1612410 (Refugee)

[2018] AATA 579

1612410 (Refugee) [2018] AATA 579 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612410

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:19 February 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 19 February 2018 at 9:38am

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Fear of harm – Imputed political opinion as a supporter of the United National Party (UNP) – Imputed LTTE supporter – Little detail of his claimed involvement with the LTTE – Previously attempted to depart Sri Lanka illegally – Detained by authorities – Suffer significant harm – Returnee from failed asylum seekers returning from a western country

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R, 425, 499

Migration Regulations 1994, Schedule 2

CASES

SZTGM v MIBP [2017] HCA 34

SZTAL v MIBP (2016) 243 FCR 556

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 a [age]-year-old Sri Lankan male who arrived in Australia by boat on [date] July 2012. 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 Hindu religion, his actual or imputed political opinion as a supporter of the United National Party (UNP), his imputed support for the LTTE as a Tamil male from an area formerly controlled by the LTTE, and his profile as a young male Tamil who departed Sri Lanka illegally and claimed 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, I have 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. For the following reasons, I have concluded that the decision of the delegate should be remitted for reconsideration.

   History of proceedings

6. The applicant arrived in Australia by boat on [date] July 2012. He applied for the visa on [date] November 2012 and the delegate refused to grant the visa on [date] August 2013, not being satisfied the applicant was a person to whom Australia owed protection. The applicant sought a review of the delegate’s decision from the former Refugee Review Tribunal which affirmed the delegate’s decision on 20 February 2015. 

7. [In] August 2016 the Federal Circuit Court of Australia ordered by consent that the Tribunal’s decision be quashed and the Tribunal reconsider and determine the matter according to law, noting that the Minister conceded error in that the Tribunal failed to comply with s.425 of the Act.

8. The applicant appeared before the Tribunal on 18 January 2017 and 4 September 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.

9. The applicant’s written claims are set out in a statutory declaration dated [November] 2012 lodged with his protection visa application and a later detailed submission of his former representative dated  [May] 2014.  The applicant was represented before the delegate and the previous Tribunal in 2014, but was unrepresented at the hearings before the Tribunal in 2017.  He has consistently stated he has completed only one year’s schooling (Grade 1 in Sri Lanka in [year]).  At hearing he told me he could not read or write in any language. It was apparent during the hearing that the applicant had difficulty recounting the timing of past events, even where he had described those events consistently over a long period of time.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

10. It is not in dispute that the applicant is a Sri Lankan national and he has produced to the Department copies of his passport, national identity card and his marriage certificate.  The applicant states the original documents remain in Sri Lanka.  I find the applicant is a citizen of Sri Lanka and have assessed his claims against that country.

    Background to the applicant’s claims

11. I accept that the applicant is of Tamil race and that he was born in [year] in [Town 1] in Sri Lanka’s Northern Province.  In making this assessment I note the front pages of the applicant’s passport confirm his place of birth as [Town 1], the applicant speaks Tamil and independent sources indicate that Tamils make up 93% of the population in Northern Province.[1] 

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2017 at 2.2

12. Independent sources indicate that in 1983 conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE) and continued until May 2009, when the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka.[2] DFAT reports that at its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants.[3]  DFAT reports that over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed.[4] The UN found credible allegations that both sides committed crimes against civilians.[5]

    The applicant’s personal background

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 2015

    [3] Department of Foreign Affairs and Trade, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; Department of Foreign Affairs and Trade, DFAT Country Report 18 December 2015

    [4] Department of Foreign Affairs and Trade, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; Department of Foreign Affairs and Trade, DFAT Country Report, 3 October 2014

    [5] UK Home Office Operation, Country Information and Guidance about Tamil Separatism in Sri Lanka, 28 August 2014 at 2.2.1

13. I accept the applicant’s account of his personal background.

14. He was born in [Town 1], Northern Province and he is one of [several siblings].  They were orphaned in 1985, after which they lived with their [uncle] in [Puttalam] District.

15. In about 1989 the applicant moved to [Town 2] where he worked at a [store] before undertaking [an] apprenticeship.  He moved to [Town 3] [to] get married, but returned to [Town 2] to work, visiting his wife regularly.

16. Apart from a period in 2002 discussed further below, he remained living in [Town 3] until he lawfully departed for [Country 1] in May 2009, re-entering Sri Lanka through [an] airport on [date] October 2011.  He departed Sri Lanka by boat from [Town 4] on [date] June 2012 and arrived in Australia unlawfully on [date] July 2012.

    The applicant’s claims for protection

17. The applicant claims to fear harm if returned to Sri Lanka on the basis of his Tamil race and his suspected links to the LTTE. He claims he was detained and at times tortured by the Sri Lankan authorities on multiple occasions between 1996 and 2011.  In particular he claims to have been detained for a period of 18 days during the election period in 1996 and again in 1999 and 2002. 

18. The delegate’s decision cites country information from the US Department of State in its 1996, 1997 and 1998 reports to the effect that the detention of Tamils continued to increase during those years as a result of continuing hostilities with the LTTE.  In 1996 it was reported the Sri Lankan government held as many as 1,500 detainees under Sri Lanka’s emergency regulations, many of whom were arrested during operations against the LTTE.  Sri Lankan security forces continued to conduct mass arrests of young Tamils with major sweeps occurring in Colombo, the east of Sri Lanka and the Jaffna peninsula.[6]

    [6] United States Department of State, US Department of State Country Report on Human Rights Practices 1996 – Sri Lanka; US Department of State Country Report on Human Rights Practices 1997 – Sri Lanka; US Department of State Country Report on Human Rights Practices 1998 – Sri Lanka, as cited in the delegate’s decision dated 8 August 2013 at p. 7

19. The delegate accepted the applicant was arrested and detained on multiple occasions from 1996 to 1999 on suspicion of being involved with the LTTE, as was the case for hundreds of other young Tamils in similar circumstances.  In view of the applicant’s consistent claims and the country information cited above, I accept he was arrested and detained on suspicion of being an LTTE member or supporter in 1996 and 1999. I accept that during each of his periods of detention, the applicant was beaten and mistreated by the Sri Lankan authorities.  In making this assessment I note the UNHCR reports that during the conflict between the LTTE and the Sri Lankan state, there was extensive and reliable evidence of widespread human rights violations against Tamils which affected Tamil men and women of all ages.[7]

    [7] UN High Commissioner for Refugees (UNHCR), Note on the Applicability of the 2009 Sri Lanka Guidelines, July 2009 at >

    I further accept that after one of the occasions when the applicant was detained, he was accused of smuggling [goods] for the LTTE and tortured in an attempt to get him to confess, but the case was dropped for lack of evidence. 

20. I accept that in January 1999 the applicant moved to [Town 3] to get married before returning to [Town 2] to find work, visiting his wife on a monthly basis.  I accept that as a person who originates from another part of Sri Lanka, he may be perceived as an outsider in his wife’s village in [Town 3]. 

21. The applicant states in his protection visa application that he became a member of the UNP in 1999.  When asked about this at the hearing in December 2017, he stated when he first came to Australia, everyone gave him different advice about what he should tell the Australian authorities, stating that if you told them you were involved in this or that they would let you stay.  He stated he had said in the past that he worked for the UNP, but not that he was a member.  When asked when he worked for the UNP, he stated he couldn’t remember but he thought it was in the 1996 provincial council campaign.  He stated there was a fight and this led to his arrest in [Town 2] and he ended up in jail for three months. 

22. I note the applicant’s evidence at hearing and in his protection visa application is significantly different as to the timing and level of involvement he claims to have had in the LTTE. He has offered little detail of his claimed involvement at any point in these proceedings and the little evidence he has provided has been contradictory.  On the evidence before me I do not accept he had any involvement with the UNP at any time before leaving Sri Lanka.

23. I accept the applicant was detained in May 1999 and accused of being an LTTE member and detained at [a] police station for two days.  I accept he was released when the district chairperson intervened and paid a bribe to the Sinhalese police.  I accept this incident caused the applicant to seek to leave Sri Lanka by attempting to obtain a visa to go and work in [Country 1].  I accept that in his first attempt to obtain a visa from Colombo, he was briefly detained and accused of being an LTTE supporter. I accept he returned to [Town 3] and remained there until 2002.

24. The applicant has consistently stated that in about 2002, he attempted to leave Sri Lanka unlawfully by boarding a boat bound for [Country 2].  In his entry interview the applicant stated that he was caught on the boat and kept in jail for six months before being released.  He stated he was meant to be in jail for 12 months, but was released earlier.

25. In his visa application he states that he left Sri Lanka because he was struggling to find work.  He claims the ship was intercepted by the Sri Lankan authorities and he and others on the ship were charged and placed in [Jail 1] for a few days, during which time he was questioned and tortured because the Sri Lankan authorities believed he was leaving to work on LTTE operations abroad.  He states they were transferred to [Jail 2] where they were held for three months and appeared fortnightly in the Colombo court, which kept adjourning their cases.  He states after three months in [Jail 2] they were again transferred back to [Jail 1] where they remained for a further three months until a minister [came] to the jail and organised their release, because a lot of the prisoners were from the [minister’s] area.

26. At the first Tribunal hearing in December 2014, the applicant stated that he was one of 269 people arrested when the boat was intercepted by the Sri Lankan authorities.  He stated they were first taken to the CID office in Colombo before being transferred to [Jail 1] where they remained for one to two nights and later [Jail 2] where he remained for about five months.  I note some minor inconsistencies as to the length of time spent in each of those prisons, but I consider he has been generally consistent in his evidence that he was detained for six months before being released after the intervention of a politician. 

27. I accept the applicant tried to leave Sri Lanka for [Country 2] in 2002, but that the boat he was travelling on was intercepted and he was again captured and jailed for six months.  I accept he was interrogated, mistreated and subjected to harm during the period of his detention.  I accept that upon his release he returned to live in [Town 3]. I accept his movements (and those of other Tamils) were restricted by military checkpoints in [Town 3] and this impacted on his ability to perform his work as a [occupation].

28. The applicant has consistently stated he used his own genuinely issued passport to depart and re-enter Sri Lanka in 2009 and 2011.  At hearing he told me he obtained his passport in 2008 after travelling to Colombo with his wife [and child], because men travelling with women were not harassed as much as men travelling alone.  In his protection visa application he states he had a friend working in [Country 1] who was able to organise a visa for him to work [in] [Country 1].  At hearing he stated his friend [Mr A]’s son was working in [Country 1] and able to obtain a visa for him and that he paid [Mr A] money to take him safely to the [airport].  I accept the applicant’s friend [Mr A] and his son assisted the applicant to obtain a working visa for [Country 1] and to travel to the [airport] and the applicant paid [Mr A] for that assistance.

29. However I do not accept the applicant’s evidence that CID officers visited his house on five occasions after he left [Country 1] in May 2009, accusing him of aiding the LTTE. Nor do I accept his brother-in-law was abducted by the Sri Lankan authorities and questioned about the applicant’s whereabouts while the applicant was in [Country 1] or that the CID visited his home in 2012 and interrogated his wife about his whereabouts.

30. Rather I consider the fact the applicant was issued a passport and allowed to depart and re-enter Sri Lanka in 2009 and 2011 indicates he was not of adverse interest to the Sri Lankan authorities at that time.  When this was put to the applicant at hearing, he stated he was allowed to pass through the airport because he did not kill anyone and he was not a terrorist but that as a person born in a Tamil area with a Tamil identity he is seen as a person who goes and fights others. However I consider that had the Sri Lankan authorities believed he was aiding the LTTE, he would not have been issued a passport or allowed to depart the country. Further the Sri Lankan authorities would have been aware he was outside the country.  For these reasons I find the applicant was not of adverse interest to the Sri Lankan authorities at the time of his departure from Sri Lanka in May 2009 and his re-entry in October 2011.

31. As discussed with the applicant at hearing, the country information before me does not indicate that police round-ups of Tamils were continuing in [Town 3] in 2011 and 2012 and I do not accept he was subjected to police round-ups after returning to Sri Lanka in October 2011. 

32. Nor do I accept the applicant is otherwise at risk of harm from other Tamils in [Town 3].  In his protection visa application he stated that the locals of [Town 3] became upset with outsiders who were bringing the attention of the authorities onto the Tamil community in [Town 3].  While I accept this may have caused tension during and in the immediate aftermath of the civil war, the war has now been over for more than eight years.  The applicant’s wife and children remain living at the family home in [Town 3].  Country information cited below indicates the security situation has improved dramatically since the end of the conflict in 2009.  There is no information before me that would indicate that Tamils from other parts of Sri Lanka are being targeted in [Town 3], which is itself a predominantly Tamil population.

33. I accept the applicant is of Hindu religion. At the hearing in January 2017, the applicant claimed he faced harm because of his Hindu religion because while he was away in [Country 1], the village had built a Christian church on land next door to his land in [Town 3].  He stated that it was noisy and difficult to park and that people disregarded his views because he was an outsider and accused him of being an LTTE supporter. 

34. At hearing before me in September 2017, the applicant claimed he was involved in a land dispute regarding a church that was built only seven feet from his house in [Town 3].  He stated he opposed that church being built because the land was not obtained properly and people were coming from other villages to worship in it.  I accept the applicant is opposed to the building of a church next door to his property and this has been the subject of some dispute in the village. 

35. However I do not accept his claims that he will be tortured because he is an outsider in [Town 3] or because he opposed the building of the chance or that he will be considered an LTTE supporter because of his opposition. For these reasons I do not accept there to be a real chance the applicant will be harmed because of his Hindu religion, noting the applicant did not suggest he feared harm for this reason in his visa application, the Departmental interview or the first Tribunal hearing, and his wife and children remain living in the family home.

    Assessment of protection claims

36. The applicant claims that to have a well-founded fear of persecution for the Convention reasons of race, religion, political opinion and his membership of the particular social group of failed asylum seekers returning from a western country.  He also claims he will be subjected to significant harm in breach of Australia’s complementary protection obligations if returned to Sri Lanka.

1. In assessing these claims the Tribunal has had regard to the independent sources cited in the submissions of the applicant’s representative about the situation for Tamils in Sri Lanka as well as other independent sources before the Tribunal and those cited in the delegate’s decision.  I note that some years have passed since the delegate’s decision and the submission of the applicant’s former representative, during which time there have been significant changes in Sri Lanka.  In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider whether there is a real chance the applicant will face serious harm if returned to Sri Lanka now or in the foreseeable future and this assessment is a forward looking test.

   Assessment of future risk harm on the ground of race

2. The applicant fears harm in Sri Lanka because of his Tamil ethnicity and as a Tamil man who originates from [Town 1] in Northern Province.  For the reasons set out above, I have found that the applicant is of Tamil ethnicity and that he is from the Tamil majority area of [Town 1] in Sri Lanka’s Northern Province which was formerly under the control of the LTTE. 

3. In assessing the risk of harm to the applicant as a Tamil male from [Town 1], 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.[8] 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.[9]  In July 2017, the UK Home Office stated that a person being of Tamil ethnicity would not in itself warrant international protection.[10] 

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

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

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

4. In light of the above information I find that Tamils, including male Tamils living in or originating from [Town 1] in Northern Province, 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 [Town 1] in Northern Province.

   Assessment of future risk of harm on the ground of political opinion

5. The applicant claims he will face persecution in Sri Lanka on the basis of his actual and imputed political opinion.  He claims this perception will arise as a result of a combination of factors including his Tamil race, his perceived support for the LTTE, his political activities for the UNP and because he departed Sri Lanka illegally by boat and has sought asylum in Australia.

6. For the reasons set out above, I have accepted the applicant is of Tamil ethnicity and that he is from [Town 1] in Northern Province which was formerly under the control of the LTTE.  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 the fact he is a young male from [Town 1] in Northern Province.

7. The applicant claims that the Sri Lankan government treats every Tamil as a suspected LTTE member.  He claims if returned to Sri Lanka, he will be suspected of supporting the LTTE and targeted for harm on this basis. I have accepted he was detained on a number of occasions between 1996 and 2002 on suspicion of being involved with the LTTE, as was the case for hundreds of other young Tamils in similar circumstances.  I have accepted that on at least one of those occasions, he was accused of smuggling [goods] for the LTTE. However I have also found that he was not of adverse interest to the Sri Lankan authorities at the time of his departure from Sri Lanka in May 2009 and his re-entry in October 2011.

8. 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 identify a number of profiles requiring particular careful examination, including persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE).[11] 

   [11] UNHCR, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 at p. 5

9. Those Guidelines state that the links to the LTTE that may continue to expose individuals to treatment which may give rise to a need for international protection go beyond prior residency within an area controlled by the LTTE.  Rather the Guidelines suggest that such links may 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.[12]  The applicant has consistently stated he was not and has never been a member or supporter of the LTTE. While I have accepted the applicant was suspected of LTTE involvement in the period between 1996 and 2002, as were many young Tamil males from LTTE controlled areas, I find the applicant has never been a member or supporter of the LTTE. 

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

10. 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[13]. 

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

11. For the reasons set out above I have not accepted the applicant’s claims to have worked for or been a member of the UNP in Sri Lanka.  Nor do I accept he has had any role in post-conflict Tamil separatism.  I note the applicant’s claim at hearing in December 2017 that he has liked some of the LTTE’s stuff on [a social media account] but I give this little weight, given he has not provided evidence of the timing or detail of such posts and did not make such a claim to the delegate or the first Tribunal.

12. In such circumstances I do not accept the applicant’s Tamil ethnicity or the fact he originates from [Town 1] in Northern Province, an area formerly controlled by the LTTE, means that there is a real chance that he will be imputed to be a sympathiser or supporter of the LTTE or 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 the fact he originates from an area formerly controlled by the LTTE. 

    Assessment of future risk of harm on the ground of illegal departure from Sri Lanka

13. The applicant claims that as a Tamil who has previously been detained by the Sri Lankan authorities, and a failed asylum seeker who departed Sri Lanka illegally, he will be treated as a suspected LTTE member and harmed on return to Sri Lanka. 

14. I accept the applicant departed Sri Lanka for Australia by boat, via [Town 4], in June 2012, noting this is consistent with the Department’s records that he arrived in Australia in July 2017 on a people smuggling boat that originated from [Town 4].  As he does not have a passport in his possession, I accept if he is returned to Sri Lanka he will be travelling on a temporary travel document and the circumstances of his return may cause the Sri Lankan authorities to become aware of or to infer that he departed Sri Lanka illegally and has sought asylum in Australia. 

15. Sections 34, 35(a) and 45(1)(b) of Sri Lanka’s Immigrants and Emigrants Act 1949 (the I & E Act) have the effect that a Sri Lankan citizen shall not leave Sri Lanka from any place other than an approved port of departure or without a valid passport in his or her possession and that any person doing so shall be guilty of an offence under the Act and shall on conviction be liable to imprisonment for a term of between one and five years and to a fine of between 50,000 and 200,000 rupees.[14]  As the applicant departed Sri Lanka in June 2012 on a people smuggling boat and without a valid passport in his possession, I accept the circumstances of his departure will be viewed as an offence under the I & E Act.

    [14] Sri Lanka Immigrants and Emigrants Act 1949 (as amended by Act 31 of 2006); ; Department of Foreign Affairs and Trade, DFAT Country Information Report for Sri Lanka, 24 January 2017 at 5.17–5.28

16. DFAT’s reports that during the processing of returnees, the Sri Lankan authorities run checks against the immigration, intelligence and criminal databases. 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.  Most Sri Lankan returnees from Australia are questioned by police on return to Colombo international airport.  These individuals are likely to be arrested by police at Colombo’s Bandaranaike International Airport and, as part of this process, will have their fingerprints taken and be photographed.  Some returnees from Australia have been charged with immigration offences (and other criminal offences not relevant here) allegedly committed before departure.[15]

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

17. I find that upon return to Sri Lanka, the applicant will face questioning at the airport as to his identity and his activities during the time he has been abroad. I accept that such questioning, in conjunction with checks against the immigration and criminal databases, will establish both that the applicant departed Sri Lanka illegally in 2012 and that the applicant has previously been charged and detained for breaching the I & E Act in 2002 following his attempted illegal departure on a boat bound for [Country 2].

18. DFAT advises that where Sri Lankan returnees from Australia are suspected of illegal departure from Sri Lanka, they are charged under the I & E Act. Media sources indicate the position of the Sri Lankan government has not changed since the 2015 elections.  In January 2016, a Sri Lankan news source quoted the Sri Lankan Minister of Foreign Employment as indicating the Sri Lankan government remains committed to stopping illegal departures:

    We have some problems with the Act.  There is no such punishment or anything against the people who are attempting to leave the country illegally.

    At least their passports should be confiscated or they should be charged with penalty.  Therefore until they pay the penalty they will have to be imprisoned; if not this matter is going beyond our control.[16]

    [16] Daily Mirror, ‘Illegal migrant workers go at their own risk’, 10 January 2016 at

19. It is reported that in 2017 the Sri Lankan cabinet gave approval for the drafting of new legislation to overcome perceived deficiencies in the 2006 I & E Act.[17]  As at the time of the Tribunal’s decision, the I & E Act continues to be in effect.  Other news reports indicate the Sri Lankan government remains committed to prosecuting Sri Lankan returnees who departed illegally.[18] For these reasons I accept that on return to Sri Lanka, the applicant will be charged with offences relating to his illegal departure in 2012.

    [17]

    [18] Colombo Gazette, ‘Sri Lankan Asylum Seeker to sue Australia for deporting him’, 17 May 2016 at ;  Illanperuma, S., ‘Lost at sea  No recourse for Lanka’s ‘other’ disappeared’, Daily FT, 19 February 2016 at

20. DFAT reports that persons charged with offences under the I & E Act are transported to the Magistrate’s Court at the earliest available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services.  The magistrate then makes a determination as to the next steps for each individual.[19]

    [19] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2-17 at 5.17–5.28

21. In most cases if a person pleads guilty to an offence under the I & E Act they will be fined on a case by case basis (those fines being payable by instalment) and are then free to go. If a returnee pleads not guilty, they are in most cases immediately granted bail by the magistrate on personal surety, with any bail conditions being imposed on a discretionary basis.[20] DFAT 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[21].

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

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

22. However the circumstances of this applicant differ from those of most returnees because he has previously been charged and detained on remand for illegal departure from Sri Lanka and therefore when he appears in court, he will do so as a person charged with offences under the I & E Act for the second time.  In such circumstances I consider there to be a real chance he will be refused bail and/ or sentenced to a term of imprisonment. 

23. The US Department of State reports that the most significant human rights problems in Sri Lanka include long periods of pre-trial detention with lengthy legal procedures, large numbers of detainees, judicial inefficiency and corruption often causing trial delays. Legal advocacy groups assert that it is common for the length of pre-trial detention to equal or exceed the sentence for the alleged crime.[22]  DFAT has also reported that the risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.[23]  For these reasons I find the applicant is likely to spend a significant period of time detained on remand and/ or in jail if returned to Sri Lanka and charged with offences under the I & E Act and therefore the chance he will suffer harm while in detention is increased.

    [22] US Department of State, Country Reports on Human Rights Practices 2016 – Sri Lanka, 19 April 2016 at s.1(d)

    [23] Department of Foreign Affairs and Trade, DFAT Country Report Sri Lanka, 16 February 2015 at 4.21

24. According to the most recent DFAT Country report on Sri Lanka:

    Torture

    4.11 Article 11 of the Sri Lankan Constitution, and a number of other laws, specifically prohibit torture. Sri Lanka has ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture is an offence punishable by imprisonment of between seven years and 10 years.

    4.12 A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by the Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).

    4.13 These reports include:

    ·International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015

    ·ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009 – 2015

    ·Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009

    ·Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.

    The 2016 ITPJ report cited 20 cases of torture in 2015.  FFT’s report cited eight torture cases in 2015.  DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum.  However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.

    4.14 Tamils faced a higher risk of torture during the conflict.  The September 2015 report of the UN’s Office of the High Commissioner for Human Rights investigation into Sri Lanka found that ‘victims of conflict related torture perpetrated by Government forces ... were generally Tamil, often arrested and detained in Government controlled areas ... under the PTA and the Emergency Regulations.

    4.15 DFAT is also aware of reported instances of torture carried out by the police.  The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited by Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is perceived threat to national security.

    4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature ... practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence.

    4.17 Evidence obtained through torture is generally inadmissible in courts in Sri Lanka.  However, for suspects held under the Prevention of Terrorism Act, all confessions obtained by officers at or above the rank of Assistant Superintendent of Police are admissible in court.  Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights. Disciplinary action can be taken when complaints are made against the police or prison officers, but there have been few recent examples of this.

    4.18 DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored.  DFAT further assesses that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.

    4.19 DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention processes, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.

    4.20 Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police.  The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.

1. In its June 2017 report, the UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions.  It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[24] 

   [24] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017, at 8.5

2. The UN Special Rapporteur on the Committee Against Torture found an overall decline in torture after a visit to Sri Lanka in 2016, but concluded that:

   ... a ‘culture of torture’ persists; physical and mental coercion is used against suspects being interviewed, by both the Criminal Investigations Department in regular criminal investigations and by the Terrorism Investigation Division in investigations under the Prevention of Terrorism Act.[25]

   [25] UN Human Rights Council, Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, 22 December 2016

3. In light of the sources cited above indicating that Sri Lankan authorities continue to engage in torture during interrogations to extract confessions, I find there is a real chance and a real risk the applicant would be subjected to deliberate harm while on remand awaiting trial for offences under the I & E Act.

4. 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 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. 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.

5. 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 period the applicant may be required to spend on remand or 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. Therefore I do not accept that a Convention reason would be the essential or significant reason for any harm under s.91R(1)(a) of the Act and his fear of persecution for this reason is not well founded.

6. 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).

7. Significant harm is defined in s.36(2A) to include torture, which is itself exhaustively defined in s.5(1) of the Act as:

   an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)       for the purpose of obtaining from the person or from a third person information or            a confession; or

   (b)       for the purpose of punishing the person for an act which that person or a third                  person has committed or is suspected of having committed; or

   (c)       for the purpose of intimidating or coercing the person or a third person; or

   (d)       for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)       for any reason based on discrimination that is inconsistent with the Articles of the            [ICCPR]. 

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the [ICCPR].[26]

   [26] There is a different definition of torture in the Criminal Code Act 1995 which does not require the harm to be intentionally inflicted, but that is in a different context and does not affect the meaning of torture in s.5(1): see SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [20]-[25] and [89]-[91]; and SZTAL v MIBP (2016) 243 FCR 556 per Kenny and Nicholas JJ at [67]. For further discussion, see McAdam, ‘Australian Complementary Protection’, above n Error! Bookmark not defined. at 697.

8. In view of the country information cited above, I find there is a real risk the applicant would be subjected to an intentional act or omission by which severe physical or mental pain or suffering is inflicted upon him for the purpose of intimidating him or coercing him or obtaining from him information or a confession during the process of being questioned on his return to Sri Lanka.  I find that such treatment does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (ICCPR).  It follows that I accept there to be substantial grounds for believing there is a real risk the applicant would suffer significant harm if returned to Sri Lanka.

9. As the risk of harm is from the Sri Lankan authorities, I consider relocation is not reasonable nor relevant and that state protection will not be available to the applicant. I find this situation applies to the applicant’s specific set of circumstances and is not one faced by the population of Sri Lanka generally. Therefore the applicant is not excluded from complementary protection criterion by any of the provisions set out in s.36(2B) and I find the applicant satisfies the criterion set out in s.36(2)(aa).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act1958.

    Alison Murphy
    Member

    
    

    ATTACHMENT A – THE RELEVANT LAW

11. 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.

12. 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).

13. 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.

14. 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’).

15. 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.