1606177 (Refugee)

1606177 (Refugee) [2017] AATA 274 (8 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606177
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Giles Short
DATE:8 February 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 February 2017 at 1:25pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Race – Tamil – Religion – Hindu – Imputed political opinion – Support for Liberation Tigers of Tamil Eelam – Particular social group – Failed asylum seeker – Forced recruitment – Illegal departure – Relative was an LTTE member – Visits by Criminal Investigation Department

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1), 499
Migration Regulations 1994, Schedule 2

CASES
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZGUW v Minister for Immigration and Citizenship [2009] FCA 321
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

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
INTRODUCTION

[The applicant] is a citizen of Sri Lanka. He belongs to the Tamil ethnic group and he has said that he is a Hindu by religion. He comes from a village named [Town 1][1] on the Jaffna Peninsula and he has said that due to the civil conflict in Sri Lanka he and his family also spent periods living in [Town 2] in [District 1] (in the Vanni, the area to the south of the Jaffna Peninsula). He has said that in around 2001 his [Relative 1] was abducted by the Liberation Tigers of Tamil Eelam (LTTE) when she was returning home [and] that she was killed in fighting [a few] months later. He has said that he himself was forced to undergo training by the LTTE for eight to ten days in 2008. He has said that in April 2012 he was questioned by the army or the CID on two occasions and accused of being a member of the LTTE. He has said that he left Sri Lanka illegally by boat in July 2012, arriving in Australia [in] August 2012.
[1] In [the applicant’s] application and the accompanying statement the name of this village was transliterated as [Town 1 name variant].
In a submission to the Tribunal dated 17 March 2015 [the applicant’s] then representatives submitted that he feared harm for reasons of his race (Tamil), his imputed political opinion in support of the LTTE (due to his race, his status as a failed asylum-seeker, his illegal departure from Sri Lanka, his [Relative 1’s] forced involvement in the LTTE, his own forced LTTE training and his residence in a former LTTE-controlled area) and his membership of a particular social group, ‘failed asylum seekers returned to Sri Lanka’. On 22 August 2016 [the applicant’s] current representative provided the Tribunal with a statement which he had taken by telephone from [the applicant] in which he said that he had concealed important information about his involvement in the LTTE. He said that he had in fact been conscripted by the LTTE some time after 2007 and that he had fought with them in 2008. He said that a few months before the war had ended in 2009 he had fled from the battle front without the LTTE’s knowledge and had joined his family.
[The applicant’s] application for a protection visa was refused by a delegate of the Minister for Immigration and he applied to this Tribunal for review of that decision. On 8 October 2015 the Tribunal (the first Tribunal) affirmed the decision under review and [in] April 2016 the Federal Circuit Court ordered by consent that a writ of certiorari issue directed to the Tribunal quashing the decision of the first Tribunal and that a writ of mandamus issue directed to the Tribunal requiring it to determine the applicant’s application for review according to law. In an attached statement it was said that the Minister conceded that the decision of the first Tribunal was affected by jurisdictional error in that the first Tribunal had failed properly to consider a claim (or claims) or an integer (or integers) of a claim made by [the applicant]. The statement referred to [the applicant’s] claims that in April 2012 he had been questioned by the army on two occasions. The statement said that the Minister accepted that these two incidents were ‘if not claims themselves, integers of the applicant’s claims’, that the Tribunal had not made any finding in relation to whether or not these incidents had occurred and that by not considering or making findings about these two incidents the Tribunal had made a jurisdictional error.
The matter is now back before the Tribunal pursuant to the orders made by the Federal Circuit Court. Since it has been held that it is incumbent on the Tribunal in a case such as this to make it clear on the face of its reasons how it has discharged its obligation to reconsider the matter according to law[2] I note that I have dealt with [the applicant’s] claims regarding these two occasions in paragraph 51 below. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
[2] See SZGUW v Minister for Immigration and Citizenship [2009] FCA 321 at [21] per Reeves J.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka?
[The applicant’s] claims
[The applicant] is aged in his [age range]. He has said that his parents are still living in [Town 1]. He has [a] [sibling] who he has said got married in [country] and was sponsored by [the spouse] to go to [another country] in 2013 and [a] brother who is still studying and who lives in [Town 3] on the Jaffna Peninsula. He has said that the highest level of education which he completed in Sri Lanka was his [grade] which he completed in [year] when he was living in [Town 1] and that after that he worked in the fishing industry. In his application for a protection visa he said that he had worked as a fisherman until he had left Sri Lanka to come to Australia but at the hearing before me he said that he had not worked after he had been conscripted by the LTTE (as he claimed in his statement referred to above).
As referred to above, [the applicant] has said that in around 2001 his [Relative 1] was abducted by the LTTE and that she was killed in fighting [a few] months later. At the hearing before me he produced a photograph of a memorial in support of his claim that his [Relative 1] had been a member of the LTTE who had been killed in 2001. [The applicant] has said that in 2007 his family were displaced from [Town 1] and that they went to [Town 2] in the [District 1] which was then under the control of the LTTE. He has said that in 2008 he was forced to undergo training by the LTTE for around eight to ten days but he told the Department and the first Tribunal that he did not have to serve in the LTTE after this training. As referred to in the decision under review (a copy of which [the applicant] provided to the Tribunal along with his application for review), when he was interviewed by the primary decision-maker in relation to his application [in] September 2013 [the applicant] said that he had not been forced to fight for the LTTE following this training because his [Relative 1] had been killed fighting for the LTTE. He said that apart from the involvement of his [Relative 1] and this ten day period of training neither he nor any other member of his family had had any involvement in the LTTE.
[The applicant] has said that towards the end of the war he and his family got on a boat and went to [a town] which was under government control. He has said that from there they went to [a processing] Centre in [a different town] and he produced a certificate to the Department from the Grama Niladhari’s Office which said that he and his family had been in [a processing] Centre from [March] 2009 until [November] 2009 when they had gone to [location]. [The applicant] has said that [location] is in the [Town 3] area and that his [specified relative] lived there. He has said that from there his family were allowed to resettle in [Town 1] and that he lived there until he left Sri Lanka in 2012. At the first hearing before the first Tribunal on 26 May 2015 [the applicant] said that he had told the authorities at the [processing] centre that he had undertaken training with the LTTE. He said that he told them this because, if he had not told them and somebody else had told them, he would have got into more trouble.
In a submission to the first Tribunal dated 10 July 2015 [the applicant’s] then representatives said that they were instructed that there had been many Tamils in [a processing] Centre and that one of the factors which might have assisted his release was that he had been detained with his family. They said that he instructed them that his family had accompanied him when he had been questioned by the authorities and that since he had been young and with his family he had not been transferred to a rehabilitation centre for members of the LTTE. They said that they were further instructed that, due to the number of people in IDP camps, the Sri Lankan authorities had released many people but that following their release they continued to impute them with pro-LTTE political opinions. They said that they were instructed that many LTTE cadres had been detained in IDP camps and later released but they had been persecuted including through killings and abductions after their release. They submitted that this explanation was plausible and reasonable but they referred to no independent evidence in support of this explanation.
At the second hearing before the first Tribunal [the applicant] said that there had been a lot of LTTE personnel in the IDP camp where he had been with his family and that the authorities had concentrated on interviewing them and taking them away so possibly they might have overlooked him. He said that the authorities now suspected him of being an LTTE cadre.
In the statement accompanying his application for a protection visa [the applicant] said that in around April 2012 he had been stopped by two army soldiers on the street in [Town 1] and accused of being an LTTE member. He said that the soldiers had let him go but he also said that they had told him that they would kill him because he was an LTTE member. He said that around a week later he had been stopped again by soldiers who had taken him to a building near an army camp where he had been questioned about his involvement in the LTTE. He said that he had been afraid that it had been only a matter of time before he would have been killed by the army or the CID if he had remained in Sri Lanka. He also said that whenever he had gone outside his village he had been followed by army soldiers and that he had been scared that he would be abducted by the army.
In the statement accompanying his application for a protection visa [the applicant] said that he was afraid that he would be seriously harmed, beaten, tortured or possibly killed by the army if he were again detained because the army did not believe that he had not been involved in the LTTE. He also said that he feared that he would be arrested and interrogated for leaving the country illegally if he returned to Sri Lanka as a failed asylum-seeker and that he might be tortured and imprisoned by the CID at the airport. He said that he already had a profile as a possible member of the LTTE due to his [Relative 1’s] involvement with the LTTE and that he feared that the army suspected that he might have been a supporter of the LTTE because he was a Tamil from an area once controlled by the LTTE, he had received training from the LTTE and his [Relative 1] had fought with the LTTE. He also said that any one of the army, the navy, the police or the CID could abduct him, torture him and possibly kill him.
At the interview with the primary decision-maker in September 2013 [the applicant] said that even if his family had not told the army about his [Relative 1] they would still have thought that he had received training and that he was part of the LTTE because he and his family had been living in the LTTE-controlled area in the Vanni. He said that he had been asked to come to the camp and that he had been questioned and they had threatened him. He said that even if the army did not take people the CID would and that there were many cases where the CID had taken people and they were still missing. He said that he had decided to leave Sri Lanka because he could not face this questioning by the army. He said that since he had left Sri Lanka the authorities had made some inquiries about where he was. He said that they had gone to his house and they had also asked his friends.
In their submission to the Tribunal dated 17 March 2015 [the applicant’s] then representatives said that they were instructed that [the applicant’s] mother was now required to report to the Sri Lankan army camp and to sign a document, that the authorities had begun harassing his mother because they could not find him, and that his mother had become ill and had had to make several visits to the hospital due to this harassment. They said that they were also instructed that [the applicant’s] [friend] had recently been approached by the Sri Lankan authorities and asked where he was, that [friend] had told them he did not know and that the authorities had become angry and had hit him.
At the first hearing before the first Tribunal on 26 May 2015 [the applicant] confirmed that he claimed that his mother had been required to report to a Sri Lankan army camp to sign. He said that there was no specific timeframe and that whenever they called her she would go to the army camp. He said that this was because the army wanted his mother to tell them where he was but his parents had told them that they did not know. He said that he thought that this had started three to four months after he had come here but that his parents had not told him about it at the time of the interview with the primary decision-maker. He said that because of all these things his mother had been worrying a lot and had become a patient. He said that his [brother] was not living with his parents because he had been having problems. He said that the army and the CID had been asking about him and now they were asking his parents about his [brother] as well because his [brother] was not at home.
[The applicant] said that he had come to Australia because he had had a problem with the army in Sri Lanka. He said that the army had called him and questioned him after he and his family had been resettled in their village. He said that they had been thinking that he had been with the LTTE because he had lived in the Vanni. He said that they had stopped him in the road and if he had not cooperated with them they would have beaten him or shot him. He said that they had not taken him to the camp, then he said that when he had been walking on the road they had taken him to the camp. He said that at the camp they had asked him unnecessary questions. He said that they had asked him again and again if he had lived in the Vanni. He said that they had told him that whenever they called him he had to come, if not they would shoot him, so he had been so scared. He said that he had told them that he had not had any connection with the LTTE but they had not believed him. He said that he had been threatened but he had not been beaten. He said that they had only stopped him on the road on two occasions but they had visited his home many times when he had not been there.
[The applicant] said that there was no guarantee for his life or there was a threat to his life if he went back to Sri Lanka. He said that he did not know when he would be abducted. He said that this would happen because they suspected that he had links with the LTTE. He said that he was scared of the army and he did not want to go back to Sri Lanka. He said that after he had come here they had still been looking for him and he referred to his evidence that they were still questioning his mother. He said that he did not know much about what was happening in his country but he had a problem and this was why he did not want to go back. He said that even if nothing happened to him at the airport when he returned to Sri Lanka he was scared that the CID or the army would come and take him later on.
In their submission to the Tribunal dated 10 July 2015 [the applicant’s] representatives said that they were instructed that following his release from the IDP camp he had been stopped at a Sri Lankan Army checkpoint twice, in February and April 2012, that on the first occasion he had been taken to a Sri Lankan Army camp adjacent to the checkpoint where he had been accused of being an LTTE supporter or member. They said that on the second occasion, in April 2012, [the applicant] instructed them that he had again been taken to the camp and threatened severely. They said that army personnel had pointed a gun at him and had demanded that he come for questioning but he had been released after two hours. They said that [the applicant] instructed them that following this incident he had lived with relatives for three months and that he had only visited his home occasionally at night. They said that he instructed them that during this time the Sri Lankan authorities had visited his home five or six times asking his mother where he was but that his mother had informed them that he had left. They said that they were instructed that following his departure from Sri Lanka [the applicant’s] mother had been required to appear at the army camp and to sign periodically at intervals of between three and six months. They said that they were instructed that [the applicant] had not been able to answer the Tribunal’s questions adequately because of his fear of the authorities and authority figures.
In a submission to the Department dated [in] September 2013 [the applicant’s] then representatives referred to his claims and to attachments in which they set out various extracts from country information. They submitted that this information showed that Tamils continued to experience significant levels of violence and discrimination in Sri Lanka, that returnees and IDPs in Sri Lanka continued to face serious threats to their subsistence, that individuals who were perceived to oppose the government of Sri Lanka had come under threat in recent years and that Sri Lankans who applied for asylum abroad might, upon their return, be imputed with dissident or pro-LTTE political views by reason of their attempts to gain protection in other nations. They submitted in the alternative that [the applicant] was owed protection under the complementary protection criterion. In their submission to the Tribunal dated 17 March 2015 [the applicant’s] representatives referred to updated versions of the attachments to their submission to the Department setting out extracts from country information.

As referred to above, on 22 August 2016 [the applicant’s] current representative provided the Tribunal with a statement taken by telephone from [the applicant] in which he said that he had concealed important information about his involvement in the LTTE. He said that he had been conscripted by the LTTE some time after 2007 but that before this he had voluntarily helped the Sea Tigers, for example by pushing boats out to sea, pulling them back to the shore and providing other assistance when requested. He said that he had done such tasks wholeheartedly. He said, however, that when the LTTE had wanted to take him away in 2007 he had refused to join them as his [Relative 1] had previously been killed but he said that he had been taken to an LTTE base at [another town] in [District 1]. He said that he had been provided with weapons training at another base for one and a half to two months and after approximately four to five months he had been transferred to the battle front. He said that he had been engaged in combat in 2008 but that a few months before the war had ended in 2009 he had fled from the battle front without the LTTE’s knowledge and had joined his family. [The applicant] said that he had concealed the truth about his LTTE involvement due to his fear that he would have been detained by the Australian authorities if they had known of his involvement in the LTTE. He added that one of his [relatives] had been a [senior official] in the Sea Tigers.
Discussion of [the applicant’s] claims
At the hearing before me on 24 August 2016 I referred to [the applicant’s] evidence that he had experienced problems with the army a few months before he had left Sri Lanka. [The applicant] said that he had had problems from the CID. He said that they had asked him if he belonged to the rebel movement and he had said that he did not. He confirmed that by the rebel movement he meant the LTTE. He said that they had asked him on the street first and then they had taken him to a camp and they had asked him again. He said that when they had asked him on the street he had been riding a motorbike and a friend had also been with him. He said that they had stopped him and questioned him. He repeated that they had asked him if he was an LTTE member and he had responded that he was not. He said that they had responded that they did not believe him and that he was telling a lie. He said that they had referred to the fact that he had had a [Relative 1] who had been in the LTTE and who had died. He said that he had admitted that this was true but he had told the CID that he himself had not been in the LTTE. He said that this had been a lie. He said that he thought that the people who had stopped him had known him and that this had been why they had stopped him. He said that they had asked him to show them his ID and he had shown them his ID. He said that they had asked him again if he was an LTTE member and he had vehemently denied this.
[The applicant] confirmed that these people had taken him to a camp where they had asked him the same question. He said that they had ordered him to attend the camp whenever they invited him to, otherwise he would have problems. He said that he could not remember exactly how many times they had invited him to go to the camp but once or twice he had gone there again. He said that because of his fear of reprisals he had taken his parents with him when he had gone there but he said that they had separated him from his parents. He said that they had taken him to sign and they had questioned him. He said that they had been very intimidating, they had pointed guns at him and they had threatened him. He said that they had again accused him of being a member of the LTTE but he had always denied this. He repeated that this had been a lie. He said that they had told him that they knew that he had been in the LTTE and that he had helped the LTTE but he had never admitted any of this. He said that they had been threatening him and intimidating him, saying that he was lying. He said that he had got scared and he had cried. He said that they had been aiming a rifle at him but he had kept his eyes closed with his hands. He said that it had all been very intimidating and it had been a very dangerous situation for him at the time. He said that he had been at the army camp for nearly two hours. He said that he had only been to the army camp on two occasions: the occasion when he had been stopped in the street and the occasion when he had gone there with his parents.
[The applicant] said that he had left Sri Lanka because had lots of fear from the authorities, especially the military. I referred to his evidence that after he had left Sri Lanka the authorities had been giving trouble to his family asking where he was. [The applicant] confirmed that he claimed that his parents had told the army that they did not know where he was. I asked him why his parents had not told the army that he was in Australia. [The applicant] said that his parents had decided not to tell the army where he was because this might have created problems for his siblings. He said that because he had not been available they might have taken his [brother].
I put to him that the army could have done this whether they had known where he was or not. [The applicant] said that his parents were in a very precarious situation: they had already lost [a relative] and he had also left the country. He said that his situation had not been very bright and [his] brother who was still there. He said that his parents had not wanted to lose [this] brother as well. He said that they had been in a tense situation, they had been under enormous stress and they might die. I put to him that he was saying that the reason his parents were having these problems was that they were lying about where he was. They were telling the army that they did not know where he was when they knew perfectly well that he was in Australia. [The applicant] said that his parents had been worried that the army might consider that they had all been in the LTTE because his [Relative 1] had been in the LTTE and that the army might have harmed them. He said that they had not wanted to reveal anything.
I put to [The applicant] that his evidence was that the army had always known that his [Relative 1] had been in the LTTE. I put to him that I did not see what this had to do with his parents lying to the army and saying that they did not know where he was when they knew he was in Australia. [The applicant] said that if anyone wanted to safeguard their lives there was no harm in telling a lie. I put to him that his parents would not have any problems if they told the truth. [The applicant] repeated that the army might suspect that his whole family were under the LTTE wing. I put to him that they might suspect this if his parents lied to them. [The applicant] said that for his parents telling a lie was not a big issue but to safeguard their children was the most important factor for them. I put to him that I did not see that this had anything to do with safeguarding their children. [The applicant] said that any parents [would] not like it.
[The applicant] confirmed that it was correct that, as he had said in the statement which his representative had produced, he had actually been involved in fighting with the LTTE. I referred to the fact that there were exclusions from Australia’s protection obligations related, for example, to people who had been involved in war crimes. [The applicant] said that he had not wanted to be part of the LTTE but they had forced him into this. I put to him that I had difficulty in accepting that he had been involved in the LTTE as he had claimed in his statement. I put to him that the claims which he had made in this statement were inconsistent with evidence which he had given previously to the Department and the Tribunal on oath. He had sworn previously that his only involvement with the LTTE had been eight or ten days’ training but now he was claiming that he had fought with them for over a year. [The applicant] said that initially he had feared the ASIO requirements. He said that he had feared that he would be detained indefinitely if he had been in the LTTE. He said that this had been why he had not said this in the beginning. I put to him that the fact that he had made these claims at this late stage, after his application had been rejected by the Tribunal, was relevant to whether he could be believed about other matters. [The applicant] said that he was in a very disturbed state of mind or that he was mentally drained of thinking capacity. He said that he was currently having a lot of anxieties and fear.
I put to [the applicant] that he had said previously that he had told the authorities in Sri Lanka that he had undergone training with the LTTE because, if he had not told them this, someone else would have told them. [The applicant] responded that there was nobody living to tell the authorities this so that the only people telling them this would be liars. He said that all the people with whom he had been associated were dead and gone. I put to him that there were thousands of former LTTE combatants in Sri Lanka.[3] [The applicant] referred again to the fact that his [Relative 1] who had been in the LTTE had died. I noted that he had always said this and he had produced a document at the hearing before me in support of that claim but he had also said that the Sri Lankan authorities had always been aware of this. He had also said that they had known that he had undergone training with the LTTE because he had told them this and that they had obviously known that he had come from an LTTE-controlled area.
[3] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.42; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.41.
I put to [the applicant] that if they had suspected him of actually belonging to the LTTE they would have detained him.[4] I put to him that the fact that the Sri Lankan authorities had not detained him suggested that they had not suspected him of belonging to the LTTE. I referred again to his evidence that he had entered [a named processing] Centre in March 2009 and that he had not left Sri Lanka until July 2012 and I put to him that if the Sri Lankan authorities had had any suspicions about him they had had ample opportunity to investigate and to detain him if they had wanted to do so. [The applicant] said that they did not know that he had been a member of the LTTE and that they could not apprehend him without proof. He referred to his evidence that he had denied that he had been in the LTTE. I put to him that it was very difficult to accept that he was telling the truth about the occasions on which he had said he had been stopped and questioned at the army camp when the only thing he had said that they had asked him was whether he had been in the LTTE. I put to him again that if they had actually suspected that he had belonged to the LTTE they could have detained him. [The applicant] said that he had not told them anything. He said that they had not been able to prove that he had been in the LTTE. He said that he had repeatedly told them that it had been his [Relative 1] who had been in the LTTE, not him. He said that they had forced him but he had never accepted that he had been in the LTTE.
[4] See DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 3.42-3.43, 3.54-3.55; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 3.41-3.42, 3.48-3.49.
I indicated to [the applicant] that I accepted that he was a Tamil. I put to him that the Australian Department of Foreign Affairs and Trade assessed that there were currently no official laws or policies in Sri Lanka that discriminated on the basis of race.[5] [The applicant] said that this was a lie. He said that today there were stories coming from there that the authorities were injecting some poisonous toxic material into suspected members of the LTTE who had been Tamils who had lived around that area and that gradually death was looming for them. He said that mainly these were all for the Tamils. He said that his representative had given him this news and he said that there were also media cuttings and reports on Facebook that these kinds of atrocities were taking place slowly. He said that it was a pre-programmed performance by the authorities, the gradual elimination of the Tamils in Sri Lanka.
[5] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.3; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.4.
I put to [the applicant] that I might give greater weight to information from independent and reputable sources than I did to stories like this. [The applicant] said that this was the only way this news was coming to him. I put to him that the Australian Department of Foreign Affairs and Trade also assessed that the implementation of laws and policies was generally without discrimination in Sri Lanka.[6] [The applicant] said that it was still happening. He said that there were a lot of people who were involved in certain activities who had all been targeted and given these harsh punishments. He said that those who had undergone military training with the LTTE would definitely be targeted.
[6] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.3; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.4.
I put to [the applicant] that, as we had discussed, people who had been suspected of belonging to the LTTE had been detained and that it was because he had not been detained that I had difficulty in accepting that he had been regarded as being involved in the LTTE. [The applicant] said that he had left the place with his family [in] March 2009 so he had almost escaped unnoticed. He said that they had been mainly concentrating on the higher cadres of the LTTE and he had been a minor person among them. He said that he thought that they had missed him because he had been an unimportant person at the time. He said that he had managed to escape from their clutches at that time because he had left with his parents. He said that the current situation was that they were poisoning all the ex-cadres of the LTTE by injecting toxic materials into their bodies so gradually they would eliminate everybody over there. He said that he had not come to Australia to die here but to survive and live a life.
I referred to [the applicant’s] evidence that he was a Hindu and I put to him that that the Australian Department of Foreign Affairs and Trade also assessed that there was little official discrimination on the basis of religion in Sri Lanka.[7] [The applicant] responded that whatever was said in this official statement was not what was really happening over there. He said that he did not have the tools to prove to me that this was the real thing which was happening. He said that over there the LTTE was one problem and the military authorities were another problem so both ways it was a hard existence for them to survive there. I put to him that the LTTE no longer existed as a functioning organisation in Sri Lanka so he would not have any problems with the LTTE any more.[8] [The applicant] said that it was only in the West that it was being said that the LTTE no longer existed. He said that there were still a lot of abductions and there was a lot of cruel treatment for all the Tamils there who had been associated with the LTTE. I put to him that this was a different issue.
[7] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.14; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.13.
[8] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.34; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.31.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade said that most members of religious groups in Sri Lanka were able to practise their faith freely.[9] [The applicant] said that he did not agree with this. He said that this was according to official sources which said that there was no discrimination on the basis of religion but it was still happening there and a lot of atrocities were taking place. He said that he was one of the victims of their atrocities and he knew how much pain he was having. He said that he was referring to the fact that the CID had threatened him. He said that he was scared of them and that his life was in danger over there. He said that there was no protection there. He said that he had left Sri Lanka and he had come here seeking protection.
[9] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.16; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.14.
I put to [the applicant] that the Australian Department of Foreign Affairs and Trade also assessed that there was no law or Government policy in Sri Lanka which hindered access to state protection on the basis of religion or race. It had said that it was not aware of any cases over the last few years where people had been denied access to legal remedies based on their race or their religion.[10] [The applicant] said that he did not accept this statement because he had really undergone that experience over there so he was the one who knew the pain of their ill-treatment. I put to him that he did not claim to have been ill-treated. [The applicant] responded that he had told me what had happened. He said that if someone killed him he would have nothing more to say. He repeated that atrocities had taken place and that he felt fear. He said that he had lost his [Relative 1] and that his parents were languishing. He said that they did not know what to do or what would happen next. He repeated that he had come here for protection but he said that it was not coming through.
[10] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.1, 5.12; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.1, 5.11.
I indicated to [the applicant] that I accepted that he would be returning to Sri Lanka as a failed asylum-seeker. I put to him that people who did not return to Sri Lanka voluntarily were processed at the airport by various Sri Lankan Government departments. I put to him that the Australian Department of Foreign Affairs and Trade assessed that people returning were treated according to standard procedures, regardless of their race or their religion, and that returnees were not subject to mistreatment during their processing at the airport.[11] I put to him that it was difficult to accept that there was a real chance that he would be persecuted on his return because he would be perceived as holding a political opinion either in support of the LTTE or opposed to the Sri Lankan Government. [The applicant] said that he did not believe this. He said that he had a very thorough understanding of how Sri Lanka worked and how the authorities behaved because he had lived there. He said that it was not what was said here in this country and that the reality over there was very much different.
[11] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.29-5.31; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.19-5.20.
I indicated to [the applicant] that I also accepted that he would be charged under the Immigrants and Emigrants Act of Sri Lanka with offences regarding his illegal departure. I put to him that the Australian Department of Foreign Affairs and Trade had advised that in most cases people suspected of having departed Sri Lanka illegally had been arrested by the police at the international airport. They were transported to the Magistrates Court in Negombo at the first available opportunity. The Department had said that as of July 2015 no returnee who had just been a passenger on a people smuggling boat had been given a prison sentence for departing Sri Lanka illegally but they had been fined. It had said that if people pleaded guilty they would be fined and they would be free to go. If they pleaded not guilty they would be granted bail.[12] I put to [the applicant] that I might take the view that this whole process was the result of the enforcement of a law which applied generally in Sri Lanka and that it was applied in a way which did not discriminate on the basis of any of the five Convention reasons.
[12] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.32-5.33; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.21-5.22.

I put to [the applicant] that the information available to me suggested that he would only be held at a prison for a brief period, for example because a magistrate was not available for some reason.[13] I put to him that I might not accept that there was a real risk that he would suffer significant harm as a result of his illegal departure. [The applicant] said that he did not want to go back home.
[13] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 5.32; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.21; ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.
I put to [the applicant] that he had said that his [Relative 1] had been in the LTTE and had been killed in 2001, that he himself had undergone training with the LTTE for eight to ten days and that he had lived in an area that had been under the control of the LTTE. I put to him that the Australian Department of Foreign Affairs and Trade had advised that all Tamils in areas affected by the civil war in Sri Lanka were likely to have provided a low level of material support to the LTTE and that there was a low risk of Tamils in this situation being detained or prosecuted.[14]
[14] DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014, paragraph 2.27.
I noted that [the applicant] had said previously that he feared what would happen to him if he went back to his village. I put to him that a tribunal in the United Kingdom similar to this one had made a decision in July 2013 in relation to asylum-seekers returning to Sri Lanka. It had found that the Sri Lankan authorities’ approach was based on sophisticated intelligence both as to activities within Sri Lanka and activities outside Sri Lanka. I put to him that, apart from the claim which he had very recently made that he had been involved in fighting for the LTTE for over a year, he had not claimed to have been involved in any activities which would have attracted the attention of the Sri Lankan Government. I put to him that he did not come within any of the categories of people who the tribunal in the UK had said would be at risk of persecution on return to Sri Lanka.[15] I put to him that I might not accept that there was a real chance or a real risk that he would be harmed by the Sri Lankan authorities if he returned to Sri Lanka. [The applicant] said that he was not going to believe what was going to happen according to the reports. He said that he was very affected by them by all means.
[15] See GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), upheld by the Court of Appeal in MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829.
[The applicant’s] representative said that he understood that [the applicant] had made significantly different claims and that these claims were very serious in nature. He submitted that [the applicant] would not be the only person who had been compelled to fight for the LTTE although he submitted (in contradiction to [the applicant’s] own evidence) that probably to some degree there had been some voluntariness as well. He submitted that a person would not say that they had been an LTTE member if this were not true. He submitted that [the applicant] had not withdrawn this claim that he had been an LTTE cadre and he submitted that [the applicant] had provided a lot of details including referring to weapons which he (the representative) had never heard of. He submitted that in fact most of the people who had lived in the Vanni would have committed crimes which could be perceived as war crimes. He submitted that [the applicant] was not a leader or combatant. I put to him that [the applicant] did claim that he had been a combatant. [The applicant’s] representative conceded that [the applicant] claimed that he had engaged in combat.
[The applicant’s] representative submitted that if [the applicant’s] claims were accepted then he clearly fell within the risk profiles referred to in the DFAT Country Information Report - Sri Lanka of 18 December 2015 as a former LTTE combatant. He said that he disagreed with the finding of the tribunal in the UK that the Sri Lankan authorities’ approach was based on sophisticated intelligence both as to activities within Sri Lanka and activities outside Sri Lanka. He referred to the superseded 2013 DFAT report which he submitted clearly said that there was a standard procedure and that when people arrived the authorities would check with the police in the local area to see if the person had a criminal history or was of interest. He submitted that they would in fact even check with neighbours. He submitted that these procedures would not have changed in the two and a half years since this report had been published. He submitted that there were things in the more recent DFAT report which might be inconsistent with the 2013 report on which he wished to rely.
I noted that the DFAT Country Information Report - Sri Lanka of 18 December 2015 referred to the evidence taken by the UK Upper Tribunal in GJ (cited above) regarding the fact that the Sri Lankan authorities relied on sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.[16] [The applicant’s] representative referred to the fact that Mónica Pinto, the UN Special Rapporteur on the independence of judges and lawyers, and Juan E Méndez, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, had visited Sri Lanka in May 2016. He referred to the fact that the Prevention of Terrorism Act remained in place and that torture continued to be used. I indicated to him that I did not believe that what he was saying was inconsistent with what had been said in GJ or in the DFAT report.
[16] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.36; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.29.
[The applicant’s] representative submitted that the authorities clearly did not know whether a person was in fact an LTTE member or not. He submitted that [the applicant] had not been a senior cadre but this did not meant that he would not be exposed to harm. He referred in this context to paragraph 3.59 of the DFAT Country Information Report - Sri Lanka of 18 December 2015 which said that one of the ways in which the Sri Lankan authorities screened high-profile from low-profile LTTE members was by using information provided by informants. He submitted that such informants could provide information about [the applicant] (although, as referred to above, [the applicant] himself said that there no such informants available to provide information about him because they were all dead). He submitted that the fact that [the applicant] had not been detained by the authorities in Sri Lanka did not mean that his evidence that he had fought with the LTTE was not true.
[The applicant’s] representative referred to a report issued by the International Crisis Group on 18 May 2016, Sri Lanka: Jumpstarting the Reform Process, which he submitted clearly stated at footnote 80 what could happen to people suspected of LTTE involvement. However the relevant footnote simply refers to reports issued by the International Truth and Justice Project and Freedom from Torture in January and May 2016 regarding the continued use of torture in Sri Lanka. [The applicant’s] representative submitted that it was better for [the applicant’s] parents to say that they did not know where he was rather than informing them that he was in Australia. He submitted that even if his parents did not mention this it would be implied or it would be known to the authorities that [the applicant] had sought asylum in Australia which would cause problems for the family.
Under cover of a further submission dated 28 December 2016 [the applicant’s] representative produced a copy of the UN Committee Against Torture’s Concluding observations on the fifth periodic report of Sri Lanka (30 November 2016) which he noted said at paragraph 11 that the Committee had received information that numerous individuals suspected of having a link, even remote, with the LTTE, had been abducted and subjected to torture. [The applicant’s] representative referred again to the International Crisis Group report, Sri Lanka: Jumpstarting the Reform Process (18 May 2016) which said at page 17 that there continued to be credible reports of the torture of Tamils returning to Sri Lanka who were suspected of past LTTE involvement (referring to footnote 80 which, as mentioned above, refers to reports from other organisations regarding the continued use of torture in Sri Lanka). [The applicant’s] representative also quoted from a decision of the Immigration Assessment Authority referring to the use of torture in relation to people suspected of LTTE involvement.
[The applicant’s] representative noted that the High Court had granted special leave to appeal from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 relating to the issue of intention in the context of the complementary protection criterion but he submitted that even if this challenge was unsuccessful the report of the UN Committee Against Torture constituted evidence that, even if [the applicant] were to be imprisoned for a short period of time on account of departing Sri Lanka illegally, there was a real chance of serious and/or significant harm occurring inside prisons and that the process of being imprisoned demonstrated that there was sufficient intention by the state to inflict pain or suffering or extreme humiliation on those who were imprisoned.
Conclusions
As I put to [the applicant], I have difficulty in accepting that he was involved in fighting for the LTTE for over a year as he claimed in the statement which his representative produced to the Tribunal on 22 August 2016. As I put to him, the claims which he made in this statement are inconsistent with evidence which he had given previously to the Department and the Tribunal on oath: he had sworn previously that his only involvement with the LTTE had been eight or ten days’ training but in this statement he claimed that he had fought with the LTTE for over a year. [The applicant] said that initially he had feared the ASIO requirements. He said that he had feared that he would be detained indefinitely if he had been in the LTTE. He said that this had been why he had not said this in the beginning. However, as I put to him, it is not just that he did not say this in the beginning: he did not make these claims until his application had already been rejected by the Tribunal. He had the assistance of legal advice throughout the processing of his application and if he had needed advice about the implications of claiming that he had been an LTTE combatant I consider that he could have sought it at that time. [The applicant] said that he was in a very disturbed state of mind or that he was mentally drained of thinking capacity. He said that he was currently having a lot of anxieties and fear. I have taken these comments into account and I accept that [the applicant] does not want to go back to Sri Lanka. However I remain of the view that the fact that he only raised this new claim at such a late stage casts doubt on whether it is true.
As I put to [the applicant], I consider it relevant that he had said previously that he had told the authorities in Sri Lanka that he had undergone training with the LTTE because, if he had not told them this, someone else would have told them. [The applicant] responded that there was nobody living to tell the authorities this so that the only people telling them this would be liars. He said that all the people with whom he had been associated were dead and gone. However, as I put to him, there are thousands of former LTTE combatants in Sri Lanka.[17] [The applicant’s] own representative referred to the fact that the Australian Department of Foreign Affairs and Trade had said that one of the ways in which the Sri Lankan authorities screened high-profile from low-profile LTTE members was by using information provided by informants.[18] He submitted that such informants could provide information about [the applicant] and that the fact that [the applicant] had not been detained by the authorities in Sri Lanka did not mean that his evidence that he had fought with the LTTE was not true. However, as I put to [the applicant], he entered [a processing] Centre in March 2009 and he did not leave Sri Lanka until July 2012 so I consider that there would have been ample opportunity for such informants to have provided information about him if his claim that he had fought with the LTTE for over a year were true.
[17] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.42; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.41.
[18] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.59; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.36.
As I put to [the applicant], I consider that if the Sri Lankan authorities had suspected him of actually belonging to the LTTE they would have detained him.[19] [The applicant] said that they did not know that he had been a member of the LTTE and that they could not apprehend him without proof. He referred in this context to his evidence that he had denied that he had been in the LTTE. However I consider that it is clear on the basis of the independent evidence that the Sri Lankan authorities did not need proof to detain anyone as a suspected member of the LTTE: no legal process was involved and as mentioned in the passage from the DFAT report to which [the applicant’s] representative referred, the authorities used interviews, information provided by informants and other relevant information to determine the depth of people’s involvement in the LTTE.[20] [The applicant] and his previous representatives have referred in this context to the fact that there were many LTTE cadres in the IDP camps and they have suggested that the fact he was detained along with his family may explain why he was not sent to a rehabilitation centre. At the hearing before me [the applicant] said that they had been mainly concentrating on the higher cadres of the LTTE and he had been a minor person among them. He said that he thought that they had missed him because he had been an unimportant person at the time. He said that he had managed to escape from their clutches at that time because he had left with his parents. However I do not accept that the fact that [the applicant] entered [a processing] Centre along with his family would have shielded him from being sent to a rehabilitation centre if, as he now claims, he was a former LTTE combatant who had fought with the LTTE for over a year.
[19] See DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 3.42-3.43, 3.54-3.55; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 3.41-3.42, 3.48-3.49.
[20] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.59; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.36.
For the reasons given in paragraphs 46 to 48 above I do not accept that, as [the applicant] claimed in the statement which his representative produced on 22 August 2016, he received weapons training from the LTTE and fought with them for over a year before fleeing a few months before the war ended and joining his family. I do not accept that, as he also said in that statement, one of his [relatives] was a [senior official] in the Sea Tigers nor that [the applicant] previously helped the Sea Tigers on a voluntary basis. Although his representative suggested at the hearing before me that there had been an element of voluntariness in the assistance which [the applicant] claimed to have given to the LTTE, [the applicant] himself has always said that he was forced or compelled to provide the LTTE with assistance. I consider that the truth of the matter is that, as [the applicant] had previously said, he only ever undertook eight to ten days training with the LTTE in 2008 and he was not forced to fight for the LTTE following this training because his [Relative 1] had been killed fighting for the LTTE in 2001.
As referred to above, [the applicant] has consistently said that he told the authorities in [the processing] Camp that he had undertaken eight to ten days training with the LTTE in 2008. As I put to him, his evidence has been that the authorities always knew that his [Relative 1] had been in the LTTE and they obviously knew that he and his family had been living in an LTTE-controlled area. I consider that the fact that [the applicant] was released from [the processing] Centre along with his family in November 2009 rather than being detained and sent to a rehabilitation centre casts doubt on his claims that in the months before he left Sri Lanka in July 2012 he was questioned on two occasions by the army or the CID, accused of being a member of the LTTE and threatened by having a gun pointed at him. Although he has suggested that on the second of these two occasions he was detained for two hours he has not suggested that the authorities had any new information about him or indeed that they did anything other than ask him repeatedly if he was an LTTE member.
At the hearing before me [the applicant] said that he was one of the victims of their atrocities and that he knew the pain of their ill-treatment but, as I put to him, he has consistently said that he was not ill-treated: he told the first Tribunal at the hearing on 26 May 2015 that although he had been threatened he had not been beaten. Given the evidence to which [the applicant’s] representatives have referred about the widespread use of torture in Sri Lanka, particularly in relation to those suspected of involvement in the LTTE, I consider that [the applicant’s] account of what happened to him casts doubt on whether he is telling the truth about these occasions. As I put to him once again, all the evidence suggests that if the authorities had actually suspected him of being a member of the LTTE, as he claims, he would have been detained.[21] I do not accept that, as he has claimed, [the applicant] was stopped, questioned, required to report to an army camp, accused of being an LTTE member and threatened in the months before he left Sri Lanka in July 2012. I do not accept that whenever he went outside his village he was followed by army soldiers or that he was scared that he would be abducted by the army. I do not accept that on other occasions the authorities came to his home looking for him nor that since he has left Sri Lanka the authorities have asked his parents or his friends where he is, nor that his mother has been required to report to an army camp, nor that his [brother] has left home because the authorities were causing him problems. I do not accept on the evidence before me that either [the applicant] himself or any other member of his family has been of any interest to the Sri Lankan authorities since the end of the civil war or that, as has been submitted, [the applicant] has been imputed with a political opinion in support of the LTTE based on his [Relative 1’s] involvement, his own training with the LTTE for eight to ten days in 2008 and that fact that he and his family lived in an LTTE-controlled area.
[21] See DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 3.42-3.43, 3.54-3.55; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 3.41-3.42, 3.48-3.49.
I accept that, as [the applicant] and his representatives have said, human rights abuses continue to occur in Sri Lanka. Contrary to the submissions made by [the applicant’s] current representative, the Australian Department of Foreign Affairs and Trade refers in its reports to the evidence of the continued use of torture in Sri Lanka.[22] In the present context however, the question is whether there is a real chance that [the applicant] will be persecuted for one or more of the five Convention reasons if he returns to Sri Lanka. For the reasons given above I do not accept that he has ever been of any interest to the Sri Lankan authorities. I accept that he is a Tamil but, as I put to him, the Australian Department of Foreign Affairs and Trade assesses that there are currently no official laws or policies in Sri Lanka that discriminate on the basis of race.[23] I do not accept that, as [the applicant] claimed, the Sri Lankan authorities are engaged in a programme for the gradual elimination of the Tamils in Sri Lanka. There is no support for this claim in independent and reputable sources.
[22] See most recently the DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 4.12-4.16.
[23] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.3; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.4.

As I indicated to [the applicant], I also accept that he is a Hindu. As I put to him, the Australian Department of Foreign Affairs and Trade also assesses that there is little official discrimination on the basis of religion in Sri Lanka and that most members of religious groups in Sri Lanka are able to practise their faith freely.[24] [The applicant] said that this was not what was really happening over there and he said that atrocities were taking place. However, having regard to the problems which I have identified with [the applicant’s] evidence above, I place greater weight on the independent evidence with regard to religious freedom in Sri Lanka than I do on his evidence. [The applicant] also referred in this context to problems with the LTTE but, as I put to him, the LTTE no longer exists as a functioning organisation in Sri Lanka.[25] [The applicant] said that it was only in the West that it was being said that the LTTE no longer existed. He said that there were still a lot of abductions and there was a lot of cruel treatment for all the Tamils there who had been associated with the LTTE. However, as I put to him, this is a different issue from any problems which he might be caused by the continued existence of the LTTE. Given the evidence that the LTTE no longer exists as a functioning organisation in Sri Lanka I do not accept that there is a real chance that [the applicant] will be persecuted by the LTTE if he returns to Sri Lanka now or in the reasonably foreseeable future.
[24] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 3.14 and 3.16; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 3.13 and 3.14.
[25] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.34; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.31.
[The applicant] said that there was no protection in Sri Lanka and that he had come here seeking protection. However, as I put to him, the Australian Department of Foreign Affairs and Trade assesses that there is no law or Government policy in Sri Lanka which hinders access to state protection on the basis of religion or race. It has said that it is not aware of any cases over the last few years where people have been denied access to legal remedies based on their race or their religion.[26] I do not accept on the evidence before me that there is a real chance that [the applicant] will be discriminated against by the Sri Lankan authorities for reasons of his race or his religion or that he will be denied access to state protection or to legal remedies based on his race or his religion.
[26] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.1, 5.12; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.1, 5.11.
As I indicated to [the applicant], I accept that he will be returning to Sri Lanka as a failed asylum-seeker. As I put to him, the information available to me indicates that people who do not return to Sri Lanka voluntarily are processed at the airport by various Sri Lankan Government departments. The Australian Department of Foreign Affairs and Trade assesses that people returning are treated according to standard procedures, regardless of their race or their religion, and that returnees are not subject to mistreatment during their processing at the airport.[27] [The applicant] said that he had a very thorough understanding of how Sri Lanka worked and how the authorities behaved because he had lived there. He said that it was not what was said here in this country and that the reality over there was very much different. However once again, having regard to the problems which I have identified with [the applicant’s] evidence above, I place greater weight on the independent evidence with regard to treatment of failed asylum-seekers than I do on his evidence. I do not accept that there is a real chance that [the applicant] will be persecuted on his return for reasons of his race or his religion, his membership of the particular social group of ‘failed asylum-seekers returned to Sri Lanka’ or any political opinion which he may be perceived as holding either in support of the LTTE or opposed to the Sri Lankan Government.
[27] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.29-5.31; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.19-5.20.
I also accept that [the applicant] will be charged under the Immigrants and Emigrants Act of Sri Lanka with offences regarding his illegal departure. As I put to him, the Australian Department of Foreign Affairs and Trade has advised that in most cases people suspected of having departed Sri Lanka illegally have been arrested by the police at the international airport and they have been transported to the Magistrates Court in Negombo at the first available opportunity. The Department has said that as of July 2015 no returnee who had just been a passenger on a people smuggling boat had been given a prison sentence for departing Sri Lanka illegally but they had been fined. It has said that if people plead guilty they will be fined and they will be free to go. If they plead not guilty they will be granted bail.[28] As I put to [the applicant], I take the view that this whole process is the result of the enforcement of a law which applies generally in Sri Lanka and that the law is applied in a way which does not discriminate on the basis of any of the five Convention reasons. I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted for one or more of the five Convention reasons as a consequence of his being charged under the Immigrants and Emigrants Act of Sri Lanka with offences regarding his illegal departure.
[28] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.32-5.33; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraphs 5.21-5.22.
As I noted, at the hearing before the first Tribunal on 26 May 2015 [the applicant] said that even if nothing happened to him at the airport when he returned to Sri Lanka he was scared that the CID or the army would come and take him later on. I accept that his [Relative 1] was in the LTTE and was killed in 2001, that he himself underwent training with the LTTE for eight to ten days in 2008 and that he and his family had lived in an area that was under the control of the LTTE. However, as I put to him, the Australian Department of Foreign Affairs and Trade has advised that all Tamils in areas affected by the civil war in Sri Lanka are likely to have provided a low level of material support to the LTTE and that there is a low risk of Tamils in this situation being detained or prosecuted.[29] For the reasons given in paragraph 51 above I do not accept on the evidence before me that either [the applicant] himself or any other member of his family has been of any interest to the Sri Lankan authorities since the end of the civil war or that, as has been submitted, [the applicant] has been imputed with a political opinion in support of the LTTE based on his [Relative 1’s] involvement, his own training with the LTTE for eight to ten days in 2008 and that fact that he and his family lived in an LTTE-controlled area.
[29] DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014, paragraph 2.27.
As I put to [the applicant], the UK Upper Tribunal in its decision made in July 2013 in relation to asylum-seekers returning to Sri Lanka found that the Sri Lankan authorities’ approach was based on sophisticated intelligence both as to activities within Sri Lanka and activities outside Sri Lanka. As I put to him, apart from his claim that he was involved in fighting for the LTTE for over a year which I have rejected above, he has not claimed to have been involved in any activities which would have attracted the attention of the Sri Lankan Government. As I put to him, he does not come within any of the categories of people who the UK Upper Tribunal said would be at risk of persecution on return to Sri Lanka.[30] [The applicant] said that he was not going to believe what was going to happen according to the reports to which I had referred but once again I place greater weight on the independent evidence than I do on his evidence.
[30] See GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), upheld by the Court of Appeal in MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829.
[The applicant’s] representative said that he disagreed with the finding of the UK Upper Tribunal that the Sri Lankan authorities’ approach was based on sophisticated intelligence both as to activities within Sri Lanka and activities outside Sri Lanka. He referred to the superseded 2013 DFAT report which he submitted clearly said that there was a standard procedure and that when people arrived the authorities would check with the police in the local area to see if the person had a criminal history or was of interest. He submitted that they would in fact even check with neighbours. Contrary to his understanding this information about the procedures at the airport has been repeated in the more recent DFAT reports.[31] I do not regard this information about the standard procedures for processing returnees at the airport as being inconsistent with anything that was said by the UK Upper Tribunal. As I noted, the DFAT report refers to the evidence taken by the UK Upper Tribunal regarding the fact that the Sri Lankan authorities rely on sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.[32]
[31] See DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 5.31; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 5.20.
[32] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 3.36; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 3.29.
[The applicant’s] representative has referred to the evidence from multiple sources regarding the continued use of torture in Sri Lanka. However, as I have observed above, the question in the present context is whether there is a real chance that [the applicant] will be persecuted for one or more of the five Convention reasons if he returns to Sri Lanka. For the reasons given in paragraph 51 above I do not accept on the evidence before me that either [the applicant] himself or any other member of his family has been of any interest to the Sri Lankan authorities since the end of the civil war. Having regard to the independent evidence I do not accept that there is a real chance that he will be abducted, arrested, beaten, tortured or killed by the Sri Lankan authorities for reasons of his race (Tamil), his religion (Hindu), any political opinion imputed to him in support of the LTTE or against the Sri Lankan Government (due to his race, his status as a failed asylum-seeker, his illegal departure from Sri Lanka, his [Relative 1’s] forced involvement in the LTTE, his own forced LTTE training or his residence in a former LTTE-controlled area) or his membership of the particular social group of ‘failed asylum seekers returned to Sri Lanka’. I have considered the totality of [the applicant’s] circumstances as a Tamil and a Hindu who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.
Are there 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?
Having regard to my findings of fact above, I do not accept that [the applicant] received weapons training from the LTTE and fought with them for over a year before fleeing a few months before the war ended and joining his family, as he has claimed. I do not accept that, as he has also claimed, one of his [relatives] was a [senior official] in the Sea Tigers nor that [the applicant] himself previously helped the Sea Tigers on a voluntary basis. I do not accept that [the applicant] was stopped, questioned, required to report to an army camp, accused of being an LTTE member and threatened in the months before he left Sri Lanka in July 2012. I do not accept that whenever he went outside his village he was followed by army soldiers or that he was scared that he would be abducted by the army. I do not accept that on other occasions the authorities came to his home looking for him nor that since he has left Sri Lanka the authorities have asked his parents or his friends where he is, nor that his mother has been required to report to an army camp, nor that his [brother] has left home because the authorities were causing him problems. I do not accept on the evidence before me that either [the applicant] himself or any other member of his family has been of any interest to the Sri Lankan authorities since the end of the civil war.
I accept that [the applicant’s] [Relative 1] was in the LTTE and was killed in 2001, that he himself underwent training with the LTTE for eight to ten days in 2008 and that he and his family lived in an area that was under the control of the LTTE during the war. However, as I put to him, the Australian Department of Foreign Affairs and Trade has advised that all Tamils in areas affected by the civil war in Sri Lanka are likely to have provided a low level of material support to the LTTE and that there is a low risk of Tamils in this situation being detained or prosecuted.[33] I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because his [Relative 1] was in the LTTE and was killed in 2001, because he himself underwent training with the LTTE for eight to ten days in 2008 or because he and his family lived in an area that was under the control of the LTTE during the war.
[33] DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014, paragraph 2.27.
Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he is a Tamil, because he is a Hindu, because he will be returning to Sri Lanka as a failed asylum-seeker from Australia or because of any perception that he holds a political opinion in support of the LTTE or opposed to the Sri Lankan Government. As I have indicated above, I accept that [the applicant] will also be charged under the Immigrants and Emigrants Act of Sri Lanka because he left Sri Lanka illegally. As I put to him, this is a law which applies to everyone in Sri Lanka and I do not accept on the evidence before me that there is a real risk that it will be applied any differently to him, for reasons personal to him, from anyone else who may have broken this law. I consider that the risks referred to by his representative that he will be imprisoned in a prison system which does not meet international standards, or that he will be subjected to torture in this context, fall within the exception in paragraph 36(2B)(c) of the Migration Act in that they are the consequences of his having broken a law which applies to the population of Sri Lanka generally and this law will not, on the evidence before me, be applied to him in a discriminatory manner for reasons personal to him.[34] I therefore find that the consequences of [the applicant’s] breach of the Immigrants and Emigrants Act by departing Sri Lanka illegally fall within the exception in paragraph 36(2B)(c) of the Migration Act.
[34] See SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10]-[18] per Rares J.
I have considered the totality of [the applicant’s] circumstances as a Tamil and a Hindu who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Refugee criterion
Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.
The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear ‘persecution’. As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:
‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’
‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:
‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)
Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons. Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:
‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’
A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429. A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent 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.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2017] AATA 274

8 February 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction