1601837 (Refugee)

[2016] AATA 3884

1601837 (Refugee) [2016] AATA 3884 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601837

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Antoinette Younes

DATE:19 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 May 2016 at 3:31pm

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 2012 and the delegate refused to grant the visa [in] August 2012. On 11 December 2012, a differently constituted Tribunal affirmed the decision not to grant the applicant a protection visa.  [In] June 2015, and by consent, the matter was remitted to the Tribunal.  On 2 November 2015, a differently constituted Tribunal affirmed the decision not to grant the applicant a protection visa.  [In] February 2016, and by consent, the matter was remitted to the Tribunal.

3. The applicant appeared before the Tribunal on 11 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

   RELEVANT LAW

5. 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.

6. 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).

7. 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’).

8. 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.

   CLAIMS AND EVIDENCE

9. In support of the application for a protection visa, the applicant provided a statutory declaration in which he made the following claims:

   a.He is [an age]-year-old Hidu Tamil from Sri Lanka. He was born in [his home village], [Town 1], Eastern District, Sri Lanka. He does not have citizenship or residency of any other country. He left Sri Lanka because of problems he experienced due to his Tamil race and imputed support for the LTTE.

   b.[In] 1991, at the age of [age] years, his father was shot dead by the Sri Lankan army. The applicant was told that his father was killed because he was suspected of being involved with the LTTE. At the time of his father’s death, his father worked as a [driver] and he transported [goods] from [his home village] to [Town 1] and [a nearby town]. The applicant was told by his mother that during the civil war, Tamils from [Town 2] who were involved in the transportation industry were especially targeted by the Sri Lankan authorities. They were suspected of carrying goods, supplies as well as carrying LTTE members across [Town 1]. When his father was killed, he was transporting [goods] to [Town 1]. The Sri Lankan army stopped his father’s vehicle, interrogated him under a tree and shot him dead. His mother learnt of those events from people who witnessed his father’s death.

   c.During the Sri Lankan civil war, his family lived in the [Town 2] area in [Town 1] which was under the control of the LTTE. The LTTE had one of their major camps in [Town 2] and as a result, the Sri Lankan authorities suspected persons of Tamil ethnicity living in the area of being LTTE supporters or sympathisers.

   d.Following his father’s death, his mother was not able to support him and his [sibling] so they were sent off to separate [boarding] schools. He went to a [boarding] school located in [another town].  He suffered severe discrimination and harassment following his father’s death. He was constantly labelled and singled out as a Tamil originating from the LTTE -controlled area of [Town 2]. Because he was in a school for Tamil boys, the Sri Lankan army subjected him to ongoing interrogation.

   e.His mother experienced great difficulties following his father’s death. Without the applicant and his [sibling] in the house, she was forced to travel to [his home village] which was under the control of the Sri Lankan army, in order to purchase goods for her [business]. She lived in constant fear for her life.

   f.In about November 2006, at the height of the civil war in Sri Lanka, the LTTE forcibly recruited young Tamil boys across [Town 1].  His mother was extremely fearful that the applicant as an [age]-year-old would be forced to fight for the LTTE and possibly be killed or seriously harm in the process. Therefore in November 2006, he left Sri Lanka and went to [Country 1] where he remained until March 2011 on a [temporary] visa.

   g.In early March 2011, he returned to Sri Lanka assuming that it would be safe for him to resume his life. At that time, the LTTE had been defeated and his area of [Town 2] which was previously an LTTE camp, came under the control of the Sri Lankan army. Although the situation had improved since the civil war, he discovered that after their area had come under the control of the Sri Lankan army, many Tamil youth who had been suspected of being LTTE sympathisers or supporters had been killed or otherwise arbitrarily detained by the Sri Lankan army.

   h.Three days following his return, three Sri Lankan officials whom he recognised as being from the Criminal Investigation Department (CID) came to his house and told him that he was required to report every morning at their office in [his home village], a Sri Lankan army base which is about [distance] km away from his village. They told him that he was not permitted to travel or work outside of the [Town 1] area without their approval. He became frightened and scared of the consequences of failing to comply with the reporting requirements of the Sri Lankan authorities. He however began to report as required.  He believes he was targeted by the Sri Lankan army for reasons of his Tamil race, the fact that his village was a former LTTE camp, but also due to his extended time outside Sri Lanka.

   i.In about March 2011, about 15 days subsequent to his return to Sri Lanka, he purchased a [vehicle] and began working as a driver transporting passengers in the areas of [his home village] and [Town 2]. Following his purchase of the [vehicle], his problems with the Sri Lankan authorities worsened when he reported every morning; the army officials accused him of being an LTTE supporter and he was subjected to physical and verbal abuse. He was slapped and beaten on several occasions. The Sri Lankan army pointed a gun at him and threatened to shoot him in case of disobedience with the reporting requirements. On days when he did not report, the Sri Lankan army officials came to his home.

   j.He believes he was accused of supporting the LTTE because also he had bought a [vehicle] worth about Rs.[amount] – a purchase that an average person from his village would only be able to afford with 2 to 3 years of savings. It was common knowledge in Sri Lanka that LTTE members often had large sums of disposable income and it was rumoured that members of the LTTE and the Northern Province were attempting to regroup. He believes that for those reasons, the Sri Lankan authorities suspected that he had worked with the LTTE during the civil war and/or that he was supporting the LTTE’s efforts to regroup. As a boy whose father had been shot by the Sri Lankan army on suspicion of being an LTTE supporter, he began to fear for his life in Sri Lanka.

   k.When he was in [Country 1], he was informed that his [Relative A] had gone missing. His [Relative A] was a Tamil [vehicle] driver from the village who had been asked to report to the Sri Lankan authorities. He is unaware of his [Relative A’s] whereabouts but he suspects that he might have been killed on suspicion of being associated with the LTTE.

   l.He was also aware of several instances of young Tamils around [Town 2] had been forcibly abducted by the Sri Lankan authorities in a wide vans the reporting requirements imposed on him by the Sri Lankan army were city restriction on his liberty and freedom of movement and he knew he could not continue living in Sri Lanka this way. In about early March 2012, he heard that persons who feared harm in Sri Lanka were able to travel to Australia by boat and lodge applications for protection. He therefore made arrangements to depart Sri Lanka.

   m.He fears that if he were forced to return to Sri Lanka, he would be killed, abducted, arbitrarily detained or otherwise seriously harmed. He fears the Sri Lankan army, the Sri Lankan authorities and the paramilitary groups associated with the Sri Lankan government. He fears that he would be harmed or mistreated because of his Tamil race and the fact that he had been accused by the Sri Lankan authorities of supporting the LTTE. The authorities cannot protect him.

10. In support of the Visa application, the applicant provided copies of documents relating to his identity, birth, Sri Lankan passport, his father’s death certificate showing the cause of death as due to gunshot injuries.

11. The applicant was interviewed at an entry interview [in] May 2012 and in relation to his protection claims [in] July 2012. A summary of the interview of [July] 2012 is provided in the delegate’s decision record.  In the course of the interview, the applicant explained that his passport was initially valid until 2010 but he had extended its validity until 2015. When asked if he was ever asked to join the LTTE, he stated that “they take people away for training” and he confirmed that he was never taken.  He confirmed that prior to 2006, he was never detained by the Sri Lankan authorities. He confirmed that he did not have any problems in departing Sri Lanka in 2006 or on his return in 2007. The applicant stated that he spent five years in [Country 1]. He confirmed that on his return in 2011, he did not encounter any issues and stated that the problems arose when he arrived at his home. He stated that three days after his arrival, three people from the CID of approached. They asked him to attend their office and he was advised that ”he was living in an LTTE controlled area… All the time where are you?”.  He confirmed that he had no issues in obtaining a [specific industry] permit.  In essence, the delegate was not satisfied that the applicant was credible in relation to significant aspects of his claims.

12. In submissions dated 10 August 2012, the applicant’s [representatives] summarised the applicant’s claims and submitted that forced return to Sri Lanka in the applicant’s case must be assessed against credible country information (cited). The matters that should be taken into consideration include the applicant’s Tamil ethnicity, imputed anti-government and pro-LTTE political opinions, his illegal departure from Sri Lanka, “lack of original passport or travel documentation”, and his application for protection in Australia.  Relocation is not appropriate or reasonable in the applicant’s case.  The Tribunal should give the applicant the benefit of the doubt with respect to any credibility concerns which may arise.

13. The applicant provided to the Tribunal a copy of the delegate’s decision record. In submissions to the Tribunal dated 22 October 2012, the representative provided the applicant’s background and claims, including his father’s murder by the Sri Lankan army in [1991], travel to [Country 1], return to Sri Lanka, reporting to the CID, and ill-treatment at the hands of the CID. The representative argued that the applicant fears persecution for reasons of his race, political opinion, and membership of a particular social group, namely failed asylum seeker. The representative referred to country information and submitted that the information supports a finding that the applicant would be mistreated on his return to Sri Lanka and that the mistreatment amounts to persecution and/or significant harm.

14. In submissions dated 7 November 2012, the applicant’s representative referred to complementary protection provisions and various sources indicating that failed asylum seekers are arrested and detained in Sri Lanka. The representative referred to the Sri Lankan Immigrants and Emigrants Act and argued that the applicant has breached both articles 34 and 35 of the act and is therefore liable for prosecution under article 45 (1)(b). The representative indicated that the precharge/pre-trial detention procedures would lengthen any pre-trial prison time at potentially lead to a conviction and a further 1 to 5 year prison sentence. The representative concluded by submitting that there is a real risk of significant harm occurring to the applicant.

15. In submissions dated 22 November 2012, the representative summarised country information concerning the treatment of failed Sri Lankan asylum seekers.  The representative submitted that the information from both Australia and Sri Lankan sources indicates that the Sri Lankan authorities are arresting, detaining and charging failed asylum seekers upon their return to Sri Lanka and that the information provides evidence that there are substantial grounds for believing that there is a real risk of the applicant suffering significant harm if forced to return to Sri Lanka.

16. In submissions dated 26 October 2015, the newly appointed representative provided excerpts of country information, summarised the applicant’s background and claims as follows:

    a.The applicant’s father was killed in 1991 by the Sri Lankan army on suspicion of being associated with the LTTE. He was suspected of carrying goods, supplies as well as LTTE members across [Town 1]. His mother was unable to support the children who were consequently sent to [boarding] schools. The applicant suffered discrimination, harassment and constant questioning from the Sri Lankan army on the way home and back during his time at boarding school. The questioning was especially prevalent during certain incidents such as bombings. The applicant was also harassed by the LTTE, including recruitment attempts. He suffered discrimination from fellow students because of his status as an orphan. In [year], the applicant completed his [course] and returned home but he did not obtain the marks required for a further level of study. However, his [sibling] successfully continued [his/her] studies.

    b.Returning to Sri Lanka in March 2011, the applicant was required by the authorities to report to the CID every morning and he was prohibited from travelling or working outside the [Town 1] area. Subsequently, the applicant purchased a [vehicle] and commenced working as a driver which caused the Sri Lankan authorities to become increasingly apprehensive about him and accused him of supporting the LTTE. This led to the applicant being subjected to physical and verbal abuse, including being slapped and hit, as well as being threatened with a gun if he failed to abide by the reporting duties. Officials from the Sri Lankan army would arrive at his home if you fail to report to the office. He feared for his life because his [Relative A] also disappeared after been simply asked to report to the Sri Lankan army officials. He was often the subject of threats, physical assaults bribe demands by the authorities at checkpoints around his town. The persons guiding the checkpoints were often intoxicated and they would hit the applicant.

    c.Consequently, the applicant feared being forcibly abducted with the reporting requirements been a severe restriction on his liberty and freedom of movement. He therefore left Sri Lanka in March 2012. The applicant fears that if he were forced to return, he would be persecuted or otherwise suffer significant and serious harm due to his actual or imputed political opinion as anti-government, connections to his father and [Relative A], his race as a Tamil, and his place of residence in Sri Lanka is controlled by the LTTE, being a young Tamil and breaching the reporting conditions imposed by the authorities for the LTTE link.

    d.The applicant’s ability to depart Sri Lanka was initially due to the fact that it was a reasonably peaceful time and many LTTE members escaped the country during this period. His ability to successfully return from [Country 1] was due to his legal departure and subsequent employment. Country information (provided) refers to the successful return of Tamil men from [the region of Country 1] in a similar situation to that of the applicant.

    e.In relation to the [Relative A’s] disappearance, the applicant provided in the course of the hearing on 1 October 2015, a document from [a welfare agency] dated [in] November 2008 referring to a missing person.

    f.In relation to the applicant’s evidence in the course of the hearing on 1 October 2015, the applicant was confused in the way he perceived the questions. The applicant reiterates that he faced severe bullying at school from his fellow students and that he suffered harassment by the LTTE because of his origin from an LTTE controlled area.

    g.There are current allegations that the LTTE is attempting to rebuild in Sri Lanka and engage in terrorist activities which would destabilise the country. The allegations are buttressed by the arrests of Tiger cadres and supporters. The Sri Lankan authorities are very sensitive and wary at the slightest suspicion of past or present LTTE links. Recent reports (attached) indicate that persons with suspected links to the LTTE, past or present, have been arrested and detained. People returning from overseas have been arrested. There is a real chance that if the applicant were to return, he would be arrested or extra-judicially taken at the airport or even later on suspicion of strong LTTE links.

    h.The applicant has a cumulative profile of the young Tamil male from a predominantly Tamil district at the relevant time is controlled by the LTTE, a failed asylum seeker, breaching the reporting conditions, his illegal departure, and his family perceived links with the LTTE.

1. On 11 May 2016, the applicant provided to the Tribunal reports relating to the arrest of a youth leader, the debate about white van abductions, and the United Nations Special Rapporteur on the Independence of Judges and Lawyers in Sri Lanka, dated 7 May 2016. The report made preliminary observation and recommendations in relation to torture, cruel, inhuman, degrading treatment and punishment. In its concluding remarks, the report noted that the “current legal framework and the lack of reform within the structures of the Armed Forces, police, Attorney General’s Office and judiciary perpetuate the real risk that the practice of torture will continue. Sri Lanka needs urgent measures adopted in a comprehensive manner to ensure structural reform in the country’s key institutions. A piecemeal approach would not be compatible with the soon to be launched transitional justice process and could undermine it before we really begins “. In a report provided by the applicant of the US Department of State[1], it is noted that the major human rights problems reported during the year included the harassment of civil society activists, journalists, and persons are viewed as sympathisers of the LTTE, detention, torture, severe prison overcrowding, lack of due process, discrimination against persons based on sexual orientation, trafficking in persons, impunity, corruption, killing of parliamentarians, rape, and other forms of sexual and gender-based violence committed by the police and security forces.

   FINDINGS & REASONS

   [1] United States Department of State, country reports on human rights practices for 2015, Sri Lanka

   Country of nationality

2. On the basis of the available information and for the purpose of this review, the Tribunal finds that the applicant is a national of Sri Lanka.  The applicant made no claim to be a national of any other country.  

3. The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). 

   Ethnicity and background

4. On the basis of the available information, the Tribunal is satisfied that the applicant is Hindu of Tamil ethnicity from [Town 1] (Eastern Province). The applicant gave evidence which the Tribunal accepts, that he is only fluent in Tamil and that he worked in Sri Lanka [as a] driver and in [Country 1]. The Tribunal accepts the applicant’s evidence that he has a [sibling] and that his mother is alive, both of whom currently reside in Sri Lanka.

   HAS THE APPLICANT SUFFERED ANY OF THE CLAIMED HARM?

5. For the reasons explained below, looking at the claims singularly and cumulatively, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm, or that he has any profile on those grounds which is or would be of any adverse interest to the Sri Lankan authorities. 

6. In the course of the hearing, the Tribunal indicated to the applicant that although he has appeared before the Tribunal, differently constituted, on two previous occasions, given that his credibility was at issue, the Tribunal considered it to be fair to conduct another hearing.

   The father’s death

7. The applicant gave evidence that his father died in 1991 when the applicant was [age] years of age. He stated that his mother told him that his father was shot and killed when he was driving because he was suspected by the Sri Lankan army of helping the LTTE. The Tribunal asked the applicant if he knew who shot his father and the applicant confirmed that he does not but he thought it was a paramilitary group. The Tribunal asked the applicant how his father helped the LTTE and the applicant stated his father was a driver and in that role he transported goods and LTTE personnel. He said his mother told him because others had told her. The Tribunal discussed with the applicant the father’s death certificate provided by the applicant in support of the visa application (Folio 42 of DIBP file). The Tribunal noted that all what the death certificate says is that his father died from gunshot and whilst it is plausible that he died as stated in the document, the Tribunal would further consider whether the document corroborates the applicant’s evidence that the father was shot because he was helping the LTTE.

8. The Tribunal accepts that the applicant’s father was a driver and that it is plausible that he transported goods and LTTE personnel. The Tribunal accepts that the father was shot in 1991. The Tribunal acknowledges that the incident occurred when the applicant was very young and the Tribunal does not expect the applicant to have vivid recollections or to be able to provide significant details about his father’s death. However, the lack of details mean that the Tribunal is not satisfied that the father was shot because of LTTE connections.  The Tribunal is of the view that it is important to consider the claim about the father’s death in the context of the totality of the applicant’s claims and the Tribunal’s findings below in relation to those claims; as indicated below and for the stated reasons, the Tribunal is not satisfied that the applicant suffered any harm because of any perceived connection of his father with the LTTE.   In essence, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the father was shot dead by paramilitary groups, or by anyone associated with the Sri Lankan authorities, or that he was shot because he was perceived to be, or suspected of assisting or supporting the LTTE, or that his father’s death meant that the applicant had constant LTTE connections, as argued in oral submissions, or any LTTE connections.

   The applicant’s claims of hardship following his father’s death

9. The applicant gave evidence that his [sibling] was born in [year]. He stated that his mother brought both of them up with great difficulty. He stated that he attended the local school up until he was [age] years old and subsequently and because his mother had difficulties bringing them up, he and his [sibling] were sent to separate orphanages. The applicant stated that he was sent to [an] orphanage where he attended school. The Tribunal asked the applicant to clarify his earlier claim that he went to a boarding school. The applicant required substantial prompting from the Tribunal to explain exactly the nature of the school which he attended. The applicant essentially said that he lived in the [orphanage] and went to school which was about a [specified distance] from the orphanage. He stated that the school was a mixed school. The Tribunal noted the claim made in the statutory declaration that the school was for Tamil boys and he stated that the orphanage was for males only but the school was mixed. He stated that the orphanage covered the cost of his schooling.

10. In relation to his [sibling], the applicant said his [sibling] was sent to a different orphanage where [he/she] has remained, at the age of [age]. He stated that his [sibling] attends University in Colombo. The applicant stated that he left the orphanage around [year] when he was about [age] years of age. He stated he did not get good results so he did not continue with his education.

11. The Tribunal asked the applicant about his claim that things were difficult at the orphanage. He stated that when he was going to school from the orphanage, the Sri Lankan army asked them where they were from and if they were associated with the LTTE. The Tribunal asked him to elaborate on those claims and he stated that at the orphanage, he did not have any problems but when he was walking to and from school, he faced difficulties namely, the army personnel stopping him and other students and asking them questions relating to any association with the LTTE. The Tribunal asked the applicant if he faced any other problems whilst he was at the orphanage or the school. He stated that he was humiliated by others who had the parents and he was bullied. The Tribunal asked him if he faced any other difficulties and he stated that occasionally the army personnel were rough and scolded them in their language.

12. The Tribunal asked the applicant about his claim in the statutory declaration provided in support of the visa application that the Sri Lankan army subjected him to ongoing interrogation. The applicant stated that the army were asking questions every time they stopped him. He said whenever there was an incident, they stopped him because they knew him, and they knew his “built”.

13. Although there are inconsistencies in the information provided by the applicant relating to his schooling, the Tribunal considers those to be minor and the Tribunal has decided not to use those inconsistencies in an adverse manner to the applicant. Accordingly, the Tribunal accepts as plausible that subsequent to the father’s death, his mother had difficulties raising her two children who were sent to different orphanages. The Tribunal accepts as plausible that the applicant went to [an] orphanage for boys and the orphanage paid for his education and that he attended a mixed school nearby. The Tribunal accepts as plausible that the applicant perceived that he was humiliated and bullied by other kids, that the applicant and other students, when walking to and from the school were stopped by the Sri Lankan army and asked questions about any association with the LTTE, and that on occasions the army personnel were rough and scolded the kids. However, the Tribunal does not accept the applicant’s evidence that whenever there was an incident, the army stopped the applicant; the Tribunal found the applicant’s evidence in this respect to be general, vague and exaggerated. For the same reasons, the Tribunal does not accept that the applicant was ever “interrogated” in the claimed sense. In relation to the claim of being interrogated, the Tribunal found the applicant’s evidence in this respect to be general and vague.

14. The applicant is now many years older and he is no longer at school or the orphanage. Whilst the Tribunal is of the view that some of the incidents experienced by the applicant as he was growing up amount to serious and significant harm, his circumstances have substantially changed and consequently, the Tribunal finds that there is not a real chance or real risk of any such harm occurring to the applicant on his return to Sri Lanka.

    The travel to and from [Country 1]

15. The applicant gave evidence that he went to [Country 1] in 2007 which was later clarified to be October 2006. The Tribunal asked him why he went to [Country 1] and he stated because the LTTE wanted him to join them for training which led his mother to want him to go. The Tribunal asked the applicant to explain how the LTTE wanted him to join and he stated that the LTTE advised families that one member of each family has to join the LTTE. The Tribunal asked the applicant if the LTTE had ever approached him to join them for training and he stated that they had, subsequent to his return home from the school in [year]. The Tribunal asked the applicant to explain how the LTTE approached him and his stated that they went to his home when he was inside and asked for one member of the family to join. He stated that he was in the house and they saw him. The Tribunal indicated to the applicant that the claim that he had been approached by the LTTE for training does not appear to have been mentioned in the statutory declaration provided in support of the visa application and the applicant stated that he does not know why the claim was not mentioned. The Tribunal indicated to the applicant that the fact that the claim was not mentioned in the statutory declaration could raise doubts about the veracity of the claim and his credibility. The applicant stated that he was responding to the Tribunal’s questions. The Tribunal is not persuaded and the Tribunal is of the view that the fact this claim was not mentioned in the statutory declaration raises doubts about its veracity. In light of those comments and on the basis of the available information, the Tribunal does not accept that the applicant was ever approached by the LTTE to join them for training, or that he left Sri Lanka to [Country 1] in 2006 because the LTTE approached him for any reason, or that he went to [Country 1] for fear of being forcibly recruited by the LTTE.

16. The Tribunal asked the applicant and he confirmed that he left Sri Lanka in 2006 using his own passport and via Colombo airport. The Tribunal asked the applicant if he had any difficulties in departing Sri Lanka and he confirmed that he did not. The applicant gave evidence that he returned to Sri Lanka in March 2007 for an operation and he remained for one month. He confirmed that he used his own passport to travel to and from Sri Lanka via Colombo airport. The Tribunal indicated to the applicant that the fact that he travelled to and from Sri Lanka using his own passport and through Colombo airport suggests that he was of no adverse interest to the Sri Lankan authorities. The applicant stated that it was true that he did not have any problems with the Sri Lankan authorities at that time.

17. The Tribunal has given regard to the submissions that the applicant’s ability to depart Sri Lanka was initially due to the fact that it was a reasonably peaceful time and many LTTE members escaped the country during this period. His ability to successfully return from [Country 1] was due to his legal departure and subsequent employment. In isolation those submissions are reasonable but in context of the applicant, the Tribunal does not find them convincing; the applicant is claiming that 3 days after his return, the CID visited him.  The close temporal connection is difficult to reconcile.  The Tribunal is satisfied that the fact that the applicant travelled to and from Sri Lanka in 2006 and 2007 using his own passport, without encountering any difficulties, indicates that he was of no adverse interest to the Sri Lankan authorities, raising serious doubts about his claims of being of adverse interest because of his father’s perceived association with the LTTE or that his father’s death was because of the perceived association. Essentially, the applicant is claiming, amongst other things, that his father’s perceived “association” with the LTTE has given him an adverse profile with the Sri Lankan authorities. Although the Tribunal has not accepted that the father’s death was because of any perceived or actual association with the LTTE, the applicant’s departure to and from Sri Lanka to [Country 1] provides further support to the Tribunal’s conclusions with respect of his father’s death.

    The events subsequent to the applicant’s return to Sri Lanka

18. The Tribunal asked the applicant if anything happened after his return to Sri Lanka in 2011. The applicant stated that nothing happened at the airport but three days later, three men from the CID came to his home where he lived with his mother, asking for him. He said they instructed his mother to tell him to report to the CID office in [his home village]. The Tribunal asked him where he was at the time when the man came to the home and he stated that he was in the front room of the house.  He said it was night time and he did not see them. He said his mother called him when the man was still there and they told her to tell him to report. Tribunal indicated to the applicant that it was difficult to accept that the CID would tell his mother to tell him to report when he was there himself. The applicant changed his evidence and said that the CID told both of them. He said his mother was in front of him. The Tribunal indicated that would further consider the apparent inconsistencies in the evidence.

19. The Tribunal referred to paragraph 16 of the statutory declaration provided by the applicant in support of the visa application and noted that there was no mention of the CID telling his mother to tell him. Tribunal indicated that the inconsistency could raise doubts about the claims in his credibility and the applicant reiterated that they told his mother to tell him to report.

20. The Tribunal asked the applicant if he was ever ill-treated by the CID and he stated that he was when they were incidents of bomb blasts.  He said he was kicked and threatened to be shot. The Tribunal asked the applicant to be more specific about when he was ill-treated and he replied that he was ill-treated “when there were incidents”. Asked to clarify further, he said when he missed the reporting.

21. The Tribunal found the applicant’s evidence in relation to this claim to be inconsistent internally and with other information he has provided, general and lacking insignificant details. The Tribunal is of the view that this raises doubts about the veracity of the claims and the applicant’s credibility.

22. The applicant gave evidence that he reported every day the CID office for a year but he missed a couple of times because of work. He said they suspected that he had connections with the LTTE. The Tribunal indicated to the applicant that it seemed difficult to accept that if he were of adverse interest to the Sri Lankan authorities, or if he was suspected of any connections with the LTTE, that he would simply be required to report and sign.  He said CID was vigilant in monitoring those returning to Sri Lanka. He said they were suspicious. The Tribunal finds it difficult to accept that the applicant entered Sri Lanka in 2011 on his own passport through Colombo airport and nothing happened to him, yet three days later, CID personnel visited him requiring him to report. The Tribunal finds it implausible that if he were of any adverse interest, or suspected of any association with the LTTE, he would not have encountered difficulties at the airport, and/or he would simply be required to report every morning.

23. The Tribunal also finds it difficult to accept that if the applicant knew that he were of any adverse interest to the Sri Lankan authorities, 15 days after his arrival from [Country 1], he would buy a [vehicle] for Rs.[amount] – a significant sum of money to risk. It is difficult to accept that if the applicant indeed had to report to the CID that he would feel comfortable purchasing a [vehicle]. The applicant gave evidence that he did not encounter any difficulties in obtaining the permit to drive the [vehicle], although he explained that he obtained the permit from the local authorities, which the Tribunal finds unpersuasive. Tribunal is of the view that obtaining the permit in the context of the claimed interest by the Sri Lankan authorities, raises doubts about the veracity of the applicant’s claims. The fact that he also managed to obtain the permit is further evidence that he was of no interest to the Sri Lankan authorities.

24. It is also important to consider the applicant’s claim that his [Relative A] had been missing. The Tribunal asked the applicant about his [Relative A] and he stated that [Relative A] went missing some time after the applicant’s return in May 2007. The Tribunal discussed with the applicant that document handed up in the previous tribunal hearing on 1 October 2015 referring to an alleged complaint made to the Sri Lankan authorities [in] November 2008 about [Relative A] having gone missing. The Tribunal asked the applicant if he knew why the complaint was made after a significant period had passed since [Relative A] had gone missing. He said the family was waiting for [Relative A’s] return. The Tribunal indicated to the applicant that the Tribunal would consider further the authenticity of the document as well as whether it contains truthful information. The document does not say anything about the alleged circumstances but simply says that a complaint was made about a person by that name going missing. Given the credibility concerns the Tribunal has about the applicant, the Tribunal has decided not to give the document weight.

25. The Tribunal finds it difficult to accept that if indeed the applicant had [Relative A] who is missing when [that Relative A] was a [vehicle] driver that the applicant himself would choose to be a [vehicle] driver himself in those circumstances, particularly when he claimed to have been required to report. 

1. The Tribunal asked the applicant about his Sri Lankan passport, a copy of which was provided in support of the visa application showing that the passport expired in 2010 whilst he was in [Country 1]. The applicant gave evidence at the passport was renewed by the Sri Lankan Embassy in [Country 1] for a further three years. The Tribunal indicated to the applicant that the renewal of the passport might suggest that he was of no adverse interest to the Sri Lankan authorities and the applicant replied that the Sri Lankan authorities could not do anything in [Country 1] and hence the issue of the passport. The Tribunal is not convinced. The Tribunal is satisfied that the fact that the applicant had his passport’s expiry date extended by the Sri Lankan authorities suggests that the applicant had no fear or concerns about approaching the Sri Lankan authorities and that he was of no adverse interest to the Sri Lankan authorities, raising doubts about his claims of any alleged family perceived association or connection with the LTTE.

2. In light of those comments and in consideration of the evidence as a whole, the Tribunal does not accept that three days after the applicant’s arrival from [Country 1], CID personnel visited the family home, or that the CID personnel asked him or his mother to report at their office, or that he ever reported at the CID office, or that he was ever ill-treated in any way by the CID in Sri Lanka, or that he violated any reporting requirements, or that his [Relative A] was missing for the claimed reason, or that he was accused of supporting the LTTE because he had bought a [vehicle], or that the applicant suffered any harm as a result of being a [vehicle] driver,  or that he was suspected of having worked for the LTTE, or that he was accused of supporting their efforts to regroup, or that he was harmed in any claimed manner at checkpoints, or that the applicant left Sri Lanka in fear of the authorities.

3. In accordance with section 424AA, the Tribunal discussed with the applicant the fact that the delegate and the former to Tribunal members essentially decided that the applicant did not meet the criteria for a protection visa on the basis of lack of credibility is relevant to the Tribunal because it could be part of the reasons for affirming the delegate’s decision. When invited to comment on or respond to this information and whether any more time, the applicant stated that the Tribunal could ask him anything. He said he answered all the questions that he was asked and if they did not believe him before. There is nothing he could do about that.

4. The Tribunal decided to test the claims and not rely on others’ assessments of the applicant’s credibility. In consideration of the evidence as a whole and for the stated reasons, the Tribunal agrees with the three different assessments of the applicant’s credibility. In reaching its findings, the Tribunal has given regard to the representatives of oral submissions that the applicant’s claims have been consistent throughout the process.

5. The Tribunal acknowledges that some of the applicant’s claims have been consistent; however, he has also made significant claims which have not been consistent. His evidence before the Tribunal as highlighted above, and for the reasons stated, indicates that in many aspects his evidence was vague, general, lacking insignificant details and implausible.

6. For the reasons explained above, looking at the claims singularly and cumulatively, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm, or that he has any profile on those grounds which is or would be of any adverse interest to the Sri Lankan authorities. 

   IS A REAL CHANCE OR A REAL RISK OF THE APPLICANT SUFFERING SERIOUS OR SIGNIFICANT HARM?

7. The Tribunal discussed with the applicant country information, including a report by the Australian Department of Foreign Affairs and Trade[2] and indicated that on balance, country information indicates that being a failed asylum seeker, a returnee from a Western country, Tamil, and having departed unlawfully do not necessarily mean that there is a real risk or a real chance of serious or significant harm.

   [2] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Sri Lanka’ 18/12/15.

8. The Tribunal discussed with the applicant that the Sri Lankan Immigration and Emigration Act, is a law of general application, applied in a non-discriminatory manner and for legitimate purposes. The applicant stated that he has violated the reporting requirements and even if they were to let him go at the airport, they could still locate him. He said his father was suspected of being connected with the LTTE and consequently the applicant would be suspected of connection.  For the stated reasons, the Tribunal has not accepted that that the applicant’s father’s death was because he was suspected of any connection (actual or perceived) with the LTTE, or that the applicant was required to report or that he had violated any reporting requirements.

9. The applicant’s representative submitted that DFAT has reported that those with family links to the LTTE can be harmed. The advisor stated that the applicant has had constant LTTE connections because of his father. The advisor referred to excerpts of articles and reports and he argued that they indicate that the applicant could be harmed because of the LTTE connection. In the course of the hearing, the applicant was asked and he confirmed that, apart from his father’s claimed connection, no one in the family has ever been a member of, or associated with the LTTE. The Tribunal and for the stated reasons has not accepted that the applicant has any LTTE connection and therefore that risk factor is not applicable to the applicant.

10. For the stated reasons, the Tribunal has not accepted that the applicant has any adverse profile. The applicant does not claim that he is, or has ever been, an LTTE member, supporter or sympathiser.  He is claiming that he would be harmed for being a young Tamil from the Eastern Province, a failed asylum seeker, being forcibly returned from Australia and for having departed illegally.  The applicant has made other claims which he has argued would give him a profile that would increase the risk of being harmed. For the stated reasons the Tribunal has not accepted that the applicant has any such profile.

11. On the basis of the available information, the Tribunal accepts that the applicant is a young Hindu Tamil from the Eastern Province, that he may be considered as a failed asylum seeker, a forced returnee from a Western country who has departed unlawful. 

12. In consideration of the evidence as a whole, the Tribunal is satisfied that those factors do not mean that the applicant has an adverse profile, or that he would be perceived as having any links or associations with the LTTE or for being their supporter, or an opponent to the Sri Lankan government, or that he would be targeted by the authorities, or that he would be ill-treated as contemplated by the Act, or that he would be subjected to more scrutiny than other returnees because of his profile, or that he faces a real chance of harm on the basis of being a Tamil from [Town 1] and has lived in Australia, or that being a [vehicle] driver gave him an adverse profile which would mean he would face harm.  In essence, and for the stated reasons, the Tribunal finds that the applicant does not have a well-founded fear of harm on those bases.

13. The Tribunal notes that credible independent country information, including those cited by the representative in the submissions, essentially indicate that it is individuals who have actual or perceived strong LTTE links/sympathisers who can be targeted.  Relevantly, the UNHCR refers to the harm that can be suffered by persons with actual or perceived links to the LTTE “Information has been published documenting cases of mistreatment and torture of women and men in detention (police custody or other forms of detention), for reason of their or their family members’ alleged former links with the LTTE. Killings have been reported which appear to be politically motivated, targeting persons believed to be LTTE sympathizers. Sexual violence, including but not limited to rape, against Tamil men in detention has also been reported recently, including reports of cases perpetrated in the post-conflict period. Sexual harassment of former LTTE combatants in rehabilitation centres has also been reported.”[3]

    [3] UN High Commissioner for Refugees (UNHCR) 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.27-28 (CISLIB Sri Lanka CIS29707)

14. In January 2014, Human Rights Watch (HRW) reported that it had published new evidence in February 2013 ‘that rape and sexual violence has been a key element of broader torture of suspected LTTE members and supporters even since the war’s end’. Sri Lanka’s ‘government rejected these findings and claimed they were fabrications by individuals seeking to embellish their overseas asylum claims’. HRW was ‘unaware of any government investigations into the reported sexual abuse’.[4] A November 2013 BBC report also refers to Human Rights Watch reporting cases of sexual violence involving the security forces following the end of the civil war in Sri Lanka, and to other allegations of rape and torture of Tamils suspected of links to the LTTE.[5]

    [4] Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January < Accessed 29 January 2014 (CISNET Sri Lanka CX317506); We Will Teach You a Lesson" - Sexual Violence against Tamils by Sri Lankan Security Forces, 26 February 2013, ISBN: 1-56432-993-3, available at: Harrison, F 2013, ‘“Tamils still being raped and tortured” in Sri Lanka’, British Broadcasting Corporation (BBC), 9 November < Accessed 12 November 2013(CISNET Sri Lanka ( CX315497)

15. In July 2014, Amnesty International commented on Tamil asylum seekers returned to Sri Lanka:

    Sri Lankan Tamils remain a target of harassment and arrest upon return because of their ethnicity and suspected links to the Liberation Tigers of Tamil Eelam (LTTE). Asylum seekers have faced torture upon return to Sri Lanka from countries such as the UK and Canada.

    Amnesty International has interviewed a number of people who were tortured by the Sri Lankan security forces ‘on suspicion’ of being members of the Liberation Tigers of Tamil Eelam (LTTE) in the last two years. All ethnic groups in Sri Lanka are at risk of torture and other ill-treatment in police custody, including sexual violence, which is pervasive.[6]

    [6] Amnesty International 2014, Urgent Action: Asylum Seekers at risk of return to Sri Lanka, ASA 12/003/2014, 9 July < Accessed 29 July 2014 (CISLIB Sri Lanka CIS29216)

16. An October 2014 background paper by the Human Rights Law Centre[7] also refers to the treatment of persons suspected of having links to the LTTE who return to Sri Lanka.[8]

    [7] The Human Rights Law Centre describes itself as ‘an independent and not-for-profit organisation’ which ‘protects and promotes human rights in Australia and beyond through a strategic mix of legal action, advocacy, education and capacity building’. Human Rights Law Centre 2014, Can’t flee, can’t stay: Australia’s interception and return of Sri Lankan asylum seekers, March < Accessed 22 August 2014 (CISLIB Sri Lanka CIS29695)

    [8] Human Rights Law Centre 2014, Torture, rape and ill-treatment suffered by Sri Lankans who return home, 1 October < (CISLIB Sri Lanka CIS2F827D91350)

17. The Amnesty International briefing on Sri Lanka dated September 2014 indicates that:

    Persistent surveillance, intimidation and monitoring of former LTTE members by the security forces continues to restrict their freedom of movement and association, and has, according to witnesses interviewed by Amnesty International and others, inhibited them from reintegrating into the social and economic life of their communities.

    Amnesty International has received numerous accounts from male and female former LTTE members who describe repeated arrests and mistreatment including sexual harassment, rapes and other violence at the hands of security forces since the end of the conflict. Individuals arrested and detained for their suspected involvement with the LTTE, particularly Sri Lanka’s many victims of torture, also face obstacles to reintegration as a result of the physical and psychological harm inflicted on them in detention.[9]

    [9] Amnesty International 2014, Ensuring Justice: Protecting human rights for Sri Lanka’s future, ASA 37/011/2014, September, p.11 < > (CISLIB Sri Lanka CIS2F827D91324)

18. In the December 2015 report on Sri Lanka[10], the Department of Foreign Affairs and Trade (DFAT) states that whilst a person‘s real or perceived links with the LTTE may give rise to protection, this depends on the nature of the links, including:

    a.   Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka.

    b.   Former LTTE combatants or ―cadres. Former LTTE combatants or ―cadres who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ―computer branch or media (newspaper and radio).

    c.   Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

    d.   LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE.

    e.   Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

    [10] DFAT Country Information Report, Sri Lanka 18/12/15

19. The Tribunal is satisfied that on balance, credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted.  As the Tribunal has found that the applicant has no profile of being involved or associated with, or suspected of being involved with the LTTE, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is a young Tamil of the Hindu ethnicity, from the Eastern Province, or that he has left Sri Lanka illegally, or as a failed asylum seeker returning from Australia, suggests support for the LTTE, or that he would be imputed with pro LTTE views on this basis, or that he would be harmed for any other claimed reason. 

20. In its December 2015 report, DFAT noted[11] that there has been cessation of the forced registration of Tamils which suggests that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. DFAT also reported that it had assessed that “monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occurred”.[12]

    [11] DFAT Country Information Report, Sri Lanka, 18 December 2015, 3.8

    [12] Ibid, at para 3.9

21. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that there is a real chance that the applicant faces any harm amounting to persecution or a real risk of significant harm on the basis of being a young Hindu Tamil from the Eastern Province, or for any other claimed reason.

22. Whilst the Tribunal acknowledges that Tamils have faced a degree of discrimination and ill-treatment in Sri Lanka, on balance and on the basis of the available information, the Tribunal is not satisfied that being Tamil without more means that he would face harm amounting to serious or significant harm, or that he would be suspected of being associated with the LTTE merely on the basis of being a young Tamil or on any other basis. 

23. Looking at the evidence independently and cumulatively, the Tribunal is not satisfied that the applicant faces any discrimination or ill treatment amounting to serious or significant harm on the basis of being Tamil.

    Would the applicant be harmed on the basis of being a failed asylum seeker or a returnee from a western country?

24. The Tribunal notes that DFAT has indicated that those arriving in Sri Lanka are subject to the same entry procedures.  The advice from DFAT was that returnees, regardless of ethnicity, may be questioned by both the police and the State Intelligence Service and checked against intelligence databases.[13]

    [13] DFAT 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October; see also DFAT 2012, Country Information Report No. 12/67, 29 November, CX299951

25. In its Eligibility Guidelines, the UNHCR has referred to questioning of returnees by Immigration officials and the State Intelligence Service.[14] 

    [14] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December

26. In its December 2015 Country Reports: Sri Lanka, DFAT continued to indicate that Sri Lankan returnees are treated according to standard procedures, namely:

    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

    During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[15]

    [15] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Sri Lanka” 18/12/15

1. DFAT has also indicated that returnees suspected of illegal departure face being charged under the Immigrants and Emigrants Act (penalties under the Immigrants and Emigrants Act are discussed further below). In this regard, it stated:

   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. [16]

   [16] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Sri Lanka’, 18/12/15

2. In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of those returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that “[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity”.[17]

   [17] Immigration and Refugee Board of Canada, ‘Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport’, LKA103815.E, 22 August 2011 CIS29896

3. The IRBC report provides information on the process for persons removed to Sri Lanka.  Further information on procedures at the airport can also be found in the UK Home Office Country of Origin Information report of March 2012. [18]

   [18] UK Home Office, ‘Sri Lanka: Country of Origin Information (COI) Report’,, 7 March 2012,  7 March, pp.202-203 < Accessed 9 May 2012 CIS29709

4. The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

   UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.[19]

   [19] UN High Commissioner for Refugees, ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 21 December 2012, p.8 < Accessed 25 August 2014 CIS29707

5. In advice of November 2012, DFAT stated that it had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. DFAT stated that it had spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees and that NGOs had told DFAT that they had not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they had facilitated. DFAT referred to advice from the British High Commission in Colombo to the effect that they had received no substantiated cases of mistreatment on return for their returnees.[20] DFAT has also stated that NGOs had not raised specific issues regarding the treatment of Tamils returning to the north and east. It stated that NGOs had not raised with them issues concerning the treatment of Tamils who had lived in other countries where the LTTE was active for extended periods. [21]

   [20] DFAT 2012, Country Information Report No. 12/67, 29 November, CX299951

   [21] DFAT 2013, MRT/RRT Information Request: LKA41452, DFAT Report 1478

6. In its Country Report: Sri Lanka of December 2015, DFAT provided the following information on the experience of returnees following return:

   Since 2008-09, over 15,000 failed Sri Lankan asylum seekers were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the North, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to Colombo and other urban areas in the South.

   Most returnees have incurred significant expenses or debt to undertake their outward journey. Many are apprehensive about finding suitable employment opportunities on return. Those who have skills which are in high demand in the labour market at best placed to find well-paid employment. Returnees who receive reintegration assistance on their return to Sri Lanka find it easier to resettle. [22]

   [22] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Sri Lanka’, 18 December 2015.

7. In the same report, DFAT indicated that:

   4.22 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who had been returned to Sri Lanka but cannot verify these reports. Verification is complicated by the fact that many allegations are made anonymously, often to third parties.

   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 mist treatment (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. Under the previous Rajapaksa government, DFAT assessed the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes, including terrorism offences. This was due mostly to the greater exposure these returnees had to authorities on their return which generally includes extended periods of pre-trial detention. While overall monitoring has reduced under the Sirisena government and general fears about mistreatment have reduced, it is difficult to verify if the intent to improve general conditions has yet to lead to a lower risk of torture or mistreatment of returnees.

8. Sources such as Human Rights Watch, Freedom from Torture and Amnesty International [23] have referred to mistreatment of returnees or failed asylum seekers. Sources such as Freedom from Torture and Human Rights Watch identify a risk of harm in particular to persons with certain links to the LTTE. In November 2011, the UK-based Freedom from Torture published a report entitled Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka, 2009-2011.  Freedom from Torture reported that those at particular risk included Tamils who had an actual or perceived association with the LTTE. [24] In September 2012, Freedom from Torture released a further report on cases of reported torture. The organisation concluded that it was a combination of residence in the UK and an actual or perceived association with the LTTE which placed individuals at risk of torture and inhuman and degrading treatment. It stated that those at particular risk included “Tamils with an actual or perceived association with the LTTE, including those returning from abroad”. [25] Human Rights Watch has expressed the view that “Sri Lankan nationals who have been affiliated with or are considered to be supporters of the Liberation Tigers of Tamil Eelam (LTTE), would be at significant risk of persecution if deported back to Sri Lanka”. [26]

   [23] Amnesty International, ‘Urgent Action: Asylum Seekers at risk of return to Sri Lanka’, 9 July 2014, < Accessed 29 July 2014 CIS29126

   [24] Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka, 2009 – 2011, 7 November

   [25] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 < Accessed 17 September 2012

   [26] Human Rights Watch 2011, Letter to United Kingdom's Home Secretary Theresa May and Foreign Secretary William Hague on Deportation of Rejected Asylum, 16 June, see also Human Rights Watch 2012, United Kingdom: Document containing cases of Sri Lankan deportees allegedly tortured on return, 15 September, >

   Other sources, including the current United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka point to a risk for those suspected of certain LTTE connections. [27]

   [27] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December

9. As mentioned by the representative, in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) [28], the UK Upper Tribunal (Immigration and Asylum Chamber) found the following categories of persons to be at real risk of persecution or serious harm on return to Sri Lanka:

   (a)  Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

   (b)  Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

   (c)  Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

   (d)  A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

   [28] this has been upheld on appeal by the Court of Appeal (England and Wales) in MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829 at >

   In consideration of the evidence as a whole, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm on the basis of being a Tamil failed asylum seeker from the Eastern Province, or a returnee from Australia.  On balance, country information indicates that it is essentially those with an adverse profile, who could encounter harm in Sri Lanka, if returned from a western country as failed asylum seekers. 

   Would the applicant be harmed on the basis of illegal departure?

10. According to the Department of Foreign Affairs and Trade (DFAT), entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). With regard to illegal departure DFAT has advised as follows:

    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.[29]

    [29] DFAT, Country Report  - Sri Lanka  18/12/15 at 5.27

11. While there is provision in the law for a custodial sentence, there is information, including advice from DFAT, suggesting that in practice fines have been issued to act as a deterrent to joining future boat ventures. DFAT advised in October 2012 that, under Sri Lankan law, people who depart from any place other than an approved port of departure and/or depart without valid travel documents can be charged with an offence under the Immigration and Emigration Act. DFAT reported that for offences committed under the Act a prison sentence from one to five years and a fine of LKR 50,000 to LKR 200,000 may be applicable but that this was seldom enforced. DFAT subsequently advised that, since 2 November 2012, Sri Lankan irregular maritime arrivals returned from Australia have been charged under the law for offences related to their irregular departure. Since then Sri Lankan nationals who arrived in Australia by boat have been charged for offences regarding their illegal departure. [30]  It was reported in December 2012 that 50 asylum seekers returned from Australia had each spent three nights in prison before being bailed to reappear before the court. The report cited a lawyer as saying that, if found guilty of leaving the country improperly, the people would likely be fined between 50,000 and 100,000 rupees ($880 and $1760). [31]

    [30] DFAT 2012, SRI LANKA: CIS Request Sri Lanka: Questions arising from recent applications, Country Information Report No.12/67, 29 November, CISNET CX299951; DFAT 2013, MRT/RRT Information Request: LKA41452, DFAT Report 1478, 28 February

    [31] Doherty, B. 2012, “Asylum denied, a penalty awaits at home”, The Sydney Morning Herald, 8 December

12. In its Country Report: Sri Lanka of December 2015[32], DFAT advised:

    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 [Immigrants and Emigrants 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.

    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).

    DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim[33].

    [32] DFAT, Country Report  - Sri Lanka  18/12/15

    [33] At 5.32-5.34

13. Advice from DFAT and other sources [34] indicate that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail.  DFAT has advised that returnees are arrested and held at the airport for up to 24 hours. They are then produced before a magistrate to apply for bail. All persons are granted bail on personal recognisance, with the requirement for a family member to stand as guarantor. There is no requirement to pay for bail. If the person needs to be held for more than 24 hours, for instance when a person arrives on the weekend or a public holiday, they are placed in the remand section of the Negombo Prison until the court is in session. [35]

    [34] See, for instance, Doherty, B. 2012, “Asylum denied, a penalty awaits at home”, The Sydney Morning Herald, 8 December

    [35] DFAT 2013, MRT/RRT Information Request: LKA41452, DFAT Report 1479, 4 March

14. In December 2013, DFAT advised that ‘For bailable offences under the I&E Act [Immigrants and Emigrants Act], post has been informed that, as a matter of practice, bail is granted to almost all people that were passengers on people smuggling ventures. Bail will be granted at the first available instance (and minors will not be charged with any offence)’.[36] In March 2013 DFAT advised that it “is not aware of allegations of mistreatment of returnees while on remand.  [DFAT] does not monitor the treatment of returnees while on remand.”[37]

    [36] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Request No: LKA15326: Personal surety’, 18 December 2013 CX316873

    [37]Department of Foreign Affairs and Trade (DFAT), ‘RRT Country Information Request LKA41955 - Treatment of returned failed asylum seekers’, 28 March 2013 CX305410

15. Information from DFAT suggests that individuals involved in people smuggling operations may be treated differently to others who have departed illegally. In December 2015, DFAT advised that the Sri Lankan “…Attorney-General’s Department typically distinguishes between those suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka.  Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.”[38] 

    [38] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Report Sri Lanka’ 18/12/2015 at 5.35.

1. In January 2014, DFAT advised that both boat captains and people smuggling organisers have been convicted of offences under Section 45C(1)(b) of the I&E Act. Penalties have included imprisonment and fines in accordance with the Act. [39]  On 9 July 2014, BBC News reported that the adults among a group of 41 asylum seekers returned to Sri Lanka by Australia ‘have been charged with leaving the country illegally. Most of them have now been released on bail’. The Australian government said that ‘of the 41 people returned, only four were Tamils…’ [40] A Reuters article of 10 July 2014 stated, ‘The 37 Sinhalese and four Tamils on the first boat were returned to Sri Lanka over the weekend and appeared in court in the port city of Galle. Five people suspected of being the ringleaders of a people-smuggling operation were detained and 27 released on bail. Children were released without charge’.[41]  On 14 July 2014, an article sourced from Reuters reported that the five detained asylum seekers suspected of being ringleaders of a people-smuggling operation had not been charged, but a magistrate in Galle had extended their detention until 28 July 2014, ‘pending a ruling on whether they can be charged’. [42]

   [39] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers’, Country Information Report No. 14/02, 24 January 2014 (sourced from DFAT advice of 7 January 2014), CX317331

   [40]‘Australia asylum: Minister in Sri Lanka amid row’, BBC News, 9 July 2014< com/news/world-asia-28223598> Accessed 29 July 2014 CX323885

   [41]Aneez, S, ‘Australian minister under fire for not meeting Tamil groups on Sri Lanka trip’, Reuters, 10 July 2014 < Accessed 29 July 2014 CX323888

   [42]Aneez, S, ‘Sri Lanka court keeps five in Australia asylum case in detention’, Reuters, 14 July 2014 < Accessed 29 July 2014 CX323889

2. The applicant is not claiming to have, and there is no evidence to suggest that he has been involved in people smuggling and therefore that potential risk factor is not present. 

3. The Tribunal accepts on the basis of these country sources that there is a real chance that the applicant may be arrested and imprisoned for a few days on remand because he has departed the country illegally and that conditions in prison may be crowded and poor.  The Tribunal accepts that the applicant may be questioned and fined.  However, the Tribunal gives weight to DFAT’s advice that for offences committed under the Act a prison sentence and/or a fine of up to LKR 200,000 may be applicable but this was seldom enforced.  The Tribunal gives weight to DFAT’s advice that DFAT has not received, and is unaware of allegations of mistreatment of returnees in general at the airport or in remand. The Tribunal appreciates that the UNHCR and DFAT may not monitor court processes or follow up on what happens to persons charged under the legislation. However given the extensive media interest in this issue if in fact returnees were being mistreated, the Tribunal is of the view that some credible evidence would have been revealed. In consideration of the evidence as a whole, the Tribunal does not accept that returnees are being mistreated by the authorities in Sri Lanka.

4. The Tribunal has carefully considered the material before it, and is satisfied that the laws in relation to illegal departure are laws of general application, applied in a non-discriminatory manner and serving a legitimate purpose of dealing with people who depart their country unlawfully.  Having considered the relevant country information, the Tribunal is satisfied that the laws regarding unlawful departure, which includes being arrested, charged and fined (irrespective of amount) are not selectively enforced or applied in a discriminatory way for a Convention reason, as they apply to all persons who depart illegally.

5. On the evidence before it, the Tribunal is not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s.91R(1)(c).  This includes processing at the airport, questioning, and being held on remand for a few days awaiting a bail hearing and being fined. With regards to the loss of liberty while on remand, because it arises from the non-discriminatory operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s.91R(1)(c).   Although the conditions of the remand cell the applicant might be kept in would cause him to suffer discomfort and unpleasantness, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, he would be persecuted for any Convention reason, as contemplated by s.91R.

6. Having considered the information before it, the Tribunal is not satisfied that the treatment faced by the applicant as a returnee who departed Sri Lanka unlawfully, either at the airport on arrival, or in their community, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution or gives rise to serious harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

7. Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly from one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being young, Hindu, of Tamil ethnicity from the Eastern Province, a failed asylum seeker, or for his illegal departure, or for any other reason. 

8. In essence, in consideration of the evidence as a whole, including the applicant’s individual circumstances either singularly or cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for being a failed asylum seeker, or for his illegal departure, or for any other claimed reason, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future.  Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

   Complementary Protection

9. The Tribunal has also considered whether the applicant is eligible for complementary protection. For the stated reasons, the Tribunal has not been satisfied that the applicant has any profile that would associate him with the LTTE, or that he is of any interest to the Sri Lankan authorities.  In consideration of the evidence as a whole, the Tribunal finds that there is not a real risk that he will suffer significant harm on the basis of being a young Hindu Tamil from the Eastern Province.  In essence and in consideration of the evidence as a whole, the Tribunal does not accept that there is a real risk of significant harm occurring to the applicant on those grounds.

10. Regarding any harm the applicant may face in connection with the claimed treatment of failed asylum seekers and/or returnees from western countries, on the basis of the available information, and the conclusions credible reports provide regarding what awaits a person in the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment faced by the applicant, being a returned failed asylum seekers, gives rise to a real risk of significant harm as contemplated by section 36(2A) of the Act.

11. For the same reasons, the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (to Australia by boat and without a passport), the Tribunal is satisfied that he will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities on his return to Sri Lanka. For the stated reasons, the Tribunal is not satisfied that he has any adverse profile in Sri Lanka which will be revealed throughout the process or in connection with that process, or that he has a profile that would mean that he would be closely scrutinised, or ill-treated. The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant and he may have to pay a fine. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates that the prospect of the applicant being detained for a prolonged period of time and paying a fine to be remote and not likely to result in hardship to the applicant that constitutes significant harm as contemplated by section 36(2A) of the Act.

12. The Tribunal also notes that, despite the substantial number of reported involuntary returnees to Sri Lanka, including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no credible and consistent reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.

13. While the Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable, the Tribunal does not accept that spending time in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. On the evidence before it, the Tribunal is satisfied that the conditions have not arisen due to demonstrable intent on the part of the Sri Lankan authorities to inflict severe pain or suffering.  Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period.

14. 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. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

15. In essence, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in gaol on remand. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

100.   On balance, on the information before it, the Tribunal is not satisfied that, the applicant, being a person who has left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources excerpted by the applicant’s representative, involves or creates a real risk of treatment amounting to significant harm as contemplated by section 36(2A) of the Act. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

CONCLUSIONS

101.   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).

102.   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).

103.   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

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

Antoinette Younes
Senior Member