1602378 (Refugee)

[2017] AATA 1484

1602378 (Refugee) [2017] AATA 1484 (26 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602378

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Paul Millar

DATE:26 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2017 at 1:29pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Political opinion – Anti-government speech – United National Party supporter – Credibility issues

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Sri Lanka, applied for the visa [in] April 2015.[1]  He appeared before the Tribunal on 19 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. 

[1] The Tribunal's finding as to citizenship is based on the Sri Lanka passport produced by the applicant at the Tribunal hearing.

CRITERIA FOR A PROTECTION VISA

2.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, he or she 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.

3.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 because the person is a refugee.

4.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

5.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

6.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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B).

7.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (‘the department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

[2] In this respect, the Tribunal has taken account of DFAT Country Information Report Sri Lanka 24 January 2017 and relies on this report to the extent that it is cited further below in this decision.

FINDINGS

8.For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the department and the Tribunal, the applicant, a Tamil, claimed protection on the ground that the Sri Lankan Prime Minister, his supporters and the Sri Lankan army will harm him because of certain political activities he undertook in Sri Lanka.[3]  The Tribunal holds the following concerns about the applicant’s credibility.

[3] The applicant's evidence to the department and Tribunal comprises the contents of his protection visa application forms; written statement dated [in] April 2015; his evidence at his interview with the delegate for which there is an audio recording on the department file and to which the Tribunal has listened; written statement submitted to the Tribunal on 3 August 2017 and his evidence at the Tribunal hearing.  The Tribunal had access to the department file relating to the application for a student visa made by the applicant to come to Australia. The contents of that file are not relevant to the grounds on which this review has been determined.

Credibility concerns

Evidence about the applicant’s willingness to undertake political activities from 2010

9.To the Tribunal, the applicant claimed that in November 2009 he gave a speech at [an organisation] in [Town 1] that was critical of the government’s treatment of Tamils.  At the time, the applicant had aspirations to join a political party and stand for upcoming local council elections.  Two or three days after he gave the speech, the Sri Lankan army came to the applicant’s home in [Town 1].  They asked him why he spoke against the government and they slapped him.  The applicant managed to escape from them and ran away to the home of a friend. He returned home the following morning and learned that the officers attacked his parents, ransacked the house and robbed them. 

10.On being given this news, a few days later, the applicant fled to Colombo.  He thought that this was necessary because if he remained at home with his family the army could come back and apprehend him.  In Colombo he stayed with the family of a boy with whom he had previously studied.  In addition, the applicant took up employment for a [company] that was based in [town].  The applicant worked for this company in [Town 1] and he was able to resume working for them in Colombo. 

11.Although he claimed that he was in hiding in Colombo, he could undertake this employment because it could be done on a computer from home. In contact with his parents after fleeing to Colombo the applicant learned that the army had come back to the family home looking for him and his parents told them that he had left Sri Lanka illegally.

12.Although the army did not again return to the family home to find him, the applicant did not ever return to visit his family in [Town 1] for the remainder of his life in Sri Lanka.  He was afraid that if he did the army would find out and come and harm him. He regarded himself as being in hiding in Colombo.  Even so, in mid 2010, the applicant became involved with the United National Party (‘UNP”).  He became involved through a friend whose uncle, X, was [a] senior leader in that party.  From this time he began attending monthly party meetings held in Colombo.  Once or twice he handed out leaflets for the party in Colombo. 

13.In late 2011 he supported X in a UNP leadership contest between that person and Ranil Wikramasinghe, the current Prime Minster of Sri Lanka. This support consisted of, on four or five occasions, encouraging other party members at the party office to support X and encouraging X himself.  Mr Wikramasinghe was successful and he began harming those in the party who did not support him.  From this time, the applicant encountered harm from that person’s supporters which is discussed further below.

14.The Tribunal put to the applicant that it had difficulty accepting that he would be willing to undertake political activities related to the UNP from mid 2010 when, at the same time, he claimed to be living in Colombo in hiding from the Sri Lankan army and when it was due to his fear of the army that he never went back to [Town 1] to see his family. In response, the applicant said that he was not supporting a government party but was working with an opposition party.  The Tribunal put to the applicant that he was nevertheless acting in a manner that could bring him to the attention of Sri Lankan authorities and therefore in a manner that was inconsistent with somebody claiming to be hiding from the Sri Lankan army.

15.Again, in response, the applicant said that he was supporting an opposition party, a senior leader of that party was the uncle of his friend and he did it to be safe from the army. While the applicant made these claims, he also said that the reason he handed out leaflets on only one or two occasions in Colombo for the party was that he was in hiding and this was the general tenor of his evidence about why he went to Colombo.  He also said that he could undertake employment there because the work he was doing could be done on a computer at home.  In those circumstances, the Tribunal does not believe that the applicant would risk his safety by undertaking these political activities and act in a manner that was inconsistent with his claim to be living in hiding.

Evidence about being attacked by UNP supporters in July 2013 

16.To the Tribunal, the applicant said that following the leadership contest in late 2011, one evening in December 2011 near the party office he and friends were attacked by a group of supporters of Mr Wikramasinghe.  They slapped and beat the applicant and he ran away back to his house in Colombo.  From this time he ceased his political activities as he feared for his safety but he continued his work for the [company].  He had no further difficulty with supporters of the UNP until July 2013 when a number of them came to his home in Colombo, took him outside and beat him so much that he needed to be taken to hospital for treatment.  The applicant had seen these men at the UNP office before he ceased his activities and they had come and attacked him because of his support for X in late 2011.

17.The Tribunal asked the applicant why these people would come to his home in July 2013 for that purpose.  In response, the applicant said that they came to know that he was staying in Colombo.  The Tribunal put to the applicant that it was highly likely that they would have known that he was in Colombo at the least and where he lived if he had been involved with their party, as he had claimed, from mid 2010 until late 2011.  In response, the applicant said that he had been in hiding and they thought that he had gone away.  When asked how they knew that he had not gone away and was in Colombo, the applicant said that around that time in 2013 he had participated in [an event] [in] Colombo for studies [he] commenced in [year]. 

18.He said that it was a large [event] photographs of which were in the paper and so he thought that his attackers must have seen them and decided that he was in Colombo.  He did not know how they knew where his home was and they had never been there before.    The Tribunal put to the applicant that according to his evidence, after the leadership contest in late 2011, he remained living in the same home and continued the same employment. Even if that employment was done at home, the Tribunal had difficulty accepting that, if his attackers really wished to harm him, they would not do this until some 18 months after Mr Wikramasinghe won the contest and, according to the applicant’s evidence, began seeking to harm those who did not support him.

19.In response, the applicant said that it was in July 2013 these people found out where he was living and they did not know that he was in Colombo, he speculated, until they saw a photograph of him at [the event].  The Tribunal is not persuaded by that response.  The Tribunal finds the applicant’s evidence about this group coming to his home to harm him because of his support for X in a party leadership contest some 18 months earlier to be wholly unsatisfactory and unconvincing.  His claim that they did not come earlier because they did not think he was in Colombo and then eventually did come due to photographs of him at a [an event] appearing in a newspaper did not bear the ring of truth.

Evidence about the applicant’s movements following the attack in July 2013

20.To the Tribunal, the applicant said that in July 2013 after his attackers left his home a neighbour took him to hospital where he remained for [number] weeks.  The Tribunal asked the applicant where he went after that and his evidence became vague and mobile.  Initially, he said that from hospital he went to Kilinochchi because provincial elections were going to be held there in September 2013.  As he was attacked in July 2013 and had been in hospital for two weeks, the Tribunal suggested to the applicant that, therefore, he must have gone to Kilinochchi in August 2013 (at the latest).  In response, the applicant was again vague saying that he could not recall and thought that he went in September. 

21.When reminded he had earlier said that after he came out of hospital he went to Kilinochchi and when again put to him that this was presumably in August at the latest, he said that he could not recall; he was in hospital for two weeks in July and then in August 2013 he did go to Kilinochchi.  When asked if he was therefore in Kilinochchi for one month (if the elections were held in September 2013) the applicant said that he went to Kilinochchi in September 2013.  The Tribunal asked the applicant to clarify that evidence given he had earlier said that he was in hospital for two weeks in July 2013.  In response, the applicant then said that after he came out of hospital he went back to his home and remained there for one month before then going to Kilinochchi, the doctor telling him he had to rest.

22.The applicant said that in Kilinochchi he undertook campaign activities for a Tamil party and distributed notices to others to support that party.  On one occasion, people from the UNP approached him and began to threaten him, asking him if he was staying there.  In fear for his safety, he left Kilinochchi the day after the election believing that if these people found him again they would beat him. He did not undertake any more political activities and resumed his employment in Colombo.  The Tribunal asked the applicant if he went back to the home in which he was living before he went to Kilinochchi.  The applicant said that was correct.

23.In late December 2013 his employer sent him to [another country] for training for six weeks.  The applicant had no further difficulties with UNP supporters until February 2014 when two of the people who had attacked him in July 2013 approached him on the street to try and apprehend him.  The applicant ran away from them but did not go back to his home. Instead, he stayed one night with a friend and flew to [Country 1] the following day.  He did this for his safety but returned to Sri Lanka after six weeks as his [Country 1] visa had expired. On return to Sri Lanka, he stayed at the home of a friend until leaving Sri Lanka to come to Australia in July 2014.  

24.The Tribunal put to the applicant that it had difficulty accepting his willingness to remain at his home for one month after coming out of hospital when his attackers had already been there and seriously assaulted him.  In response, the applicant said that in fact after he came out of hospital he did not go back to his home for the very reason that his attackers might find out that he had returned.  Instead, he stayed with another person before going to Kilinochchi. The Tribunal put to the applicant that this was inconsistent with his previous evidence to that point, as the Tribunal understood it.  His previous evidence was that after coming out of hospital he went back to the home where he was living at the time of the attack in July 2013.  In his initial evidence, he made no claim to have lived anywhere else in Colombo until after fleeing from UNP supporters in February 2014 when he stayed with a friend for one night before going to [Country 1] and then staying with a different friend after returning from [Country 1] and before coming to Australia.

25.In response, the applicant denied giving that evidence and maintained that after he came out of hospital he stayed with a friend and never again stayed at the home where he was attacked in July 2013.  He claimed that he had given this same evidence in his written statement.  However, neither of his written statements contain this evidence.  In his protection visa application forms the applicant specified one residential address in Colombo for the period from November 2009 until August 2013 and one residential address in Colombo for the period from April 2014 to July 2014.[4]  According to that evidence, the applicant stopped living at the home where he claims he was attacked in August 2013.  However, that does not excuse his initial evidence to the Tribunal that he lived at the home where he was attacked after coming out of hospital and after returning from Kilinochchi (in September 2013).  Overall, the applicant’s evidence about his movements from the time he was discharged from hospital and where he stayed in that period is inconsistent and not credible.

[4] Folios 18 and 45 of the department file.

Evidence about undertaking political activities after being attacked in July 2013

26.The Tribunal asked the applicant why, after being attacked in July 2013, he was willing to go to Kilinochchi and undertake political activities in relation to elections in which the party he was supporting was running against the UNP.  In response, the applicant said that those elections were to be held in September 2013 and he thought that it would be safe, by that time, to get involved campaigning for a Tamil party.  The Tribunal put to the applicant that it had difficulty accepting his willingness to undertake these activities when he told the Tribunal that he had ceased political activities from late 2011 following the victory of Mr Wikramasinghe in the UNP leadership contest and he had been attacked in July 2013 because of those activities. 

27.In response, the applicant initially said that he did not know that UNP people would be there but then said that he was aware that party was contesting those elections. The Tribunal again put to him that in his claimed circumstances it was difficult to accept that he would be willing to undertake activities and do so for a party running against the UNP.  In response, the applicant said that he did not work as a main person and just handed out leaflets.  In his claimed circumstances, the Tribunal does not accept that the applicant would have undertaken political activities of any kind, in particular, so soon after he claims the people he fears came to his home and seriously assaulted him. 

Delay in seeking protection

28.To the Tribunal, the applicant said that he fled to [Country 1] after managing to escape from UNP supporters who had tried to apprehend him in February 2014.  He returned to Sri Lanka only because his [Country 1] visa had expired.  He chose to stay at the home of a friend and left his employment stating that he was afraid of being attacked by UNP supporters.  When asked why he applied for a visa to come to Australia, he said that after he came back to Sri Lanka from [Country 1] he decided that it was not safe to live in Sri Lanka and he wanted to fully escape from the supporters of Mr Wikramasinghe.  The Tribunal asked the applicant why, if that was the case, he did not apply for protection until late April 2015.

29.In response, the applicant said that he only decided to apply for protection after elections held in Sri Lanka in January 2015 in which Mr Wikramasinghe became the Prime Minister.  He said that when he came to Australia the UNP was an opposition party. The Tribunal put to the applicant that if he had taken the significant step of leaving Sri Lanka for safety from the UNP it would make no difference whether or not that party was in opposition.  In response, the applicant said that following those elections in January 2015 his fear of harm increased because of the power that Mr Wikramasinghe would have.  His plan, prior to the elections, was to simply study in Australia.  This was his plan even though he came to Australia to save his life because, so he said, he was not having any problems here and he was not afraid. 

30.If the applicant had truly left Sri Lanka in fear of harm from supporters of Mr Wikramasinghe, the Tribunal does not believe that he would be content, after arriving in Australia, to just study and do nothing about applying for protection from the harm he claims to fear in Sri Lanka.  That is the case whether or not he was having any problems in Australia.  While the elections in January 2015 may have increased the risk of him suffering harm from the people he claims to fear in Sri Lanka, the Tribunal does not believe that it would be that event that triggered his efforts to apply for protection and that he would not have made those efforts soon after arriving in Australia.

Conclusions on credibility

31.At the beginning of the hearing, the Tribunal advised the applicant that although the delegate appeared to have found certain aspects of his account to be credible, namely, his account of his political activities in Sri Lanka and the harm he claims that ensued from them, the Tribunal would have to decide for itself whether or not he was relating a truthful account.  The Tribunal advised the applicant that this was a purpose of the questions it would be asking him.  Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. 

32.In written submissions received after the hearing, the representative claimed that inconsistencies in the applicant’s evidence were insignificant.  The Tribunal rejects those submissions and the grounds on which it finds that the applicant is not a witness of truth are central to his protection claims and very significant.  In written submissions provided to the department, the representative set out country information about general human rights practices in Sri Lanka as at 2014 and claimed that this demonstrated that the applicant’s account was credible.  The Tribunal has considered that information but it does not overcome the concerns the Tribunal holds about the applicant’s evidence.

33.Accordingly, the Tribunal disbelieves the applicant’s claims about making a speech at [an organisation] in 2009 and the Sri Lankan army coming to his home, questioning him and harming his parents.  The Tribunal disbelieves the applicant’s claims that he went to live in Colombo for safety from the Army and his claims that he undertook activities for the UNP.  The Tribunal therefore disbelieves his claims about being harmed and attacked by supporters of the current Sri Lankan Prime Minister and his claims about undertaking political activities for a Tamil party in Kilinochchi. 

34.To the department, the applicant produced medical records indicating that in July 2013 he received medical treatment at a hospital in Sri Lanka.[5]  According to these records the applicant was observed to have an injury as a result of an accidental fall in his home.  To the Tribunal the applicant claimed that when he was treated at hospital he did not reveal that his injuries were due to being attacked by the people he claims to fear.  This is why, according to his evidence, the medical records refer to him as having an accident.  For the reasons given above, the Tribunal does not believe the applicant was attacked in July 2013 as he claimed. These medical records do not alter the Tribunal’s view about the applicant’s credibility. So far as they purport to corroborate his evidence, the Tribunal does not give weight to these documents.

[5] See folios 67 – 68 of the department file.

35.There is no credible evidence that the applicant suffered harm in Sri Lanka and there is no credible evidence that anyone in Sri Lanka seeks to harm him.  There is no credible evidence as to why the applicant left Sri Lanka to travel to [Country 1] and to come to Australia. There is no credible evidence as to why the applicant does not want to return to Sri Lanka.  To the Tribunal, the applicant said that the only reason he was afraid to return to Sri Lanka was his fear of the supporters of Mr Wikramasinghe who would attack him as they did before. For the reasons given above, the Tribunal disbelieves the applicant’s evidence about those matters.

36.According to country information, there has been a great improvement in the security situation in Sri Lanka since the end of the conflict.[6]  There is greater freedom of movement in the north and east and the military presence has been reduced to a low level.[7]  Monitoring and harassment of Tamils in day-to-day life has decreased significantly. [8]  Tamils have a substantial level of political influence.[9] 

[6]   DFAT Country Information Report Sri Lanka 24 January 2017 2.37

[7]   DFAT Country Information Report Sri Lanka 24 January 2017 2.39

[8]   DFAT Country Information Report Sri Lanka 24 January 2017 3.9

[9]   DFAT Country Information Report Sri Lanka 24 January 2017 3.6

37.Former leadership of the Liberation Tigers of Tamil Eelam (‘LTTE’) and former members suspected of having committed terrorist or serious criminal acts in the conflict or who gave weapons or explosives to the LTTE are at high risk of harm.[10]  Low-profile members who have not already come to the attention of the authorities would likely be detained, sent to rehabilitation and then monitored, but, not prosecuted.[11]  Sri Lankans of all backgrounds have a low risk of experiencing official discrimination and societal discrimination can occur.[12] 

[10]   DFAT Country Information Report Sri Lanka 24 January 2017 3.38

[11]   DFAT Country Information Report Sri Lanka 24 January 2017  3.42

[12]   DFAT Country Information Report Sri Lanka 24 January 2017 3.4

38.The Tribunal is aware of reports in the past about Tamils returning to Sri Lanka after spending time abroad being maltreated on arrival at the airport or at some stage after leaving the airport.[13]  However, the people concerned were those who came within certain profiles framed by UNHCR in its guidelines released in 2012 concerning, essentially, people who had involvement with the LTTE or those perceived as opposing the former Rajapakse government, namely, activists, politicians and journalists, to name some.[14]  In its most recent assessment on this issue DFAT states that involuntary returnees are processed at the airport on return but this does not involve mistreatment.[15]  Large numbers of asylum seekers have returned to Sri Lanka from western countries with relatively few allegations of torture or mistreatment, allegations DFAT cannot verify.[16]  DFAT states that the risk of torture or mistreatment for returnees is low.[17] 

[13] See Yasmin Sooka, the Bar Human Rights Committee of England and Wales and the International Truth and Justice Project, Sri Lanka, in her report entitled “An unfinished war: torture and sexual violence in Sri Lanka 2009-2014” released in March 2014. 

[14] See the report of Ms Sooka and UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p 26 – 37.

[15] DFAT Country Information Report Sri Lanka 24 January 2017 5.20 – 5.21

[16] DFAT Country Information Report Sri Lanka 24 January 2017 4.21 – 4.22

[17] DFAT Country Information Report Sri Lanka 24 January 2017 4.22

39.From this country information, the Tribunal infers that the risk of the applicant suffering serious harm in Sri Lanka is remote.  First, there is no credible evidence the applicant suffered harm in Sri Lanka notwithstanding the existence of discrimination, societal or official, and whatever monitoring of Tamils remains since the conflict ended.   None of those matters affected the applicant when he lived in Sri Lanka.  The applicant had no involvement with the LTTE nor is there credible evidence that he was involved in activism, politics or the media.   He worked for a [company] in Sri Lanka and left the country legally using his own valid passport.   He is not someone likely to be of adverse interest to Sri Lankan authorities on return to Sri Lanka.  Even if he was questioned by authorities on return to Sri Lanka, according to country information this does not involve the mistreatment.

40.At the hearing, the Tribunal discussed this country information with the applicant in general terms and put to him the reasons given above as to why, based on the country information, the Tribunal infers that the risk of him suffering serious harm in Sri Lanka is remote.  In response, the applicant said that he did not fear harm in Sri Lanka on the ground that he was Tamil.  The applicant said that the sole ground on which he fears harm in Sri Lanka is his fear of the supporters of the current Prime Minister.  The Tribunal disbelieves the applicant’s claims about that and finds that the risk of him suffering serious harm in Sri Lanka is remote.[18]

[18] The department issued a certificate under s. 438 of the Act withholding disclosure of two documents on the department file. There was no need for the Tribunal to disclose the contents of these documents to the applicant at the hearing as they amount to nothing more than administrative records kept by the department and have no relevance whatsoever to the applicant’s protection claims and the grounds on which this review has been determined.

41.The representative made submissions on behalf of the applicant.[19] In these submissions, the representative provided general country information about human rights practices in Sri Lanka as at 2014 under the former Rajapakse government.  The Tribunal prefers its more recent country information from DFAT as conveying a more accurate and up to date assessment of human rights practices in Sri Lanka at the present time.  The representative also provided country information about an agreement reached between the UNP and the current president of Sri Lanka but that does not demonstrate that this applicant is at risk in Sri Lanka (the Tribunal having rejected his claims about involvement with the UNP).

[19] These submissions were made orally at the Tribunal hearing, by email dated 6 August 2017 and by letter dated 29 October 2015.

42.The representative also submitted that the current Prime Minister had greater power but that also does not demonstrate that this applicant is at risk, particularly, in view of the Tribunal’s credibility findings.  The representative submitted that the risk profiles framed by UNHCR in 2012 were not exhaustive and that Tamils are not totally free of monitoring and serious harm; some are still being harmed and monitored.  The Tribunal is willing to accept that there could be some Tamil people suffering harm and being monitored in Sri Lanka and, as well, that the profiles of UNHCR are not exhaustive. 

43.However, none of that information demonstrates that there is a real chance this applicant will suffer serious harm in Sri Lanka.  The Tribunal has given reasons above why just for being a Tamil returning to Sri Lanka after seeking protection in Australia the risk of this applicant suffering serious harm is remote.  The submissions of the representative do not cause the Tribunal to depart from its finding on this matter. There is no credible evidence that Sri Lankan authorities have or ever have had any adverse interest in this applicant and there is no reason why they would take an adverse interest in him in the reasonably foreseeable future.

44.For the reasons given above, there is not a real chance that the applicant will suffer serious harm in Sri Lanka. He does not hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act.

Complementary protection

45.With respect to the complementary protection criterion, for the same reasons the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Sri Lanka,      it also finds that there is not a real risk that he will suffer significant harm.  The Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. There is no credible evidence that the applicant suffered harm in Sri Lanka and there is no credible evidence that anyone in Sri Lanka seeks to harm him. There is no credible evidence as to why he left Sri Lanka and why he does not want to return there.  In those circumstances, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Sri Lanka, there is a real risk that he will suffer significant harm.

CONCLUSIONS

46.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 s.36(2)(a).

47.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).

48.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

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

Paul Millar
Member