1517869 (Refugee)

[2018] AATA 1061

1517869 (Refugee) [2018] AATA 1061 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517869

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:A B Baker

DATE:21 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 21 March 2018 at 2:16pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity – Tamil – Political opinion – Imputed with anti-government opinion – Social group – Young Tamil woman – Extended family of LTTE member – Estranged from family – Victim of sexual assault – Harassed by CID and pro-government militia – Failed asylum seeker – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5, 5J, 36, 45AA, 65, 91R, 91S, 499
Migration Regulations 1994, r 2.08F, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC33

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] July 2014 and the delegate refused to grant the visa [in] December 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4.    The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5.    The applicant was represented in relation to the review by her registered migration agent.

RELEVANT LAW

6. 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

7. 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).

8.    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.

9. 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.

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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

1. 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’).

2. ‘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.

3. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) in Sri Lanka and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her removal from Australia to Sri Lanka, there is a real risk that she will suffer significant harm.

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

BACKGROUND

1. The applicant is a citizen of Sri Lanka born [in date] ([age] years old) in the Batticoloa district, Eastern Province. She identifies herself as of Tamil ethnicity and of the Hindu religion.

2. The applicant arrived in [Australia] [in] April 2013 as a Direct Entry Person on a vessel. At her PV interview the applicant advised that she had married another Sri Lankan national who had arrived by boat [in] May 2015.

3. She claims to have lived at various locations in Batticaloa District prior to her departure for Australia [in] March 2013.

CLAIMS FOR PROTECTION

1. In a letter to the Tribunal on 24 October 2017, the applicant instructed, through her nominated representative that she maintains the claims set out in her statement dated [in] August 2014 and arguments in support of these claims set out in a submission of 17 July 2015.

Claims before the delegate

1. The applicant’s written claims are on the Department’s file from folios 50-53 and from 72-74. Subsequent to that was an interview with the delegate. The applicant’s oral and written claims are summarised as follows:

   a.She is of Tamil ethnicity and the Hindu religion

   b.Her family and community were deeply affected by the conflict in Sri Lanka.

   c.Her aunt, uncle and cousin were associated with the LTTE and she has been imputed with their association

   d.She and her family members have been constantly harassed by the CID and pro-government militia because of this association.

   e.She fear returning to Sri Lanka because she will encounter the same harassment, sexual assault, abduction, torture and death because she is known to these groups.

   f.As a result of the department’s data breach in 2014 she fears that her location and status in Australia have become known to the Sri Lankan authorities and the attention that this will attract will lead to further persecution.

   g.She claims that subsequent to her departure the CID have visited the family home and members of her family were taken away and questioned for several days. She claims that her sister had been smuggling weapons and her husband was arrested. They fear that he has been detained and tortured by the Sri Lankan authorities in the past.

   h.She has no family to return to as she has no relationship with her siblings or her biological parents.

   i.She cannot seek state protection as it is the state that is persecuting her.

2. The details of the applicant’s claims are as follows:

   a.Her biological father was [an occupation] and her mother was [an occupation].

   b.Sometime in 1992/93 the Sri Lankan army detained her father and he was severely beaten and he lost the mobility of one of his legs. Her uncle was also detained and tortured resulting in a hearing impairment.

   c.Her father was unable to financially provide for the family and so they took her to her [aunt], who along with [the aunt]’s mother, raised her.

   d.Her brother in law also had problems with the CID and was detained by the Sri Lankan authorities in 2014 and has not been released.

   e.When she was [age] years old she was taken to an LTTE camp but allowed to go home because she would always cry.

   f.At the age of [age] she discovered that [her aunt] was recruited by the LTTE and married a man who was also linked to the LTTE.

   g.The applicant experienced many incidents of harassment and threats from men visiting the family home at various times asking questions and making threats. She claims these men were from the CID and they asked about her relationship with her aunt and cousin and what her aunt was doing in Colombo.

   h.Between 2007-2013 she and her family relocated many times to avoid problems. She was threatened with death, was intimidated and harassed until she departed Sri Lanka with her aunt, uncle and cousin in 2013.

   i.She finished high school in [year] and began a [course]. She was harassed at the school abducted and assaulted by two men. She managed to escape.

   j.Her aunt and uncle arranged for them all to depart Sri Lanka by boat.

   k.After they arrived in Australia her Aunt [began] acting strangely towards her and they became completely estranged. She was prevented from talking to her grandmother in Sri Lanka.

3. In assessing her claims the delegate found that she had contrived her relationship with her alleged [Aunt]. The delegate noted that the applicant’s core claims and the reasons for enduring the claimed harassment and threats whilst in Sri Lanka rest upon the claimed family relationship with her claimed Aunt.

4. The delegate found that the applicant had no association, direct or otherwise with the LTTE.

5. The delegate was not satisfied that the applicant was of any interest to the Sri Lankan authorities for any reason or that she had been subjected to, or experienced any past harm or threats. The delegate was not satisfied that the applicant had been subjected to adverse attention because of her own circumstances or because of her aunt from the Sri Lankan authorities. The delegate was not satisfied that the applicant had ever been arrested or detained by the authorities or from paramilitary groups or for anyone else for any reasons or that the authorities inquired about her whereabouts.

6. The delegate was not satisfied that the applicant’s identity or status in Australia would come to the adverse interest of the Sri Lankan authorities as a result of the department’s data breach in January 2014.

7. The delegate was not satisfied that the applicant’s fear of future harm is well-founded. The delegate found that the applicant did not have a risk profile such that she would be of adverse interest to the authorities or anyone else.

Tribunal hearing

1. Prior to the Tribunal hearing the applicant informed the Tribunal that she gave birth to a daughter [in date] in [a] Hospital. The applicant also provided a copy of a letter from [Dr A] dated [in] October 2017 stating that the applicant has been under his care since her initial consultation [in] August 2016. He states that the applicant is suffering from severe Post Traumatic Stress Disorder and is under therapy and medication. [Dr A] states that returning to the applicant to Sri Lanka would lead to an escalation in the symptoms of her illness and she would face the potential risk of self-harm. [Dr A] states that the applicant is able to care for her child only with the high level of support provided by her husband.

FINDINGS AND REASONS

Country of reference

1. The Tribunal is satisfied that the applicant is a national of Sri Lanka and for the purposes of the Refugees Convention, finds that Sri Lanka is the country of nationality and the receiving country for the purposes of the complementary protection criteria.

Claims at the Tribunal hearing

1. The applicant stated that she had not been able, in the past, to put all the information before the decision maker. The Tribunal told her that she could take as much time as she wanted to put her claims in as much detail as she could remember. The applicant recounted the claims she made in her visa application and submission to the delegate as recorded, almost in their entirety to the Tribunal. The only significant detail she added to her previous accounts included that the applicant made two suicide attempts after an incident where she was sexually assaulted by two [men]. All other information remained essentially the same.

2. The applicant’s representative told the Tribunal that the applicant had a real chance of suffering serious and significant harm from the Sri Lankan authorities and others on the basis of her following attributes, either individually or cumulatively:

   a.Membership of her aunt’s family;

   b.Imputed pro-Tamil or pro-LTTE political opinion;

   c.Her Tamil ethnicity;

   d.A Tamil woman; and

   e.A failed Tamil asylum seeker.

3. After the hearing the applicant through her representative provided the Tribunal with a number of documents, including the following:

   a.Affidavit from [(Mrs A)] the applicant’s mother dated [in] August 2013. Mrs A states that the applicant lived with [another person] from the age of [age] to [age] years due to the family’s financial problems. Mrs A states that the applicant faced kidnapping problems by unknown persons and went to live with [her aunt], whose husband had been shot and killed by unknown persons. Mrs A states that the applicant then went with [her aunt] to live in the village [where] she stayed until another unknown person threatened here and police and CID came and inquired after her. Mrs A states that if the applicant returns to Sri Lanka she will not be safe.

   b.Statement from Mr S, the applicant’s father stating that the applicant was raised by [her aunt]’s family since the age of [age]. Mr S says that [her aunt] is his [relative].

   c.Submission from the applicant through her representative.

   d.Reports from the detention services provider in relation to the applicant’s mental health and circumstances with her aunt.

Relationship with her aunt

1. The applicant’s account of her relationship and association with her Aunt was strange and unconvincing. The applicant told the Tribunal that the reason she and her aunt no longer had anything to do with each other was because of an incident that occurred whilst they were in detention together. The applicant claims that they shared accommodation and that her aunt began a relationship with a man. She said that her aunt and this man had sex in their room while she was still there. She said that she didn’t like this and went to her case officer to ask for another room. She claims that her aunt subsequently told the case officer that she wanted to have her own room because she, the applicant, had been taking men to the room for sex at all hours during the night. She said after she got her own room she and her aunt did not have anything to do with each other.

1. The Tribunal put to the applicant that her Aunt’s estrangement after everything that they had been through together, including raising her since the age of [age] years, all the harassment and moving around Sri Lanka that they experienced together, their journey to Australia together on a boat seemed an extreme reaction to the event she described. The Tribunal put to the applicant that it found the account implausible and did not think it had heard the truth of the matter. The applicant told the Tribunal that she could check her account.

2. Despite advising the applicant’s representative of the legal difficulties in obtaining some verification of the applicant’s account from her aunt, or from the department of immigration, the applicant’s representative asked the Tribunal to obtain such information as it was legally able to in order to verify the applicant’s claims. The applicant also told the delegate to confirm her claims with the “aunt” and her family at interview.

3. The applicant’s account of the estrangement with her aunt in her statement to the delegate is somewhat different to the account she gave to the Tribunal at the hearing. In her statement the applicant claims that in around August 2013 her Aunt developed a friendship with a man in detention and began behaving very strangely toward her after that. She says that her aunt is now claiming that she didn’t know her before meeting on the boat.

4. Despite its misgivings, the Tribunal sought and obtained some information in relation to the claims of the applicant’s aunt and because of privacy constraints in relation to the sharing of third party information, was obliged to put that information to the applicant only in very broadest terms. That information did not support the applicant’s claims in relation to her association with the woman she claims is her aunt in any relevant particular. The Tribunal wrote to the applicant under the requirements of s.424 as the information was adverse to the applicant. The Tribunal sought a response from the applicant on that information as it would form a reason, or part of the reason why the Tribunal would affirm the decision under review.

5. The Tribunal has also considered, in this context, documents provided by the applicant relating to her time in detention and provided to the Tribunal after the hearing. There are two reports from the detention service providers in relation to the applicant and her aunt. In one report the applicant tells the detention services provider that she and her aunt argued because her aunt disapproved of her (the applicant) talking to her friends and having friends come to their room. In another account prepared as part of her mental health assessment, the applicant tells the medical officer that her aunt had an “affair’ and this led to some conflict and the applicant moving into a room of her own. In any event, what can be agreed is that the two women were known to each other and had a falling out.

6. The applicant contests those matters, as she did in the hearing, and the Tribunal is inclined to agree with the applicant’s representative in that the differing accounts of the relationship between the applicant and the woman she has called her Aunt cannot be construed as an unreliable account on the part of the applicant. It could well be that the Aunt’s account of events to the delegate are unreliable. In any case, the Tribunal considers this conflicting evidence in this regard tends not to weigh against the applicant.

Does Australia have protection obligations under the Refugee Convention

Ethnicity

1. According to the DFAT Country Information Report on Sri Lanka published on 24 January 2017 the Sri Lankan Constitution provides that “no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such ground”. Tamil was recognised as the second official language and in 2012 Sri Lankans had the right to communicate in Sinhala, Tamil or English. DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination although societal discrimination on the basis of ethnicity can occur. (DFAT. January 2017 p.11)

2. DFAT also notes that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since 2015. Tamils have 29 seats in the parliament and hold the majority of seats in the Northern Provincial Council. (DFAT, January 2017 p.12, 14).

3. The Tribunal put a summary of this information to the applicant stating that it did not appear that she would suffer discrimination amounting to significant harm on the basis of her ethnicity if she returned to Sri Lanka. The applicant told the Tribunal that she would continue to face harassment and possibly death if she returned to Sri Lanka however she was unable to be specific as to why she would be of interest to the authorities or to anyone such that they would seek to harm her. She said that they knew she would be there and they would know about the family.

4. The Tribunal notes the applicant’s submission of July 2015 where she states that there have been reports of rape and sexual violence against Tamils and that the CID and other security forces have also been reported as responsible for acts of torture against Tamils. The applicant’s accounts of the harassment and intimidation and sexual assaults she claims to have experienced, however, lacks relevant detail and conviction. The Tribunal was not persuaded, by her account of events, that she experienced any of the harm she alleges. For example, she did not provide any spontaneously remembered facts but merely recited material she had already provided in her written submission.

5. The Tribunal would expect that someone who had a personal experience of such things would be able to provide a more detailed account than the applicant was able to do, particularly as she has been required to recount the incident on many occasions to both government and private agencies. In The Tribunal’s mind, it sounded like she was recounting an event she had read about rather than experienced personally. Be that as it may, the Tribunal does not accept the applicant’s claims that she has been, or would be harmed on the basis of her ethnicity by the Sri Lankan authorities and/or agencies, or anyone else, if she returned to Sri Lanka.

LTTE

1. The UNHCR Eligibility Guidelines for Sri Lanka (December 20120 note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. However the nature of the links may vary and any interest by the government would be for persons who held senior positions, former LTTE combatants or supporters who have undergone military training or actively supported LTTE combatants, fundraisers and propaganda activists and persons with family links or who are dependent on or otherwise closely related to persons with these profiles. (DFAT, January 2017 p.16).

2. DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka and there are no legal barriers to former LTTE members participating in public life, including in politics.

3. In her post hearing submission the applicant through her representative claims that the DFAT country information relied upon by the Tribunal engages a “low risk” test rather than the “real chance” test of harm, let alone harm that may amount to serious harm or significant harm for the purposes of engaging Australia’s protection obligations. The applicant submits that people considered to have links with the LTTE continue to be the victims of attacks, violence and human rights abuses and hence her fears are well-founded.

4. The Tribunal is mindful of the point, however the applicant was unable to provide any relevant details about why the Sri Lankan government, or anyone else, would be interested in her whereabouts as a result of her claimed association with the LTTE through her “aunt” or separately. Her accounts of her alleged harassment by authorities or others because of this alleged association were vague and unconvincing.

5. Statements by the applicant’s mother and father in relation to her claimed persecution are vague, unsubstantiated and in any case lack credibility. For example, the applicant’s mother claims that the applicant’s aunty took her from town to town because of threats by unknown persons. There is no mention of the LTTE in the statement provided by the applicant’s mother or father. It seems to the Tribunal that if the applicant went to the trouble to seek statements from her parents in regard to her relationship with her aunt, she would also be able to ask them to provide some corroborating statements in relation to her association with the LTTE, if there was one.

6. The applicant claims that her past harassment by people she identified as being with the CID and/or military means that they would continue to harass her. The Tribunal is not satisfied that the applicant’s account of the claimed harassment is truthful or that she has been harassed by the Sri Lankan government, or anyone else, because of her claimed association with the LTTE, or for any reason or that she would be harassed by the government or anyone else because of her claimed association with the LTTE or for any other reason should she return to Sri Lanka.

7. An integer of the applicant’s claim is that she fears significant harm amounting to persecution if she returns to Sri Lanka because of the arrest and imprisonment of her brother in law and the arms smuggling activities of her sister. She did not pursue the latter claims at the hearing and only mentioned the arrest and continued detention of her brother in law. She told the Tribunal that she was not certain of her brother in laws whereabouts only that he remained detained by the authorities. She said the Tribunal could check this.

8. The Tribunal notes a document purported to be a record of the applicant’s brother-in-law’s arrest. The Tribunal does not give this document much weight in the context of the entirety of the applicant’s claims. The applicant has not provided any other details about her brother-in-laws arrest and given her estrangement from her family since the age of [age], its difficult to see how the authorities would make an adverse link between her brother in law and herself. In any case, given the lack of credible or reliable evidence supporting the applicant’s claims and her general lack of credibility, the Tribunal does not accept that the applicant will be adversely associated with her brother-in-law such that she would suffer significant harm as a result if she returned to Sri Lanka.

Returnees

1. The Australian government has returned over 1500 failed asylum seekers to Sri Lanka

2. The Tribunal put this information to applicant and suggested that she would not be persecuted as a result of her. The applicant claimed that there were newspaper articles about returned asylum seekers in the paper claiming that they were tortured when then returned to Sri Lanka.

3. While the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on her return to Sri Lanka, taking into consideration her particular profile as someone who has no criminal record and the findings above that she was not involvement directly or indirectly with the LTTE or with someone involved in the LTTE, the Tribunal is satisfied that the applicant would be released without further interest and she would not face a real chance of persecution as a Tamil failed asylum seeker.

4. The Tribunal finds the chance that the applicant would be imputed with an anti-government political opinion as a result of her profile such as being Tamil, a young Tamil woman being a failed asylum seeker and departing illegally as remote.

5. The Tribunal is not satisfied that the applicant has a profile that would interest the authorities such that they would cause her significant harm if she returned to Sri Lanka because she is a failed asylum seeker or for any other reason.

Mental health

1. The applicant provided a report from her psychiatrist stating that the applicant would face the risk of self-harm and deterioration in her mental health if she is returned to Sri Lanka and that she requires ongoing psychiatric care and psychological therapy. The Tribunal notes in this context that the applicant’s mental health was assessed as unexceptional during her time in detention and she had not made any claims or sought any assistance in relation to PTSD.

2. The Tribunal put to the applicant a summary of a report from the WHO South-East Asia Journal of Public Health dated April 2017 states that in the wake of the tsunami in 2004, Sri Lanka has implemented a comprehensive community-based, decentralised mental health service structure.

3. The applicant claims that she would not receive any support for her mental health if she returned. She said that she wouldn’t receive Centrelink benefits and her husband would have to work and she wouldn’t be able to look after their child. The applicant did not provide any evidence to support her claims that she could not access appropriate mental health services should she be returned to Sri Lanka.

4. The Tribunal is not satisfied that the applicant would suffer significant harm as a result of her mental health issues should she return to Sri Lanka. There is no evidence to suggest that people with mental health issues are targeted or discriminated against such that any discrimination would amount to significant harm or that she would not receive appropriate help and support if it were sought.

Data breach

1. The applicant claimed in her statement to the delegate that she was fearful that the publication of the details of her detention in Australia in early 2014 would draw her to the attention of the authorities if she returned and lead to more threats and intimidation.

2. The applicant did not pursue these claims at the hearing. In the Tribunal’s mind, such information as was published as a result of the data breach could not lead the attention of the authorities to the applicant in an adverse way. The Tribunal does not accept that the Sri Lankan authorities have an interest in the applicant for any reason and even if they were or became aware of her detention in Australia as a result of an asylum claim, there is no evidence before the Tribunal that she would suffer significant harm as a result.

Ministerial intervention

1. The applicant has asked the Tribunal to refer the applicant to the Minister for the exercise of his discretion. The applicant claims that she has given birth to a child [and] is in a relationship/marriage with her daughter’s father and that separating the mother from her child may breach Australia’s obligations under the ICCPR and CROC. She also claims that her mental health would be irreversibly harmed.

2. The applicant has provided the Tribunal with no evidence of the birth of her daughter or of any relationship or marriage to a person in Australia or whether that person is an Australian citizen or otherwise; or whether that relationship is continuing, or indeed of any details regarding the claimed marriage/relationship.

3. Should the applicant wish to pursue this matter with the Minister, the evidence of those claims should be submitted.

CONCLUSION

1. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.

2. 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).

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

4. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if she returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, as a Tamil, or as a young Tamil woman or for any other reason. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.

5. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities or anyone else for these or any other reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

6. 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

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

A B Baker
Senior Member