1603185 (Refugee)

[2017] AATA 381

1603185 (Refugee) [2017] AATA 381 (24 February 2017)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603185

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Stuart Webb

DATE:24 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 24 February 2017 at 3:41pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Imputed political opinion – Air force deserter – Credibility issues – Voluntary returns to Sri Lanka – Amnesty for deserters – Delay in protection application

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 116(1)(b), 499
Migration Regulations 1994, Schedule 2, r 1.12, Condition 8101

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Sri Lanka, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] February 2016.

3. The applicants appeared before the Tribunal on 24 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. For the purpose of this decision, where relevant, the first named applicant will be known as ‘the applicant’, the second named applicant will be known as ‘the applicant’s wife’ and the third and fourth named applicants will be known as ‘the applicant’s children’.

   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.

   Refugee criterion

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. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse and dependent children of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant made the following claims with his application. He was a deserter from the Sri Lankan air force. He was ordered to do wrong things and did not do what he was told to do. He had no option but to leave the air force. He came to Australia in 2008 as a dependent on his wife’s student visa. He returned to Sri Lanka in 2010 but the situation was not good. People who desert the army are taken to prison. There are examples of army deserters who are held in the Welikada prison being harmed. The authorities will put him in prison and there is no control in these prisons, they are controlled by underworld thugs. The authorities are corrupt. His human rights will be violated and he will not get justice.

22. The applicant provided further information. He had a passport issued by the Sri Lankan authorities in [2004]. It was renewed in [2008][1]. This passport also noted that the applicant had a previous passport issued. A new passport was issued to the applicant [in] 2014[2]. He resided in [Country 1] for work purposes between May 2002 and August 2007, having been granted a visa for that purpose. He returned to Sri Lanka [in] August 2007.  He first arrived in Australia [in] September 2008. He departed Australia [in] August 2010 and returned to Sri Lanka. He returned to Australia [in] October 2010.[3]

    [1] DIBP Folio 49-50

    [2] DIBP Folio 99

    [3] Stamps in passport, DIBP Folios 83-96

23. He provided images of himself in the Sri Lankan air force. He provided an extract of a law regarding desertion. He provided evidence of his birth, marriage and his children’s birth in Australia. He provided some newspaper articles regarding conditions in prisons to the Department.

24. The delegate interviewed the applicant and detailed further information in the decision, including the migration history of the applicant and his wife. The applicant was granted a dependant visa attached to his wife's TU [Student] visa [in] August 2008. He entered Australia legally [in] September 2008. He departed Australia [in] August 2010 and returned to Sri Lanka. He returned to Australia [in] October 2010 on his [TU] visa and has remained in Australia since. His wife did not commence her designated course. [In] May 2013 the applicant's [bridging] visa was cancelled under s 116(1)(b) due to a breach of condition 8101 when he was found working despite a condition of no work noted on his visa. [Information deleted]. [In] July 2013 the applicant was granted a bridging visa for MRT merits review of student visa cancellation. The applicant and his wife appealed unsuccessfully to the Merits Review Tribunal. The applicant and his wife then applied for ministerial intervention citing concerns for their children's re-integration to Sri Lankan society and financial issues, though this was unsuccessful. The applicant then applied for a bridging visa for departure. [In] May 2014, the applicant applied for a Protection visa and was subsequently granted a bridging visa.

25. The delegate noted that the applicant had previously resided in [Country 1] and returned to Sri Lanka on at least three occasions whilst employed in [Country 1]. The passport provided showed this occurred twice in 2005 and once in 2006.

26. The delegate accepted the applicant had been in the Lankan Air force from [1993] until [2001]. With respect to the wrong things the applicant stated he was told to do, the applicant stated that he had been required to act as thugs and disperse opposition rallies and stages. The applicant stated that nothing had happed to him for refusing to take part in these activities, that he had usually taken leave at the time of elections. It was recorded in the decision that the applicant stated ‘he hadn't done anything bad and he carried out 100 per cent of his duties. As a result, he states he experienced no problems or issues during his time in the Air Force.’ The applicant stated he feared he might be asked to kills someone, and if he refused he might be killed. This did not occur. The delegate considered this reason for the applicant to desert was baseless.

27. The delegate considered whether the applicant was a deserter. He voluntarily joined. His employment ceased after he was on leave for [number] days and did not return. The delegate noted he had no information about leaving the air force. The delegate was concerned that the applicant had been employed for 9 years, had always done his duty and had not been required to do ‘wrong things’. The delegate considered that this lessened the likelihood that the applicant had served against his will or that he could not simply retire.

28. The delegate referenced the applicable law in Sri Lanka in relation to deserters. The relevant provision of An Act to Provide for the Raising and Maintenance of an Air Force and for Matters Connected Therewith (the Air Force Act) of 1950, as amended to 2006, states regarding 'Deserters, [Fraudulent Enlistment] and Absentees Without Leave':

    Inquiry into absence of airman.

    148. When any airman has been absent without leave from his duly for a period of twenty-one days‑

    (a)a court of inquiry may as soon as practicable be assembled, and inquire in the prescribed manner, on oath or affirmation which such court is hereby authorized to administer, respecting the fact of connexion with the mobilization or demobilization of the Air Force or any member thereof shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to the like punishments as for an offence under section 141 ['Purchase of service necessaries, equipment, stores, & c.11,

    (b)if satisfied of the fact of the airman's absence without leave or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any; and

    (c)the commanding officer of the absent airman shall enter in the service books a record of the declaration of such court; and

    (d)if the absent airman does not afterwards surrender or is not arrested such record shall have the legal effect of a conviction by a court martial for desertion,'

29. The delegate noted that pursuant to s148(d) there were provisions for a deserter to have a conviction for desertion.

30. The delegate questioned the claim that the applicant would be arrested by the Sri Lankan authorities. The applicant stated that nothing happed to him between leaving the Air Force in [2001] and leaving Sri Lanka in May 2002. He had no difficulties departing for [Country 1], or any difficulties returning to Sri Lanka from [Country 1]. He had no issues registering his marriage in January 2008. He had no issues departing for Australia in 2008, or on his return and departure from Sri Lanka in 2010. He had no issue having his passport issued in 2004. He had no issues having his passport issued by the Sri Lankan Consulate in [Australia] in 2009.

31. The delegate noted country information that arrest warrants are issued for deserters and the Department of Immigration and Emigration are notified to prevent their departure.

32. The delegate was concerned that the Sri Lankan authorities had no interest in the applicant despite his significant interaction with them over an extended period, including being issued official documents and travelling in and out of the country on a number of occasions.

33. The delegate noted that the applicant’s family had been approached on one occasion by the air force and once by the police, with no further contact.

34. The delegate noted that the applicant had been in Australia for an extended period of time, and there was a significant delay in lodging the protection visa application. The applicant had stated it was easier for him to remain in Australia and get permanent residency through his wife’s visa application.

35. The delegate noted information provided by the applicant in response to a notice of intention to consider cancellation of his visa in May 2013. In his response, the applicant made no mention that he would be seriously harmed on return to Sri Lanka.

36. The delegate noted information provided by the applicant in his Ministerial Intervention request. The applicant mentioned integration issues for his children and financial issues, but did not state that he faces imprisonment and serious harm as a result if returned.

37. The delegate did not consider the applicant to be a credible witness, and did not accept that he was wanted for desertion from the Sri Lankan Air Force.

    Findings and reasons

    Country of nationality

38. The applicants claim to be citizens of Sri Lanka and provided copies of the applicant’s passport to the Department with his application. They have provided evidence of the applicant’s wife’s Sri Lankan citizenship. The applicant’s two children were born in Australia, [in specified years]. The application of Australian law with respect to this birth does not entitle these children to Australian citizenship or a permanent visa, as their parents did not have permanent residence at the time of her birth. Accordingly the applicant’s child who was born in Australia is entitled to Sri Lankan citizenship.  The Tribunal finds that the applicants are citizens of Sri Lanka, that Sri Lanka is the applicants’ country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is their receiving country for the purposes of complementary protection.

    Third country protection

39. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

40. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

1. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

2. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

3. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

4. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

5. The evidence of the applicant was significantly inconsistent with information as provided previously in his application and with the Department. The Tribunal discussed these inconsistencies with the applicant at the hearing.

6. The Tribunal noted that the applicant had decided to leave the air force because he did not want to do bad things. The Tribunal asked the applicant what bad things he was asked to do. The applicant stated he was transferred to a [particular] division and was asked to assist in interfering with elections, dispersing rallies and breaking up stages of opposition parties. He told the delegate that he had been involved in this on one or two occasions. The applicant stated he did not like doing this. The applicant stated he had arguments with the [official] about this, who he identified as [name].  He stated that he chose to leave in 2001, he got fed up with the [official] and that assignment, which the applicant described as not being air force duties.

7. The Tribunal noted that the delegate had recorded that he had limited involvement in this electoral violence, that he had sought and received leave so that he did not have to be involved in the violence, or that he got in trouble for not being involved. The applicant stated that he had not had leave during these periods, he was entitled to 7 days of leave every two months, which he took. The Tribunal notes that the evidence of the applicant at the interview is that he became sick or too leave at this time and avoided getting involved in most of the electoral violence.[4] He did not get in trouble for this.

   [4] Around 1.33 – 1.36 of delegate’s recording

8. The Tribunal considers that the applicant may have been involved in one or two electoral activities that were not part of his air force guard duties. However the Tribunal notes that the applicant has stated he recognised when these situation were going to arise, and that he was able to take steps to avoid such requests to assist [an official] in electoral violence. The applicant stated that he did not get in trouble for not being involved.

9. The applicant stated he feared that he might be harmed by this [official] because he refused to get involved in such activities, that [officials] have a lot of power. The Tribunal noted that the applicant had left the air force and such activities in 2001, which was 16 years ago, and that it was highly speculative that any person would recall the applicant’s actions from so long ago, that they would seek to harm the applicant because of his not being involved in electoral violence. The Tribunal notes that the applicant did not get in trouble at the time for not being involved in electoral violence or not doing ‘wrong things’.

10. The Tribunal finds that the applicant is not a person of interest to anyone arising out of his not being involved in ‘wrong things’ or forms of electoral violence prior to his leaving the air force in 2001. The Tribunal does not accept that any person would be interested in the applicant for this reason on his return to Sri Lanka, so long after his involvement in the air force. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

11. The applicant claimed that people who were deserters were either recruited into the underworld or made to work for a politician to do bad things. The applicant stated that the underworld were interested in people who had weapons training. The applicant did not provide any supporting information about this activity of deserters. The applicant claimed that he would be forced to do this on return to Sri Lanka. The Tribunal questioned this claim of the applicant, noting that the applicant had provided limited information previously about the underworld. The Tribunal notes that the applicant had mentioned the underworld in his application regarding influence within prisons, and in the departmental interview he mentioned that the underworld were interested in people who had weapons training. He was now claiming that most deserters, he stated 50%, worked for the underworld, the rest for [officials]. The Tribunal noted that this was significantly different to what he had stated previously.

12. The applicant stated that he believed he would be made to work for the underworld or for [an official]  if he returned because he was a deserter. The applicant stated that people would notice that he was back in the village and make approach him. The Tribunal noted that it had not seen any information about this occurring, especially in the numbers as the applicant stated. The Tribunal notes that asylum seekers cannot be expected to provide documentary evidence to support their claims. The Tribunal however does note that the applicant has provided some country information about criminal matters in Sri Lanka, without there being reference to deserters. The applicant stated that things are different in Sri Lanka, you can’t believe the internet, this information was not available. The Tribunal questioned the claim that the authorities could not find so many deserters working for the underworld or [officials] in this manner.

13. The Tribunal does not accept that people who desert the military forces in Sri Lanka end up working for criminals or for [officials]. As noted below, there are an estimated 60 000 deserters, and that the authorities have over time spent time searching for them, or declared amnesties to allow deserters to return, usually, as detailed, for a discharge to occur. The Tribunal does not accept that the authorities have been unable to find these deserters because of criminal or political protection.

14. The Tribunal has considered whether the applicant himself will be a person of interest to criminals or political interests, because of his weapons training and being a deserter from the air force. The Tribunal notes that the applicant has been out of the air force since 2001. He has been outside of Sri Lanka for most of the time since leaving the air force, apart from a year in 2007/2008 and a return in 2010. He also returned occasionally for a vacation while living and working in [Country 1]. At no time, during these times was he ever approached by anyone to join them in their activities, criminal, political or otherwise, even though he was a deserter and had previously had weapons training. He had gone back to his [village], where he stated in his application he lived from September 2007 to September 2008. He stated he had also resided at his wife’s home after he married for a period of time.

15. The Tribunal does not accept the applicant’s claim that he will be approached by criminal or political interests because of his history as a deserter or because of his weapons training undertaken over 16 years ago. The Tribunal considers this to be speculative, and not something that has a real chance or real risk of occurring. The Tribunal notes that in MIEA v Guo, the Court said:

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[5]

    [5]MIEA v Guo (1997) 191 CLR 559 at 572;

16. The Tribunal does not accept that the applicant will be a person of interest on his return to the criminal or political interests. The Tribunal considers the applicant’s absence from the air force for such a long period, and the outcome of his desertion, as detailed below, will mean that he will not be approached on his return to be involved in some form of improper activity. The Tribunal finds that this aspect of the applicant’s claims are not made out, that he does not have a real chance of serious harm or a real risk of significant harm for this reason/

17. The Tribunal discussed the issue that the authorities had shown no interest in him despite his repeated interactions with them over an extended period of time. The Tribunal also noted that the actions of the applicant himself appeared to demonstrate that the applicant himself had no fear of harm from the authorities arising from his desertion from the air force in 2001.

18. The Tribunal listed the interactions of the applicant with the Sri Lankan authorities over the past 16 years. The applicant had applied for and received a passport on 3 occasions with no difficulty. The applicant had repeatedly travelled in and out of Sri Lanka, in 2002, 2005 (x2), 2006, 2007, 2008 and 2010 on these passports and told the Tribunal that he never had any difficulties with the authorities on any of these occasions. The Tribunal noted that during his longer stay in 2007 to 2008 he got married, a process that created further official paper work. At no time did the applicant receive any adverse or inappropriate treatment from the authorities despite having deserted the air force in 2001.

19. The Tribunal noted that the applicant had approached the authorities on these many occasions. He had returned from locations overseas for a vacation, despite knowing he had deserted the air force in 2001. Despite this background, the applicant had no concern returning to his home village on these occasions. He encountered no difficulties during these return visits.

20. The Tribunal noted that the applicant had in fact approached the Sri Lankan consulate in [Australia] in late 2014, with his passport being issued [on a date in] 2014. The applicant stated his old passport had expired. The Tribunal noted that the applicant had applied for protection in May 2014, so his approach to the Sri Lankan authorities in Australia was very unusual. The Tribunal noted that again he had not issue with the issue of the passport.

21. The applicant claimed that the official systems in Sri Lanka were very backward, they did not record the coming and going of people and he would not have come to the attention of the authorities when going back and forth in Sri Lanka, including getting his passport. The applicant stated it was easy to leave and enter the country.

22. The Tribunal noted that the country information contradicted this evidence. A UK Home Office report noted that:

    ‘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.’

    Further guidance continues to recognise the risk of someone on the ‘stop’ list:

    3.1.5 A person who is known to the authorities, such as having their name on a ‘stop’ list or having a court order or an outstanding arrest warrant against them is likely to be at risk of persecution or serious harm.

    And

    6.10.2 A letter from the British High Commission in Colombo, dated 7 July 2014, describing the airport immigration control procedure, noted that:

    ‘Passengers seeking entry to Sri Lanka must present themselves to an immigration officer and are required to hand over their passport and (if a foreign national) arrival card.

    The immigration officer will scan the details page of the passport. Each immigration officer’s desk has a terminal connected to the DIE Border Control System. This system contains border control, visa/ETA details, citizenship and passport records and is networked to the DIE office in Colombo. It is not linked to any police or military database; however, there is an alert list containing information relating to court orders, warrants of arrest, jumping bail, escaping from detention, as well as information from Interpol and the State Intelligence Service (SIS) computer system. The immigration officer will check for any data matches, check that the document is genuine and unaltered, and look through the passport for visas and/or endorsements. Dependent on the circumstances of the individual passenger, the immigration officer may ask questions to ascertain the purpose of the visit.

    ‘Passengers may be detained for further questioning by DIE and/or the Criminal Investigation Department (CID) and/or the State Intelligence Service (SIS) and/or the Terrorist Investigation Department (TID).

    ‘Once satisfied that the passenger qualifies for entry, the immigration officer will endorse the passport with an arrival stamp and hand back to the passenger. They will retain the arrival card (if applicable).’[6]

    [6] UK Home Office 2016, Country Information and Guidance. Sri Lanka: Tamil separatism. Version 2.0, 19 May, p.10, section 3.1.5

23. A 2005 report to the Immigration and Refugee Board of Canada reported on ‘Sri Lanka: Passport issuance procedures […] (2003 - 2005) stated:

    In July 2003, the Department of Immigration and Emigration announced that it would introduce a new series of passports ("N" series passports) containing security features including a "shadow photograph" (Sunday Observer 27 July 2003; see also Sri Lanka 7 Aug. 2003), a laser-printed photograph of the passport holder, and computerized information on the holder (ibid.). According to an official with the Department, the "N" series passports, which would replace the "M" series passports, were designed in an effort to prevent counterfeiting of Sri Lankan travel documents (ibid.; Sunday Observer 27 July 2003). The Department of Information reported in August 2003 that the introduction of the "N" series passports was "proceeding smoothly" (Sri Lanka 7 Aug. 2003).[7]   

    [7] Immigration and Refugee Board of Canada, Research Directorate 2005, ‘Sri Lanka: Passport issuance procedures; whether a minor can obtain his or her own passport; physical description of passport (2003 - 2005)’, LKA100501.E, 12 December

24. In November 2010 the United Kingdom Home Office reported on ‘Entry Procedures’ for Sri Lanka, based on August 2010 letter from the British High Commission (BHC) in Colombo:

    33.06 The BHC letter of 30 August 2010 reported:

    “Arriving passengers should be provided with a Department of Immigration & Emigration arrival card by the carrying airline. Depending on which stand the aircraft has arrived at, arriving passengers will either walk from the gate or be deposited by bus, into the immigration arrivals hall. Those passengers transferring to an onward flight will approach the transfer desk. Current figures indicate that between 45-50% of all passengers using Colombo Airport are transit passengers. They generally remain in the transit/departure areas until their onward flight departs, although those requiring overnight accommodation would have to seek entry to Sri Lanka at the immigration control.” [15n]

    33.07 The same BHC letter also noted that:

    “Passengers seeking entry to Sri Lanka must present themselves to an immigration officer and are required to hand over their passport and arrival card. The immigration officer will swipe the passport, which will enable basic details from the document to be displayed on a screen on the officer’s desk. These include name, date of birth, nationality, passport number. Each immigration officer’s desk has a terminal connected to the Department of Immigration & Emigration (DIE) Border Control System. This system contains border control, visa, citizenship and passport records and is networked to the DIE office in Colombo. It is not linked to any police or military database; however, there is an alert list containing information relating to court orders, warrants of arrest, jumping bail, escaping from detention, as well as information from Interpol and the State Intelligence Service (SIS) computer system. The immigration officer will check for any data matches, check that the document is genuine and unaltered, and look through the passport for visas and/or endorsements. Dependent on the circumstances of the individual passenger, the immigration officer may ask questions to ascertain the purpose of the visit. Once satisfied that the passenger qualifies for entry, the immigration officer will endorse the passport with an arrival stamp and hand back to the passenger. They will also endorse the arrival card which they retain.

    “The State Intelligence Service has an office in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each arriving flight. Invariably, if they notice a person being held up by DIE they approach them and take details in order to ascertain if the person may be of interest to them. Their office contains three computer terminals, two linked to SIS records and one belonging to the airport containing flight information.[8]

    [8] UK] Home Office, UK Border Agency Country of Origin Information Service 2010, Country of Origin Information Report. Sri Lanka. 11 November 2010

25. As this information demonstrates that the Sri Lankan authorities had a coordinated system of information management dealing with passports and travel in and out of Sri Lanka, for some time. The Tribunal considers that, contrary to the applicant’s submissions, that the country information does not support his contention that he could enter and exit without coming to the attention of the authorities. The Tribunal considers that the information demonstrates that the applicant was not a person of interest to the authorities despite his desertion from the air force in 2001.

26. The Tribunal further considers that the applicant’s willingness to apply for and use his passport, and enter and exit from Sri Lanka on multiple occasions demonstrate that he had no concern as to his being detained by the authorities because he had deserted the air force in 2001. The Tribunal considers that the applicant correctly determined that the authorities were not interested in him despite deserting the air force in 2001, and that he did not have a fear of harm in returning to Sri Lanka.

1. The Tribunal asked if the applicant had been approached by anyone after he left the air force. The applicant stated he had not been. The Tribunal asked if any member of his family had been approached by anyone regarding his leaving the air force. The applicant stated that there may have a discreet watching for him but that no-one had come to ask about him. The Tribunal noted that the applicant had told the delegate that the air force and the police had come to his home to ask about him. The applicant stated he did not know, his parents were old, it might have been an air force friend who came to the home.

2. The Tribunal asked if there was any paperwork received regarding his departure from the air force. The applicant stated that the systems were very slow, it was often no noticed for some time when people changed roles, they may not have noticed for over a year. He received nothing from the air force about his departure.

3. The Tribunal considers that the evidence of the applicant is such that the authorities have not approached him or his family regarding his desertion. The Tribunal considers that this further support the findings that the authorities have no interest in the applicant despite his desertion from the air force in 2001.

4. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

5. The Tribunal questioned the applicant’s history in Australia, noting his arrival in 2008, his return to Sri Lanka for a period in 2010, and then his subsequent stay in Australia since October 2010. The Tribunal noted that the applicant had an extensive migration history prior to lodging the protection visa application in May 2014.

6. The applicant stated that he was trying to remain in Australia on his wife’s student visa. The Tribunal noted that it appeared that such an opportunity was not available, given his wife was not studying for an extended period, and had her student visa cancelled. The applicant stated that they had come back from the visit to Sri Lanka in 2010 and had financial problems, the course provider had closed and they had lost money.

7. The Tribunal noted that the failure of the applicant’s wife to study meant that that visa pathway to remain in Australia was not available. The Tribunal noted that the applicant proceeded with an appeal to the MRT, and subsequently a Ministerial Request for Intervention. The Tribunal noted that the information about the Ministerial Request, as detailed in the delegate’s decision, was that the applicant had raised concerns for his children’s integration into the Sri Lankan community and financial reasons as to why he did not want to return to Sri Lanka. No reference to any concern for his well-being, including being arrested for being a deserter, was included in the letter to the Minister. The applicant confirmed this with the Tribunal.

8. The applicant stated that the student visa applications was a separate application, the aim was to secure a visa. He did not want to raise the other concerns at that time, but did so when he lodged the protection application.

9. The Tribunal does not accept this explanation. The Tribunal considers that the lodging of the protection visa in 2014 was done after the student visa option was exhausted, and the applicant believed that this was the best way for him to seek to remain in Australia. The Tribunal considers that if the applicant had concerns for himself on return to Sri Lanka he would have raised it with the Minister. He did not do so, rather raising the issues of money and the prolonged absence, which included his (then) child having no connection with Sri Lanka.

10. Similar to his previous voluntary returns to Sri Lanka, the Tribunal considers the significant delay in lodging his protection visa after arriving in Australia, and failure to mention this in his explanation to the Minister as to why he did not want to return to Sri Lanka, demonstrate that the applicant does not have a genuine concern for his well-being on return to Sri Lanka.

11. The Tribunal does accept that the applicant was in the air force, and is prepared to accept that he walked away from the air force in late 2001, not to return. The Tribunal notes that the authorities have not looked for the applicant at any time because of this desertion, and have not raised any concern as to the applicant’s background during the multiple opportunities to do so over the past 16 years.

12. The Tribunal has considered what may occur should the applicant be identified as a deserter from the air force on his return to Sri Lanka. There is country information about the approach towards desertion in Sri Lanka, which the Tribunal discussed with the applicant.

13. The Tribunal noted country information about the treatment of deserters in Sri Lanka. It was not an uncommon practice. However the military had altered its approach in 2011 with respect to the prosecution of deserters. A BBC report stated:

    BBC News - Sri Lanka abandons round-up of military deserters

    The army in Sri Lanka says it is giving up a campaign to round up tens of thousands of deserters and will instead de-list or de-register them.

    It says there are nearly 60,000 such deserters - an apparent increase of 10,000 in just under a year.

    However, some of the deserters fled the forces many years ago.

    A military spokesman said that the forces were now pursuing just a few dozen deserters who are thought to have committed serious crimes.[9]

    [9] BBC News - Sri Lanka abandons round-up of military deserters 8 November 2011

14. A further article from 2014 states:

    COLOMBO: Sri Lanka’s security authorities are searching for 30,000 army deserters nearly five years after ending a decades-long separatist war with Tamil Tiger guerrillas, the military said Saturday.

    Police across the country have been told to track down deserters who failed to accept several offers of leniency, military spokesman Ruwan Wanigasooriya said.

    “Out of nearly 60,000 listed as deserters, about half have responded and we are looking for the others,” Wanigasooriya told AFP. “Steps are being taken to arrest them.”

    The Defense Ministry told parliament Friday there were 267 officers and 59,267 from other ranks listed as deserters, according to local media reports.

    Wanigasooriya said the deserters had been in the military’s books for a long period of time. They will be off the military rolls after investigations, he said.

    Mass desertions have plagued the Sri Lankan military before and since the defeat of the separatist Tamil Tigers rebels in May 2009, which ended 37 years of bloody warfare that claimed at least 100,000 lives, according to UN estimates.[10]

    [10] Sri Lanka looks for 30,000 army deserters 26 January 2014

15. A further article states that:

    Sri Lanka has offered an amnesty to tens of thousands of soldiers who deserted the army, a spokesman has said

    Sri Lanka has offered an amnesty to tens of thousands of soldiers who deserted the army, a spokesman has said, under reforms following the end of the war with separatist Tamil rebels.

    Brigadier Udaya Nanayakkara said troops who were absent without leave could report back to their units and be officially discharged without penalty.

    "They must bring all their documents and return whatever is due to the army and then they will be granted an honourable discharge," Nanayakkara said.

    The move comes after government forces defeated the Tamil Tiger separatists in May after decades of bloody ethnic conflict.

    In 2001, the army had about 51,000 deserters on its books.

    Despite the end of the fighting, the military wants to recruit new troops to fill vacancies and to be deployed in areas of the north and east captured from the Tamil rebels.

    Last week, the government freed 1,800 jailed military deserters as part of a presidential amnesty.[11]

    [11] Amnesty for Sri Lanka's military deserters

16. A Canadian report regarding desertion states:

    According to the Representative of the Sri Lankan High Commission in Ottawa, penalties for desertion are determined on a case-by-case basis (4 July 2007). The Representative indicated that if, for example, a soldier deserts with the weapon that was issued to him or her, or other weapons such as grenades or assault rifles, then the person will be tried and could go to jail (Sri Lanka 4 July 2007; see also TamilNet 1 Apr. 2005). The Representative further noted that if a person has committed a crime (e.g., murder) in addition to desertion, he or she would have to face charges for both desertion and the other crime; however, if a person deserts the army for personal or family reasons (e.g., sickness in the family), then sometimes a pardon will be granted (Sri Lanka 4 July 2007). Regular absentees, on the other hand, are placed in jail (ibid.).

    In 20 July 2007 correspondence, obtained through the Sri Lankan High Commission in Ottawa, a former high ranking official in the SLA wrote the following:

    Generally the punishment given for AWOL/Deserters is 'forfiture of service' for the period of absence and the person is taken back. However, in cases of long absence or if the person has [been] involved in any criminal acts during the period of absence, the person is discharged.

    There have been few cases of passing prison sentences on deserters after court martial proceedings in the past. This was done mainly to discourage people deserting at a time when the Army faced a severe shortage of manpower.

    [The] Army has also announced General Amnesty periods from time to time for deserters to report back and rejoin or obtain their discharge.[12]

    [12] Sri Lanka: Whether military service is compulsory and if so, for how long; whether there are contractual arrangements made in the military for determined periods of time; penalties faced by deserters if they are caught; whether there is a public list of deserters; whether the army issues arrest warrants against deserters (2002-2007) Immigration and Refugee Board of Canada

17. In September 2009 The Island reported that Sri Lanka Air Force (SLAF) spokesman Wing Commander Janaka Nanayakkara told it that SLAF had decided to grant ‘a special amnesty’ - ‘an "honorable discharge" from the service without penalty’ - to ‘air force personnel who had deserted their ranks on or before May 31st this year’:

    As soon as the administrative process of identifying them is over, they would be informed by post of this decision, he said.

    The Air Force men and women who had changed their addresses after desertion are requested to contact Deputy Director (Administration), Sri Lanka Air Force Headquarters, PO box 594, Colombo and inform their names, enroll numbers and, ranks and new addresses.[13]

    [13] Duminda L 2009, ‘‘Honourable discharge’ for Air Force deserters’, The Island, 1 September >

    In March 2003 Colombo newspaper Daily News reported proposed administrative process to deal with Sri Lanka Army (SLA) deserters: ‘The Army will publish newspaper advertisement this month calling all Army deserters to obtain their discharge certificates after settling all their due payments to the government. They also should surrender all their weapons taken with them while deserting the Army. Initially the Army will inform all the District Secretaries, Divisional Secretaries and Gramaseva Niladharies about the move and provide the lists of Army deserters to them.’ After settling all due payments (and getting a ‘receipt issued by the Shroff [sic] of the respective District Secretariats certifying all payments’) and handing over weapons, deserters could present themselves and the receipt before the Army and have their discharge confirmed.[14]

    [14] Wijayapala R 2003, ‘Discharge certificates for Army deserters’, Daily News, 5 March

18. The applicant confirmed to the Tribunal that he had not taken any weapons with him when he left the air force. He stated that they were not permitted to take such items behind, they did not have the right to carry weapons.

19. The Tribunal noted the country that information the military prosecuted a very small number of deserters, those who had been involved in criminal acts or took weapons, such as rifles, when they deserted. The applicant confirmed he had not been involved in any criminal acts or taken a weapon when he left. The Tribunal does not accept, based on the country information and the applicant’s evidence, that the applicant will be imprisoned for leaving the air force in 2001, on his return to Sri Lanka. The Tribunal noted that the country information demonstrated that those people who had had a significant period of absence, such as the applicant, were discharged from the military, off the military books after investigations. The Tribunal does not accept that the authorities would seek to prosecute him for deserting the air force in the circumstances he has described 16 years ago.

20. The Tribunal considers that should the applicant come to the attention of the authorities because of his desertion, he will not face a court martial, but will be discharged from the military. The Tribunal does not consider that the discharge of the applicant from his military obligations, as is detailed above constitutes serious or significant harm. The Tribunal considers that the applicant will be viewed by the people of his village, after the discharge, not as a deserter, but as someone who has been discharged from the service. The Tribunal does not consider that he will face serious or significant harm from anyone because he has been discharged from the air force.

21. The Tribunal has considered the applicant’s claim that he fears being harmed because he has deserted the air force in 2001. As detailed above, the Tribunal considers that the authorities have not had any concern with the applicant because of his desertion from the air force in 2001 despite the opportunity to arrest and prosecute the applicant for this offence. The Tribunal considers that the authorities do not wish to harm the applicant for this reason.

22. The Tribunal considers that the applicant himself has no fear of being harmed on return to Sri Lanka having deserted the air force in 2001. The Tribunal considers that the applicant has voluntarily returned on a number of occasions, knowing he will not face harm from the authorities because of his past activities. He did not lodge a protection visa in Australia for 6 years after his initial arrival, despite the opportunity to do so, because he did not fear harm on return to Sri Lanka. The Tribunal does not consider that the applicant fears harm on return to Sri Lanka because he is a deserter from the air force in 2001.

23. The Tribunal does not accept that other people, including criminal and political interests, will be interested in the applicant because he has deserted the air force and previously had weapons training. The Tribunal considers that the applicant’s evidence regarding this aspect of his claims to be speculative, and not one that has a real chance or real risk of occurring.

24. The Tribunal does not accept that, should the information about the applicant being a deserter from the air force in 2001 become known, that the applicant will face a real chance of serious harm or a real risk of significant harm. The Tribunal considers that the circumstances of the desertion from the air force in 2001 as described by the applicant would result in him being discharged from the air force. The Tribunal does not consider that being discharged from the air force constitutes serious or significant harm.

25. The Tribunal finds that the applicant does not face a real chance of serious harm arising from his desertion from the Sri Lankan Air Force in 2001, now and in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

26. The Tribunal further considers that, based on the country information and the particular circumstances of the applicant, 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 arising from the applicant’s desertion from the Sri Lankan Air Force in 2001.

27. The Tribunal notes that the applicant is the only applicant who has raised any particular claims for protection. The applicant’s wife and the applicant’s children have all lodged Form 866D, as members of the family unit of the applicant. The applicant confirmed at the hearing he was speaking for all the applicants and made no other claims for protection on their behalf. The applicant has not claimed in his protection application that his family will be harmed due to integration or financial issues on return to Sri Lanka, as mentioned in the Ministerial Request for Intervention. The Tribunal does not consider that the return of children who are Sri Lankan citizens to their home country constitutes serious or significant harm, and the applicant has not claimed that his family will not be able to survive on return to Sri Lanka. The applicant mentioned family members on his and his wife’s side whom they could visit with, and receive support from, on their return to Sri Lanka. The Tribunal does not consider that this is a reason why the applicants cannot return to Sri Lanka.  

28. As the Tribunal has determined that the applicant does not have protection claims under the Refugee or Complementary Protection provisions, the Tribunal finds that none of the applicants are owed protection under the Refugee or Complementary Protection provisions

29. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Stuart Webb
    Member