID regarding the applicant’s connection with his employer, and did not accept the applicant had a real or imputed connection with people smuggling. The delegate considered the likelihood the applicant will be targeted on the basis of being a Tamil was remote, and found the possibility that the applicant will be persecuted on the basis of his race or religion to be remote and that his fear of harm is not well-founded.

12. The delegate found the applicant did not fall into a profile of a returnee that would be considered at risk according to country information and was not satisfied there was a real chance he would face serious harm on the basis of being a failed asylum seeker returnee, and that his fear of persecution for this reason was not well-founded.

13. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention, and therefore the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there was a real risk the noncitizen will be subject to significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa), and consequently refused to grant the applicant a protection visa.

14. As noted above, the applicant applied to the RRT for review of that decision. On 25 August 2015 the RRT affirmed the decision of the delegate to refuse to grant the applicant a protection visa because that Tribunal did not consider the applicant was a credible witness in relation to his claims to be of adverse interest to the CID and suspected of involvement in people smuggling. The RRT did not accept the applicant is or was of any adverse interest to the authorities or anyone else in Sri Lanka, and did not accept the applicant was an actual or imputed member of a particular social group consisting of ‘persons involved in people smuggling activities’ or ‘persons suspected of involvement in people smuggling activities’. The RRT did not accept the applicant faced a real chance of persecution, or a real risk he would suffer significant harm on this basis, or on the basis of being a Tamil, or Muslim, or for being a Tamil Muslim failed asylum seeker, or due to his illegal departure from Sri Lanka. The RRT found the applicant’s fear of persecution was not well-founded, and also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm. Therefore the RRT was not satisfied the applicant was a person in respect of whom Australia had protection obligations, and therefore did not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act. Therefore the RRT affirmed the delegate’s decision.

15. As noted above, the applicant’s subsequent application to the Federal Circuit Court was successful, and that court remitted the matter by consent to the Tribunal, with the Court noting that the decision of the RRT was affected by jurisdictional error on the basis that the RRT failed to consider the applicant’s claim to fear harm due to his Tamil Muslim ethnicity.

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

17. During the hearing the applicant told the Tribunal he feared returning to Sri Lanka because of the problems with the CID and because he is a Tamil speaking Muslim. On questioning, the applicant told the Tribunal that no one in his family, including the applicant, was involved in politics or had any connection to the LTTE. During the hearing the Tribunal also noted the applicant had raised concerns in his statutory declaration about returning to Sri Lanka because he had left the country illegally and claimed asylum in Australia, and because he is a Tamil Muslim, and the Tribunal spoke to the applicant about those concerns.  The applicant told the Tribunal he is concerned he will suffer psychological problems if he is returned to Sri Lanka. When asked if the applicant had suffered any psychological problems in the past he told the Tribunal he had not, but he is very happy living in Australia and if he goes back he would not have this happiness. When asked about his fears of harm because he is a Tamil Muslim and being a Tamil speaking Muslim the applicant told the Tribunal his language is Tamil and his faith is Muslim and that Tamil Muslim and Tamil speaking Muslim is the same.

    RELEVANT LAW

18. 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

19. 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).

20. 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.

21. 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.

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

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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

29. 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’).

30. ‘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.

31. 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

32. 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.

    FINDINGS AND REASONS

    Nationality

33. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and citizenship of Sri Lanka, and the copy of the applicant’s National Identity Card provided to the Department, the Tribunal finds that the applicant is a national of Sri Lanka.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Sri Lanka.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Sri Lanka, the Tribunal also finds that Sri Lanka is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

34. During the hearing the applicant told the Tribunal he had problems with his memory. On questioning the applicant told the Tribunal he had not done any medical checks but he has problems remembering things. He told the Tribunal he can’t recall what he said the day before. On further questioning the applicant told the Tribunal he doesn’t have a Medicare card and has not seen a doctor. He told the Tribunal he has memory problems and people from home have told him on the telephone that he is forgetting things they have spoken of previously. The applicant told the Tribunal he has had the memory problem for a long time but he could not recall for how long. He also told the Tribunal that he has a speech problem where he can’t speak much, he stops after two or three words. He also told the Tribunal he does not have much education and does not know what to say or how to say. He told the Tribunal he intended to do medical check-ups in the future. The Tribunal asked the applicant to tell the Tribunal if he had any trouble speaking or recalling matters during the hearing. The Tribunal took a break during the hearing to alleviate stress on the applicant. The Tribunal notes the applicant did not appear to have trouble speaking during the hearing and did not stop speaking after two or three words and did not raise this as a problem during the hearing.

1. During the hearing the Tribunal discussed with the applicant his background, family composition, education and employment history, as well as the reasons he left Sri Lanka and his fears of returning.

2. During the hearing the Tribunal raised a number of credibility concerns in relation to the applicant’s claims and oral evidence. The Tribunal raised its concerns about the plausibility of the applicant’s claim to be of adverse interest to the CID in the circumstances described by the applicant. The Tribunal also raised concerns about differences between the applicant’s oral evidence and information in his visa application forms, and the information provided in the delegate’s decision record, a copy of which the applicant had provided to the Tribunal. The Tribunal also noted inconsistencies in the information the applicant had previously provided to the delegate and the RRT. The Tribunal also referred to the Department of Foreign Affairs and Trade Country Information Report for Sri Lanka dated 18 December 2015 (DFAT report) noting the information did not support the applicant’s claims. The Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed in more detail below.

3. During the hearing the Tribunal raised its concern about the plausibility of the claim that two people the applicant suspects were CID officers made a note of the registration of the van he was in while in an area outside [Town 2] and then the next day people his father suspected were CID officers came searching for him at his home threatening to harm him if they found him.  The Tribunal raised its concerns about how the suspected CID officers could know who the applicant was, what his name was, where he lived and where his family lived.

4. In response the applicant told the Tribunal that someone made a complaint about his employer, saying he was an agent and that is why they came to search. On questioning about how the applicant found out about the complaint, the applicant told the Tribunal he did not know for certain, he assumed that there was a complaint as people came looking for his employer. The Tribunal noted the applicant had not mentioned a complaint in his visa application forms or his statutory declaration. In response the applicant told the Tribunal he mentioned the complaint because the Tribunal had asked, and told the Tribunal no one would look for anyone with no reason.

5. The Tribunal noted the applicant’s response did not explain how the applicant’s name and address became known to the people he suspected were CID officers. In response the applicant told the Tribunal they are big figures and that it is not hard for them to find out information about him.

6. The Tribunal noted the claims that the applicant was of adverse interest to the CID through his connection with his employer, and questioned why he was not approached at his workplace, where his employer was. In response the applicant told the Tribunal they didn’t come while the applicant was there, as mostly he worked at night time, and his employer came and went.

7. During the hearing the Tribunal also raised its concerns about the plausibility of the claim that the CID continue to look for the applicant, when according to the applicant’s oral evidence, they have only visited his home once looking for the applicant.  

8. In response the applicant told the Tribunal he was 100% sure there was a possibility they are still looking for him and will catch him.

9. The Tribunal is not persuaded by the applicant’s responses to its concerns. The Tribunal does not accept as plausible the claim that being in a van whose registration was noted (noting the applicant was not questioned or spoken to) would attract the adverse attention of the CID to the extent that the applicant’s name and home address would be traced somehow, and that the CID would then visit his home (only once) looking for him and threatening to harm him the next day, in the circumstances where the connection or suspicion was his employer’s activities.

10. During the hearing the applicant initially told the Tribunal that after his father told him that people had come to his home looking for him and threatening to harm him, the applicant went and stayed with his [relative] for a few days. The Tribunal raised its concerns that later in the hearing the applicant told the Tribunal he stayed with his [relative] for one month.

11. In response the applicant told the Tribunal he has memory problems and does not recall if it was days or one month.

12. During the hearing the applicant told the Tribunal that he left his work when his father telephoned him, which was the day after the suspected CID officers noted the van registration, and that the applicant thought that it happened in April. The Tribunal raised its concern that the applicant’s oral evidence was different to the information in his visa application forms which indicated he worked at the [business] from April 2012 to June 2012.

13. In response the applicant told the Tribunal he has memory problems and does not recall months or days.

14. During the hearing the Tribunal noted that the delegate’s decision record, a copy of which the applicant had provided to the Tribunal, indicated that in the applicant’s initial interview on his arrival in Australia, when asked why he had come to Australia, the applicant had stated it was because his father was sick and he needed to support his family.

15. In response the applicant told the Tribunal that at the time he arrived he was not quite sure why his father had sent him to Australia, he was unclear of the reasons. He knew all these things had happened but was unsure. Later on he came to know his father sent him because of those reasons. On questioning the applicant told the Tribunal he came to know a few days after he arrived.

16. During the hearing the Tribunal noted the delegate’s decision record indicated the applicant had been inconsistent regarding the timelines surrounding his work at the [business] and his knowledge of the events that caused him to leave Sri Lanka. In response the applicant told the Tribunal he did not know what to say about those things.

17. The Tribunal has also considered the written submission made by the applicant’s previous representative provided to the RRT, noting the applicant provided similar responses to the delegate’s credibility concerns noted in the delegate’s decision record.

18. During the hearing the Tribunal noted the applicant had a hearing with the Refugee Review Tribunal and that the RRT’s decision record indicated the applicant had told the RRT that his father had not told him how the people who visited his home were dressed, yet the applicant had told the delegate his father had told him the people were dressed in white shirts. The Tribunal raised its concern that the applicant had provided inconsistent information about whether his father had told him how the people were dressed.

19. In response the applicant told the Tribunal he can’t talk about the past due to his memory problem and that he can’t recall what he had said earlier in the morning.

20. The Tribunal noted the RRT decision record indicated the applicant had told the RRT he did not know if the people had visited his home during the day or at night time, yet the applicant told the delegate they came during the night. The Tribunal raised its concern that the applicant had provided inconsistent information about his knowledge of when the people visited his home.

21. In response the applicant told the Tribunal he did not have anything to say about the inconsistency.

22. The Tribunal noted the RRT decision record indicated the applicant had told the RRT the people who visited his home had only threatened to kill him and did not say anything else, yet the applicant had told the delegate the people who visited his home had said the applicant was connected to people smuggling. The Tribunal raised its concern that the applicant had provided inconsistent information about what the people had said when they visited his home.

23. In response the applicant told the Tribunal he did not study the material before the hearing and he could not read the documents before hand and was just telling what had happened to him.

24. The Tribunal noted the RRT decision record indicated the applicant had told the RRT he worked at the [business] for three months and later changed his oral evidence and told the RRT he worked there for one month.

25. In response the applicant told the Tribunal he did not know what to say.

26. While the Tribunal notes the applicant raised his memory problems during the hearing, the Tribunal also notes the applicant was able to remember a great deal about his background, employment history and travel outside Sri Lanka. While the Tribunal notes a number of years have passed since the claimed events occurred, and the Tribunal accepts a person’s ability to recall past events in detail can be affected by the passage of time and the nerves of giving evidence, the Tribunal also notes the applicant has not provided any medical evidence in relation to his memory problem and the Tribunal is not satisfied the applicant’s memory is impaired to the level that would explain and resolve the concerns noted above.  Nor does the Tribunal accept the applicant’s level of education or speech problem (which was not evident during the hearing) resolves the concerns raised. The Tribunal considers the concerns noted above reflect poorly on the applicant’s credibility and the reliability of his evidence.

27. The Tribunal also spoke to the applicant about country information relating to Sri Lanka, referring to the UNHCR Eligibility Guidelines and the UK Upper Tribunal decision and the DFAT report[1], noting the information did not support the applicant’s claims to be at risk of harm in Sri Lanka because he is a Tamil or a Tamil speaking Muslim or a Tamil Muslim. The Tribunal noted all the reports indicated the security situation in Sir Lanka has greatly improved since the civil ended in May 2009. The Tribunal noted the DFAT report indicated the Sri Lankan Constitution provided that no citizen shall be discriminated against on the grounds of race, religion, caste, sex, political opinion, place of birth or any such grounds, and that overall DFAT assesses that there are currently no official laws that discriminate on the basis of ethnicity or language.

    [1] Department of Foreign Affairs and Trade Country Information Report - Sri Lanka, (18 December 2015); Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC); United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

28. The Tribunal noted that in relation to Tamils the DFAT report indicates that the combined Indian Tamil population in Sri Lanka had grown from 2.7 million in 1981 to 3.1 million in 2012 and that there were a number of Tamil political parties, with the largest alliance operating under the Tamil National Alliance (TNA). The TNA currently has 16 members of parliament and holds a majority of seats in the Northern Provincial Council. The DFAT report indicates that in practice, monolingual Tamil speakers, including the Tamil majority in the Northern Province, can sometimes have difficulty communicating with the police, military and other government authorities. DFAT assesses that these are not due to official discrimination as such, but are the result of a lack of qualified language teachers, the disruption to civil life caused by the conflict, and the legacy of previous discriminatory language policies. DFAT assesses that the monitoring and harassment of Tamils has decreased and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities under the authorities.

29. The Tribunal also noted the DFAT report assesses there is little official discrimination on the basis of religion as there are no official laws or policies that discriminate on the basis of religion. DFAT assesses that most members of religious groups in Sri Lanka are able to practice their faith freely, and DFAT assesses that given the size of the Muslim population in Sri Lanka and the relatively low numbers of incidents of violence, there is a low risk of political or religious violence for Muslims in Sri Lanka. The Tribunal also noted that the DFAT report indicates that DFAT assesses that, like other religious groups, Muslims in Sri Lanka are not subject to official discrimination and are generally able to practice their faith freely.

30. In response the applicant told the Tribunal that he saw on Facebook and social media that there had been break-ins of Mosques and Muslims had been asked to go to other countries where Islam is practised.

31. The Tribunal also noted the DFAT report extracts information from the UNHCR Eligibility Guidelines noting that being Tamil in and of itself is no longer the reason why authorities would have an adverse interest in someone.  

32. In response the applicant told the Tribunal he did not have anything to say about the country information. On questioning the applicant told the Tribunal he considers himself a Tamil as he speaks Tamil.

33. During the hearing the Tribunal spoke to the applicant about his concerns in relation to being a Tamil Muslim and/or a Tamil speaking Muslim. The applicant told the Tribunal he could not speak Sinhalese and that meant he got no respect and could not do anything. The applicant told the Tribunal that in order to avoid trouble he did not go anywhere. The Tribunal noted the applicant had told the Tribunal he had been employed in Sir Lanka and had also travelled to [Country 1] for employment. On questioning the applicant told the Tribunal he did not get into trouble in Sri Lanka due to being a Tamil or a Tamil Muslim or a Tamil speaking Muslim and that his only fear of returning to Sri Lanka was his problem with the CID due to his work at the [business] when his employer was suspected as a people smuggler.

34. While the Tribunal has considering the news articles provided to the Department and the written submission and country information provided by the applicant’s previous representative to the RRT, including the media articles from 2013 relating to an attack on a Colombo Mosque and comments made about Muslim extremists, the Tribunal considers the DFAT report is more current and the Tribunal accepts it as authoritative on the situation in Sri Lanka.

35. The Tribunal considers the country information before it does not support the applicant’s written claims that he will suffer harm in Sri Lanka because he is a Tamil or a Tamil speaking Muslim or a Tamil Muslim.

36. For the reasons noted above, the Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

    Refugee criterion s.36(2)

37. In order to meet the criterion for a protection visa under s.36(2)(a), the applicant must satisfy the Tribunal that they are a person in respect of whom 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). The Convention requires, amongst other things, that the applicant’s fear of persecution 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.

38. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

39. For the reasons given above the Tribunal finds the applicant is not a witnesses of truth and it is not satisfied he has told the truth in relation to critical aspects of his claims.

40. Given the concerns raised above the Tribunal does not accept the applicant was employed by someone who was suspected of being a people smuggler, and the Tribunal does not accept the applicant was or is himself suspected of being involved in people smuggling, or that anyone connected with the authorities or the CID visited the applicant’s home searching for him and threatened that he would be harmed if found. The Tribunal does not accept the applicant left his home and employment and stayed with his [relative] to avoid harm. The Tribunal does not accept the applicant’s father arranged for the applicant to leave Sri Lanka to avoid harm.

41. The Tribunal does not accept the applicant was or is of adverse interest to anyone connected with the authorities or the CID in Sri Lanka. The Tribunal does not accept the applicant was or is an actual or imputed member of a particular social group consisting of ‘persons involved in people smuggling activities’ or ‘persons suspected of involvement in people smuggling activities’.

42. The Tribunal does not accept the applicant was or is suspected of being involved in people smuggling activities and the Tribunal does not accept there is a real chance the applicant will suffer serious harm, or harm of any kind, for that reason if he returned to Sri Lanka now or in the  foreseeable future.

43. While the Tribunal has considered the written submission and country information provided by the applicant’s previous representative to the RRT, as noted above, the Tribunal considers the DFAT report is current and authoritative on the situation in Sri Lanka, and that report does not support the applicant’s written claims that he will suffer harm in Sri Lanka because he is a Tamil or a Tamil Muslim or a Tamil speaking Muslim. The Tribunal also notes the applicant’s oral evidence that no one in his family, including the applicant, was involved in politics or had any connection to the LTTE, and that he did not get into trouble in Sri Lanka due to being a Tamil or a Tamil Muslim or a Tamil speaking Muslim.

44. On the information before it, the Tribunal does not accept there is a real chance the applicant will suffer serious harm, or harm of any kind, because he is a Tamil, or a Muslim, or a Tamil Muslim, or a Tamil speaking Muslim, if he returned to Sri Lanka now or in the reasonably  foreseeable future.

45. The Tribunal has also considered the applicant’s claim that he cannot speak Sinhalese and that meant he got no respect and could not do anything, and that in order to avoid trouble he did not go anywhere. As noted above, the DFAT report indicates that in practice, monolingual Tamil speakers, including in the Tamil majority Northern Province, can sometimes have difficulty communicating with the police, military and other government authorities. DFAT assesses that these practical difficulties are not due to official discrimination as such, but are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict, and the legacy of previous discriminatory language policies.

1. The Tribunal notes the applicant told the Tribunal he worked in a number of different jobs in Sri Lanka including at the [business], and travelled to [Country 1] to work as well. The Tribunal does to accept the applicant got no respect and could not do anything, or that in order to avoid trouble the applicant did not go anywhere.

2. The Tribunal also notes that when questioned more about this claim the applicant told the Tribunal he did not get into trouble in Sri Lanka due to being a Tamil or a Tamil Muslim or a Tamil speaking Muslim, and that his only fear of returning to Sri Lanka was his problem with the CID due to his work at the [business] when his employer was suspected as a people smuggler.

3. While the Tribunal accepts the applicant may have some difficulty communicating with police, military and other government authorities on return to Sri Lanka, the Tribunal does not accept this difficulty would rise to the level that could be considered serious harm. The Tribunal does not accept there is a real chance the applicant will suffer serious harm because he cannot speak Sinhalese, or because his is a Tamil who cannot speak Sinhalese, or a Muslim who cannot speak Sinhalese, or a Tamil Muslim who cannot speak Sinhalese, or a Tamil speaking Muslim who cannot speak Sinhalese, if he returned to Sri Lanka now or in the reasonably foreseeable future.

4. During the hearing the Tribunal discussed with the applicant country information in relation to failed asylum seekers who left Sri Lanka illegally returning to Sri Lanka.

5. As discussed with the applicant during the hearing, the DFAT report, the Upper Tribunal decision, and the UNHCR Eligibility Guidelines, all indicate that standardised procedures apply to all cases at the airport in Sri Lanka, regardless of a persons’ ethnicity or the circumstance in which they left the country, and the Tribunal accepts these reports as authoritative. The information indicates that upon arrival all arrivals are screened against an immigration database and returnees are routinely interviewed at the airport by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). Returnees who are believed to have left the country in breach of Immigrants and Emigrants Act (I&E Act) are arrested at the airport and brought before a court. If a person pleads guilty they are fined and then free to go. In most cases when a returnee pleads not guilty, bail is routinely granted, and if the arrival occurs over a weekend or on a public holiday, the returnee is placed in a nearby prison until a magistrate is available. In response to this information the applicant told the Tribunal he had nothing to say.

6. The Tribunal accepts the applicant left Sri Lanka by boat in breach of the I&E Act and that on return to Sri Lanka he will be arrested at the airport and brought before a magistrate, and if arriving over a weekend or public holiday, he may be detained or held in a prison for a number of days to await a hearing. The Tribunal finds that this will be the result of the non-discriminatory enforcement of a law of general application.

7. The Tribunal notes that DFAT assesses that detainees are not subject to mistreatment during their processing at the airport. The Tribunal also notes that despite the large numbers of reported involuntary failed asylum seeker returnees to Sri Lanka, and despite a high level of reporting, there is no recent and authoritative evidence to indicate that returnees suffer serious harm while in custody at the airport or on remand. On the evidence before it the Tribunal does not accept there is a real chance the applicant will be mistreated while in custody at the airport or on remand.

8. The Tribunal accepts that prison conditions in Sri Lanka are poor due to overcrowding and unsanitary conditions.[2] The Tribunal considers that the cramped and uncomfortable conditions apply to persons in remand generally and not specifically to people arrested due to illegal departure or for being returnees or failed asylum seekers. The Tribunal does not accept that one or more of the five convention reasons would be the essential and significant reason or reasons for the applicant experiencing those conditions, as required by s.91R(1)(a).

   [2] US State department, Country Reports on Human Rights Practices for 2012 in relation to Sri Lanka, Section 1.c, Prison and Detention Center Conditions.

9. The Tribunal notes the DFAT report states that the Sri Lankan Attorney General’s department reports that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, although fines have been issued to act as a deterrent, with fine amounts varying on a case by case basis. The Tribunal notes it does not accept the applicant is suspected of being involved in people smuggling. The applicant has not raised any claims that he will not be granted bail or that the imposition of a fine will cause him serious harm. The Tribunal considers the information indicates that if arrested, the applicant will not be sentenced to imprisonment, and it finds the chance of him receiving a custodial sentence for illegal departure is remote.

10. On the evidence before it the Tribunal is not satisfied there is a real chance that the applicant will suffer persecution on return to Sri Lanka because he is a Tamil, and/or a Tamil Muslim, and/or a Tamil speaking Muslim, who departed Sri Lanka illegally, and/or because he claimed asylum in Australia and is a failed asylum seeker returning from Australia, or because of his membership of a particular social group ‘failed asylum seeker’.

11. While the Tribunal has considered the applicant’s concern that he will suffer psychological problems if he is returned to Sri Lanka, the Tribunal notes the applicant’s oral evidence that he has not suffered physiological problems in the past. The Tribunal accepts that the applicant is happy living in Australia and does not wish to return to Sri Lanka. Nevertheless the Tribunal notes the applicant has not provided any medical evidence to suggest that he will suffer psychological problems if he is returned to Sri Lanka. While the Tribunal accepts returning to Sri Lanka will be challenging for the applicant, on the evidence before it, the Tribunal does not accept the applicant will suffer psychological problems to the level that could be considered serious harm if returned to Sri Lanka. Nor does the Tribunal accept that such harm would be for a convention based reason.

12. Having considered all the evidence before it, and the applicant’s personal circumstances, both individually and cumulatively, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, if returned to Sri Lanka now or in the reasonably foreseeable future, for the reasons he has claimed, or for any other reason.

13. The Tribunal finds that the applicant does not have a well-founded fear of persecution.  

14. Having considered the claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection criterion: s.36(2)(aa)

15. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether the applicant may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

16. For the reasons given above, the Tribunal finds the applicant is not a witness of truth, and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

17. For the reasons given above, the Tribunal does not accept the applicant was employed by someone who was suspected of being a people smuggler, or was or is himself suspected of being involved in people smuggling, or that anyone connected with the authorities or the CID visited the applicant’s home searching for him and threatened that he would be harmed if found. The Tribunal does not accept the applicant left his home and employment and stayed with his [relative] to avoid harm. The Tribunal does not accept the applicant’s father arranged for the applicant to leave Sri Lanka to avoid harm.

18. The Tribunal does not accept the applicant was or is of adverse interest to anyone connected with the authorities or the CID in Sri Lanka.

19. The Tribunal does not accept the applicant was or is suspected of being involved in people smuggling and the Tribunal does not accept there is a real risk the applicant will suffer significant harm for that reason if returned to Sri Lanka.

20. Noting the DFAT report which the Tribunal considers is authoritative on the situation in Sri Lanka, and the applicant’s oral evidence that he did not get into trouble in Sri Lanka due to being a Tamil or a Tamil Muslim or a Tamil speaking Muslim, and that his only fear of returning to Sri Lanka was his problem with the CID due to his work at the [business] when his employer was suspected as a people smuggler, on the evidence before it, the Tribunal does not accept there is a real risk the applicant will suffer significant harm because he is a Tamil, and/or a Tamil Muslim, and/or a Tamil speaking Muslim, if returned to Sri Lanka.

21. On the evidence before it the Tribunal does not accept there is a real risk the applicant will suffer significant harm because he cannot speak Sinhalese, or because his is a Tamil who cannot speak Sinhalese, or a Muslim who cannot speak Sinhalese, or a Tamil Muslim who cannot speak Sinhalese, or a Tamil speaking Muslim who cannot speak Sinhalese, if he returned to Sri Lanka. Nor does the Tribunal accept there is a real risk the applicant will suffer psychological harm to the level that could be considered significant harm if returned to Sri Lanka.

22. Noting the country information referred to above, and on the evidence before it, the Tribunal does not accept there is a real risk the applicant will suffer significant harm because he is a Tamil, and/or a Tamil Muslim, and/or a Tamil speaking Muslim, and/or because he departed Sri Lanka illegally, and/or because he claimed asylum in Australia and is a failed asylum seeker returning from Australia, or because of his membership of a particular social group ‘failed asylum seeker’.

23. The Tribunal accepts that the applicant will be arrested at the airport in Sri Lanka and placed in remand for a relatively brief period if a magistrate is not available, and would later be fined if found guilty of breaching the I&E Act. The Tribunal accepts that prison conditions in Sri Lanka are poor. For the reasons given above the Tribunal does not accept the applicant will be mistreated while in custody or on remand, and it does not accept there is a real risk that he will be subjected to ‘torture’ as defined. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[3] The Tribunal does not accept that the evidence before the Tribunal indicates an intention on the part of the Sri Lankan authorities or anyone to intentionally inflict pain or suffering or intend to cause extreme humiliation on people while in prison. Therefore spending a number of days in such a prison does not amount to ‘significant harm’ as defined. While a fine may be considered punishment, the Tribunal does not consider, on the information before it, that the imposition of such a fine would be ‘torture’ as defined, or intended to cause or causes extreme humiliation which is unreasonable (as stipulated by the definition of degrading treatment or punishment in s.5(1)) or that the imposition of a fine would cause (or was intended to cause) severe pain or suffering, or pain or suffering where the act or omission could reasonably be regarded as cruel or inhuman in nature or that the imposition of a fine in these circumstances could be regarded as cruel or inhuman (within the meaning of the definition of 'cruel or inhuman treatment or punishment' in s.5(1)). Nor is the Tribunal satisfied that the evidence before it indicates that on return to Sri Lanka there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment. 

    [3] SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

24. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, 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 the applicant will suffer significant harm.

25. Therefore the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

26. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

27. 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

28. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Chris Thwaites
    Member  25 October 2016