1608294 (Refugee)

[2016] AATA 4819

1608294 (Refugee) [2016] AATA 4819 (15 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608294

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:15 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 15 December 2016 at 2:36pm

CATCHWORDS
Refugee – Protection visa – Irregular Maritime Arrival – Sri Lanka – Imputed political opinion – Pro- Liberation Tigers of Tamil Eelam – Particular social group – Family member of father – Bail guarantor for LTTE member – Failed asylum seeker – Illegal departure

LEGISLATION

Migration Act 1958, ss 36, 65, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] March 2014.

3. The Tribunal, differently constituted, affirmed the decision of the delegate on 15 June 2015[1].  The applicant sought judicial review of that decision and the case was remitted to the Tribunal by consent order [of] the Federal Circuit Court of Australia (FCCA) dated [in] May 2016.

   [1] AAT No. 1405776

4. The applicant appeared before the Tribunal on 6 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. He attended the Tribunal hearing.

6. The Tribunal notes that at the hearing the representative requested further time to provide a written submission, which was granted until 27 October 2016.  However no further submissions were received.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

12. The applicant provided to the delegate copies of his Sri Lankan birth certificate and driver’s license.  His nationality was not in dispute.  The Tribunal is satisfied that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly. 

    Refugee claims and assessment

13. The applicant claims to fear serious harm on return to Sri Lanka on imputed political opinion grounds at the hands of the authorities.  Specifically he fears being imputed with a pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion primarily because in 2008 his father helped an LTTE member obtain bail, who subsequently absconded.  The applicant also claims to fear serious harm on return to Sri Lanka because of his Tamil ethnicity, as a failed asylum seeker and because he departed the country illegally, considered below (elsewhere).

14. In a written submission to the first Tribunal[2] it is submitted that the applicant, as a member of his father’s family (and who closely resembles his father) is at risk: that is as a member of a particular social group of persons whose close family members (i.e. his father) is sought after by the authorities for reason of his imputed political opinion (referring, among other things to the profiles listed in the 2012 UNHCR Eligibility Guidelines about persons with family links). This profile, it is argued, would expose the applicant to harm, on arrival or later, when combined with the fact that he is Tamil, has claimed asylum in a Western country, departed illegally and originated from the North Western province.  

    [2] Dated 28 February 2015

15. The applicant initially set out his protection claims in a written statement that accompanied his protection visa application dated [in] October 2012. In it he described how his father helped a man called [Mr A] who was accused of murder and involved with the LTTE obtain bail; that his father had to pay the authorities Rs [amount] after [Mr A] disappeared once released from prison; and that in 2011 the CID (criminal investigation department) became interested in the applicant’s father because of this matter. The CID allegedly visited the applicant’s home once when their father was at work and a week later.  The applicant’s father moved to [District 1] in Eastern Sri Lanka after the first visit and has stayed there.

16. The applicant provided to the Department copies of [receipts] of Rs [amount] each, purportedly paid by the applicant’s father to the authorities in 2009 after [Mr A] disappeared.

17. Material provided by the applicant to the first Tribunal in support of his claims included a copy of a document translated from Sinhala to English from [Agency 1] – [Town 1] dated [in] March 2015.

18. Before the current Tribunal the applicant described the problems experienced as a result of his father being persuaded to be a bail guarantor for [Mr A] in 2008, summarised as follows.

19. The applicant said his father moved from their home area of [Town 2], North Western Province to [District 1] in the east of the country in 2011 because the CID had started looking for him to question him about his links with an LTTE member called [Mr A].  His father had agreed to be [Mr A’s] bail guarantor in 2008 and [Mr A] had later absconded.  The applicant said that afterwards [armed], plain-clothed CID members came to their home in 2011 and asked for their father: however he was not home at the time (he was out fishing).  The CID told the applicant’s mother to tell their father to report to a particular place near [Town 1].  As soon as he heard they had visited his home the applicant’s father fled to [District 1] where he has stayed until now.  A week after the initial visit CID members returned to the applicant’s family home, asked their father’s whereabouts, and put a gun to the applicant’s head warning his mother that they would take him away if they could not locate his father.  After this incident the applicant moved out of home and stayed with other relatives and friends in [Town 2] for the following eight months until he departed by boat to Australia in June 2012.  He stopped going to work (as [an occupation]) and was supported financially by his [relative].  His [remaining family members] also moved out of the family home after the second visit from the CID, to [another relative’s] house (also in [Town 2]), where they currently reside. 

20. The applicant said during this period many people were killed by CID members in civilian clothes. 

21. The applicant said their neighbours told his mother that the CID had returned to the family home three or four times after their second visit, in 2011 and 2012.

22. By way of context and background with regard to the [Mr A] matter, the applicant told the Tribunal that in 2008 a distant relative and friend of his father’s in [Town 2] – [Relative B] – contacted his father and asked him to be bail guarantor for a Tamil man called [Mr A] from [a town] (who allegedly had worked in [a certain] District) who had been arrested for murder and as a suspected LTTE member.  His father initially refused however [Relative B] was persistent so his father agreed.  Asked why his father was asked to be bail guarantor, the applicant told the Tribunal it was because he was a government employee – [an occupation] at a [workplace] in [Town 2].  However not long after [Mr A] was released on bail, he disappeared.  The applicant said his father signed bail documents but was not sure if he paid any money.  When the authorities could not find [Mr A] they “targeted” the applicant’s father, as his bail guarantor. After appearing in court he was sentenced to a month in prison and fined Rs [amount], which he paid in [instalments].  The copies of the receipts the applicant provided to the Department indicate that the fine was paid in the period from January to October 2009. 

23. The applicant said the authorities “proved” the charges against [Mr A] in his absence, after gathering some evidence about the murder case.  During their investigation they also apparently came to know that [Mr A] was an LTTE member.  The applicant knew little about the murder case or the details of the court matters, telling the Tribunal that he did not know his father was involved in the matter until the CID visited their home in 2011.  The applicant said he knew his father spent a month in prison at the time, but was unaware why (or where) and his family did not discuss the matter.  In subsequent discussions with his father the applicant said he has provided an overview of the matter but not any particular details. 

24. When asked who he fears now on return to Sri Lanka and why at hearing, the applicant said he spoke to his father the week before who said if he returns the authorities will catch the applicant and then him as well and they will be questioned and tortured.  Because he left the country illegally and has been absent for so long they will also file a case against the applicant and he will be in trouble (discussed later in the decision record). 

25. The Tribunal has some concerns with aspects of the applicant’s claims and evidence in relation to his father and the matter with [Mr A], as follows.  The Tribunal finds it somewhat implausible that the Sri Lankan authorities would allow [Mr A] to be released on bail if they considered him a murder suspect and an LTTE suspect during a period when suspicion of LTTE members and supporters was high.  At the Tribunal hearing the applicant said that many people were released (on bail) when a government employee was guarantor (as his father was in [Mr A’s] case), and because [Mr A] was only a suspect when released.  The Tribunal notes however that many Tamils were detained for extended periods during this period on suspicion alone.  The Tribunal is also concerned about the applicant’s vague oral evidence about key aspects of the matter.  For instance he had no knowledge of the murder case, where or when his father was imprisoned (or the duration), or of his father’s court matters.  At hearing the applicant said this was because he was not aware about these matters until the CID visited their house in 2011.  Whilst that may be the case to some extent, the Tribunal would expect the applicant to have discussed the matters with his father subsequently, particularly given they form his core protection claims.  The Tribunal also notes that the applicant made no mention that his father was imprisoned in his initial written statement to the Department.  The applicant said he did tell the person who helped him write the statement.

26. Despite these concerns the Tribunal notes that the applicant has been reasonably consistent in his evidence to the Department and both Tribunals about his father acting as a bail guarantor for [Mr A] in 2008 and the Tribunal is willing to accept that was the case. It accepts that when [Mr A] absconded the applicant had to attend court, was sentenced to a month in prison, and was fined Rs [amount] which he paid in instalments by the end of 2009.

27. After the applicant’s father was released from prison and paid the fine the Tribunal accepts that was the end of matter until 2011 when the CID came looking for his father in connection with [Mr A], an LTTE suspect.  Even though it is strange that the authorities waited three years to do so, the Tribunal considers it plausible in the context of the post-war period when the authorities were monitoring Tamils with potential links to the LTTE.  The Tribunal accepts the CID visited the applicant’s family on two occasions in the same week in 2011; the second time threatening the applicant (via his mother) with a gun.  The Tribunal accepts the applicant’s father moved to [District 1] after the first visit by the CID where he remains.   However, for the reasons that follow, the Tribunal does not accept that the applicant (or his father) were or are of ongoing adverse interest to the CID or the authorities in Sri Lanka.

    a)    The Tribunal found the applicant’s claims at hearing that the CID visited his family home three to five times after the initial two visits in 2011 (according to his neighbours) vague (he was not sure how many times exactly, for instance) and inconsistent with what he told the first Tribunal that the CID had visited on one further occasion, about a month before the applicant left Sri Lanka (no one was at home at the time).  His evidence in this respect was also inconsistent with information contained in the letter the applicant provided to the first Tribunal from [Agency 1] – [Town 1] dated [in] February 2015 that police officers attached to the CID are searching for the applicant but he could not be traced; that thereafter police came to his house [in] April 2012 but he was not there; [in] July 2012 [Town 1] police visited his home and inquired about him from his mother and informed her to tell him to present at the police station when returns home; and the police again came [in] November 2014 and informed the applicant’s mother that they had received information that the applicant is in Australia.  At hearing the applicant said it was practically impossible for him to know when they came or not because the news was passed through his neighbours to his mother.  The Tribunal noted however that according to the information contained in the letter the police visited his mother directly [in] July 2012 and [in] November 2014.  He acknowledged that generally what is contained in the letter is not his account because he does not know exactly what is going on back home; it is based on his mother’s experiences; and she does not always provide a detailed account because she is afraid of her phone being tapped.  The Tribunal is not persuaded by this explanation and given these inconsistencies is of the view that the applicant exaggerated the level of interest from the CID.  Given the Tribunal’s finding that the number of times the applicant claimed the police/CID had attended his family home was different from the first hearing, and the vague nature of his evidence as discussed, the Tribunal does not accept that the police/CID visited his family home after the two initial visits as claimed.  Although the letter from [Agency 1] states that there have been three visits, document fraud exists in Sri Lanka[3] and for this reason, and given the Tribunal’s finding that the police/CID has not visited the family home; the Tribunal gives the letter from [Agency 1] little weight.

    b)    The applicant remained living in [Town 2] for eight months after the second visit by the CID (in a week) until he departed the country without experiencing any further problems or being questioned by the CID in relation to his father’s whereabouts, as an LTTE suspect or for any other reason.  This indicates to the Tribunal that he (and his father) was not of particular adverse interest to the CID at the time.  At hearing the applicant said he did not work and stayed with friends during this time and that neighbours reported that the CID had visited the family home another three, four or five times.  Whilst the Tribunal is willing to accept that the applicant stayed with friends and did not work during this period, it considers if the authorities wanted to find the applicant (to locate his father) during this period they would have been able to nonetheless.   

    c)    The applicant gave no indication that the CID made any effort to find the applicant or his father via his family members who have remained in [Town 2] (that is his [specified family members]).  At hearing the applicant said that the Sri Lankan authorities are not that interested in women and his brother is still young ([age]).  However the Tribunal is of the view that if the authorities were actually interested in locating the applicant’s father (and the applicant) his family members’ age and gender would not have prevented them from making enquiries, at the very least.  The Tribunal notes that the applicant has provided evidence ([Agency 1]’s  letter) and has claimed that the police/CID have visited his home a number of times after the initial two visits; however for reasons above the Tribunal does not accept his claims in this regard and has given the letter from [Agency 1] little weight.

    d)    Nor have the CID made efforts to locate the applicant’s father in [District 1], who according to the applicant’s oral evidence to the Tribunal lives and works there (as a fisherman).  If the authorities had an ongoing interest in the applicant’s father as an LTTE suspect or for any other reason the Tribunal is of the view that they could locate him in [District 1]. 

    [3] For instance, see DFAT Country Information Report Sri Lanka, 18 December 2015 at 5.51

28. Given these considerations, when combined with a significant improvement in the security situation since the end of the war and immediate post-war period, the Tribunal finds remote the chance that the applicant would be seriously harmed by the CID or the authorities on imputed political opinion grounds as an LTTE supporter even when considered cumulatively with other aspects of the applicant’s profile, considered separately below.  The Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka by the authorities on the basis of an imputed (pro-LTTE) political opinion in the foreseeable future.  His fears of persecution on imputed political opinion grounds are not well founded. 

1. Given the Tribunal does not accept that the authorities have an ongoing adverse interest in the applicant’s father for reasons set out above, the Tribunal also finds remote the chance that the applicant’s father faces a real chance of serious harm from the authorities on account of his imputed (pro-LTTE) political opinion. Accordingly the Tribunal has disregarded the applicant’s fear of persecution as a member of a particular social group of his father’s family as submitted, as required by s.91S of the Act.

   Tamil ethnicity

2. It has been submitted that the applicant fears he will be persecuted on return to Sri Lanka due to his Tamil race and that his Tamil race contributes to a risk of being imputed with a pro-LTTE/anti-government political opinion. 

3. In his written submission to the first Tribunal the representative submitted, among other things, that many Tamils have expressed a fear of being monitored, harassed, arrested and detained in Sri Lanka; many Tamil areas especially in the north and east remain heavily militarised (a theme also emphasised in the initial submission to the Department); the absence of war does not indicate that all is well for the minority Tamils in the country; it is likely that the ‘fewer’ individuals detained under the Prevention of Terrorism Act at the present time are most likely to be Tamils; and that credible sources such as Amnesty International and Human Rights Watch maintain that the situation is far from normal as human rights violations continue to occur and Tamils remain at risk of suffering Convention related harm.  He also submitted, among other things, that whilst the trend of monitoring and harassing Tamils in day to day life has generally eased, a persecutory trend continues. 

4. The applicant told the Tribunal that he has concerns about returning to Sri Lanka as a Tamil because Tamils are still being kidnapped, disappearances take place almost every day, and given his past he is scared.  He said there are disappearances all over the country but they are not reported in the media. 

5. The Tribunal accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed with the applicant at the hearing, the Tribunal does not accept that simply being a Tamil, or a young Tamil male gives a rise to a well-founded fear of persecution from the authorities in Sri Lanka.  The Tribunal makes this finding on the basis of independent sources indicating that it would no longer be assumed that all Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.[4] 

   [4] Department of Foreign Affairs and Trade 2015 DFAT Country Report Sri Lanka 18 December 2015; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August; UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December

6. At hearing the Tribunal discussed this country information, as well as information in the latest country information report on Sri Lanka from DFAT that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day to day life has generally eased since the end of the conflict.[5]  The applicant agreed that in general conditions for Tamils has improved but emphasised that his case is different: he fears the authorities will look at him as a person of interest because of his past. The Tribunal has had regard to these submissions and relevant country information contained within them and acknowledges the concerns articulated about what might happen to the applicant as a Tamil on return to Sri Lanka. However for reasons above the Tribunal has not accepted that the applicant faces a real chance of persecution on return to Sri Lanka on imputed political grounds and has found that he (and his father) is not of ongoing an adverse interest to the authorities in Sri Lanka.    

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

7. The Tribunal notes that in the representative’s submission to the first Tribunal he submits, among other things, that difficulties faced by Tamil speakers who do not speak another language continues in Sri Lanka and amounts to official discrimination.  The Tribunal accepts that it may be difficult to some extent for Tamils who do not speak another language in Sri Lanka.  However the applicant has not claimed nor is there information before the Tribunal to support a contention that the applicant would not be able to subsist, or access a basic level of services because he is a Tamil who does not speak another language.  The applicant gave oral evidence that he worked as [an occupation] in [Town 2] in the past and gave no indication that he was unable to work, for instance, or faced any particular obstacles in his job or otherwise because he is a Tamil who does not speak another language.  For these reasons the Tribunal does not accept that the applicant would face a real chance of serious harm on return to Sri Lanka in the form of not being able to subsist, or access basic services for example, as a Tamil who does not speak another language. 

8. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity. However, in light of the end of the war in May 2009 and the country information cited above that assesses that being of Tamil ethnicity does not on its own warrant international protection, the Tribunal finds that the applicant does not face a real chance of suffering serious harm (including being kidnapped as submitted) solely on account of his Tamil ethnicity from the Sinhalese majority nor the Sri Lankan authorities, nor in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed. The Tribunal also does not find that the applicant faces a real chance of persecution on the basis of being a young Tamil male, in isolation, or from the north western province as submitted. The applicant’s fear of persecution on this basis is not well founded.

   Failed asylum seeker

9. The Tribunal has considered if the applicant faces a real chance of serious harm from the authorities on return to Sri Lanka as a failed asylum seeker from a western country. It has been submitted on the applicant’s behalf that he will be imputed with an anti-government political opinion on this basis (combined with departing the country illegally and other matters addressed elsewhere in the decision record). 

10. The Tribunal has had regard to the submissions and relevant country information contained within them and acknowledges the concerns articulated about what might happen to returnees, including (Tamil) failed asylum seekers from western countries if detained on return to Sri Lanka. 

11. The Tribunal accepts that the applicant entered Australia in June 2012 without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

12. For reasons above (and below) the Tribunal has not accepted that the applicant faces a real chance of serious harm from the authorities or anyone else because of the matter with [Mr A], on the basis of imputed (pro-LTTE) political opinion grounds, or as a member of a particular social group of his father’s family.  Furthermore, it is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.  The representative argued in their submission to the first Tribunal that a possible reason for the visits by the CID years after the applicant’s father had provided bail for [Mr A] was that [Mr A] was an LTTE member and the fact the applicant’s father had access to a substantial amount of money (to pay the fine incurred) may have led the authorities to consider he had links to the Tamil diaspora (and funding).  For the reasons that follow the Tribunal rejects this submission.  First, the applicant told the Tribunal that he did not think his father had to pay money to have [Mr A] bailed (he told the first Tribunal that he did not); his father paid the fine in instalments, over a period of time; and for reasons above the Tribunal does not accept that the applicant’s father continues to be pursued by the authorities.  For these reasons the Tribunal finds it mere speculation that the applicant’s father (and by implication the applicant) is or would be considered by the authorities to be linked to the Tamil diaspora and funding.

13. The UK Home Office reports that since the end of the war in 2009, the focus of the Sri Lankan government’s concern has changed and they are now interested in are those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka[6].   It also reports that Sri Lanka has an extensive intelligence system shared by the security forces and immigration officials and that its security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora.[7] As discussed with the applicant at hearing, that Guidance notes that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[8] 

    [6] UK Home Office Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August 2014 at 1.3.7.

    [7] Ibid at 2.2

    [8] Ibid at 1.3.5

14. The Tribunal accepts that the applicant as a failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka.  It accepts that he is a young Tamil male returnee from north western province.  However, taking into consideration his particular profile and the findings above that he does not face a real chance of persecution on imputed political opinion grounds, the Tribunal finds on such country information before it, including the information referred to by the representative in his submission to the first Tribunal and the Department, that the applicant would be released without further interest and he would not face a real chance of persecution as a failed asylum seeker, including from a western country.  Further, taking into account these considerations and country information, the Tribunal finds remote the chance the act of claiming asylum itself may impute the applicant with an anti-government political opinion such that it would result in a real chance of serious harm to him as a failed asylum seeker.   

15. The Tribunal accepts that when the applicant returns to his home in [Town 2], his arrival may be noted and he may be questioned by the Sri Lankan authorities.  However given the Tribunal’s findings above that he has not been engaged in anti-government activities since his departure from Sri Lanka, and that he was not of any ongoing adverse interest to the authorities (or his father), it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he is someone who has sought asylum in Australia, a Western country, or for any other reason.

16. For these reasons the Tribunal does not find that the applicant faces a real chance of serious harm from the authorities or anyone else on return to Sri Lanka as a failed asylum seeker from a western country.  

    Illegal departure

17. It is submitted that the applicant also fears harm on return to Sri Lanka because he departed the country illegally. Specifically it is submitted[9] that the applicant fears torture were he to be detained on return to Sri Lanka.  In his written submission to the first Tribunal the applicant’s then representative argued that there is a real chance of a Tamil returnee being harshly treated by the authorities from having departed the country illegal.  He submits, among other things, that the law is arbitrarily applied in an inconsistent manner by the Sri Lankan courts; that arbitrary sentencing and detention may not be reported (questioning the veracity of DFAT information); and the possibility of a harsh sentence, regardless of how remote, could itself arguably constitute persecution.  Reference is made to country information from a variety of sources which confirms, it is submitted, allegations of use of torture of those in police custody, mistreatment of detainees, and poor prison conditions.  A response to matters appearing in earlier DFAT reports[10] (now superseded) is provided as well as reference to various other (then recent) Tribunal decisions. 

    [9] In a written submission to the Department dated 28 October 2012

    [10] DFAT Country Report and Thematic Report People with Links to the LTTE 3 October 2014 and DFAT Country Report 16 February 2015

18. At the Tribunal hearing the applicant said he fears if he returns to Sri Lanka the CID will catch him at the airport and enquire about his father’s whereabouts and given he has been away from Sri Lanka or such a long period they will question and torture him. He said that that even now people who return from overseas are questioned and routinely tortured, referring to three people who were arrested in [Town 2] the day before the hearing.  He said he spoke to friends who had returned and they told him that in general people who return from Australia are allowed to return home for a year or so but after that they are questioned and tortured (he did not elaborate). 

19. The Tribunal has considered these submissions, including independent country information contained within them about the treatment of returnees who have left the country illegally, as well as the applicant’s concerns about what might happen to him on return.  It accepts that the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing the Tribunal discussed with the applicant DFAT’s advice that persons charged with such offences are transported to the Magistrate’s Court in Negombo at the first available opportunity.  The Tribunal noted DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department (which is responsible for the conduct of prosecutions) in July 2015 that no returnee who was merely a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally.  Also that in practice most penalties – which can include imprisonment of up to 5 years and a fine of up to 200,000 Sri Lankan rupees – are almost always a fine, that fine amounts vary on a case by case basis and can be paid by instalment.  Further, in most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor[11].   The applicant did not indicate that he or his family would not have the means to pay the fine.  The Tribunal notes that the applicant’s mother, father [and siblings] currently reside in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him if required.

    [11] DFAT 2015 Country Information Report Sri Lanka, 18 December 2015 at 5.32 to 5.34

20. At hearing the applicant said the information from DFAT clearly states that the majority do not face any problems, but not everyone, especially if they suspect they have contact with the LTTE.  He said his situation is totally different and he could face significant harm if he goes back, including torture.  For reasons above the Tribunal has not accepted that the applicant is of ongoing adverse interest to the Sri Lankan authorities. 

21. As discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application and that detainees are not subject to mistreatment during their processing at the airport.[12]  The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  For reasons set out above the Tribunal does not accept that the applicant has an anti-government profile or is of ongoing adverse interest to the authorities for any reason, including in relation to his father.  The evidence before the Tribunal does not indicate that the I&E law is being applied selectively or in a discriminatory manner for a Convention reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of the non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and discriminatory conduct pursuant to s.91R(1)(c).

    [12] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.31

22. The Tribunal accepts that prison conditions in Sri Lanka are generally poor (as submitted), and notes DFAT’s latest report states that in general prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions[13]. However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason (Convention or non-Convention related) during any short term period of being detained given its findings that he is not of any adverse interest to anyone.  DFAT state that those arrested under the I&E Act on return can remain in police custody at the CID Airport Office for up to 24 hours; that should a magistrate not be available before this time – for example, because of a weekend or a public holiday – those charged may be held at a nearby prison; that those who plead guilty are fined and free to go; and those who plead not guilty are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as a guarantor[14].  As mentioned, the applicant has family members in Sri Lanka who could act as guarantors if needed and the Tribunal therefore does not consider that the applicant would be detained for more than a short period on return, based on this information. There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison.  However as the Tribunal does not accept the applicant is of adverse interest to the authorities for any reason, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm.  The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population.  The Tribunal is not satisfied therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c).  Nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm.

    [13] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.13

    [14] Ibid at 5.32 and 5.33

1. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant who has departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when he is later dealt with by the courts, or when he returns to his home area, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.  The Tribunal does not accept that the applicant faces a real chance of serious harm on return to Sri Lanka because he departed the country illegally as submitted. 

   Conclusion – Refugee grounds

2. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

3. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection assessment

4. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

5. It is submitted that the applicant is also owed complementary protection. 

6. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, or as a Tamil, or as a young Tamil male form north western province.  In MIAC v SZQRB, the Full Federal Court 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 Refugee Convention definition.[15]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

   [15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

7. In terms of real risk of significant harm on return to Sri Lanka on account of his illegal departure from the country, for the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing. The Tribunal does not accept that the applicant is of ongoing adverse interest to the authorities. The Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand. The Tribunal considers that the applicant will be granted bail on his own recognisance or with family members as guarantor and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine. The Tribunal does not accept that the applicant will be unable to pay such a fine if it is imposed upon him, given he has family members in Sri Lanka who have the capacity to earn an income (for example his father). Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing.

8. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and not up to international standards as submitted and notes the discussion of prison conditions in the relevant PAM3 provisions, but the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation, given the Tribunal does not accept the applicant’s claims that he (or his father) is of any ongoing adverse interest to the authorities. Further, as discussed, given the country information suggests that any period of detention the applicant may face would be for a short term, and as the Tribunal has found that the applicant is of no interest to anyone for any reason, the Tribunal does not accept that this would constitute significant harm as defined in s.36(2A). In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty.

9. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

10. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

11. Having considered the applicant’s claims individually and cumulatively, for these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Nicole Burns
    Member