1609592 (Refugee)

[2018] AATA 577

1609592 (Refugee) [2018] AATA 577 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609592

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:26 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2018 at 3:38pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Federal Circuit Court remittal – Ethnicity – Tamil – Religion – Muslim – Tamil Muslim – Political opinion – Supporter of the Liberation Tigers of Tamil Eelam Social group – Family member of a person imputed with LTTE support– Membership of the particular social group – Failed asylum seeker – Inconsistent evidence – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R
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 is [an age]-year-old male from [Puttalam] district, North Western Province, Sri Lanka.  He seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis of his Tamil ethnicity, his Muslim religion, his actual or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his relationship with his father and his profile as a person who departed Sri Lanka illegally who has sought asylum in Australia.

3. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person.

4. In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and the two country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

   History of proceedings

6. The applicant arrived in Australia by boat on [date] June 2012. He applied for the visa on [date] November 2012 and the delegate refused to grant the visa on [date] February 2013.

7. The applicant sought a review from the former Refugee Review Tribunal which affirmed the delegate’s decision on 16 August 2013. 

8. The applicant sought review of the Tribunal’s decision from the Federal Circuit Court of Australia and on 6 June 2016 the Court quashed the Tribunal’s decision and directed this Tribunal to reconsider and redetermine the review application according to law.  The court order notes the former Tribunal failed to consider a claim of the applicant, namely that he claimed to fear harm on the basis of his Tamil ethnicity.

9. The applicant appeared before the Tribunal on 20 November 2017 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.

10. The applicant was unrepresented in his review application.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

11. It is not in dispute that the applicant is Sri Lankan national and he has produced to the Department copies of his Sri Lankan birth certificate, national identity card and driver’s licence.  The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

12. The applicant claims that if returned to Sri Lanka he will face harm as a Tamil, as a Muslim, because of his relationship with his father and as a returned asylum seeker who illegally departed Sri Lanka.

    The applicant’s personal background

13. I accept the applicant is of Tamil race and Muslim religion and he originates from [Town 1], Puttalam in Sri Lanka’s North Western Province, noting his Sri Lankan passport identifies his place of birth as [Town 1]. 

14. He states in his visa application that his parents and [brothers] remain living in Sri Lanka.  He completed Year [grade] of secondary school in [year] and worked casually as [an occupation] in [a certain] industry between 2009 and 2012.

15. I accept the applicant’s father is a [driver] as claimed, noting the certificate of registration of a motor vehicle and a letter evidencing the sale of a [vehicle] to the applicant’s father in October 2011.

16. The applicant departed Sri Lanka by boat on [date] May 2012 and arrived [in Australia] on [date] June 2012.

    Assessment of claims

17. It is submitted that if returned to Sri Lanka, the applicant faces a well-founded fear of persecution for the separate and/or combined reasons of his Tamil race, his Muslim religion, his imputed political opinion as a supporter of the LTTE and in opposition to the Sri Lankan government and his membership of the particular social groups of ‘his family (relatives of his father)’ and ‘failed asylum seeker returning to Sri Lanka’. 

18. It is further submitted the applicant will suffer ‘significant harm’ as defined by s.36(2A) of the Act if returned to Sri Lanka.

    Tamil race

19. For the reasons set out above, the Tribunal has accepted that the applicant is of Tamil race and Muslim religion. DFAT reports that in Sri Lanka, being Muslim is seen as an ethnicity as well as a religion.[1] At hearing I discussed with the applicant that the first tribunal did not accept he would be perceived as being of Tamil ethnicity rather than Muslim ethnicity.  The applicant stated he would have problems as a Tamil in Sri Lanka because a mosque had been destroyed in [Town 2], a villager named [Mr A] had been taken during the elections and it would not take long for religious violence to get to his village and kill a lot of Muslims.  He stated he faced particular problems as a Tamil Muslim, because Buddhists were slaughtering his people in Burma and the same would happen in Sri Lanka. 

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2017at 3.2 and 3.10

20. Although the applicant’s responses would appear to indicate he views himself as being of Muslim ethnicity rather than Tamil ethnicity, he has consistently stated he is of Tamil race.  I have considered the submission of his former representative to the effect that although many Muslims were persecuted by the LTTE, this has not translated into acceptance by the Sri Lankan government that Muslims are not capable of support for the LTTE and the fact the applicant is Muslim will not protect him from persecution on account of his Tamil ethnicity and language.  In such circumstances I have assessed the applicant’s claims on the basis that he fears harm because of his Tamil race as well as his Muslim religion.

21. In assessing the risk of harm to the applicant as a Tamil male from Puttalam, I give weight to the UNHCR’s most recent assessment in the 2012 guidelines which assesses that being of Tamil ethnicity and originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection.[2] DFAT reports that since the end of Sri Lanka’s civil conflict in 2009, the security situation has dramatically improved in the north and east of the country.[3]  In July 2017, the UK Home Office stated that a person being of Tamil ethnicity would not in itself warrant international protection.[4] 

    [2] UNHCR, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012.

    [3] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2017 at 2.37–2.39.

    [4] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, 2017 at 3.1.2.

22. In light of the above information I find that Tamils, including male Tamils living in or originating from Puttalam, Sri Lanka do not face a real chance of serious harm solely on account of their Tamil ethnicity or their profile as Tamil males. It follows that I do not accept there to be a real chance the applicant will suffer serious harm if returned to Sri Lanka solely on the basis of his Tamil race or the fact he is a young male from Puttalam in North Western Province.

    Family member of a person imputed with LTTE support

23. The applicant claims that if returned to Sri Lanka, he will face harm from the Sri Lankan authorities because they believe his father is involved with the LTTE and they will target the applicant in an attempt to get his father to give himself up.

24. The applicant stated in his protection visa application that during the war his father drove a [vehicle], being paid to assist the LTTE as a driver.  He claims that after the war ended, his father continued to drive people he believes to be LTTE members.  He states that in early 2012, one of the people his father drove ran away after he was suspected by the authorities of being an LTTE member.  He claims the Sri Lankan authorities conducted further investigations and discovered the applicant’s father had been driving that person around. They came to the applicant’s house while his father was at work and spoke to the applicant, causing his father to go into hiding.

25. However there are significant inconsistencies in the applicant’s evidence.  In a statutory declaration dated [October] 2012 lodged with his protection visa application, the applicant states his father assisted the LTTE by driving people he believed to be LTTE members around Colombo and had continued to do so as recently as this year (2012). 

26. This is            quite different to his evidence at the Departmental interview (as recorded in the delegate’s decision record dated [February] 2013, a copy of which was provided to the Tribunal by the applicant).  At that interview he is recorded as stating that about five years earlier his father had started driving around a man with whom he became very friendly, working for that man ‘every other day’ and usually being engaged by that man for long periods of time.  He stated that man suddenly went missing, leading the Sri Lankan authorities to start looking for the applicant’s father.

27. Later at the first tribunal hearing on 10 May 2013, the applicant stated his father started driving this LTTE operative around in 2011 and he was the only person from the LTTE that his father had driven around.  When it was pointed out to him that he had stated in his earlier statutory declaration that his father had assisted the LTTE as a driver during the war, driving people around Colombo, and continued to do so after the war, the applicant denied making such a statement; rather he stated his father was helping this particular individual after the war had ended. 

28. At the hearing before me on 20 November 2017 I raised these matters with the applicant. The applicant stated he did not wish to add anything to his earlier evidence about his father’s activities, but stated his family’s home in Sri Lanka had been searched the previous week and that people were still looking for the applicant and his father.  He stated his father was still in hiding at an unknown location in Sri Lanka.

29. At hearing I noted that it seemed strange that his father would come to the adverse attention of the Sri Lankan authorities merely for driving a person believed to be associated with the LTTE in 2012, some years after the war ended and at a time when the LTTE was considered a spent force.[5]  The applicant stated that many people were displaced during the war and came to their village, where his father helped them in small ways. 

    [5] Department of Foreign Affairs and Trade, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014 at 2.6–2.8.

30. I put to the applicant that at the time he claimed these events had taken place, the war had been over for several years and former members of the LTTE had been identified, prosecuted, detained and released.[6]  I put to the applicant that in such circumstances it seemed strange that the Sri Lankan authorities would care about his father’s actions in driving around a former member of the LTTE after the war had ended. The applicant stated that he had not said the Sri Lankan authorities were after his father and his father might have had personal problems.  He later stated that maybe it was not the Sri Lankan authorities that were searching for the applicant and his father, but some other person with whom his father had personal problems.

    [6] Ibid.

31. I have considered the letter from [a politician], dated [April] 2013, and the English language translation submitted to the first Tribunal.  That letter states:

    This is to inform that [the applicant] of Sri Lankan his father no live in his residence. Because some non identification persons are try to kidnap his father. The [applicant]’s father is a [driver]. His job is delivery to person who need to any place.

    On this time some terrorist person are get his [vehicle] for hire to drop somewhere. At this time some non identification person are round up his [vehicle] at this time the driver [the applicant]’s father get away from this place to other side. [The applicant]’s father still no return to his residence. Same time [the applicant] try to go out of this country. Because. Everyday non identification persons are coming to his residence to search father and his son [the applicant].

    Therefore [the applicant] cannot be return to country when he return to country very dangour his life.

    So. I certify that the above say information and his mothers handwriting letter is true and accurate to the best of my knowledge. Thankyou. [Politician’s name] [Town 1].

32. At hearing the applicant told me the letter was obtained by his mother and the applicant had never met the author of the letter.  In view of my significant concerns about the applicant’s claims and the fact the applicant is not personally known to the author of the letter, I give that letter little weight.

33. I consider the applicant has been significantly inconsistent in his evidence about these events.  He has at various times stated the authorities are searching for him and his father because of his father’s activities in driving LTTE members around during the war and at other times, and because of his father’s activities driving one particular individual around after the war.  He claimed in his statutory declaration that his father’s activities led the authorities to come to the family home in early 2012 and that they returned a week later asking for the applicant.  In written submissions dated [February] 2013 it was stated the applicant believes the people who went to his house and asked for his father in 2012 were from [a government agency].  However at the hearing on 20 November 2017 he denied earlier stating the authorities were looking for him or his father, stating for the first time that the people coming to the family home may be others with whom his father had personal problems.  I consider this to be entirely inconsistent with his statement in his statutory declaration made on [date] October 2012 that the Sri Lankan authorities are the very group targeting him.

34. Further I consider it implausible that the Sri Lankan authorities or any other group or person would target a [driver] merely because he drove for a person believed to be an LTTE supporter or operative in 2012, some three years after the end of the civil war in which the LTTE was defeated. I also consider it implausible that the applicant’s father would remain in hiding in Sri Lanka for five years or that any persons targeting the applicant’s father would pose a threat to the applicant, in circumstances where his mother and brothers remain living in the same village in Puttalam apparently without harm.

35. Taken together these matters lead me not to accept the applicant’s claims.  On the evidence before me I do not accept that in 2012 the applicant’s father came to the adverse attention of the Sri Lankan authorities for driving around persons believed to be LTTE members, either during or after the end of Sri Lanka’s civil war.  I do not accept that members of the Sri Lankan authorities or any other person searched for the applicant or his father at their home in 2012 for any reason connected with his father’s work as a [driver].  Nor do I accept the applicant’s father had personal problems that caused people to look for him or the applicant at the family home in 2012 or at any time since then, or caused the applicant’s father to go into hiding in 2012 and remain in hiding for more than five years.

36. It follows that I do not accept the Sri Lankan authorities or any other person or group are seeking to abduct the applicant because of his relationship with his father or because of his father’s activities as a driver of a [vehicle].  For the same reasons I do not accept that the applicant’s father has been imputed as an LTTE supporter by the Sri Lankan authorities or that any person or group will seek to harm the applicant if he returns to Sri Lanka for reasons of his relationship with his father.  It follows that I do not accept there to be a real chance the applicant will face harm because of his membership of the particular social groups comprising his family or relatives of his father.  Nor do I accept there to be a real chance the applicant himself will be imputed with a political opinion that is pro-LTTE or against the Sri Lankan government for any reason relating to his father or his father’s activities as a [driver].

    Muslim religion

37. The applicant claims he will be harmed if returned to Sri Lanka because of his Muslim religion and because he is a Tamil Muslim. 

38. In the statutory declaration dated [October] 2012, accompanying his protection visa application, the applicant identified himself as a Muslim but did not suggest he feared harm in Sri Lanka on this basis.

39. In submissions made by his former representative during 2012 and 2013, it was submitted that Muslims suffer from discrimination and harassment in Sri Lanka, particularly through targeted abductions and extrajudicial killings and the applicant may face persecution in Sri Lanka on account of being a Tamil Muslim.  The Tribunal was referred to a number of sources in support of that submission.

40. At hearing the applicant told me he had experienced problems because of his Muslim religion in the past.  When asked about these problems, he stated they were not related to his family but that a person from his village called [Mr A] was taken and killed when he contested the election, while another person from a neighbouring village who tried to assist [Mr A] was taken and assaulted over three days.

41. I note the applicant has given significantly inconsistent evidence to the Tribunal about [Mr A].  At the first Tribunal hearing he stated [Mr A] was held for three days before being returned to the village but he was okay now.  When it was pointed out that his representative’s submissions stated that [Mr A] had been killed, the applicant stated this was incorrect.  However at the tribunal hearing before me the applicant stated that [Mr A] was killed in that attack while a friend of [Mr A] from a neighbouring village was detained for three days.  In view of the inconsistencies in the applicant’s evidence as to these events, I do not accept that a person from his village was killed because of his Muslim religion as claimed.

1. I note the references to which the Tribunal was referred in the former representative’s submissions are now dated, with many of those references describing events that occurred during Sri Lanka’s civil conflict.  The accompanying submission states that the applicant’s claims relating to his Tamil race and Muslim religion cannot be regarded in isolation and he will be viewed not merely as a Tamil nor as a Muslim but as a Tamil Muslim, with persecution on one account  exacerbating the impact of persecution on the other.

2. At hearing I discussed with the applicant DFAT’s 2017 advice that Muslims constitute the third largest religious group in Sri Lanka and that they are represented in politics by the Sri Lankan Muslim Congress (SLMC) and the All Ceylon Muslim Congress (ACMC).  The SLMC has seven members of Parliament and is part of the governing coalition.  The SLMC’s leader is a cabinet minister.  The ACMC also has elected MPs and its leader holds a ministerial position.[7]

   [7] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2017 at 3.16–3.21.

3. DFAT reports it is not aware of any evidence that Muslims are economically disadvantaged in Sri Lanka.  While some tensions exist between the Muslim community and the Sinhalese majority, DFAT reports that there has not been a large scale incident since June 2014 when violent riots occurred between Buddhists and Muslims in Aluthgama, resulting in violence that lasted two days and resulting in two deaths and more than 80 injuries.  DFAT reports that while there have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses and religious sites, there was a reduction of over 60% of incidents in 2015 compared to 2014.  Overall DFAT assesses that given the size of the Muslim population in Sri Lanka and the relatively low number of incidents of violence, there is a low risk of political, religious and societal violence for Muslims in Sri Lanka, that they are not subject to official discrimination and are generally able to practise their faith freely.[8]

   [8] Ibid.

4. At hearing on 20 November 2017 the applicant told me there had been recent problems for Muslims in [Town 2] which could spread to his area of Puttalam.  He stated that he wished to provide further information about the situation for Muslims to the Tribunal in writing after the hearing but as at the time of the Tribunal’s decision he has not done so, despite the Tribunal adjourning the review for that purpose.

5. In view of the DFAT advice there is a low risk of political, religious and societal violence for Muslims in Sri Lanka, that they are not subject to official discrimination and are generally able to practise their faith freely, I do not accept there is a real chance the applicant would face harm on the ground of his Muslim religion if he returns to Sri Lanka, now or in the reasonably foreseeable future.

   Tamil-speaking Muslim

6. The applicant claims he will face harm as a Tamil-speaking Muslim.  At hearing on 20 November 2017 he told me he was a Tamil-speaking Muslim and there had been recent problems for Muslims in [Town 2] which could spread to his area of Puttalam. 

7. As noted above, DFAT reports that in Sri Lanka, being Muslim is seen as an ethnicity as well as a religion.  The submission of his former representative states that the applicant’s claims relating to his Tamil race and Muslim religion cannot be regarded in isolation and he will be viewed not merely as a Tamil nor as a Muslim but as a Tamil Muslim, with persecution on one account exacerbating the impact of persecution on the other.

8. I have considered the sources provided by the applicant and his former representative.  Many of those refer to the situation of Tamils during the civil war and its immediate aftermath, while others refer to the situation for Muslims in Sri Lanka.  As previously noted, the submissions and the sources they refer to are now several years old.  In any event, those sources do not suggest that Tamil-speaking Muslims are treated differently or face a greater risk of harm than other Muslims in Sri Lanka, nor that Tamils of Muslim religion are treated differently or face a greater risk of harm than other Tamils in Sri Lanka.  In view of the information cited above about the situation for Tamils and Muslims in Sri Lanka, I do not accept there to be real chance the applicant will be subjected to serious harm for the combined reasons of his Tamil race and/or ethnicity and his Muslim religion and/ or ethnicity, if he is returned to Sri Lanka, now or in the reasonably foreseeable future.

   Halal food

9. The applicant claims he won’t be allowed to eat halal meat if returned to Sri Lanka and that since coming to Australia he has only eaten halal meat.  Given DFAT’s advice that Sri Lanka ceased halal certification in March 2013 following calls by Sinhalese Buddhist nationalist groups for the removal of halal certification of food produced in Sri Lanka,[9] I accept he will not be able to access halal certified food if he returns to Sri Lanka.

   [9] Ibid at 3.17.

10. At hearing I discussed with the applicant that such treatment may not amount to serious or significant harm. Under s.91R(1)(b) of the Act, persecution must involve serious harm to the person. Subsection (2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. It lists the following as instances of “serious harm”:

    (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.

11. I acknowledge that the above list is a non-exhaustive list of matters that may constitute serious harm, however I do not accept that the applicant’s inability to source halal certified food in Sri Lanka rises to the level of serious harm.  

    Political opinion

12. The applicant claims he will face persecution in Sri Lanka on the basis of his political opinion.  He claims this perception will arise as a result of a combination of factors including his Tamil race, his Muslim religion, his perceived support for the LTTE because of his father’s activities as a [driver], and his status as a failed asylum seeker who departed Sri Lanka illegally.  At hearing he told me there are still problems in Sri Lanka and he will be suspected of being an LTTE supporter because of his father’s problems, because his father is hiding, because he is a Tamil Muslim and because people are still looking for him.

13. For the reasons set out above, I have accepted the applicant is of Tamil ethnicity and Muslim religion and that he is from Puttalam in North Western Province. I further accept the applicant departed Sri Lanka for Australia in June 2012 and he has sought asylum in Australia.  As he does not have a passport in his possession, I accept if he is returned to Sri Lanka the circumstances of his return may cause the Sri Lankan authorities to become aware of or infer that he departed Sri Lanka illegally and has sought asylum in Australia. 

14. I accept that Tamils in Sri Lanka faced harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and its immediate aftermath, and that some Tamils and non-Tamils face a continuing risk of persecution by the Sri Lankan authorities in the post-conflict phase. The UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka (the Eligibility Guidelines) identify a number of profiles requiring particular careful examination, including persons suspected of certain links with the LTTE.

15. Those Eligibility Guidelines state that some links to the LTTE may continue to expose individuals to treatment which may give rise to a need for international protection.  Such links include persons who held senior positions with considerable authority in the LTTE civilian administration, former combatants or cadres, former LTTE supporters who were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists and family members who are dependent on or closely related to persons with such profiles.[10] 

    [10] UNHCR, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 at p. 27.

16. For the reasons set out above, I have not accepted the applicant’s father came to the adverse attention of the Sri Lankan authorities for acting as a driver for the LTTE, either during or after the war. For the same reasons I do not accept the applicant’s father will be perceived as a person who sheltered or transported LTTE personnel or goods, nor that the applicant himself will be perceived to support the LTTE for reasons of his father’s activities.   Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Eligibility Guidelines.

17. As discussed with the applicant at hearing, the UK Home Office reports that the LTTE has not held any military power or political authority since the end of the civil war in 2009 and assesses that being of Tamil ethnicity does not in itself warrant international protection.  It assesses that persons who have (or are perceived to have) a significant role or are otherwise active in post-conflict separatism may be considered a threat to Sri Lanka as a single state and may, depending on the circumstances, require international protection.[11]  The applicant makes no claim to have played any role in post-conflict separatism; rather in response to the above information, the applicant stated he accepted the LTTE problem is over but he would face problems as a Tamil-speaking Muslim. I find the applicant has not played any role in post-conflict separatist activity and would not be perceived to have done so.

    [11] UK Home Office Operation, Country Information and Guidance about Tamil Separatism in Sri Lanka, 28 June 2017 at 3.1.1–3.1.11.

18. I accept that as the applicant departed Sri Lanka by boat on a people smuggling boat and without using a valid passport, the circumstances of his departure may be viewed as a breach of Sri Lanka’s Immigrants and Emigrants Act 1948 (the I & E Act).

19. DFAT reports that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture and mistreatment, and it assesses the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the I & E Act.[12]  Most Sri Lankan returnees from Australia are questioned by police on return to Colombo international airport and where an illegal departure from Sri Lanka is suspected, they are charged under the I & E Act[13].  I accept there to be a real chance that upon return to Sri Lanka, the applicant will be charged with offences relating to his illegal departure in 2012.

    [12] Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 24 January 2017 at 4.21–4.22, 5.17–5.28.

    [13] Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 24 January 2017 at 5.17–5.28.

20. DFAT’s advises that during the processing of returnees, the Sri Lankan authorities run checks against the immigration, intelligence and criminal databases and that for returnees travelling on temporary travel documents police will seek to confirm a person’s identity by interviewing the returnee and conducting checks in a person’s home location.  Persons charged with offences under the I & E Act are transported to the Magistrate’s Court at the first available opportunity, generally within 24 hours unless it is a weekend or public holiday, in which case it may be a few days.[14]

    [14] Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 24 January 2017 at 5.17–5.28.

21. I accept that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad. However I consider that such questioning, in conjunction with intelligence, will quickly establish that the applicant was of no adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka in June 2012. Nor do I accept that his status as a failed asylum seeker who sought international protection in Australia will cause him to be imputed with a political opinion that is pro-LTTE or adverse to the Sri Lankan government and harmed for this reason.

22. DFAT reports that if a person pleads guilty they will be fined on a case by case basis and are then free to go and that fines may be paid by instalment. DFAT reports that in most cases if a returnee pleads not guilty they are immediately granted bail by the magistrate on personal surety, with any bail conditions being imposed on a discretionary basis.  DFAT reports that children are never subject to bail or fines and that ordinary passengers are generally viewed as victims and that penalties are more likely to be applied to those suspected of being facilitators or organisers of people smuggling ventures.  DFAT advises that it has been informed by the Sri Lankan Attorney General’s Department that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally.[15]

    [15] Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 24 January 2017 at 5.17–5.28.

23. On the evidence before me, I find 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 may be held on remand for a period likely to be less than 24 hours but may be as long as several days while awaiting a bail hearing. I do not accept on the information before me that there is a real chance that the applicant will face harm during this process, either during his questioning at the airport or during any period he spends on remand. In making this assessment I note DFAT’s advice that it assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I & E Act[16].

    [16] Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 18 December 2015.

24. I accept DFAT’s assessment that prison conditions in Sri Lanka are generally poor. On the evidence before me, I find that the applicant will be fined if he pleads guilty to offences under the I & E Act and that if he pleads not guilty he will be granted bail when presented to court.  Given the applicant was merely a passenger on a people smuggling boat and this is his first breach of the I & E Act, I do not accept there to be a real chance he will be denied bail.  For the same reasons I consider that if convicted of charges under Sri Lanka’s I & E Act, the applicant will be fined and I do not accept there to be a real chance that he will be sentenced to a jail term. 

25. Having regard to the advice contained in the DFAT report that returnees are treated in the same way regardless of their race or religion, I do not accept that the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason. I am satisfied that the I & E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity.

26. The material before me does not indicate Sri Lanka’s immigration laws have a discriminatory intent or impact or that the law is being applied selectively or in a discriminatory manner for a Convention reason. I find that any questioning, charge, conviction or penalty to which the applicant 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. As such I find that any brief period the applicant may be required to spend in jail or any fine he may incur as a result of prosecution or penalty on conviction for an offence will not be directed at the applicant for any of the five Convention grounds.

27. I accept that when the applicant returns to his home area in Sri Lanka, his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given my findings above, I do not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia.

28. For the reasons set out above I have not accepted there to be a real chance the applicant will face harm as a Muslim, nor does the information before me indicate that Tamil-speaking Muslims are at additional risk of harm compared to other Muslims in post-conflict Sri Lanka.   I do not accept the applicant has had any role in post-conflict Tamil separatism. 

29. I have not accepted there to be a real chance the applicant will suffer serious harm if returned to Sri Lanka, solely on the basis of his Tamil race or Muslim religion or the fact he is a young male from Puttalam in North Western Province.  I have not accepted the applicant’s father has been imputed as an LTTE supporter by the Sri Lankan authorities as a result of his work as a [driver] or that the Sri Lankan authorities or any person or group will seek to harm the applicant if he returns to Sri Lanka for reasons of his relationship with his father.  It follows that I do not accept the applicant will be imputed with a pro-LTTE political opinion because of his father’s activities as a [driver]. I have not accepted there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia.

30. In such circumstances I do not accept the applicant’s Tamil race or ethnicity, Muslim religion or ethnicity or the fact he left Sri Lanka illegally and has claimed asylum in Australia, separately or cumulatively, means that there is a real chance that he will be imputed with a political opinion such that he would be perceived to be a sympathiser or supporter of the LTTE or an opponent of the Sri Lankan government if he returns to Sri Lankan, now or in the reasonably foreseeable future. For the same reasons I find that there is no real chance he will be targeted for harm because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity or Muslim religion or ethnicity, or the fact he left Sri Lanka illegally and has claimed asylum in Australia, separately or cumulatively. 

31. For the same reasons I do not accept there to be a real chance he will face harm for reasons of his membership of the particular social group ‘failed asylum seekers returned to Sri Lanka’ if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    Denial of social and economic rights

32. It was submitted by the applicant’s former representative that the applicant would be denied social and economic rights in Sri Lanka, such as would constitute serious harm by way of significant economic hardship, denial of access to basic services or the denial of a capacity to earn a livelihood of any kind, such as would threaten his capacity to subsist.  It was submitted that the applicant fears being denied access to food, shelter, employment and medical treatment to the extent his ability to subsist or survive would be at risk.

33. However at each of the Tribunal hearings in 2013 and 2017 the applicant gave evidence that he was [age] or [age] when he left Sri Lanka and had he stayed in Sri Lanka he would have found a job, earned a lot of money and been happy.  At hearing on 20 November 2017 the applicant told me that if he returned to Sri Lanka now, he would have no Centrelink, no Medicare and no ability to study.

1. The applicant is now [age] years old.  He has completed [number] years of education and worked casually [as] [an occupation] for two years before travelling to Australia.  His parents and  [brothers] remain living in Sri Lanka.  On the evidence before me, I am not satisfied there is a real chance the applicant will face a denial of social and economic rights such as would constitute serious harm, for any reason if he returns to Sri Lanka, now or in the reasonably foreseeable future.

   Cumulative finding

2. Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for harm by Sri Lankan authorities on the separate or combined bases of his Tamil race and/or ethnicity, his Muslim religion and/or ethnicity, his political opinion or his membership of the particular social groups comprising of ‘his family (relatives of his father)’ or ‘failed asylum seekers returning to Sri Lanka’ or because he departed Sri Lanka illegally.  Therefore I find he does not have a well-founded fear of persecution on these bases, separately or cumulatively.

   Complementary protection

3. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are 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 will suffer significant harm. In this case, I have found that the applicant is a national of Sri Lanka and I therefore find that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

4. I have not accepted there to be a real chance that the applicant would be targeted for harm by the Sri Lankan authorities or any other person or group for reasons of his father’s activities as a [driver] or his relationship with his father if he returns to Sri Lanka, now or in the foreseeable future.  Nor have I accepted there to be a real chance that he will suffer harm if he returns to Sri Lanka, now or in the foreseeable future, on the basis of his Tamil race, his Muslim religion, his political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia. 

5. 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.[17]  For the same reasons I do 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. 

   [17] 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].

6. I have accepted the applicant will not be able to access halal food if returned to Sri Lanka. As to whether such conduct constitutes ‘significant harm’, that term is exhaustively defined in s.36(2) of the Act. I do not accept that that the denial of halal food constitutes any of the types of harm set out in that section, including torture or cruel and inhuman or degrading treatment or punishment.

7. I have considered the submission the applicant would be subjected to ‘degrading treatment’ and hence ‘significant harm’ through the denial of social and economic rights to Tamils and that he would be unable to access shelter, healthcare or employment.  However, as noted above, at each of the Tribunal hearings in 2013 and 2017 the applicant gave evidence that he was [age] or [age] when he left Sri Lanka and had he stayed in Sri Lanka he would have found a job, earned a lot of money and been happy.  In such circumstances I do not accept the applicant would be subjected to degrading treatment or punishment or any other form of significant harm on the basis of the denial of social and economic rights if he returns to Sri Lanka, now or in the foreseeable future.

8. For the reasons set out above, I have accepted 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 usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  I do not accept on the information before me there is a real risk that the applicant will face torture, cruel or inhuman or degrading treatment or punishment, either during his questioning at the airport or during any period he spends on remand. 

9. I have found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I & E Act, he will likely face a fine of between 5,000 and 200,000 rupees. I do not accept that the applicant will be unable to pay such a fine if it is imposed upon him. Nor do I accept on the evidence before me 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) during his questioning at the airport.

10. In considering whether the applicant may face harm while on remand awaiting a bail hearing, I have accepted that prison conditions in Sri Lanka are generally poor. I have had regard to PAM3 which sets out that detention is not of itself a breach of Article 7 of the ICCPR although it may be in some circumstances, depending on the nature and context of the treatment, its duration, its physical and mental effects and other relevant factors.  In this case the short period the applicant will spend on remand causes me to not to be satisfied there is a real risk he would face significant harm as a result of poor prison conditions.  Nor do I accept there to be a real risk the applicant would face significant harm from any other person or group during the short period he will be on remand.

11. For these reasons I am 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).

    Conclusions

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 criteria in s.36(2).

    DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT A  -  THE RELEVANT LAW

    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.

    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).

    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.

    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’).

    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.