1616365 (Refugee)

[2017] AATA 2007

1616365 (Refugee) [2017] AATA 2007 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616365

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:20 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 20 October 2017 at 11:40am

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Federal Circuit Court remittal – Ethnicity – Tamil – Social group – Failed asylum seekers – Imputed pro-LTTE political opinion – Credibility Issues

LEGISLATION

Migration Act 1958, ss 36, 45AA, 65, 91R, 499
Migration Regulations 1994, Schedule 2, r 2.08F

CASES

MIAC v SZQRB [2013] FCAFC 33
SZTGM v MIBP [2017] HCA 34

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] October 2013.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The former Refugee Review Tribunal (RRT), differently constituted, affirmed the decision of the delegate on 30 March 2015[1].  The applicant sought judicial review of that decision and the case was remitted to the Tribunal by consent order of the Federal Circuit Court of Australia (FCCA) dated [in] October 2016.

   [1] RRT No. 1317104

5. The applicant appeared before the Tribunal on 5 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.

6. The Tribunal notes the applicant listed his mother as a witness to give evidence at the  hearing on the Tribunal’s hearing response form.  However at the hearing he said he did not want the Tribunal to take evidence from her, noting that according to his sister she was suffering from [a medical condition]. 

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

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

13. The issue in this case is whether the applicant has a well-founded fear of persecution for a Convention reason on return to Sri Lanka or otherwise meets the complementary protection provisions.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Refugee claims and assessment

14. The applicant claims to fear serious harm on return to Sri Lanka on imputed political opinion grounds at the hands of the Sri Lankan authorities.  Specifically he fears being imputed with a pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government political opinion because a family from [Town 1] (Northern Province) stayed with his family in [Village 1] (North Western Province) in around 2006, because he is Tamil, because he gave fish to the LTTE in [Town 1], because he departed Sri Lanka illegally and because he would be returning as a failed asylum seeker.

15. The applicant’s previous representative submitted to the first Tribunal[2] that the applicant fears harm in Sri Lanka due to:

    ·His Tamil ethnicity; and

    ·His imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, illegal departure from Sri Lanka and application for asylum in Australia.

    [2] In a written submission dated 20 December 2013.

16. According to information contained in the delegate’s decision record (a copy of which the applicant provided to the first Tribunal on review) the applicant was interviewed by a Departmental officer not long after he arrived in Australia, [in] August 2012 (the entry interview).  He stated that in 2007 whilst working in [Town 1] he made friends with a boy and he and his parents came to stay at the applicant’s home in [Village 1] for 10 days; after they left two Sinhalese men came to the applicant’s house and asked about them; and they then took the applicant to the police station in [Village 1] where he was held for three hours before being released.  Following his release the applicant said they started to come to his house searching for him: two or three times between 2007 and 2012, where he was taken to the police station, interrogated and beaten before being released, as an LTTE suspect. 

17. The applicant set out his initial claims in a written statement that accompanied his protection visa application dated [in] November 2012.  In it he stated that in April 2006 he became friends with a local family in [Town 1] who stayed with his family at their house in [Village 1] for a week in August 2006; two days after they left two Sinhalese men came to the applicant’s house, beat the applicant for thirty minutes then left; the applicant received a threatening phone call from a Sinhalese man in 2010, 2011 and 2012; and then he went into hiding at friends’ houses.

18. At hearing before the current Tribunal the applicant described the problems he experienced in Sri Lanka in the past and his fears about returning there now, summarised as follows.

19. The applicant said he left Sri Lanka (by boat) in June 2012 because of problems he had experienced from the authorities stemming back to when he accommodated a friend – [Mr A] and his father - from [Town 1] at his house for around a week in the past (he could not remember when but thought it was around three years after he first began fishing in [Town 1] in the off-season from 2006, and after the war ended in May 2009).  He had met [Mr A] whilst fishing in [Town 1]: [Mr A] helped him with the fishing nets.  Around two months after [Mr A] and his father returned to [Town 1] from visiting the applicant’s home in [Village 1], the applicant said two police men came to his house, hit him, took him to the police station, beat him up (again) and accused him of bringing LTTE members to his house.  He was kept at the station for three days before being released on bail after some elders from the village came and his mother paid the police [amount] Sri Lankan rupees.  The applicant went home afterwards; however they started looking for him again, wanting more money.  Specifically around three weeks later two men – he thinks they were ‘CID’ - came to his house, hit him and stomped on him with their shoes and asked for money, which he did not have. 

20. The applicant said two or three months after this incident (and around two weeks before he left the country in June 2012) he, along with 114 other Tamils from [Village 1], were stopped in Colombo by the ‘CID’, detained for three days at the ‘fourth floor’ and had a case filed against them for attempting to depart Sri Lanka illegally.  He said they were not attempting to depart the country, but were in Colombo to see a movie.  His parents signed a release form and the case against him is still pending.  The applicant said a friend who was also detained with him at the time told him he had received a list which includes the applicant’s name which he sent the applicant.  The applicant said he was hit once when detained at Colombo’s CID office.  On release he went home then came to Australia.

21. The applicant said he was not sure if [Mr A] and his family were involved with the LTTE.  When asked, he said he was not involved with the LTTE or his family.  He used to give them some fish when he worked in [Town 1], but nothing more. 

22. The applicant said because he did not go to court regarding the case filed against him for attempting to depart Sri Lanka illegally, his mother went to a court in Colombo every month and signed a document.  However she has stopped doing that.  She also paid a lump sum of [amount] Sri Lankan rupees to the government – he thinks the CID.  They know he is in Australia.  The applicant said on return to Sri Lanka he is afraid of the authorities because of this case filed against him. 

23. After the hearing the applicant submitted to the Tribunal a ‘statement of recording’ extract from an information book of the [police] station translated from Sinhala to English dated ‘2012-06-05’ which states:

    [The applicant’s] Residence: [location] Tamil Age [age] years National Identity Card No. [number] states as follows: Matters I have forgotten to state when I was giving statement at [the] police station as follows: I accompanied with some friends went to see a movie  [in] Negombo.  [Police,] arrested me when I was returning and questioned me.  Subsequently, I was produced to the Court [in May 2012] and I was released on bail.  Officers attached to the Criminal Investigation Department visited my home several times to get statement from me.  I and my parents were afraid of their frequent visits and my parents took me to [a location] and sent me off to Australia in a boat.  Since there is no safety for me to stay in Sri Lanka I had no option rather than taking this risky journey.  That is the reason for my journey to Australia. 

24. As discussed with the applicant at hearing, the Tribunal has concerns about his claims to have been of adverse interest to the Sri Lankan authorities in the past for a number of reasons, including significant inconsistencies in his evidence.  For example:

    1. With respect to which members of the [Town 1] family stayed at the applicant’s house: in his entry interview the applicant stated that a boy and his parents stayed; in his statutory declaration provided to the Department he states it was the father ([Mr B]), his wife, and daughter; at his protection visa interview with the delegate (as set out in the decision record, a copy of which the applicant provided to the first Tribunal) he stated it was the husband, wife and  [children]; in the representative’s submission to the Department he said it was [Mr B] and his  [daughters] who stayed; and at the current Tribunal hearing the applicant said it was [Mr A] and his father (whose first name is [Mr B]). 
    2. Regarding the dates when the family from [Town 1] came to stay: in the applicant’s entry interview he said they visited in August 2006; in his protection visa interview with the delegate (as set out in the decision record, a copy of which the applicant provided to the first Tribunal) he said it was in 2008; in the representative’s submission to the first Tribunal the applicant claimed it was 2006; and at the current Tribunal hearing the applicant said whilst he could not remember exactly, it was after the end of the war in May 2009. 
    3. About who came to the applicant’s house after the [Town 1] family left and when: at entry interview the applicant said after the [family] left Sinhalese men came to his house; in his statutory declaration provided to the Department he stated in August 2006, two days after [Mr B’s] family left, two unidentified Sinhalese men came to his house; and at the Tribunal hearing the applicant said two months after [Mr A] and his father visited, two policemen came to his house and took him to the police station. When asked why he stated in his statutory declaration that it was two unidentified Sinhalese men who came to his house, not policemen, the applicant said at hearing that the police came in plain clothes and spoke Sinhalese to him.
    4. Regarding the claimed assaults: in his entry interview the applicant said on two to three occasions after he was first taken to the police station and interrogated about his visitors from [Town 1], between 2007 and 2012, he was taken to the police station and interrogated and beaten; in his statutory declaration provided to the Department he said he was  beaten at home in August 2006, two days after [Mr B] and his family left, by two unidentified Sinhalese men; in his interview with the delegate (as set out in the decision record, a copy of which the applicant provided to the first Tribunal) he said he was beaten at home then taken to police station on a second occasion; in the representative’s submission it is stated that he was beaten at home then taken to the police station; and before the current Tribunal the applicant said he was hit at home by police first, and also hit at the police station, then by police at home during a second incident, and once by the CID when detained in 2012. 
    5. With respect to the length of the applicant’s alleged detention at the police station: in his entry interview he said he was taken to the police station in [Village 1] after the [Town 1] family had visited and held for three hours; in his statutory declaration provided to the Department he fails to mention being detained at the police station any time; and he told the current Tribunal that he was detained at the police station for three days.

25. As well the applicant’s oral evidence to the Tribunal was sometimes internally inconsistent, which casts doubts on his claims.  For example, he told the Tribunal he did not speak to [Mr A] and his family after the end of the war (when asked if he knew about their experiences in the Vanni during the final stages of the war) however earlier at hearing he had said that [Mr A] and his family visited his house for a week after the end of the war. 

26. For these reasons the Tribunal has serious credibility concerns about the applicant’s case.  If the inconsistencies were only minor they could be explained by the passage of time, as submitted.  However there are numerous inconsistencies in this case, some of which are significant.  Combined with the applicant’s vague oral evidence about key events and new claims in some respects as discussed above and below, the Tribunal considers the applicant is not a witness of truth.  It does not accept his claims to have accommodated a family from [Town 1] in the past which sparked adverse interest from the authorities, on imputed pro-LTTE grounds.  It does not accept he was ever detained, beaten or that he or his family members were asked to pay money by the authorities on this or any basis as claimed.

27. The applicant also has claimed to have received threatening phone calls whilst residing in Sri Lanka in the past.  However for the following reasons the Tribunal does not accept his claims in this respect.  The applicant failed to mention the calls at all during the Tribunal hearing initially and when asked if anything else happened after the incidents he described he replied ‘no’. Only when the Tribunal asked him specifically if he received threatening calls  - given this is what he claimed to the Department and the first Tribunal - did the applicant reply ‘yes’.  However, his oral evidence about these alleged calls was vague, and at times contradictory and implausible.  For example, he said he received two or three calls in Sinhalese which he could not understand however he understood they said he would be shot because he was familiar with that word from watching movies.  He was vague about when he received the calls and about the context, saying only that the first one came about after the problems started but he could not remember how long after.  Later during the course of the hearing the applicant said he received a threatening phone call in Sinhalese – again to shoot him – when he worked in [a city of Sri Lanka], which was before the problems allegedly arose as a result of the [Town 1] family visiting and therefore undermines his earlier evidence that the calls began afterwards.  His vague oral evidence was also in contrast to the level of detail he provided in his statutory declaration to the Department about when the calls were received and for exactly how many minutes.  The Tribunal notes it also found it odd why the applicant did not simply hang up given his claims in that statutory declaration that one of the callers yelled at him for 20 minutes (in 2010) and for 10 minutes in May 2012, in Sinhalese which he claims he could not understand.  For these reasons the Tribunal does not accept the applicant received any threatening phone calls from anyone in the past in Sri Lanka.  

28. Other concerns the Tribunal has with this case include the applicant’s confused and at times contradictory evidence about being in hiding after the alleged incidents with the police.  That is in his statutory declaration provided to the Department he said he hid after he received the last threatening phone call in May 2012; he told the delegate at interview (as set out in the decision record, a copy of which the applicant provided to the first Tribunal) that after the CID came to his house after the [Town 1] family left and assaulted him he stayed at friend’s house in [Village 1]; and at the current Tribunal hearing he initially said he hid after the incidents with police, however he also stated that after released from police custody he lived with his parents before coming to Australia. When asked to clarify when he hid, if at all, the applicant said around six months after the second time the two men (police) allegedly came to his house demanding money he lived for a year in a village close to home  [working] on a  [farm]. When asked why he waited that long he did not answer and the Tribunal is of the view that if he did move to a different village during this period as claimed, he did so for work reasons, not because he was afraid of police or anyone else locating him at his parents’ house.  The applicant said after a year he returned to his parents’ house because he was not scared anymore and no one was looking for him.  His oral evidence in this respect is inconsistent with his claim in his statutory declaration provided to the Department that after he received a threatening phone call [in] May 2012, to shoot him, he went into hiding at a friend’s house.  For these reasons the Tribunal does not accept the applicant was ever in hiding in Sri Lanka in the past as claimed.

1. The Tribunal has considered the applicant’s claim at the current Tribunal hearing that he was arrested and detained by the CID along with other Tamils from his area in 2012, hit once, and released on bail, with an outstanding case filed against him for attempting to depart the country illegally.  The Tribunal notes the applicant raised this claim for the first time at the current Tribunal hearing, which raises doubts as to its veracity.  When asked why he did not mention this claim earlier, the applicant said he was worried it would be a problem for his family; however when he went to court (in Australia) he was told he could raise late claims.  The Tribunal is not persuaded by this explanation, noting that he was not concerned about claiming he had experienced problems with the police (and possibly CID) in Sri Lanka to the delegate and first Tribunal.  Furthermore, the Tribunal found his oral evidence about his alleged arrest, detention, bail and subsequent events to be vague and unconvincing.  For instance, he said his parents signed his release form, and his mother went every month to the court to sign in for him but she stopped after paying a lump sum of SLR [amount] to people who came looking for him at their house.  However, he was unable to say when these events occurred, over what period of time, who his mother paid money to (apart from a vague statement that he thinks it was the CID) or provide any other details or context.  Given these concerns the Tribunal does not accept the applicant was ever arrested or detained by the CID in 2012, hit whilst detained, bailed, charged for any matter, or that there is an outstanding case against him.  It follows that the Tribunal does not accept that his mother had to attend court in the past in his absence in relation to this case or pay the authorities any money.  It also follows that the Tribunal does not accept that the applicant received a list which includes the applicant’s name sent from a friend who was detained with him as claimed at hearing.  On this matter, the Tribunal notes at hearing the applicant said he had the list at home and promised to submit a copy to the Tribunal.  However he submitted a copy of the police extract only, not a ‘list’ of any kind.

2. In reaching this conclusion the Tribunal has had regard to the translated copy of an extract from an information book from the  [police] station dated ‘[date]’, which the applicant provided post-hearing, which is a statement that appears to be written by the applicant.  The Tribunal notes some of the information contained in the statement about the applicant’s alleged arrest by the CID in 2012 is inconsistent with his oral evidence to the Tribunal.  For instance the applicant states in the police extract information that he was arrested by police when returning form a movie  [in] Negombo; subsequently he was produced to the Court [in May 2012] and released on bail; and Criminal Investigation Department officers visited his home several times to get a statement from him.  However at hearing he said he was arrested in Colombo (not Negombo), made no mention of being produced at court (saying his mother went to court instead); and said thereafter he went home before going to Australia by boat (making no mention of the CID visiting his home “several times” to get a statement).  Given these inconsistencies, combined with other significant credibility concerns with the applicant’s case as set out above, the Tribunal does not accept that this incident occurred at all and gives the police extract provided no weight. 

3. For the reasons above the Tribunal does not accept the applicant was of any adverse interest to the authorities in Sri Lanka in the past as claimed.  Specifically it does not accept that a Tamil family from [Town 1] came to stay at his house for around a week in around 2006 or at any other time as claimed; or that he was taken to the police station shortly after, beaten and detained for three days or at any other time as claimed; or that police and/or Sinhalese men came to his house sometime later and beat him and demanded money; or that he was detained by the CID on the ‘fourth floor’ in Colombo sometime in 2012 as claimed.  It follows that the Tribunal also does not accept that the applicant was charged and has an outstanding court matter against him with respect to attempted illegal departure. 

4. The Tribunal also does not accept that the applicant received any threatening phone calls in the past from anyone in Sri Lanka. 

5. As the Tribunal has not accepted the applicant’s claims that he accommodated a family from [Town 1] considered to be linked to the LTTE or that he experienced any problems from the authorities as a result or for any other reason, the Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka for these reasons on imputed (pro-LTTE) political opinion grounds.

   Tamil ethnicity

6. In their written submission[3] to the Department the applicant’s then representative argued that the applicant faces a well-founded fear of persecution on return to Sri Lanka on the basis of his Tamil ethnicity (among other things).  Within that submission country information from a variety of sources is referenced that indicates, among other things, that Sri Lanka remains heavily militarised and the military is becoming increasingly involved in civilian life; about human rights abuses in Sri Lanka; and about the use of the Prevention of Terrorism Act to detain Tamils suspected of LTTE involvement.  Reference is also made to the UK Upper Tribunal country guidance decision - GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) - noting in that case experts agreed on the paranoia of the government regarding the resurrection of Tamil separatist groups and the resulting militarisation of the north.  Given such country information, it is argued that the chance Tamils and those imputed with an anti-government/pro-LTTE political opinion facing persecution in Sri Lanka is not remote. 

   [3] Dated [in] December 2013

7. The Tribunal accepts the applicant is a young Tamil male from North Western Province in Sri Lanka.  The Tribunal accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection[4].  Neither, as discussed at hearing, in general would a person who evidences past membership or connection with the LTTE unless they have or are perceived to have a significant role or perceived to be active in post conflict Tamil separatism and thus a threat to the state[5]. The applicant claimed he was never involved with the LTTE in Sri Lanka, although he gave them fish when they asked when he worked in [Town 1] in the past, which the Tribunal accepts, noting it was not uncommon for Tamils to assist the LTTE in such ways during this period.  However the applicant has not claimed nor is there any indication that he experienced any problems from the authorities in Sri Lanka in the past as a result, and he has not indicated that he has been active in the diaspora community since leaving Sri Lanka.  Combined with country information that indicates that a connection to the LTTE in the past (in the absence of being perceived to be active in post conflict Tamil separatism) is insufficient to warrant international protection, the Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka because of his limited support providing fish to the LTTE many years ago.

   [4] Department of Foreign Affairs and Trade 2017 DFAT Country Information Report Sri Lanka 24 January 2017; UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017; and UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December

   [5] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

8. The Tribunal acknowledges that military and security forces remain in the northern province of Sri Lanka, including [Town 1] where the applicant claims he has worked in the past. However, as discussed at hearing, DFAT report that the security situation in the north has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life; that the Sri Lankan police are now responsible for civil affairs across Sri Lanka; and while a sizeable military presence remains in the north and east, armed forces personnel are generally restricted to their barracks.[6]  In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government[7].  They state, as also discussed at hearing, that while some cases of monitoring continue to be reported, such as the military or police observing public gathering or NGO forums, the overall prevalence of monitoring has greatly reduced; the government has begun reducing High Security Zones in the Northern Province; military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east[8]; and that members of the Tamil community have also described a positive shift in the nature of interactions with the authorities.[9]

   [6] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.32

   [7] Ibid at 3.9

   [8] Ibid at 2.39

   [9] Ibid at 3.9

9. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity and in the immediate aftermath of the war.  However, in light of the end of the war in May 2009 and the country information cited above that assesses that being of Tamil ethnicity does not on its own warrant international protection and the improved security situation, the Tribunal finds that the applicant does not face a real chance of suffering serious harm on account of being a young Tamil male, nor in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed. The applicant’s fear of persecution on theses bases are not well founded.

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

    Failed asylum seeker

11. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on a return to Sri Lanka as a failed asylum seeker.  It is submitted that he would be imputed with an anti-government political opinion on this basis and face a real chance of persecution on imputed political opinion grounds. 

12. In their submission to the Department the applicant’s then representative submits that country information demonstrates that failed Tamil asylum seekers face a real risk of significant harm and torture on return to Sri Lanka, referring to a Canadian Immigration and Refugee Board research paper on the treatment of failed asylum seekers dated 12 February 2013.  It is submitted further that it is necessary to take into account any harm or mistreatment the applicant would face in the process of being determined not to be a person of interest, referring to SZQPA v Minister for Immigration and country information about the treatment of failed asylum seekers/returnees (including the now superseded DFAT report of July 2013). 

13. At the Tribunal hearing the applicant said he does not hold any fears about returning to Sri Lanka as a failed asylum seeker.  Nonetheless, the Tribunal has considered if the applicant faces a real chance of serious harm from the authorities on return to Sri Lanka as a failed asylum seeker. The Tribunal has considered if he will be imputed with an anti-government political opinion on this basis (combined with departing the country illegally and other matters addressed elsewhere in the decision record). 

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

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

16. At hearing the Tribunal discussed the standard procedures for processing involuntary returnees as set out in the latest DFAT Country Information Report on Sri Lanka.  In that report it is stated as follows:

    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department.  These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration[10].

    [10] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.19

17. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.[11]

    [11] Ibid at 5.20

18. As discussed at hearing, DFAT also state that during 2008-2015, over 1,500 failed asylum-seekers were returned  from Australia to Sri Lanka, in addition to the many Sri Lanka asylum seekers who have been returned from other countries, including the, the US, Canada, the UK and other European countries.  As well, DFAT state that the majority of these returnees are Tamil and although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to Colombo and other urban areas[12].  

    [12] Ibid at 5.27

19. As discussed at hearing and previously mentioned, the UK Home Office reports that in the UK country guidance GJ & Others, the UK Upper Tribunal identified as one of four risk categories individuals who are or perceived to be a threat to the integrity of Sri Lanka as a single state because they are or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka[13]. Such country information indicates that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.  The applicant has not indicated that he has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism and the Tribunal finds that he is not such a person.

    [13] UK Home Office Operation Country Policy and Information Note, Sri Lanka: Tamil separatism, Version 5.0 June 2017 at 2.3.9

20. While the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he was never suspected of having any involvement with the LTTE or diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker.  The Tribunal accepts that the applicant may have supported the LTTE by providing fish occasionally when working in [Town 1] in the past which was not uncommon for Tamils living in that area during that period.  However it does not accept that he experienced problems from the authorities as a result nor would on return for these reasons. For reasons above the Tribunal does not accept the applicant’s claims to have an outstanding court matter with respect to attempting to depart the country illegally.  The Tribunal finds remote the chance that the applicant would be imputed with an anti-government political opinion on these bases and seriously harmed by the authorities as a result on return, even when combined with other aspects of his profile such as being Tamil, a young Tamil male, being a failed asylum seeker and departing illegally.   

21. The Tribunal accepts that when the applicant returns to his home in [Village 1] his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason.  His fear of persecution on membership of a particular social group (‘failed asylum seekers’) and imputed political opinion grounds are not well founded.

    Illegal departure

22. The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing the Tribunal discussed with the applicant DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.  Also that in practice most penalties (which can include imprisonment of up to five years) are almost always a fine, that fine amounts vary on a case by case basis (but can be up to 200,000 Sri Lankan rupees/AUD2000) and can be paid by instalment.  Further, that DFAT advised that if a person pleads guilty, they will be fined and are then free to go.  In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor[14].

    [14] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.21 – 5.26

1. For reasons above the Tribunal does not accept the applicant’s claims to have had a case filed against him (and others) for attempting to depart the country illegally in 2012 or that he was ever of any adverse interest to the authorities as an LTTE sympathiser because a family from [Town 1] stayed at his house in the past or for any other reason.  At hearing the applicant confirmed that, apart from his [brother], all of his immediate family members remain in [Village 1] and his father continues to work: he would therefore be in a position to assist him pay the fine or act as a guarantor if bailed if required. 

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

3. The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions[15]. However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short term period of being detained given its findings that he is not of any adverse interest to anyone.  As mentioned, the applicant indicated at hearing that he has family members in Sri Lanka who could act as guarantors if needed and that his father still works and did not indicate he could not help him pay any fine.  The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return.  There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison.  However as the Tribunal does not accept the applicant is of adverse interest to the authorities for any reason, including outstanding criminal matters, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm.  The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population.  The Tribunal is not satisfied therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm as defined in s.91R(2).

   [15] DFAT 2017 Country Information Report Sri Lanka 24 January 2017at 4.25

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

   Conclusion – Refugee grounds

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

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

   Complementary protection

7. On the basis of the applicant’s claim to be a national of Sri Lanka and earlier findings about his identity and nationality with regard to his refugee assessment, the Tribunal finds that Sri Lanka is the applicant’s receiving country of the purposes of s.36(2)(aa).

8. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

9. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, as a Tamil, or as a young Tamil male from North West Sri Lanka.  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.[16] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

   [16] 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].

10. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing.  The Tribunal does not accept that the applicant is of ongoing adverse interest to the authorities. Based on the Tribunal’s earlier reasoning on this matter, it  does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand.  The Tribunal considers if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine and if a family member is required to act as a guarantor, accepts on his evidence that he has relatives who are in a position to help him out in Sri Lanka, including his father who continues to work in [Village 1].  The Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing. 

11. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of his family in Sri Lanka to meet such a financial penalty.

12. In their written submission to the Department the applicant’s then representative made a number of submissions about risks the applicant would face on return because he departed the country illegally and would return as a failed asylum seeker including:

    ·Country information indicates that Sri Lankans with links to LTTE can be jailed and subjected to torture during their incarceration.

    ·The applicant fears he will be subject to significant harm in police custody, particularly at the interrogation and detention stages.  

    ·There is evidence that persons held in prison might be subjected to torture where they were suspected of having LTTE connections and that conditions in prison created a real risk of significant harm even if they were not intentionally inflicted. 

    ·Country information indicates that torture was prevalent for detainees in prison and that the applicant would be at risk of such treatment as a returnee and suspected LTTE supporter.

    ·The applicant may be subject to an extended period of remand. 

13. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards.  However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention on the Sri Lankan government to inflict such harm[17], and therefore do not amount to significant harm.

    [17] As held in SZTGM v MIBP [2017] HCA 34.

14. Similarly the Tribunal is not satisfied on the evidence before it that the process of questioning, the imposition of a fine as punishment and the applicant’s charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters, but to provide a modest punishment and possible deterrence for departing the country illegally. 

15. For reasons above the Tribunal does not accept that the applicant was of any adverse interest to the Sri Lankan authorities in the past for any reason and would not be on return.  Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

16. Furthermore, the Tribunal is not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia.  The Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka.  However, as discussed above (elsewhere), taking into consideration the applicant’s particular profile as someone who has no criminal record and the findings above that he was never suspected of having any involvement with the LTTE or diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker.  Furthermore, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

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

    CONCLUSION

18. 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).

19. 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).

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

    DECISION

21. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

    Nicole Burns
    Member