1605114 (Refugee)

[2017] AATA 89

1605114 (Refugee) [2017] AATA 89 (12 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605114

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rachel Homan

DATE:12 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2017 at 4:49pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Federal Court remittal – Religion – Catholic – Ethnicity – Tamil – Failed asylum seeker – Illegal departure – Suspected LTTE connections– No political profile – Relocation possible

LEGISLATION

Migration Act 1958, ss.36(2)(a), (aa), (b), (c); 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] January 2014. The applicant sought review of that decision and the Refugee Review Tribunal affirmed the decision to refuse to grant him a protection visa on 31 May 2015. The matter is once again before the Tribunal pursuant to consent orders made by the Federal Circuit Court [in] April 2016 quashing the Refugee Review Tribunal’s decision and remitting the matter to this Tribunal for consideration according to law.

3. The issues in this review are whether the applicant has a well-founded fear of persecution in Sri Lanka for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

4. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. 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. 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’).

9. 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.

   Visa application

10. According to information provided in his visa application forms the visa applicant is a [age]-year-old Sri Lankan national. The visa applicant stated that he was born in Jaffna town in the Northern province of Sri Lanka and identified as belonging to the Tamil ethnic group and Catholic religion.

11. The applicant declared that he arrived in Australia [in] August 2012 as an Unauthorised Maritime Arrival. The applicant stated that he departed Sri Lanka by boat [in] July 2012 from [location].

12. The applicant stated that he had never been married or in a de facto relationship. The applicant provided details of his parents [and siblings] all of whom continued to reside in Jaffna.

13. The applicant stated that he had previously been employed as a [occupation] in Trincomalee and Jaffna between February 2007 and December 2011. Between January and June 2012, the applicant worked [in another occupation] in Colombo. The applicant completed a primary and secondary education up to Year [grade] whilst residing in Sri Lanka.

14. Submitted with the application were copies of the applicant’s identity documents.

    Statutory declaration

15. The applicant’s claims for protection were set out in a statutory declaration made with the assistance of an interpreter in the Tamil language [in] December 2012.

16. The applicant claimed to have been consistently persecuted by the Sri Lankan Army and other authorities. In 1995, when he was [age] years old, an aeroplane dropped a bomb which completely destroyed his family home. The applicant sustained scars on [himself] and other members of his family sustained injuries as a result of the bombing.

17. The applicant estimated that the Sri Lankan authorities visited his home once a month between 2000 and 2008 due to their perception that the applicant’s family was associated with the LTTE because they were Tamil. The Army would knock on the door, enter the home and check their bags for weapons. The family would be sent out of the house to a field and made to stand there for a whole day under the sun. The applicant stated that he last recalled being forced out of his home in this way in 2006.

18. In 2005, a curfew was in place. As a result, Tamils were not allowed outside after 6 PM. At around 7 PM one day, the applicant left his home in breach of the curfew to go to the grocery shop because the family needed food. The applicant was about a 10 minute walk from home when he was apprehended by a Sri Lankan soldier and taken to an army camp. The applicant was interrogated about why he was outside his home and his scars. The applicant was beaten by a soldier and detained until 10 AM the following morning. The applicant’s mother came and secured his release.

19. A week before the applicant left Sri Lanka, a landmine exploded in his village. The applicant’s classmate was hospitalised due to the explosion.

20. The applicant stated that there had been a conflict between the Army and police in Sri Lanka. Due to the escalation of the conflict in 2012 and his past experiences, the applicant fled to Australia to seek protection.

21. The applicant referred a news story about 24 Tamil prisoners being killed by a special task force. The applicant expressed the view that the prisoners were killed because of their Tamil ethnicity.

22. The applicant stated that in November 2012, he spoke to a [friend] in Sri Lanka. The friend told the applicant that he had been sent to prison after he returned to Sri Lanka from Australia as a failed asylum seeker.

23. The applicant claimed to fear being killed, tortured, kidnapped or seriously harmed by the Sri Lankan Army or other authorities due to:

    a.his perceived association with the LTTE;

    b.his Tamil ethnicity; and

    c.as a failed asylum seeker from Australia.

    Protection visa interview

24. The applicant was interviewed by an officer of the Department of Immigration [in] June 2013 and the Tribunal has listened to a recording of that interview.

25. During the interview, the applicant provided information about his circumstances in Sri Lanka that was broadly consistent with his written evidence. The applicant confirmed that his parents [and siblings] continued to reside in Jaffna. The applicant stated that he had contact with his family every couple of days.

26. The applicant initially denied that he or any member of his family had any contact with the LTTE. The applicant later stated that one of his brothers had been detained by the LTTE for six months during 2005 but denied any further knowledge about the nature of his brother’s involvement with the LTTE.

27. The applicant stated that he had moved to Colombo for work in 2012. He had had difficulty finding work in his home area. The applicant worked in Colombo for six months and returned to Jaffna once a month during this period. The applicant stated that he had been stopped at checkpoints during these journeys on two occasions due to the scarring on his body and because he did not understand Sinhalese. The applicant was asked for money and cigarettes and allowed to proceed.

28. The applicant stated that he had no real difficulties whilst in Colombo because he rarely left the place where he worked and lived. The applicant stated that his employer had suggested that he might have some difficulties with the Sinhalese people living in the area. The applicant stated, however, that he returned to Jaffna because he felt there was no security for him in Colombo as a Tamil person.

29. The applicant stated that he decided to leave Sri Lanka after his friend lost a limb in a landmine explosion.

30. The applicant provided evidence regarding the house searches his family were subjected to that was consistent with his written evidence. The applicant also confirmed that he had been subject to a curfew. The applicant stated that he was arrested for breach of curfew in 2005. When it was noted that the record of his entry interview suggested that the applicant had said that this incident occurred in 2008 or 2009, the applicant claimed that the curfew was still in place at that time but his arrest had occurred in 2005.

31. The applicant claimed that he would be imputed with being a member of the LTTE because of his Tamil ethnicity. The applicant stated that he had scars on his body and showed some of them to the delegate. The applicant confirmed that his scarring was sustained as a result of a bomb blast when he was [age].

32. The applicant stated that there was no rule of law in Sri Lanka. The applicant’s brother and uncle were doing fishing in Sri Lanka and had been asked for money. When they refused, some people came to the uncle’s home and assaulted him and his wife. The applicant stated that he had a letter from a human rights organisation confirming the incident. Asked how this incident impacted on the applicant, the applicant said it was an example of what could happen to him because there were no human rights in Sri Lanka.

33. The applicant stated that he left Sri Lanka illegally and would be questioned upon return about whether he was with the LTTE previously. The applicant stated that the scars on his body may arouse suspicion in this regard. The applicant stated that he had a friend who had been returned to Sri Lanka and was taken to gaol and kept there for two weeks. The friend had to bribe the authorities to secure his release.

34. Towards the conclusion of the interview, the applicant’s then representative requested additional time to provide written submissions. No further written submissions appear on the Department’s file or are referred to in the delegate’s decision record.

    Other evidence

35. Contained on the Department’s file is a record of the applicant’s entry interview. According to that record, the applicant provided information regarding his personal circumstances in Sri Lanka that was broadly consistent with the information contained in his statutory declaration. The applicant is recorded to have stated that he left Sri Lanka because there was war and a curfew. The applicant stated that one day when he was going out with his friends after 6 PM he was caught. The applicant did not know the date but estimated that it was in 2009 or 2010. The applicant stated that he was kept for one day then the next day his mother came. A Sinhalese person explained that the applicant had done nothing wrong and released him. The applicant stated that there is no freedom for him in Sri Lanka.

    Review application

36. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record.

37. Shortly prior to the first Tribunal hearing, the applicant’s representative submitted to the Tribunal an 87 page written submission. The representative’s written submission set out new claims on behalf of the applicant. According to the submission, the applicant feared harm due to his Catholic religion. The applicant attended church in Sri Lanka and continued to attend church in Australia. The applicant had given instructions that Christian churches and schools were being targeted and attacked during the war and many Buddhist statues were being erected in his home area. The applicant held no particular role within his church but did attend Mass. The submission states that the applicant did not raise the claim earlier because he had many problems and believed it to be common knowledge that Christians were at risk of harm in Sri Lanka.

38. The submission summarised the applicant’s fears of harm as being for reasons of his Tamil ethnicity; his Catholic religion; status as a failed asylum seeker; and his imputed support for the LTTE arising from his move from Jaffna to Colombo, Tamil ethnicity, status as a failed asylum seeker, scars on his [body], residence in a former LTTE stronghold, previous interrogations and his family’s suspected LTTE support.

39. The submission contained legal submissions regarding the application of the refugee and complementary protection criteria and set out in appendices country information regarding the persecution of Tamils, Christians and failed asylum seekers in Sri Lanka.

    First Tribunal hearing – 13 May 2015

40. The applicant attended a hearing conducted with the assistance of an interpreter in the Tamil language on 13 May 2015 and the Tribunal has listened to a recording of that hearing.

41. During the Tribunal hearing, the applicant confirmed that he was baptised Catholic as an infant and still attended church. The applicant stated that he took his first communion at the age of [age] or [age]. The applicant gave evidence that he had not faced any problems due to his religion prior to his departure from Sri Lanka but recalled being told by the Army to keep it down when they were engaged in worship. The applicant claimed that the Sinhalese majority was trying to establish Buddhist temples throughout Sri Lanka and places of worship that never existed before were being built, including roadside prayer booths for the Sinhalese Buddhists.

42. The applicant told the Tribunal that his parents and siblings remained in Jaffna and were not experiencing any problems. The applicant’s brother fished and his father owned a boat. The applicant indicated that they earned a decent living from their work and, although they had problems in the past were not experiencing any problems fishing now. In 2006 and 2007, they were denied permission to fish by Sinhalese officials.

43. The applicant stated that his village was under Army control throughout his life. There were LTTE in the area and, during the ceasefire, they had a presence but not effective control. The applicant claimed that the LTTE had never attempted to recruit him or any member of his family.

44. The applicant confirmed that he went to Colombo for work in 2012 because his boss from Jaffna told him that he had work for him in Colombo. The applicant travelled back and forth once a month and was forced to go through roadblocks and checkpoints. The applicant was checked on many occasions and searches conducted.

45. The applicant claimed that although the war was over there were still problems. The government’s objective was to be a Sinhalese nation. The applicant stated that there were still checkpoints and the Army was killing ordinary civilians. The applicant said he had never experienced the happiness of an ordinary man and lost his childhood due to the war. The applicant claimed that he would be unable to move freely throughout Sri Lanka would only be able to stay in Jaffna.

46. The applicant indicated that because he had come to Australia, the Sri Lankan authorities would have information about him. They would question him and if he goes to his home he will be questioned, sent to an Army camp and questioned by the CID. Owing to the scars on his [body], he may be beaten and put in gaol. Because he is Tamil, anything could happen to him.

47. The applicant stated that he was arrested for breach of curfew on one occasion whilst he was residing in Trincomalee. The applicant stated that he was held overnight after going out to go to the shop. The applicant also stated that whilst in Trincomalee he was not allowed to go fishing.

48. The applicant gave evidence that his family had told him that people were still being killed and beaten. If a Tamil is attacked on the street by the Army, no one will intervene. When the LTTE was around there was at least some protection for Tamils but since the war has ended, no one will stand up for the Tamils.

49. In relation to the prospect of being charged with having departed Sri Lanka illegally, the applicant indicated that he would have no difficulty paying a fine. The applicant claimed, however, that he had heard of a person who has returned to Sri Lanka two years ago and was having ongoing problems as a result of having to report and being visited by the authorities. The applicant claimed that if returned he would be questioned about having LTTE links.

50. The applicant claimed that he would be persecuted if he returned to his village and would feel as though he was in gaol. The applicant claimed that he would be mentally affected if forced to return to Sri Lanka. When he was young, he saw many people killed and the memories would come back to him.

    Post-hearing submissions

51. Following the Tribunal hearing, the applicant provided a statutory declaration, dated [in] May 2015, setting out evidence relating to the treatment of his friend who had attempted to flee and then returned to Sri Lanka. According to the statutory declaration, the friend attempted to leave Sri Lanka two years ago. He and some other passengers abandoned their trip to Australia halfway and returned to Sri Lanka. Some passengers on the boat continued their journey on another boat. The applicant telephoned his friend and was told that he had been captured by [country] Armed Forces and handed over to the Sri Lankan authorities. The friend was taken and kept in gaol for 25 days in Jaffna. The friend has to go to court every month to report and sign. The friend had not been given any court or police documents and the police told him that he would be under their supervision and was not permitted to go anywhere else or flee Sri Lanka.

    Further documentary evidence

1. The applicant submitted no additional evidence following the remittal of the matter to this Tribunal.

2. On the day of the further hearing, the Tribunal received a letter from [Fr. A] stating that the applicant is well known to him and hails from a devoted Catholic family. The letter confirms that the applicant was injured in 1995 as a result of an air attack. The applicant sustained scars which led the security forces to suspect him as a deserted cadre of the LTTE. The applicant was interrogated and tortured by the Sri Lankan security forces several times.

3. The letter states that the atmosphere of war prevails in Sri Lanka especially in the North and the East. There is no freedom to speak or express their emotions when faced with injustice and discrimination. Young Tamil people are still disappearing and a number of female children and women are being raped. This is being done in daylight and close to the Army barracks. The letter states that if the applicant is sent back to Sri Lanka no one can predict his future.

   Further Tribunal hearing – 2 September 2016

4. The applicant told the Tribunal that there had been no relevant changes to his personal circumstances since his last hearing.

5. The applicant told the Tribunal that [some] of his [siblings] were now married. The applicant’s parents and [a sibling] lived in one house. The applicant’s [married siblings] and their families lived close by in Jaffna.

6. The applicant’s father continued to go out to sea for work but not as often as he did previously due to his age. The applicant’s father owned boat engines and other people worked for him. The applicant’s brothers [also] owned boat engines. The applicant stated that he did not previously work as a fisherman whilst in Sri Lanka but confirmed that he had worked as [occupations].

7. The applicant stated that in Australia he had been attending a Tamil church in [suburb] every Sunday.

8. The Tribunal noted that the evidence that the applicant had given about his past experiences in Sri Lanka had been broadly consistent over time and the Tribunal was prepared to accept that the applicant had given truthful evidence regarding those experiences. The Tribunal’s task, however was to consider whether there was now, or in the reasonably foreseeable future a real chance of risk of the applicant suffering serious of significant harm.

9. The Tribunal noted that the applicant had claimed to fear harm for a number of reasons including his Tamil ethnicity, Catholic religion, his status as a failed asylum seeker and his illegal departure from Sri Lanka. The applicant had also claimed that he would be imputed with having supported the LTTE because of his ethnicity; previous residence in an area controlled or influenced by the LTTE; status as an asylum seeker; the scars on his [body]; because he had moved from Jaffna to Colombo; and because his family had previously been interrogated on suspicion of supporting the LTTE.

10. The Tribunal asked the applicant whether there was any other reason why he feared returning to Sri Lanka. The applicant responded that there were no other reasons but the main reason he was scared to go back to Sri Lanka was because of the marks and scars on his body. This would lead the authorities to believe the applicant had been trained by the LTTE, even though they were the result of shelling.

11. The Tribunal discussed with the applicant country information before the Tribunal with regard to whether persons with scarring were imputed with having worked for the LTTE. The Tribunal noted that the DFAT Thematic Report On People with Links to the Liberation Tigers of Tamil Eelam[1], dated 3 October 2014, referred to a 2011 Freedom From Torture report, which detailed cases of persons with scarring being detained towards the end of the conflict. DFAT observed that there was no more recent information indicating that persons with conflict-related scarring or general scarring were detained. The Tribunal explained that the information suggested that, although in the past, scarring was treated as evidence of LTTE membership, there was no more recent evidence to indicate that this was still the case. The Tribunal explained that as a consequence, the Tribunal may not be satisfied that even if the authorities could see or were aware of the applicant’s scars, that they would impute LTTE membership to him now.

    [1] "DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam", DFAT, 03 October 2014, CIS2F827D91260 at 2.28

12. The Tribunal also noted that the UK Home Office's July 2013 Operational Guidance Note on Sri Lanka stated that, in the past, physical examinations were used to identify whether suspects had undergone military style training. Contacts in government ministries suggested that this practice had either ceased or was used less frequently. At the very least, it appeared that the security forces only conducted these when there was another reason to suspect an individual, and were not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There was no recent evidence to suggest that these examinations were routinely carried out on immigration returnees.

13. The applicant suggested in response that the Tribunal should not rely on these sources as the Sri Lankan government wanted the world to believe that there were no problems in Sri Lanka. The applicant’s own experience in Sri Lanka was that he had faced problems because of his scarring, particularly when travelling between Colombo and Jaffna. The applicant said he had read news reports of persons suspected of being with the LTTE being abducted in white vans. The applicant said he was really scared to go back to Sri Lanka. The applicant stated that the Army or police interrogate people in private. When they do things illegally, there are no witnesses. The applicant submitted that the Tribunal should not believe that there are no problems in Sri Lanka.

14. The Tribunal also discussed with the applicant information relevant to its consideration of whether he faced a real chance or risk of serious or significant harm as a Tamil person. The Tribunal noted that the information suggested that the situation for Tamil people had improved since the end of the conflict. In particular, the Tribunal noted that the UNHCR Eligibility Guidelines in 2012 indicated that Tamil ethnicity no longer created a presumption of eligibility as a refugee. The Guidelines did indicate that some people of Tamil ethnicity may still be in need of protection, such as persons suspected of certain links with the LTTE, certain politicians or activists, certain journalists and media professionals, human rights activists, witnesses or victims of human rights violations, women and children in certain circumstances, and LGBTI persons in certain circumstances.

15. The Tribunal noted that the DFAT Country Report for Sri Lanka noted that there were no official laws or policies that discriminated against Tamil people, including in relation to access to education, employment and housing. The forced registration of Tamils had ceased. Monitoring and harassment of Tamils had ceased under the Sirisena government. On a day-to-day basis, the Tamil community now felt more confident to question or refuse monitoring activities if they are undertaken.

16. The applicant responded that as a Tamil from Jaffna, belonging to a fisherman’s family, the Army would still believe that he had encouraged or joined the LTTE movement. The applicant said his home area was still surrounded by barbed wire. The Army still has a strong presence. The applicant said he would be living under the control of the Army and would have no freedom. The Tribunal asked the applicant whether there was any reason why he could not go to Colombo, given that he lived there for six months before coming to Australia. The applicant responded that as a Tamil he would not be allowed to live in Colombo permanently. He would still be regarded as being with the LTTE. The applicant stated that when he lived in Colombo previously, he was living with his employer and his food and other personal items were bought by his employer. The applicant also stated that he would be alone if he went to Colombo, whereas he would have some safety if he lived with his family.

17. The Tribunal noted that the DFAT Country Report presented a different picture of the situation in Colombo. That report suggested that Colombo was highly ethnically integrated. The population of Colombo consisted of roughly equal populations of Tamils, Sinhalese and Muslims. This was partly due to the relocation of Tamils and Muslims to Colombo during the conflict and to pursue economic opportunities.

18. The applicant responded that most of the Tamil people living in Colombo speak Sinhalese but he did not. The applicant suggested that he would be unable to live in Colombo without being able to speak Sinhalese.

19. The Tribunal asked the applicant about his concerns about returning to Sri Lanka as a Catholic. The applicant responded that in Jaffna before his departure, Buddhist statues were being erected at every junction. Whenever the Buddhists had a function or ceremony they blocked the roads. The Sinhalese thought Christianity should be stopped and Catholic functions were not supported. There was one policy for Buddhists and one for Catholics. The applicant stated that there were no opportunities to learn about Jesus and barriers to getting to church.

20. The Tribunal asked the applicant whether he had any difficulties attending church as a Catholic whilst in Sri Lanka previously. The applicant stated that he did not and that he was baptized and received his first Holy Communion in Church.

21. The Tribunal asked the applicant what he meant when he said there were no opportunities to learn about Jesus and barriers to attending church. The applicant stated that camps or checkpoints were put up on the way to church. The applicant was forced to go a longer way around to get to the church. The Tribunal asked the applicant whether this was the situation during the war or whether it was also the situation in more recent years. The applicant responded that during war time there were more problems but in recent years there were still checkpoints. The camps and checkpoints have not been closed down and surround the village.

22. The Tribunal noted that the applicant had submitted a letter from [Fr. A] but observed that the letter did not mention any particular problems the applicant might have in following his religion. The Tribunal put to the applicant that it seemed that if there would be a particular problem with the applicant practicing his religion in Sri Lanka, [Fr. A] would have mentioned this in his letter. The applicant responded that [Fr. A] still lives in Sri Lanka and may have felt constrained about what he could say in his letter owing to a fear that he would be harmed.

23. The Tribunal discussed with the applicant advice from the DFAT Country Report which indicated that the Sri Lankan Constitution guaranteed freedom of religious belief. Attacks on places of worship and religious objects were punishable with a fine or a maximum penalty of two years imprisonment. It was also an offence to insult religion. In the current government, there were ministers for each of the four major religions, including Christianity. The applicant responded that it was law that only a Buddhist could become the president. The Tribunal noted that the Constitution gave a foremost place to Buddhism but the question for the Tribunal was whether there was a real chance or risk of the applicant being harmed as a Christian. The country information did not appear to suggest that this would be the case.

24. The Tribunal also noted that the DFAT report indicated that DFAT was aware of reports that the former Rajapaksa government sanctioned discrimination against religious groups. DFAT was not aware of any such reports under the current government and the Sirisena government had publicly stated that it was committed to religious and ethnic reconciliation. The applicant responded that in his particular village there would be problems.

25. The Tribunal further noted that the DFAT report indicated that members of most religious groups were able to practice their religion freely. There was a higher risk of harassment or violence for people who attempted to proselytize or convert, in an unethical way, people to their own religion. The same report referred to a 2013 report from the Centre of Policy Alternatives, which had reported on a number of attacks on religious places of worship between 2009 and 2013, before the Sirisena government came to power. The majority of attacks were against evangelical Christian organisations. In response, the applicant again submitted that situation in his home area was different because it was under the control of the Army. Jaffna was still regarded as an important LTTE stronghold. When the applicant travelled to Colombo, he was regarded differently as a Jaffna Tamil. The applicant stated that even if he were to go back to Sri Lanka now, he would be prevented from learning new things about God.

26. After a short break, the Tribunal asked the applicant about his claim that his brother was held by the LTTE. The applicant stated that his brother was a fisherman. In 2005, his village was being shelled. The Tigers were located very close to the applicant’s home area. The applicant’s brother was coming home from fishing when the Army started shooting, thinking it was the LTTE coming in to shore. The applicant’s brother turned back but was taken by the LTTE who were out at sea. The applicant’s brother was given training and brainwashed. The applicant’s brother begged to be returned to his family but he was threatened for being selfish. One night, the applicant’s brother took a boat and came back by water. When he came back, the Army harassed the applicant’s brother and accused him of undergoing training with the LTTE.

27. The applicant also told the Tribunal that, during the curfew, he was also arrested. Because they suspected the applicant’s brother of being with the LTTE, the applicant was threatened and asked about his brother. The applicant said his brother had to report every month to place his signature and his passport was confiscated.

28. The Tribunal put to the applicant it did not recall the applicant having previously claimed that his brother was still being required to report on a monthly basis and expressed concern that the applicant may have exaggerated the authorities’ interest in his brother. The applicant responded that he had only applied for the protection visa on the basis of his circumstances and there was no reason for him to exaggerate his brother’s situation. The Tribunal explained that if the authorities were still requiring his brother to report on a monthly basis this would be relevant to the applicant’s situation should he return to Sri Lanka. The Tribunal expressed concern that because the claim had not been raised previously, this aspect of the evidence may have been untruthful. The applicant’s representative commented that he also did not recall this claim having been made previously but said he would review the evidence. The applicant then responded that he did not know if his brother still had problems because he was living in Sri Lanka. The applicant said he knew that his brother had problems but did not know what the problems were. The Tribunal asked the applicant what he had been told to make him believe that he was being asked to report on a monthly basis. The applicant said his brother told him that he goes for reporting on a monthly basis around the time of the last Tribunal hearing.

29. The Tribunal noted that the applicant’s evidence had not previously suggested that he had ever been seriously suspected of being with the LTTE by the military. The Tribunal noted that the applicant’s oral evidence had been that he was asked about this when arrested during the curfew. The evidence had suggested, however, that he was detained simply because he was outside his home after curfew and that he had been released the next morning when his mother came and explained that he had just been going to shop. The applicant told the Tribunal after he was arrested he was asked whether he was spying for the LTTE. The applicant was scared and so did not talk much. The applicant was detained overnight and the next day his mother brought someone who spoke Sinhalese and arranged for his release. The applicant confirmed that he was [age] at the time. The Tribunal put to the applicant that his account did not suggest that he was seriously suspected him of involvement with the LTTE. The applicant did not respond.

30. The Tribunal asked the applicant about his claims that he had been stopped at checkpoints when he was travelling between Colombo and Jaffna. The Tribunal noted that the applicant’s evidence suggested that he had been asked for small bribes of money or cigarettes before being allowed to proceed. The Tribunal put to the applicant that it seemed that if he was genuinely suspected of being associated with the LTTE, the military would have done more than ask him for bribes. The applicant stated that he travelled in this way six times and was stopped twice. The officer saw his scars and threatened him saying he was with the LTTE. When the applicant denied this, they did not believe him. The applicant was kept for 2 to 3 hours. In order to save his life, the applicant agreed to give money. If he had not given the money, the applicant said he did not know what might have happened. The applicant speculated that he could have been shot if he did not give money. The money saved him.

31. The Tribunal put to the applicant that it was unclear that the applicant would face the same situation if he returned to Sri Lanka now given DFAT advice regarding the reduction in monitoring and harassment of Tamil people and the reduction in military checkpoints and camps throughout Sri Lanka. The Tribunal noted that the DFAT Country Report indicated that most checkpoints had been removed in the North. The main check point on the North-South highway had been removed on 29 August 2015. Although a military presence remained in the Northern province, including in Jaffna, most of that was confined to the high military zone on the Jaffna Peninsula. The applicant responded that although checkpoints had been removed in other parts of Sri Lanka, in Jaffna, the checkpoints had increased. The applicant stated that he could not live with any freedom in an Army-controlled area. The government feared the war could resume at any time and had made new camps and placed more security there.

32. The Tribunal asked the applicant about his concerns arising from his application for asylum in Australia. The applicant stated that because he had fled Sri Lanka he would be suspected of being with the LTTE and against the government. If the applicant returned to Sri Lanka without having been granted a protection visa, the authorities would assume that the reason he was returned was because Australia thought he was with the LTTE. The applicant claimed that he would be arrested and detained and tortured.

33. The Tribunal discussed with the applicant country information from DFAT indicating that thousands of Tamil asylum seekers had returned to Sri Lanka since 2009 with relatively few allegations of torture or mistreatment. DFAT had advised that the risk of torture or mistreatment was low including for those who had departed Sri Lanka illegally. By having left Sri Lanka and sought asylum in another country, the applicant was in a similar situation to many thousands of Sri Lankan Tamils. The information before the Tribunal did not appear to suggest that that circumstance alone would give rise to a real chance or risk of the applicant suffering serious or significant harm.

34. The applicant responded that the treatment each individual would receive would differ. The authorities would consider the applicant’s situation and decide what action to take. The applicant’s scars would cause him problems and they would assume that he was with the LTTE. If he only had one or two small scars, that would not be such a problem but the applicant had lots of marks and scars on his body from the shelling. The applicant feared he could be abducted without anyone knowing.

1. The Tribunal also discussed with the applicant the most recent information regarding the situation for persons who had departed Sri Lanka illegally by boat. According to the DFAT Country Report, returnees were stopped at the airport and questioned by the police and other authorities. If a person was suspected of an illegal departure, they were charged under the Immigrants and Emmigrants Act. Most people would be photographed and have their fingerprints taken and then be transferred to the Magistrates Court. This generally occurred within 24 hours although if a magistrate was unavailable within this time, for example, because a person had returned on a weekend or public holiday, the returnee may be detained at Negombo Prison until they were able to adhere before a magistrate. Sri Lanka’s Attorney General had told DFAT in July 2015 that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence. Fines had been given and the amount varied on a case to case basis. Generally speaking, the fines were relatively small and were capable of being paid in instalments. If a person pleaded guilty they would be fined and allowed to go. If a person pleaded not guilty they would usually be given bail on a personal surety or sometimes with a family member acting as guarantor. There were rarely any conditions attached to bail. The person would only need to return to court when the case was being heard. There was no general requirement to report to police or police stations between hearings. Passengers were generally viewed as victims of people smuggling as opposed to the persons who were involved organizing the people smuggling. The Tribunal put to the applicant that nothing in that process clearly indicated that the applicant faced a real chance at risk of serious or significant harm. The information indicated that returnees were treated in the same way regardless of their race or religion.

2. The applicant responded that his main problems would be after he returned home. After returning, the applicant would be interrogated further. People may come for him at night in a white van and abduct him.

3. The applicant was asked whether there was any other reason why he did not wish to return to Sri Lanka. The applicant responded that the Sri Lanka government does not believe that the LTTE is fully destroyed. They believe the Tamils will start a war again. They don’t believe that Prabhakaran has died. If the war starts again, the applicant’s life will be threatened. The applicant suggested that they would not still be Army camps if there was no problem. The applicant expressed concern that the Army was being strengthened.

4. The applicant’s representative asked for and was granted three weeks to provide additional written submissions. The representative also noted that the delegate’s decision record had referred to the applicant seeking advice from the IOM about returning to Sri Lanka but suggested that this was a factual error. The applicant told the Tribunal that when he was in detention, the IOM came and asked everyone from his boat whether they would like to go back. They approached the applicant but it had been reported that he approached them for advice about going back.

   Post hearing submissions

5. On 26 September 2016, the Tribunal received additional written submissions from the applicant’s representative containing detailed country information and analysis. The applicant representative’s submission summarised the applicant’s claims as involving a fear of persecution by the Sri Lankan authorities on the grounds of his actual or imputed political opinion as a supporter and sympathiser of the LTTE; as a person who has applied for asylum in Australia; as a consequence of his ethnicity as a young Tamil from the North; and owing to his illegal departure from Sri Lanka.

6. The submissions noted that one of the applicant’s main fears arose because of the extensive and permanent scars on his body. The representative submitted in reference to the issue raised by the Tribunal at hearing that there was no recent evidence of scarring being used to detain and mistreat Tamils, that there are documented abuses of Sri Lankans returned home from countries other than Australia and that Australia investigates complaints of mistreatment by the Sri Lankan authorities in a poor manner. It was submitted that the applicant’s scars would cause him to be prone to adverse identification by security forces and taken for rigourous questioning and potential mistreatment. Screening of the Tamil population to identify those with links to the LTTE still occurs in the Northern and Eastern regions of the country.

7. With regard to the applicant’s claim to fear harm as a Jaffna Tamil Catholic, the representative submitted that it was the applicant’s claim that Christians face persecution in the form of legal restrictions imposed mainly by local governments. It was submitted that the Sri Lankan authorities would limit the applicant’s ability to freely practice his religion manner of his choice and that there is overlap between religious and political persecution. The representative of attached four articles of country information said to be relevant to the applicant’s claims of persecution as a Christian.

8. One article from a blog, DBSJeyaraj, dated 20 April 2016 states that attacks against Christians in Sri Lanka continued following the change of government in 2015 according to a leading human rights lawyer. The article states that officials have been closing churches and prayer meetings and Christians are being denied burial in public cemeteries. The human rights lawyer in question is identified only as ’Miriam’ and she claims that she has documented hundreds of incidents since 2015. The article cites an example of police closing down a church in Kurunegala district in January 2016. The following week, 100 villagers led by Buddhist monks forced their way into the church and threatened to physically assault members of the congregation. The police refused to register the pastor’s complaint or provide him with protection. In August 2015, 10 Buddhist monks and 30 villagers burst into a church in Galle district and assaulted members of the congregation. The report claimed that there has been upwards of 450 violent attacks of worship services in recent years. Other articles provided from CBN News and ChristianToday.com are similar in content and cite the same human rights lawyer. An article from BeOS News Live refers to an increasing number of Sri Lankan pastors reportedly holding worship services in homes amongst a small group of believers. It refers to incidents of intimidation and violent attacks against Christians by Buddhist and Hindu militants.

9. The representative’s submission states the Tribunal should give the applicant the benefit of the doubt with regard to whether the applicant had previously mentioned his brother being subjected to reporting conditions. The representative submits that the applicant’s family profile would put the applicant at significant risk of arrest, interrogation, torture and being killed. The submission cites a number of recent articles relating to the treatment of Tamils. The submission states that the applicant has a particular, additional profile, including scars, which would expose him to significant danger in the course of being questioned by authorities on return. In the circumstances, the applicant faces a real chance of more than short-term imprisonment and mistreatment and torture whilst in prison. The submission cites and attaches a number of sources of information referring to the prevalence of torture and human rights abuses in Sri Lanka.

   Findings and reasons

   Accepted facts

10. The Tribunal accepts that the applicant has provided generally truthful information regarding his personal circumstances and past experiences in Sri Lanka. The applicant was able to provide detailed oral evidence to the Tribunal as presently constituted. With one exception, the applicant’s evidence has remained consistent over time and his claimed experiences align generally with the country information before the Tribunal.

11. As a consequence, the Tribunal accepts that the applicant is a young Tamil man who originates from Jaffna in the North of Sri Lanka. The Tribunal accepts that the applicant’s father and brothers are fishermen although the applicant was not. The Tribunal accepts that the applicant has significant scarring on his body as a consequence of injuries he sustained during an aerial bomb attack in 1995 when he was [age]. The Tribunal accepts that the applicant and his family were subjected to searches by the Sri Lankan Army during the period of the war and may have suffered mistreatment in the context of those searches, such as being forced to stand in the sun for long periods. The Tribunal accepts that the applicant was detained overnight on one occasion as a consequence of having breached a curfew in place at the time. The Tribunal accepts that during the period the applicant was travelling back and forth between Colombo and Jaffna in 2012, he was stopped on at least two occasions at checkpoints and asked for bribes of money and cigarettes. The Tribunal accepts that the applicant felt unsafe whilst living in Sri Lanka including during the period in which he was residing in Colombo and felt that he lacked freedom generally as a Tamil man. The Tribunal accepts that the applicant was a practising Catholic in Sri Lanka and remains so in Australia. The Tribunal accepts that the applicant departed Sri Lanka illegally by boat and has sought asylum in Australia.

12. Whilst the Tribunal is prepared to accept that in around 2005, one of the applicant’s brothers was captured by the LTTE and detained by them for a period of time, in which he was given training, the Tribunal is not satisfied that the same brother is still being monitored and required to report on a monthly basis or that his passport has been confiscated. The Tribunal is concerned that these integers of the claim were raised for the first time at the most recent Tribunal hearing despite multiple prior opportunities. When this was put to the applicant at hearing, the applicant at first denied knowing whether his brother had any ongoing problems because of their geographical separation. The applicant then said his brother told him this information around the time of the last Tribunal hearing. The representative’s post-hearing submissions submit that the Tribunal should give the applicant the benefit of the doubt on this issue. While the claim that the applicant’s brother was captured by the LTTE was made previously, and the Tribunal notes that the applicant gave evidence in his May 2015 statutory declaration that a ‘friend’ was subject to monitoring and reporting, the Tribunal has been unable to locate in the earlier evidence any claim that his brother was subject to ongoing reporting requirements and travel restrictions. The late presentation of this evidence and the applicant’s varying responses to the Tribunal’s concerns, lead the Tribunal to the view that the applicant has exaggerated the authorities’ interest in his brother following his capture by the LTTE.

13. Having made these factual findings, the Tribunal has turned to consider the applicant’s position were he to return to Sri Lanka now, or in the reasonably foreseeable future. It was apparent at the most recent hearing that the applicant’s expectations in this regard, based on his personal past experiences, differed significantly from the more recent country information before the Tribunal.

    Imputed connection with LTTE

14. The Tribunal accepts that in the past simply being a young male person of Tamil ethnicity and originating from areas in the North of Sri Lanka, such as Jaffna, would have been sufficient to give rise to a suspicion of involvement with the LTTE or at least knowledge of LTTE activities. As discussed with the applicant at hearing, according to the 2010 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines[2], due to the improved human rights and security situation there is ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.

    [2] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, HRC/EG/SLK/10/03, available at: 24 July 2015]

100.   The 2012 Eligibility Guidelines[3] state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons.[4] Having made the factual findings above, the Tribunal is not satisfied that there is anything in the applicant’s past experiences in Sri Lanka that would bring him into any of these categories.

[3] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015]

[4] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015] at p. 26

101.   The Tribunal accepts that that in the context of the war, the applicant and his family had multiple encounters with the Sri Lankan military who at the time regarded the Tamil population generally with suspicion of support or involvement with the LTTE. The applicant’s evidence does not, however, indicate to the Tribunal that the applicant was genuinely suspected of any actual involvement with the LTTE prior to his departure from Sri Lanka. Despite the applicant’s family being fishermen and the applicant’s brother having been captured and trained by the LTTE, the applicant’s treatment by the Sri Lankan Army when he was arrested for breaching curfew in 2005 does not suggest to the Tribunal that he was genuinely imputed with having had a similar involvement with the LTTE. The applicant was around [age] at the time and was released by the Army the next morning following his mother’s intervention. The Tribunal is prepared to accept that the applicant may have been questioned about his brother at this time. However, as put to the applicant at hearing, had the Army been genuinely concerned about the applicant, the Tribunal considers that he would have been detained for longer or subjected to further monitoring or interrogation. The applicant’s evidence also suggests that the regular visits to his home ceased by 2006 or 2008 at the latest.

102.   The applicant’s employment history and ability to travel between Jaffna and Colombo, through roadblocks and checkpoints, in the period after the war further support the Tribunal’s conclusion. In this context, the Tribunal has considered the applicant’s claim that he was forced to pay bribes and was searched and briefly detained at the checkpoints on at least two occasions whilst travelling between Jaffna and Colombo. Even if the applicant had maintained a low profile in Colombo as claimed, he was forced to encounter the military whilst passing through the checkpoints and roadblocks. The Tribunal considers that had the applicant been of any serious interest to the military, whether for reasons of his and his family’s past interrogations, his Tamil ethnicity, scarring, place of origin or travel to Colombo, or for any other reason, further action would have been taken at this point.

103.   The Tribunal has given particular consideration to the applicant’s claim that his extensive scarring would lead to an imputation of having supported the LTTE, possibly in a combat role, given that the applicant identified this as his main concern in returning to Sri Lanka. Although the Tribunal accepts that in the past, scarring was treated as evidence of LTTE membership, there is no recent, credible evidence to indicate that this is still the case. As discussed with the applicant at hearing, the DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam[5], dated 3 October 2014, observed that there was no recent information indicating that persons with conflict-related scarring or general scarring were detained. The United Kingdom Home Office's July 2013 Operational Guidance Note on Sri Lanka stated that, in the past, physical examinations were used to identify whether suspects had undergone military style training. Contacts in government ministries suggested that this practice had either ceased or was used less frequently. At the very least, it appeared that the security forces only conducted these when there was another reason to suspect an individual, and were not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There was no recent evidence to suggest that these examinations were routinely carried out on immigration returnees. In view of this evidence and the Tribunal’s other findings, the Tribunal is not satisfied that the applicant’s scarring gives rise to a real chance or risk of him being imputed with LTTE connections and suffering harm as a consequence.

[5] "DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam", DFAT, 03 October 2014, CIS2F827D91260 at 2.28

104.   As a person who left Sri Lanka illegally and who has sought asylum abroad, the applicant is in situation common to thousands of Sri Lankan Tamils. As put to the applicant at hearing, information from DFAT is that thousands of asylum seekers have returned to Sri Lanka since 2009 with few reports of torture or mistreatment[6]. The Tribunal has also taken into account information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are currently interested in identifying those with material links to the LTTE[7] or who pose a present destabilising threat[8].  The Tribunal is not satisfied on the material before it that there is a real chance or risk that the applicant would be regarded in this way or that he would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally. Whilst the Tribunal is prepared to accept that some returning Tamils may be of interest to the Sri Lankan authorities, including the friend referred to in the applicant’s May 2015 statutory declaration, the Tribunal is not satisfied, having regard to all of the applicant’s circumstances, that there is anything in the applicant’s profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home. 

[6] DFAT Country Report – Sri Lanka, 18 December 2015 at 4.22-4.23

[7] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 24 July 2015]

[8] United Kingdom Home Office, Country information and guidance report: Tamil separatism, Sri Lanka, August 2014

105.   The Tribunal is not satisfied that the applicant had a profile that was of any interest or that had caused him to be genuinely imputed with LTTE connections at the time he left Sri Lanka. For the reasons given above, the Tribunal is also not satisfied that the applicant has a profile which would give rise to a real chance or a real risk of him being imputed with LTTE connections should he return to Sri Lanka now, or in the reasonably foreseeable future.

Tamil ethnicity generally and security conditions in Jaffna

106.   The Tribunal accepts DFAT’s general advice[9] that there are no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka. DFAT have assessed that there is a low level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. This suggests that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict[10].

[9] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.3

[10] DFAT Country Report – Sri Lanka, 18 December 2015 at 3.7- 3.9

107.   The DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam[11] indicates that because of the pervasiveness of LTTE control in the north and east during the civil conflict, most Tamils from these areas are likely to have paid taxes to or provided a low-level of material support to the LTTE. DFAT assesses that those Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.

[11] DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam, DFAT, 03 October 2014, CIS2F827D91260 at 2.278

108.   The DFAT Country Report[12] indicates that the security situation in the north and east has greatly improved since the end of the conflict. However, military and security forces maintain a significant presence in the Northern Province, including the Jaffna District. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In July 2015, DFAT observed a low-level but visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula, also known as the ‘High Security Zone’. The High Security Zone occupies fertile land and is well-established, with permanent structures and well-tended agricultural land. The Sirisena Government has commenced discussions on progressively reducing High Security Zones in the Northern Province and to date, over 1,000 acres of land has been released. Most check-points have been removed in the north, and the main checkpoint on the highway between the north and south, the Omanthai checkpoint, was removed on 29 August 2015. Restrictions placed on persons, including foreigners, visiting the north that were introduced in October 2014 have been lifted. The Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assessed that there had been an overall decrease in monitoring in 2015, but some individuals in the north and east were still reporting being questioned and observed by the military and that the sizeable military presence remained a factor in aspects of civilian life.

[12] DFAT Country Report – Sri Lanka, 18 December 2015 at 2.37-2.39

109.   The Tribunal accepts, on the basis of this information, that there is a real chance or risk that the applicant will encounter the Sri Lankan military should he return to his home area. The Tribunal accepts that these encounters may involve some monitoring, questioning, and travel restrictions in the form of checkpoints. The Tribunal is not satisfied on the country information, however, that such encounters would involve harm that could be described as “serious harm” akin to the examples set out in s.91R(2) of the Act, or constitute ‘significant harm’ as that expression is defined. 

110.   The Tribunal accepts that the applicant may nonetheless be unwilling to return to an area where there continues to be a military presence and that general security conditions in the north may lead to some curtailment of the applicant’s freedoms falling short of serious or significant harm. Should the applicant be concerned about this, the Tribunal finds that he could reasonably and safely relocate, for example, to Colombo where he resided for six months prior to his arrival in Australia. The Tribunal has considered the applicant’s concerns about relocating to Colombo, however, the country information discussed with the applicant at hearing suggests that Colombo is highly ethnically integrated with roughly equal populations of Tamils, Sinhalese and Muslims. The applicant’s willingness to relocate to Colombo for economic reasons in the past suggests that such a move would not now be unreasonable notwithstanding that he has no family there.

Catholic religion

111.   The Tribunal has also considered the applicant’s claims to fear harm as a Catholic Tamil. The Tribunal accepts on the country information submitted by the applicant that there have been violent attacks on Christian worshippers in Sri Lanka in recent years. However, several of the reports appear to rely on the same source. The applicant’s reports also do not specify whether Christians of particular denominations are more frequently targeted and do not specifically refer to Catholics being harmed.

112.   In contrast, the DFAT Country Report indicates that the Sri Lankan Constitution guarantees freedom of religious belief although it does give a foremost place to Buddhism. Attacks on places of worship and religious objects are punishable with a fine or a maximum penalty of two years imprisonment. It is also an offence to insult religion. In the current government, there are ministers for each of the four major religions, including Christianity.

113.   DFAT was aware of reports that the former Rajapaksa government sanctioned discrimination against religious groups but was not aware of any such reports under the current government. The Sirisena government has publicly stated that it is committed to religious and ethnic reconciliation. The DFAT report further indicates that members of most religious groups are able to practice their religion freely. The report does indicate that there is a higher risk of harassment or violence for people who attempt to proselytize or convert, in an unethical way, people to their own religion. The majority of attacks on religious places of worship were against evangelical Christian organisations. The Tribunal is not satisfied, however, that the applicant would be involved in any evangelical Christian organisation upon return to Sri Lanka, or that he would attempt to proselytise or convert others to Christianity in an unethical way.

114.   The applicant’s evidence suggests that in the past there may have been some physical impediments to him attending church in the form of road blocks or checkpoints. The Tribunal accepts that security conditions in the applicant’s home District could still result in some inconveniences when travelling to church services. The applicant’s evidence as to his past experiences as a Tamil Catholic and the DFAT advice set out above do not suggest, however, that the applicant was prevented from practising his religion or that he would be so prevented should he return.

115.   In considering this issue, the Tribunal has also noted that the letter from [Fr. A] is significant insofar as it omits any reference to difficulties the applicant might face in the practice of his religion. Given that the letter is critical of the Sri Lankan military in other respects, the Tribunal is not satisfied that [Fr. A] would have felt constrained in mentioning any difficulties the applicant might face as a Catholic.

116.   The Tribunal is prepared to accept, given the foremost place accorded to Buddhism under Sri Lankan law that Buddhists and Buddhist organisations may receive some more favourable treatment by the Sri Lankan authorities. Considering the evidence overall, however, the Tribunal is not satisfied that there is a real as opposed to remote or far-fetched chance or risk of the applicant suffering serious or significant harm for any reason related to his Catholic religion or religious practice should he return to Sri Lanka now, or in the reasonably foreseeable future.

Illegal departure

117.   The Tribunal has given careful consideration to the applicant’s situation upon return to Sri Lanka as a consequence of his illegal departure. The Tribunal accepts as credible the information from DFAT[13], that upon return to Sri Lanka, returnees are processed by various law enforcement agencies at the airport, which typically takes several hours while they check the person’s identity and the existence of criminal or terrorist backgrounds. Returnees are not subject to mistreatment during this period of processing at the airport. Returnees who left Sri Lanka illegally are arrested by the police for breach of Sri Lanka’s immigration laws, have their fingerprints taken, are photographed and then transported to the Magistrates Court at the first available opportunity. Those arrested can remain in police custody at the CID airport office for up to 24 hours. Should a magistrate not be available because of a weekend or public holiday, those charged are held at a nearby prison.

[13] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.27 – 5.36

118.   The Tribunal finds on the country information that the applicant is likely to be questioned at the airport, charged with an offence of having departed illegally under the Immigrants and Emigrants Act and then either fined on the spot and released or granted bail on personal surety immediately by a magistrate or required to have a family member act as guarantor. The country information indicates that fines may be paid by instalment and, if bailed, there are rarely any conditions[14]. DFAT assesses that, ordinarily, passengers on boats are viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act. DFAT have also been advised that no returnee from Australia who has been charged under the Immigrants and Emigrants Act with departing illegally has been given a custodial sentence. Fine amounts vary on a case to case basis. The applicant has indicated that he would have no difficulty paying the fine. As such, the Tribunal is not satisfied that the imposition of the fine would amount to serious or significant harm.

[14] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.33

119.   The Tribunal accepts that there is a low, albeit real, chance or risk that the applicant may spend a brief period in remand until a magistrate is available, in prison conditions which may be cramped, uncomfortable and unsanitary[15]. The evidence indicates that this situation applies to all persons who have left Sri Lanka illegally, regardless of their background.

[15] DFAT Country Report – Sri Lanka, 18 December 2015 at 5.13

120. The Tribunal is not satisfied that being subjected to the process described above upon return to Sri Lanka, including any brief period in remand or any penalty imposed upon the applicant as a consequence of his breach of Sri Lanka’s immigration laws would involve systematic and discriminatory conduct as required by s.91R(1)(c). Rather, the evidence suggests that such treatment would be the consequence of the non-discriminatory enforcement of a law of general application, which is appropriate and adapted to achieving a legitimate state objective. The Tribunal is also not satisfied that there is a real chance that any element in the process would involve serious harm. As such, the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to treatment upon return to Sri Lanka amounting to “persecution” for the purposes of s.36(2)(a).

121.   In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the Tribunal is not satisfied on the evidence in this case that during a brief period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life. The Tribunal has carefully considered whether he would experience treatment amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal has had regard to the PAM3: Refugee and Humanitarian Complementary Protection Guidelines which state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. The Tribunal does not accept that such an inference can be drawn in the applicant’s circumstances. The Tribunal is not satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that severe overcrowding and poor conditions would be intended to cause extreme humiliation as required by the definition of 'degrading treatment or punishment'. The Tribunal is not satisfied that there is a real risk that any element in the process the applicant is likely to face upon return would involve “significant harm” as defined.

Conclusions

122. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a).

123.   The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

124. 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

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

Rachel Homan
Member