1518119 (Refugee)

[2016] AATA 4855

1518119 (Refugee) [2016] AATA 4855 (9 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1518119

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:David Corrigan

DATE:9 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2016 at 5:43pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Federal Circuit Court Remit – Political opinion – United National Party (UNP) member – UNP village organiser – Failed asylum seeker – Fear of People’s Alliance (PA) – Credibility Concerns

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 and the delegate refused to grant the visa [in] March 2014.  On 2 September 2015, the Tribunal (previously constituted) affirmed the decision not to grant a Protection visa.

3. [In] December 2015, the Federal Circuit Court by consent ordered that the Tribunal’s decision be quashed and that the Tribunal determine the application according to law.

4. The applicant appeared before the Tribunal (presently constituted) on 3 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

5. The applicant was represented in relation to the review by his 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant’s claims can be summarised as follows.  He is a Sinhalese man from [Puttalam] district, Sri Lanka.  He travelled to Australia by boat in June 2012.

22. The applicant became interested in politics after his father passed away.  His father was a United National Party (UNP) voter but was never involved in politics.  His father had a good reputation in their village and in 1993 or 1994, his father was asked to join the People’s Alliance (PA).  His father refused and was taken to the town, undressed and beaten badly.  He never recovered and 1-2 months later committed suicide.  The applicant is very angry with the PA and he joined the UNP in 2006 when he fully understood what happened to his father.

23. The applicant actively supported the UNP by organising rallies and canvassing during election times and he became the village’s UNP representative as his father was well-known.  He communicated with the local minister to help his fellow villagers, hosted quarterly meetings at his home, put up posters and decorations at elections and assisted villagers in activities such as funerals and weddings.  Through his actions he converted all villagers to UNP supporters.  Less than six months after joining the UNP, members of the PA approached him and warned him that if he continued his involvement the same thing that happened to his father would happen to him.  After this they continued to harass him.  Almost every time he went into town, someone shouted at him.  If they were drunk and ran into him they would beat him up.  Since 2006 he was beaten by members of the PA on 4-5 occasions.  The last time he was assaulted was in 2010 during the election.  He was attacked by 5-6 people and beaten badly and [was injured].  He was afraid they would find him in a hospital so he went to a local doctor for treatment.

24. After the incident the applicant did not feel safe so he went to [Country 1] for one year and two months.  About three months after he returned in approximately July 2011, the problems started again.  There was a local election in May 2011 which he was unable to support because he started receiving threats again.  From that point on he only stayed indoors or worked in other villages or districts until his departure in June 2012.   He fears that PA members will not believe that he is no longer involved in politics.  Since he left Sri Lanka illegally to come to Australia, PA supporters have visited his house to look for him. PA supporters broke his home’s windows in September 2013.  In July 2015, PA supporters came looking for him at him at his home and threatened to kill him if he returned from Australia.  In March 2016, two men with helmets on their heads told his wife that when he returns he report to the PA village organiser.

    Country of reference

25. The applicant has claimed to be a citizen of Sri Lanka. He has provided documentation (including a copy of his passport and drivers licence) that supports this claim. On the basis of this evidence, I find that he is a national of Sri Lanka for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

    UNP claims

26. I have considered carefully the applicant’s claims but I do not consider him to be a credible witness.  I do so for the following reasons:

    ·Whilst the applicant demonstrated some basic knowledge about the UNP during the Tribunal hearings, including knowledge of the party leader and symbol and that it was a right wing party, it was limited and not consistent with a person who claims he acted as the UNP village representative for five years and motivated to continue to do despite suffering four to five physical assaults.  Asked at both hearings, as to the UNP’s policies he said they helped a lot of common and poor people by providing water and electricity to the village and by giving loans and starting to help businesses.  He did not provide any other details at these hearings as to UNP policies or what particular policies attracted him and I consider his limited knowledge detracts from his credibility.

    ·The applicant claims that in 2006 (the year he first joined the UNP) although not an official post, he was viewed as the UNP village representative.   He claims that he was called by a local council member and joined with him and that he had respect from the villagers due to the good reputation of his father in the village.  I have considered his comments but I find it far-fetched that he would obtain the role of the UNP village representative in such a short period of time particularly as his father had died 11 years previously and was not involved in the UNP or politics and I find this detracts from his credibility.

    ·The applicant told the first Tribunal that he had helped campaigning during the parliamentary election in 2010.  However, the Sri Lankan parliamentary elections took place in April 2010[1] (when the applicant was working in [Country 1]) whilst the elections that took place in January 2010 were the presidential elections.[2]  When I put this to him, he said he could not remember but it was in 2010 that he joined.   I consider the applicant’s inability to accurately recall which election occurred first (and the only one in which he was in the country at the time and which he claims he was campaigning in) reflects adversely to his credibility.

    ·The applicant in his statement of claims said that he joined the UNP in 2006 and did not make any mention of any political activities prior to this.  However, in a letter he submitted from [Mr A], Member of Local Government, Group Organiser, UNP, dated [in] November 2013, it is stated that he had “worked hardly in the election of the UNP with me in 2001 and till 2011”.  The applicant commented that he and [Mr A] were school friends and in 2001 he had supported [Mr A] in a limited sense, not officially and individually using word of mouth talking about him.  I consider the applicant’s comments in response to be very vague as to how exactly he had helped [Mr A] in 2001 and do not adequately explain why the politician would state that the applicant had worked with him in the election of the UNP in 2001 and till 2011 and I consider this letter detracts from the credibility of his claims.

    ·The applicant went to [Country 1] for 14 months in 2010 after he claims he did not feel safe anymore after being physically assaulted to the extent of [being injured] in early 2010 and after being physically assaulted 4-5 times during 2006-2010.  He told the first Tribunal that he returned in April 2011 because the situation was not that bad and he was not expecting anything to happen.  He told me that he wanted to see his child and expected that he had been forgotten.  Whilst I accept that the applicant would want to see his child, I find his return to Sri Lanka and his home area after just 14 months in [Country 1] and within 16 months of a claimed brutal assault that left him with [injuries] detracts from the credibility of his claims.  The applicant has claimed that he is was of such importance to the UNP in his village as the representative that he was subject to threats and 4-5 physical assaults in the 2006-2010 period (including in early 2010) and I consider it far-fetched and implausible that if this was true, he would have not expected anything to happen and think that he would have been forgotten as he has claimed.

    ·The applicant told the first Tribunal that he was not involved in the UNP after he returned from [Country 1].  However, he told me that he gave them help but “not in a full sense” and that he organised people from the village and used to get contacts to get stuff.  When the inconsistency was put to him, he said he was not involved to that extent but acted when there was a need and that it was not an organised link.  I have considered his response, however, I consider it vague and that it does not adequately explain the inconsistency which I find detracts from his credibility.

    ·The applicant has claimed that in July 2015, PA supporters had come to his wife’s home about him and threatened that if he returned they would kill him.  He has also claimed that in March 2016, two helmeted men stated that when the applicant returns, he report to the PA village organiser.  He has submitted four affidavits from his sister and his wife as evidence of this.  The applicant told the Tribunal that the PA want him to change parties to support them as they had not been successful in getting people in his village to vote for them and wanted his help.  I do not consider this to be a plausible claim.  The applicant has claimed that he had a role of a village UNP for a long period of time and was subject to 4-5 physical assaults and I consider it far-fetched that PA supporters several years later after he had left the country (and six years since he had acted as UNP village representative) would believe that they could get him to agree to change his party and return home from overseas.  I am also of this view given that these affidavits allege that PA supporters came to his home in July 2015 and threatened that if the applicant returned they would kill him.   I consider it far-fetched and implausible that if the PA supporters had wanted the applicant to return to help them that they would have threatened to kill him if he returned.  The applicant has not been in Sri Lanka since 2012 and according to the applicant he not acted as the UNP village organiser since 2010 and I find it implausible and far-fetched that he would be of any continuing interest to political opponents several years later and I find that this further detracts from his credibility.

    [1] International Foundation for Electoral Systems 2009, ‘Election Profile: Sri Lanka – Parliamentary 2010, 13 April International Foundation for Electoral Systems 2010, ‘Election Profile: Sri Lanka – Presidential 2010 – Results’, IFES website

27. I accept that in 1993 or 1994, the applicant’s father was asked to join the PA.  I accept that his father refused and was taken to the town, undressed and beaten badly.  I accept that he never recovered and 1-2 months later committed suicide.  However, given the highly significant and fundamental concerns about the applicant’s credibility set out above, I do not accept that the applicant ever assisted [Mr A] in any way in his election and political campaigns from 2001.  During the hearing, I expressed my concerns about whether he was involved in the UNP or a member and I do not accept that the applicant joined the UNP in 2006 or was ever a member or involved in the party.  I do not accept that the applicant actively supported the UNP by organising rallies and canvassing during election times and he became the village’s UNP representative as his father was well-known.  I do not accept that he communicated with the local minister to help his fellow villagers, hosted quarterly meetings at his home, put up posters and decorations at elections and assisted villagers in activities such as funerals and weddings.  I do not accept that through his actions he converted all villagers to UNP supporters. I do not accept that less than six months after joining the UNP, members of the PA approached him and warned him that if he continued his involvement the same thing that happened to his father would happen to him.  I do not accept that after this they continued to harass him.  I do not accept that almost every time he went into town, someone shouted at him.  I do not accept that if they were drunk and ran into him they would beat him up.  I do not accept that since 2006 he was beaten by members of the PA on 4-5 occasions.  I do not accept that he was assaulted was in 2010 during the election.  I do not accept that he was attacked by 5-6 people and beaten badly and [injured].  I do not accept he was afraid they would find him in a hospital so he went to a local doctor for treatment.

1. I do not accept that the applicant went to [Country 1] because he did not feel safe.  I do not accept that about three months after he returned in approximately July 2011, the problems started again.  I do not accept that he was unable to involve himself in local elections because he started receiving threats again.  I do not accept from that point on, he only stayed indoors or worked in other villages or districts until his departure in June 2012.   I do not accept that he fears that PA members will not believe that he is no longer involved in politics.  I do not accept that since he came to Australia, PA supporters have visited his house to look for him.  I do not accept that PA supporters broke his home’s windows in September 2013.  I do not accept that in July 2015, PA supporters came looking for him at him at his home and threatened to kill the applicant if he returned from Australia.  I do not accept that in March 2016, two men with helmets on their heads told his wife that when he returns he report to the PA village organiser.  I do not accept that PA supporters want him to join their party upon return and have threatened him.  I do not accept that he is or was of any adverse interest to the PA or any political opponents of the UNP.  Given his lack of involvement in the past, I do not accept that the applicant will involve himself or wish to involve himself in the UNP upon his return to Sri Lanka.  

2. In making these findings, I have taken into account the affidavits from his wife and sister, the letters from [Mr A], dated [in] November 2013 and [in] November 2012 and the letters from [another politician], dated [in] November 2013 and [in] November 2012, supporting his claimed UNP involvement and opposition vengeance against him.  However, given the highly significant and fundamental concerns I have about the applicant’s credibility, I have given these documents no weight in making my assessment.

3. Whilst, I have accepted that his father was beaten by the PA for refusing to join with them, this occurred over 20 years ago when the applicant was a child and the applicant did not suffer any adverse consequences from that in his time in Sri Lanka to 2012. I consider the chance or risk of him being seriously harmed or significantly harmed because of this event to be remote.

4. Considering the applicant’s individual circumstances, I find that he does not face a real chance of persecution in the reasonably foreseeable future for reasons of his actual or imputed political opinion or membership of a particular social group consisting of his family or any other Convention reason.

5. Considering the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.

   Illegal departure

6. DFAT have reported:

   4.23 There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.

   …

   5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.

   5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat...

   5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

   5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case  basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).[3]

   [3] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 18 December 2015.

7. There is also country information that supports that returnees are granted bail.  In November 2012, the ABC reported that 32 failed asylum seekers deported from Australia were arrested in Colombo upon their arrival at the airport; most were reportedly released on bail soon after.[4]  Sinhalese as well as Tamils are being charged in relation to illegal departure.[5]

   [4] Edwards, M 2012, ‘Deported asylum seekers arrested in Sri Lanka’, Australian Broadcasting Corporation, source: Australia Network News, 16 November < Accessed 17 December 2012.

   [5] Sydney Morning Herald, Asylum seekers face court in Sri Lanka, 8 July 2014, - accessed 24 December 2014.

8. Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[6]  Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[7]  In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[8]   

   [6] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March.

   [7] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.

   [8] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.

9. I accept that the applicant illegally departed Sri Lanka by sea.  The provisions of the I&E Act that deal with irregular departure are not expressed in terms that are discriminatory on their face or reveal a discriminatory intent or impact.  I find that the enforcement of this law of general application does not constitute discriminatory conduct and that the law is not selectively enforced and does not have a different impact on different groups.  The country information indicates that all persons who are returnees who have left Sri Lanka by irregular means are dealt with equally regardless of ethnicity.  A Sydney Morning Herald report cited above indicates that both Tamil and Singhalese returnees have been charged under these provisions.  There is no suggestion of discriminatory enforcement or punishment of a particular group of returnees in the country information.

10. The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling or terrorism and therefore there is no reason to suspect he would be accused of this and to thereby face possible long term imprisonment.  There is no independent country information before me that shows that persons in the applicant’s circumstances are being imprisoned under the I&E Act.  The DFAT information is that persons who have illegally departed are not given a custodial sentence but are only fined as a deterrent.   The information from DFAT is strong evidence that offenders in the applicant’s circumstances do not face both a fine and imprisonment.

11. The applicant told the Tribunal that he would plead guilty and I find that on the applicant’s return to Sri Lanka, he will be fined and then be free to go. I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law and is not discriminatory. I accept that prison conditions in Sri Lanka are poor but I do not accept that he faces a real chance of persecution during any short term period of being detained. I am not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population and not specifically to Singhalese. I am not satisfied therefore, that questioning, arrest, detention, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Nor do I accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm.

12. I further find that this short term detention, questioning or imposition of a fine does not amount to significant harm under s.36(2A) in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I have considered carefully the country information and accept that prison conditions in Sri Lanka are poor but the short term nature of any detention means that I find that it would not constitute significant harm. Based on the above country information concerning the poor prison conditions being due to a lack of resources and the government’s willingness to address it (by building more prisons in conjunction with the Red Cross) I find it does not involve intentionally inflicted severe physical or mental pain or suffering or intentionally inflicted physical or mental pain which could reasonably be regarded as cruel or inhuman in nature. I further find it does not involve any act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, I find that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, I find that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

13. When the substance of the above country information was put to the applicant, he said he did not know if the law was enforced like that but that his real problem was with his political opponents and threats to his life.

14. In making my findings, I have taken into account the Department’s PAM 3 Refugee and Humanitarian Complementary Protection and Refugee Law Guidelines including in particular the statements therein about prison conditions and examples of prison conditions which have been held to constitute breaches of Article 7 of the International Covenant on Civil and Political Rights.

15. Based on his individual circumstances and the independent country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on this basis.

    Cumulative assessment

16. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of serious harm in the reasonably foreseeable future for any reason (Convention or non-Convention related).  His fear of persecution is not well-founded. 

17. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

    Conclusions

18. 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).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

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

    David Corrigan
    Member