1617561 (Refugee)

[2020] AATA 3526

1617561 (Refugee) [2020] AATA 3526 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617561

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Simone Burford

DATE:17 July 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 July 2020 at 3:02pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – political opinion – Sri Lankan Freedom Party (SLFP) activist – suspected links to Liberation Tigers of Tamil Eelam (LTTE) – particular social group – fishermen – suspected people smuggler – religion – Catholic – physical assault – fear of arrest – fear of killing – failed asylum seeker – illegal departure – state protection – 2019 Easter bombings – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 104, 424, 438
Migration Regulations 1994, Schedule 2

CASES

A v MIMA [1999] FCA 116
Abebe v Commonwealth (1999) 197 CLR 510
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Ex parte Applicant S154/2002 [2003] HCA 60
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 at 348
SZBEL v MIMIA (2006) 228 CLR 152
SZMCE v MIAC [2008] FCA 1803; 105 ALD 508
SZSSJ v MIBP FCAFC 2015
SZTYV v MIBP [2018] FCA 1076
WAKK v MIMIA [2005] FCAFC 225
WZARV v MIBP (2015) 254 CLR 610

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 and Border Protection on 4 October 2016 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 on 2 September 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Act and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 23 October 2016. He provided a copy of the delegate’s decision with his application for review.

4. The applicant attended a hearing before the Tribunal, differently constituted, on 25 January 2018.  On that occasion the applicant gave evidence and the matter was adjourned for a further hearing on another day. For reasons not relevant to the review the matter was reconstituted following the initial hearing.  The applicant appeared before the Tribunal, as currently constituted, on 10 April 2019 and 11 June 2019 to give evidence and make submissions in support of the review application.

5. The hearings were conducted with the assistance of an accredited interpreter in the English and Sinhala languages. The applicant was represented by his registered migration agent in relation to the review. This agent made both written and oral submissions to the Tribunal.

6. At the hearings the Tribunal took evidence from the applicant. At the second hearing the Tribunal also put to the applicant adverse information pursuant to s.424AA of the Act. The applicant did not seek an adjournment and responded to the information at the hearing. The information was put to the applicant again in writing following the hearing by letter dated 23 September 2019.  The applicant responded to this information by letter dated 14 October 2019. This information is dealt with further below.

7. In response to the applicant’s letter of 14 October 2019 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 11 February 2020 the applicant’s representative queried the purpose of the further hearing and advised the Tribunal that ‘all submissions have been made’. In light of this response the hearing was vacated.

8. On 10 June 2020 the Tribunal wrote again to the applicant regarding changes to country information and disclosure of information subject to a certificate/notification on the Departmental file. The applicant responded by letter dated 15 June 2020. A further hearing was scheduled for 22 June 2020 however this was rescheduled at the request of the applicant.  The hearing was held on 6 July 2020 to discuss this information and to allow the applicant to make any further and final submissions.

9. The Tribunal exercised its discretion to hold the final hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. In response to the hearing invitation, the applicant stated that:

   I am afraid that the phone interview is going to be very difficult with the member, myself, my lawyer and interpreter are in different locations.

10. At the commencement of the hearing, the Tribunal explained the reasons for holding the hearing by telephone and asked the applicant about his concerns with the hearing being conducted in that way.  In response, the applicant said he would prefer the hearing take place face to face. The Tribunal indicated that while it understood the applicant’s concerns, face-to-face hearings were not generally being held by the Tribunal at that time and the Tribunal was confident the hearing could be conducted by phone, particularly in light of the limited nature of the matters to be discussed and the fact several face-to-face hearings had already been held. The Tribunal also invited the representative to make submissions on the conduct of a telephone hearing and the representative indicated that their preference was for a face-to-face hearing however he understood the Tribunal’s point in relation to the fact several face-to-face hearings had already been held covering substantive issues in the matter.

11. The Tribunal assured the applicant that its objective was to ensure a fair hearing.  The Tribunal indicated that it was confident given the nature of the matters to be assessed, and in particular the fact that several substantive in-person hearings had already been held, that the hearing could be fairly and effectively conducted by phone. However, the Tribunal also noted that should it appear at any point that the Tribunal could not proceed to determine the matter fairly based on the hearing by telephone, the matter could be adjourned to another day when another means of conducting the hearing was available.

12. The hearing proceeded without any technical issues and it appeared all parties were able to hear clearly and participate fully in the hearing. The Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments during the hearing. The Tribunal notes that further information was put to the applicant at the hearing pursuant to s.424AA of the Act.  A short adjournment was held to enable the applicant to discuss his responses with his representative and the applicant elected to respond at the hearing following the adjournment.  Further oral submissions were made by the applicant’s representative at the close of the hearing and these have been taken into account in the Tribunal’s consideration of the application.

13. The issue in the review is whether the applicant has a well-founded fear of persecution due to his political association with members of the Sri Lankan Freedom Party (SLFP), the United People’s Freedom Alliance (UPFA) and from the members of the United National Party (UNP); because the Sri Lankan authorities will identify him as a ‘Skipper’ if he returns to Sri Lanka and he will be imprisoned or fined for his suspected people smuggling activities; because the Sri Lankan authorities will identify him as having left Sri Lanka illegally on two occasions and he will be imprisoned or fined as a result; because his personal details were released in a breach of the Department’s data in 2014 and the Sri Lankan authorities will know where he is and the nature of his claims, or for any other reason, or whether complementary protection provisions otherwise apply.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CRITERIA FOR A PROTECTION VISA

15. 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, he or she 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.

16. 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 because the person is a refugee.

17. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

18. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.

19. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility assessment

21. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]

    [1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at [196].

22. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]

    [2] MIMA v Rajalingam (1999) 93 FCR 220.

    [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

23. The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.

24. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[4] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[5]

    [4] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

    [5] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.

25. It is a  well-settled proposition that it is for an applicant to make their own case.[6]  It is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.

    [6] Prasad v MIEA (1985) 6 FCR 155 at [169-70]; SZBEL v MIMIA (2006) 228 CLR 152 [40]; Re Ruddoc; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003 at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

26. An applicant’s obligations to present their case in full before the primary decision maker and not wait until after the decision has been made are particularly relevant. Firstly, the ongoing requirement under s.104 of the Act is for an applicant to ensure that their relevant details are correct and to change any incorrect information at the first reasonable opportunity.  Secondly, applicants are required to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so.

27. The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant genuinely holds a subjective fear of harm.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.

28. In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

29. The Tribunal has reviewed the Department’s files relating to the applicant’s claims for protection, including the basis on which its decision was made as to the identity of the applicant.  On this basis, the Tribunal finds that the applicant is a man born on [date] and who is a citizen of Sri Lanka. The Tribunal finds that Sri Lanka is also the receiving country for the purpose of the refugee and complementary protection assessments.

30. There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in a third country for the purposes of s.36(2)(aa) of the Act.   Having regard to all the evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country for the purposes of s.36(3).

31. The Tribunal, therefore, finds that the country of reference and the receiving country for the applicant is Sri Lanka for the purposes of s.36(2)(aa) of the Act.

    Material before the Tribunal

32. The Tribunal had before it a copy of the delegate’s decision in relation to the application. This was provided to the Tribunal by the applicant with his application for review. The Tribunal also had a copy of the Department’s file relating to the application.

33. At the Tribunal hearing the applicant provided oral evidence of his concerns about returning to Sri Lanka. The applicant’s testimony in relation to these claims is summarised below.

34. The applicant submitted the following documents in support of his application:[7]

    [7] Copies of these documents and photocopies of the originals were also provided to the Tribunal.

    ·     Translation of handwritten statement from the applicant submitted after the first interview with the delegate (plus photocopy of original).

    ·     A translated copy of a ‘Fisherman’s Identity Card’ issued in the applicant’s name as ‘Skipper’ [in] 2004 by the Democratic Socialist Republic of Sri Lanka, Department of Fisheries and Aquatic Resources (plus photocopy of original).

    ·     A translated copy of a registration document in the applicant’s name issued by the Commissioner of Registration of Persons on [date] in the name of the applicant to an address in Negombo (and card).

    ·     Translated birth documents relating to the applicant and his son (plus photocopy of original).

    ·     A translated copy of a Marriage Registration document issued [in] 2012 recording the applicant’s marriage on [date] and noting his profession as ‘Fisheries Profession’ (plus photocopy of original).

    ·     Translated copy of a letter from [Official A] identifying the applicant and other family members as ‘active members’ of the UPFA and the applicant’s wife a member of [a Women’s organisation] (undated, two versions).[8]

    [8] There are two different translations of this document. However, they do not differ in material respects.

    ·     Translated copy of a letter from [Official A] and [Official B] (stamped by [Councillor A], Member of [Council 1] , dated [in] January 2010 titled ‘Active Meeting in Electoral Area – United People’s Freedom Alliance’ and addressed to ‘[the applicant]’ (plus photocopy of original).

    ·     Report of the Residence from Grama Niladhari’s office dated [in] February 2013, confirming the applicant’s address in Negombo and stating, ‘I confirm that he underwent political threats’ (2 versions) (plus photocopy of original).

    ·     Translated ‘Presidential Election 2005 – Appointment of Polling Agents’ letter signed by [Official B] and dated [in] November 2005 identifying the applicant as a Polling Booth Representative at the Presidential election in favour of Presidential Candidate Mahinda Rajapaksa (plus photocopy of original).[9]

    [9] There are two different translations of this document. However, they do not differ in material respects.

    ·     Local authorities, [Council 1] candidate preferences for the United People’s Front Alliance, United National Party and Sri Lanka Muslim Congress dates [in] October 2011 (marked [number]). The information confirms “[Official C]” and “[Councillor A]” were candidates for the UFPA in the [Council 1] Election.[10]

    [10] It is not clear from the file if this is country information obtained by the delegate or information from the applicant.  However, the information is not adverse to the applicant’s claims.

    ·     Translated letters from the Mediation Board ‘Notice to call for a discussion to come to settlement in terms of the Mediation Board Act No 72 of 1988’ dated [in] February 2012 and [in] March 2012 and a ‘document issued in connection with the settlement of the Dispute/offence’ dated [in] March 2012 (plus photocopy of originals).

    ·     Two ‘Debt Waiver Request’ letters from the Department of Immigration and Border Protection dated 11 February 2015 regarding the applicant, one noting his immigration background.

    ·     Submissions made by the applicant’s representative to the Department on 20 June 2016.

1. Additional material before the Tribunal included:

   ·     Applicant’s Irregular Maritime Arrival Entry Interview dated 25 September 2012.

   ·     Report by the Commonwealth and Immigration Ombudsman to the Minister for Immigration and Border Protection dated [in] October 2013 regarding the applicant.

   ·     Letter to the applicant from the Department dated 12 March 2014 regarding ‘Unauthorised access to personal information’.

   ·     Application to the Sri Lanka High Commission – Canberra for a Sri Lanka temporary travel document in the applicant’s name for a departure date [in] 2012.

   ·     A Departmental decision in a related application ([file number]).

   ·     A statement of claims made in the related application.

   ·     A decision of the Refugee Review Tribunal (RRT) affirming the delegate’s decision on the related application.

   ·     The decision of the Federal Circuit Court of Australia (Federal Circuit Court) affirming the decision of the Tribunal in the related application.

   ·     Written submissions from the applicant’s representative dated 25 June 2019, 14 October 2019 and 15 June 2020.

   Non-disclosure notification and confidential information

2. The Departmental file included information which was the subject of a certificate/notice issued under s.438 of the Act. That certificate/notice was initially raised with the applicant at the hearing by the Tribunal as previously constituted, on 25 January 2018. 

3. The record of the hearing indicates a copy of the notice was given to the applicant’s representative at the hearing on 25 January 2018.  On 10 April 2019 the Tribunal provided another copy of the notice and invited the applicant to make submissions in relation to it.

4. The Tribunal advised that the information contained in file [number], folios 136-133, 129-114 and 61-53 were subject to a non-disclosure certificate/notification that had been issued by the Department under s.438(1)(b) of the Act. The notification states that disclosure of the information contained in the aforementioned document would be contrary to the public interest because:

   • They refer to sensitive internal departmental procedures for assessing identity and/or private information provided by another individual [in a related protection visa application].

5. The Tribunal initially formed the view that the certificate/notification was valid with respect to folios 136-133, 129-114 which are the documents containing information provided with respect to a related party protection visa application. As discussed at the hearing, the Tribunal considered that information provided with respect to a protection visa application should have a quality of confidentiality contemplated by s.438(1)(b). The confidential nature of this information is reflected in the restrictions imposed by ss.431 and 501K of the Act. The Tribunal formed a preliminary view that notice provided in the notice pursuant to s.438(1)(b) was effective.

6. However, on review of the material the Tribunal formed a preliminary view that the certificate was not valid with respect to folios 61-53 which were internal Departmental communications.  The Tribunal formed a preliminary view, such material is not covered by s.438(1)(b) as it was not given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. The Tribunal discussed at the hearing that it did not regard these folios as relevant to determining matters in the review as the information related to assessment of the identity of the applicant which is not at issue in this review.

7. While submissions on the notice were discussed at the hearing, on review of the material the Tribunal was concerned that it did not expressly invite the applicant to make a submission on whether the notice was valid or effective.  Accordingly, the Tribunal wrote again to the applicant on 10 June 2020 inviting them to do so.  The Tribunal also invited any further submissions regarding the exercise of the Tribunal’s discretion to release the information covered by the certificate/notice.

8. In response, dated 15 June 2020, the applicant’s representative requested copies of folios 61–53 on the basis that the certificate was invalid. The applicant’s representative submitted with respect to folios 136–133 and 129-114, the certificate did not meet the requirements of s.438(i) [sic] because the documents do not fall within the documents contemplated by s.438 and because the reason for claiming public interest immunity has not been clearly stated in the certificate issued by the delegate.

9. As notified to the applicant by letter dated 3 July 2020 and discussed at the final hearing, having considered the applicant’s submissions, the Tribunal formed the view that the notice was effective with respect to the confidential information in folios 136-133 and 129-114 but the certificate/notice was invalid with respect to folios 61-53. A copy of folios 61-53 was provided to the applicant.  However, the Tribunal noted that it did not regard the information contained in them as relevant to the review as they dealt with verification of the applicant’s identity which was not at issue on the review.

10. With respect to the confidential information the Tribunal notes that s.438(1)(b) contemplates that documents or information may also be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. Whether a document is impressed with the necessary quality of confidence required for s.438(1)(b) is a matter for the Tribunal to decide on its merits.[11]

    [11] SZTYV v MIBP [2018] FCA 1076 at [42]. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382.

11. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and wouldn’t be disclosed, and that the information not be public or common knowledge.[12] In exercising its discretion to release the material to the applicant or another person, the Tribunal may consider whether the consequences of its release may have a detrimental effect on an individual.[13]

    [12] See SZTYV v MIBP [2018] FCA 1076 at [42].

    [13] Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41.

12. With regard to the other material notified in the certificate as having been provided confidence, the Tribunal considered that information provided or communicated to the Department in the process of making an application for a protection visa possessed the necessary quality of confidentiality contemplated by the Act.  Further, having regard to the important public interest in the maintenance of the confidentiality of information provided in the process of applications for protection visas, the Tribunal decided not to exercise its discretion to release the documents. The Tribunal notes that the importance of maintaining confidentiality of information provided in support of a protection visa application, including for the protection of applicants, is reflected in provisions of the  Act and the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) restricting disclosure of information regarding applicants for protection visas and protection-related visas and requiring hearings of such applications to be conducted in private.[14] In light of these important public interest considerations and having regard to the applicant’s personal circumstances, including but not withstanding his relationship to the applicant in the related application, the Tribunal decided not to release the documents.

    [14] see for example ss. 429, 431 and 501K of the Act and s.66 of the AAT Act.

13. The Tribunal notes that it had further information on the Tribunal file relating to the proceedings in a related application before the RRT and the Federal Circuit Court. Those documents similarly contained confidential personal information which the Tribunal considered if released would be contrary to the provisions of the Act and the AAT Act.

14. As noted below, the Tribunal put the relevant contents of the information contained in the confidential documents to the applicant for comment or response at the hearings on 10 April 2019, 11 June 2019 and  by letter dated 24 September 2019 and finally on 6 July 2020. In the Tribunal’s view, this approach struck the appropriate balance between fairness to the applicant and the protection of information provided in the context of protection proceedings.

    Adverse information

15. As noted above, the relevant contents of the confidential information were put to the applicant for comment or response at the hearings on 11 June 2019 and 6 July 2020 and by letter dated 23 September 2019. Additional information was put to the applicant by letter dated 10 June 2020.

16. On each occasion the Tribunal explained the information to the applicant and why it was important for the review. The Tribunal indicated that the information was relevant to the review because, if accepted, it may raise doubt as to the credibility and truthfulness of the information the applicant provided to the Tribunal. This could be taken into account in assessing the genuineness of their claims. The Tribunal indicated that the consequence of the Tribunal relying on the information was that it would be the reason or part of the reason for affirming the decision under review.

17. A short adjournment was held at each hearing to allow the applicant to discuss his preferred approach with his representative.  On both occasions he chose to respond to the information at the hearing.  As noted above, with respect to the information put at the hearing on 11 June 2019 and 6 July 2020 and by letter dated 23 September 2019, information relating to claims made in a related application, by the applicant’s son, and the account of the events given in that application which are also described in the core claims of the applicant, were put to the applicant in writing for his further consideration and response. 

18. The Tribunal notes that in relation to the information regarding the account of events provided by the applicant’s son, the applicant’s representative submitted that it would be jurisdictional error to rely on such information to find the applicant’s claim lack credibility.  The Tribunal does not accept those submissions.  The Tribunal is mindful of its obligations to put any adverse information before it to the applicant to provide them with an opportunity to comment or respond to the information.  The Tribunal is confident it met its obligations in this regard while maintaining as far as possible the confidentiality of the related proceeding.  The Tribunal accepts that where the applicant may not have direct access to the documents containing the information before the Tribunal, the applicant may feel ‘handicapped’ in his ability to respond.  However, it is the content of the information which is relevant to the Tribunal’s consideration and in this regard the applicant is in no different position to any applicant where confidential information must be protected. The Tribunal recognised this constraint and put the information to the applicant in detail on several occasions to provide him with an opportunity to respond.

19. The Tribunal notes that the obligation to give the applicant clear particulars of information that is adverse to their case may sometimes be in contention with the need to protect material covered by a non-disclosure certificate or notification. The Tribunal notes that s.424A does not apply to information that is ‘non-disclosable information’ within the meaning of s.5(1) of the  Act, which itself reflects similar public interest and in-confidence tests that apply to non-disclosure certificates.[15] This means that material which satisfies the public interest test or that was given in confidence may still be exempt from
    s. 424A, regardless of whether a valid non-disclosure certificate applies or not.  However, the Tribunal considered it was possible to comply with non-disclosure obligations and also with s.424A by providing sufficient particulars without disclosing the protected material in full.

    [15] Section 424A(3)(c) and the definition of ‘non-disclosable information’ in s.5(1).

20. The Tribunal notes the decision in that matter was reviewed by the RRT and affirmed.  That decision was upheld on appeal to the Federal Circuit Court.  Those decisions relate to another applicant and their findings with respect to whether that applicant met the criteria for protection are not relevant to the Tribunal’s consideration of the applicant’s claims for protection.  In the Tribunal’s view the decisions are only relevant, as information before the Tribunal, to the extent that  they confirm the refusal decision was free from jurisdictional error, such as procedural fairness arising from inadequate interpreting services (as was suggested by the applicant). The Tribunal accepts that the refusal of the visa application in the related matter cannot be determinative of the applicant’s case which must be determined on its own merits having regard to the information before the Tribunal and the applicant’s personal circumstances.

21. The issue of the weight to be given to any adverse information in making a determination regarding the credibility of the applicant’s claims is a matter for the Tribunal having regard to all the information before it. It is in this context that the Tribunal had regard to the information.

22. The information and the applicant’s responses to it are considered further below.

    Country information

23. At the hearing, country information, including the DFAT) Country Information Report: Sri Lanka, dated 23 May 2018 (the 2018 DFAT Report), was discussed with the applicant. Following the hearing, DFAT issued an updated version of the Country Information Report: Sri Lanka, dated 4 November 2019 (the 2019 DFAT Report). The Tribunal considered the updated report.

24. The Tribunal notes that the relevant material contained in the 2019 DFAT Report was materially the same as the country information report put to the applicant at the hearings, updated to take account of additional events including the 2019 terrorist bombings in Sri Lanka which were discussed with the applicant at the hearing based on information available at that time. The Tribunal was satisfied that issues arising from country information canvassed in the 2019 DFAT Report had been raised with the applicant at the hearing. Details of the 2019 DFAT Report including updated information were discussed with the applicant at the final hearing.

25. The relevant country information is discussed further below.

    Background and migration history

26. The applicant is [an age]-year-old male from Sri Lanka. He told the Tribunal he was a Catholic of Sinhalese ethnicity.

27. Prior to coming to Australia in 2012 the applicant was living in Negombo, Sri Lanka with his wife who remains in Sri Lanka.  They have [number of children].  One travelled with him to Australia and remains here, as the applicant understands, living in [Australia] on a bridging visa.  He told the Tribunal his son had also applied for protection but the applicant told the Tribunal he did not know the details of his application or whether it had been successful.  The other [children] are living in [specified countries].  His [eldest], who lives in [named country], is married and has one child.

28. At the hearings, the Tribunal discussed with the applicant his migration history, which is detailed in the delegate’s decision.[16]  The applicant arrived in Australia [in] December 2001 on a Suspected Illegal Entry Vessel (SIEV) and was detained under s.189(4) of the Act and transferred to immigration detention [at a location]. [In] January 2002 the applicant was charged with ‘assisting illegal entry into Australia’ as a crewmember of the vessel and transferred into Australian Federal Police (AFP) custody. He remained in custody for around nine months. [In] October 2002 the applicant was removed to Sri Lanka after he was acquitted of the criminal charge made against him in the [named] Court.[17]

    [16] See also ‘Debt Waiver Request’ letter from the Department of Immigration and Border Protection dated 11 February 2015 regarding the applicant, one noting his immigration background which was submitted to the Department by the applicant in support of his application.

    [17] See also ‘Debt Waiver Request’ letter from the Department of Immigration and Border Protection dated 11 February 2015 regarding the applicant, one noting his immigration background which was submitted to the Department by the applicant in support of his application.

29. [In] July 2012 the applicant arrived in [Australia] on a boat codenamed ‘[name]’ and was detained under s.189(1) of the Act as an illegal maritime arrival. At the hearing the applicant told the Tribunal he travelled on the boat from Negombo with his son.  The boat belonged to ‘[named person]’ and was skippered by ‘[another person]’.  He knew the skipper as he was a fisherman from the same area.  There were [number] passengers on board. Three of the people on the boat were from his village. He paid [amount] rupees for the trip to a person named ‘[name]’ who organised their participation in the trip.

30. On 23 January 2013 the applicant’s claims were found not to engage Australia’s protection obligations and he was ‘screened out’ of the protection process for removal action.  On 3 April 2013, following further claims from the applicant, he was ‘screened in’ to the protection process again pending consideration of how his claim was to be assessed. On 4 September 2014 the applicant was granted a bridging visa and released from immigration detention. On 7 October 2015, following the lifting of the section 46A bar by the Minister in September 2015, the applicant was invited to lodge an application for a subclass 785 (Temporary Protection) visa or a subclass 790 (Safe Haven Enterprise) visa. On 11 December 2015 the applicant lodged the current application for protection.

31. The applicant stated that he had travelled to [Country 1] [location] in 2011. He was in [Country 1] for three months. He flew to [Country 1] on his Sri Lankan passport with the intention of working there but was unable to obtain a work visa so he returned to Sri Lanka.

32. In Sri Lanka the applicant claims he worked as a fisherman and obtained his skipper’s ticket about 30 years ago. He was earning about 1000 Sri Lankan Rupees per month (around 8 AUD). He is now working for a [company] in Australia.  He is earning [amount] AUD per week with which he is continuing to support his wife in Sri Lanka.

    Overview of claims

33. The applicant claims there is a real risk he will face serious or significant harm on return to Sri Lanka on a number of grounds.

34. The delegate’s decision notes that at his entry interview on 25 September 2012 the applicant claimed he came to Australia due to issues with his fishing job in Sri Lanka and problems with Indian authorities.  The record of the ‘Irregular Maritime Arrival – Entry Interview’ conducted on 25 September 2012, which was signed by the applicant and a copy of which he provided to the Tribunal, records the following:

    Q: Did anything specifically happen to you that forced you to leave Sri Lanka – A. Yes I do this job as fishing and it is difficult to do fishing in Sri Lanka because India catches us. Sri Lanka is a small island and when we go fishing we may by chance and cross over the Indian border and the Indian Navy arrest us and take us into custody so it is difficult to fish. Q: Is that why you came to Australia – A: Yes it is because if we cross the border we get arrested and go to jail. I have been arrested once in 1994. Q: Why do you not just stay within the Sri Lankan waters and avoid the possibility of being arrested by Indian Authorities- A: Our borders is small so when we go fishing we may accidentally cross the border and sometimes when the Navy is not there it is easy to get back but if they are there they will catch us.

    ….

1. When asked what would happen if he returned to his country he said:

   If I am returned what will happen is I will be imprisoned in Sri Lanka and if I do my fishing I’ll be caught by the Indian Navy and put in prison there. I came here in order to avoid these possibilities.

2. When asked whether he had been associated with or involved in any political group he said:

   I have worked of the Sri Lankan Freedom Party at a local level.  From the time I could vote I have been a member of the Sri Lankan Freedom Party.  Whomever the candidate is I go with him for his meetings, place posters, raise flags and do all connected political work with the candidate.

   He indicated he had not been involved in any activities or protests against the government.

3. The Tribunal notes that documents provided by the applicant which the Tribunal understood were obtained from the Department under a Freedom of Information request, included a record of a ‘Biodata’ interview dated 3 August 2012 which affirmed the applicant was seeking protection and under ‘why?’ recorded:

   Client worked for Sri Lankan Federal Party and the encountered problems with them.

4. Further, the record of a ‘Case Assessment Interview’ conducted on 28 August 2012 records, under the section ‘Client intentions (e.g. client motivations for pathway choice)’:

   ·Political reasons/helping government

   ·Fisherman/ to many problems from India.

5. Details of how or when the applicant initially made claims regarding political activities are considered further below.  However, the Tribunal accepts on the information provided that he did raise political concerns in general terms during the arrival interview processes.

6. The applicant’s claims were expressed in the protection visa application as follows:

   I left Sri Lanka due to significant harm threats against me and my son from the opposition UMP party particularly from the person by the name of [Mr A]. [Mr A] belongs to the UNP and he is from the local area for Negombo. [Mr A] has assaulted my son before and threatened to harm me and my son because of political issues.

   I will be harmed by supporters of the opposition party. I will be jailed for leaving the country twice and or subjected to a large fine.

   I did seek help initially but when the police couldn’t help me I stopped going to the police.

   The people who want to harm me have government connections and the police cannot protect me and my son.

   This is the second time I left Sri Lanka illegally and I will suffer more serious consequences such as a longer jail term and or a much larger fine.

   If I were to be returned to Sri Lanka the UNP supporters and [Mr A] will harm me and my son. I also fear I will be arrested and jailed upon return to Sri Lanka for a longer term and I will be subject to torture and punishment because I travelled illegally outside Sri Lanka in the past.

   I was born in Negombo and grew up in Negombo. I also worked in Negombo harbour as a fisherman. My house is in Negombo. Relocation will cause extreme hardship financially as well is psychologically to me and my family. Furthermore, the people who wants to harm me and my son can easily locate us and harm us. We will be leaving in fear even if we relocate.

   I won’t be able to relocate because I will be jailed for leaving Sri Lanka illegally twice.  They will arrest me and put me in jail upon reaching the airport.

7. The applicant was interviewed by the Department on 7 June 2016.  The delegate’s decision summarises the claims contained in the application for protection and at the interview. The following summary was put to the applicant at the commencement of the hearing:

   • The applicant originates from the Negombo area of Sri Lanka and worked for the SLFP and the UPFA. He worked for the UPFA elected member, [Official A].
   • He came to Australia as a result of the death threats made against him due to his politics. He needed to escape from Sri Lanka to avoid physical attacks.
   • He supported the UPFA in every election and was involved in election meetings, distributing election leaflets and being in charge of polling centres. During the 2010 presidential elections in Sri Lanka he and his son were responsible for sticking up UPFA election posters and were assaulted by a group of opposition supporters.
   • In subsequent elections he and his son prepared posters which attacked the opposition – as a consequence they were threatened and harassed by opposition supporters. [In] August 2010 his son was assaulted by a powerful member of the opposition named [Mr A] and several of his associates. His son was injured and hospitalised and thugs subsequently visited his home and threatened to kill his son if the applicant reported the incident to police.
   • The applicant was scared and secretly made a complaint to police who accompanied him to the scene of the assault against his son but the police were unable to catch the culprits as no one was there. The thugs learned that he had made the complaint to police and visited his home again and demanded he withdraw the complaint. He was in fear for his life so he withdrew the police complaint. The police referred the matter to the Mediation Board and the matter was settled, however, the death threats against him and his son continued.
   • A former [Council 1] member for the opposition named [Councillor A] joined the UPFA and he became angry when the applicant refused to support him in his election campaign. [Councillor A] was defeated in the final [Council 1] Election of 2011 by [Official C] who was [associated with] the UPFA elected member [Official A]. Following the defeat in the election, [Councillor A] intensified his campaigns against the applicant.
   • Two days after the 2011 election defeat a group of thugs associated with [Councillor A] attempted to kill the applicant as he returned home on his motorcycle. He abandoned his motorcycle and fled to save his life. He made a complaint to the Negombo police but they did not take the complaint seriously or investigate the incident. As he could not obtain protection from the Sri Lankan authorities he started to fear for his life.
   • The applicant received threats from the rival faction of the UPFA as a result of the support from [Official A]. In the 2010 general election the candidate for the UPFA in his local area was [Official B] and he hated the applicant because he did not support him. The applicant supported UPFA candidates who contested the other electorates in that election.
   • The applicant lost the support of [Official B] and he received threats from his supporters. The political rivalry between [Official B] and [Official A] is well known. The applicant was caught up in the internal power struggle within the UPFA and was receiving death threats so he and his son left Sri Lanka to seek protection in Australia.
   • The applicant originally entered Australia illegally in 2001 and was deported back to Sri Lanka in October 2002. The applicant fears he will be arrested and jailed for travelling outside of Sri Lanka illegally. The applicant fears he will incur a longer jail term or a much larger fine as he has left Sri Lanka illegally on two occasions.

8. According to the delegate’s decision the applicant made the following additional claims at his interview in 2016:

   • He originally travelled to Australia in 2001 and was put in prison by the Australian authorities as a suspected ‘Skipper’ of an asylum boat. It appears that Sri Lankan authorities will identify him as a ‘Skipper’ if he returns to Sri Lanka and he will be imprisoned for suspected people smuggling activities.
   • He has had a number of ongoing health conditions and will not receive adequate healthcare in prison in Sri Lanka.

9. The applicant agreed this was a fair and accurate summary of his claims for protection. 

10. At the first hearing the Tribunal asked if the applicant had any additional claims and both he and his representative confirmed that he had no additional claims to those outlined in the delegate’s decision.

11. The delegate generally refused the applicant’s application for a protection visa as they did not accept the applicant’s claims regarding a risk of harm as a supporter of the UPFA or SLFP. The delegate found these claims had been contrived to enhance the applicant’s protection visa application.  The delegate also found the applicant did not face serious or significant harm on return to Sri Lanka as a failed asylum seeker or suspected people smuggler or because he had left the country illegally on two occasions. At the hearing before the Tribunal as previously constituted outlined the reasons for the delegate’s refusal and discussed those reasons with the applicant.

12. As noted above, at the Tribunal hearings the applicant provided oral evidence of his concerns about returning to Sri Lanka stemming from his political support for the SLFP, UPFA and [Officials A and C], profile as a ‘Skipper’ bringing him to the attention of the authorities as a suspected people smuggler and related reasons. This included at the hearing on 25 January 2018 before the Tribunal as previously constituted. The Tribunal reviewed the recording of that hearing and has taken the information provided by the applicant at that hearing into account.  However the Tribunal notes that several further hearings were held by the Tribunal as currently constituted and any concerns of issues regarding the applicant’s claims were discussed with the applicant directly at those hearings by the Tribunal as currently constituted. The applicant’s testimony in relation to his claims is summarised and considered below.

13. The applicant’s representative made written submissions to the Department dated 20 June 2016 and made oral submissions at the hearings before the Tribunal.  The applicant’s representative also made written submissions including in response to correspondence from the Tribunal which is considered further below. 

14. The applicant’s written submissions of 20 June 2016 and 25 June 2019 focused on the ‘facts of the protection claim for complementary protection’.  This claim focused on the applicant’s illegal departures from Sri Lanka in 2001 and 2012.

15. The applicant submitted that he arrived by sea twice.  He submitted that in 2001 he came as a boat crewmember and was arrested by the AFP and held on remand for 9 months.  He was charged in court and found not guilty and deported to Sri Lanka. He claimed that when he arrived in Sri Lanka a relative bribed the authorities to secure his release and as a result he escaped imprisonment.  In 2012 he came again to Australia.  The applicant submitted that during his interview with the Department he testified that he again came as a boat crewmember.  The applicant submitted that he is a skipper by profession, evidenced by his Fisherman Identity Card, and that this meant he would be identified as a skipper or suspected people smuggler.

16. In his written submissions to the Department and to the Tribunal the applicant summarised his fears as follows:

    ·     He may be detained without bail in order to carry out investigations as to whether he was involved with people smuggling or a boat skipper who facilitated the people smugglers.

    ·     He may be detained without bail to investigate on who the main ring leaders were and who else were in the people smuggling team.

    ·     He may be detained without bail because this will be his second offence of the departure law as a boat skipper and or a boat crew member.

    ·     He may be charged for an offence he didn’t commit – that is, he may be charged for people smuggling and or for aiding and abetting people smuggling.

    ·     He may be charged for a new offence of bribing Sri Lankan authorities.

    ·     Whilst in detention he risks torture by the Sri Lankan authorities.

17. The submissions also stated that the applicant may be detained in remand longer for investigations as a boat skipper and could be held in detention under the Prevention of Terrorism Act (Sri Lanka) for being suspected of aiding and abetting the people smugglers to smuggle Tamils out of Sri Lanka who the authorities suspect of having links to the LTTE.  He would be subject to torture to extract a confession and such confessions are admissible in Sri Lankan courts.[18] The submissions claimed the applicant risks being charged for offences he did not commit.

    [18] Citing the DFAT 2018 Report at par 4.15 to 4.19.

    The applicant cited a case by the RRT, Case number 1411709 (2015) ([Departmental file number]), in support of his claims and by reference to the summary of country information contained in that decision.  The Tribunal notes it has read the decision of Member Powles in that matter. 

18. The submissions also stated:

    He also fears harm for his political involvement. He fears harm from UNP members and [Mr A] who has on previous occasion harmed or tried to harm him and his son.

    The applicant claims the Data Breach had rendered him a refugee sur place, i.e. by reason of events happening in Australia.

    Alternatively, the applicant submits that based on SZSSJ v MIBP FCAFC 2015 he is not able to show cause until the full unabridged version of the KPMG’s report is provided to him.

19. The Tribunal understood these submissions to relate to the potential unauthorised access of some personal information regarding people who were in immigration detention on 31 January 2014, notified to the applicant by letter from the Department dated 12 March 2014.  A copy of the letter was provided to the Tribunal by the applicant. The delegate’s decision refers to two reports provided by KPMG on 5 April 2014 and 20 May 2014.  Neither was before the Tribunal. The delegate accepted that, as a result, the Sri Lankan authorities may be aware of the applicant’s presence in Australia.

    Evidence

    Reasons for leaving Sri Lanka

20. The Tribunal asked the applicant why he had not raised threats over his political activities as a reason he left Sri Lanka when he was initially interviewed on arrival in Australia, as detailed in the delegate’s decision.

21. Cognisant of its obligations under s.424AA of the Act, the Tribunal put to the applicant  that in his entry interview with the Department on 25 September 2012 he told the Department he left Sri Lanka because he had fished for a living and India catches fishermen when they cross the Indian border. He had told the Department fishermen get taken into custody and that makes it difficult to fish. He said he had been arrested by Indian authorities in 1994.  He was asked again if this is why he came to Australia and he said ‘yes’. 

22. The applicant said he did write it down. He said he had written it in his own handwriting. The applicant’s representative indicated he had a copy of that document obtained from the Department pursuant to a Freedom of Information request.  A copy of those documents was provided to the Tribunal by the applicant following the hearing.  

23. As noted earlier, the Tribunal accepts that early in his arrival process the applicant made reference to political problems in Sri Lanka and to his membership of the SLFP.  The handwritten document appeared to be a three page document written by the applicant and provided to the Department following the entry interview together with documents including those relating to the mediation and the political references.  The document is undated though there is reference elsewhere in the material to it having been provided via the applicant’s case manager after meeting with the applicant on 18 March 2013. 

24. That document provides details of the claims regarding political harm later detailed in the protection application. 

25. The Tribunal accepts the applicant provided an early detailed account of his claims to fear harm due to political associations in Sri Lanka.  However, the Tribunal also notes that the applicant gave an early and fairly detailed account of issues he was encountering as a fisherman in Sri Lanka when asked about his reasons for leaving Sri Lanka.  He did not provide any explanation to the Tribunal regarding why he had given those reasons for leaving Sri Lanka.  In the Tribunal’s view this does raise a concern regarding his motivation for coming to Australia and seeking protection and casts come doubt on his claims to fear harm on return due to political associations or for the other reasons later claimed.

    Persecution due to UPFA and SLFP associations

26. At the hearing the Tribunal asked the applicant why he left Sri Lanka and what he feared may happen to him if he returned.  He said he could not go back to Sri Lanka due to the threats he received due to political reasons. He said he thought a member of the UNP by the name of [Mr A] and another by the name [Councillor A] who crossed over from the UNP to the UPFA may harm him.  He said another named [Official B], who is a member of the same party he supported, the UPFA, had also threatened him.

27. The applicant claims he worked for the SLFP and UPFA and fears harm due to death threats made against him due to his political allegiances. He stated he was not employed by the parties but worked as a volunteer.

28. The applicant supported both parties and Mr Mahinda Rajapaksa in provincial elections. He said he would man polling booths, attend meetings and do publicity work like pasting posters for the parties. He said he manned polling booths at the 2005 and 2010  presidential elections. In the 2010 election he said he attended meetings and did campaigning supporting President Mahinda Rajapaksa (SLFP) who came to power in 2005 and won again in 2010. In the provincial elections 2009 he was supporting [Official A] (UPFA).  The two parties were joined together. 

29. He said at the time there were divisions in the UPFA divisions in the party and Mr Rajapaksa formed the SLPP (Sri Lanka People’s Front).  He said he would be aligned with Mr Rajapaksa’s faction. The Tribunal noted at the hearing that country information suggested that Mr Rajapaksa’s party did well at the last election and the applicant stated that there were divisions within the party. The Tribunal notes that Gotabaya Rajapaksa, former Minister and brother of Former President Mahinda Rajapaksa, was elected President in November 2019 and shortly thereafter appointed his brother, Mahinda as Prime Minister following the resignation of Prime Minister Wickremasinghe.[19] Rajapaksa, the candidate for the SLPP, defeated the UNP candidate, Sajith Premadasa.

    [19] >

    The Tribunal put this information to the applicant in the letter of 10 June 2020 and discussed the information with the applicant at the hearing on 6 July 2020.  The Tribunal put to the applicant that as the Rajapaksa family are now in control of the government in Sri Lanka this may limit the capacity of the UNP supporters and factions of the UPFA opposed to the Rajapaksa family to exercise power to persecute political opponents in Sri Lanka.

30. In response the applicant’s representative submitted that:

    The applicant suffered persecution during Mr Mahinda Rajapaksa his reign as the President. The current situation, Rajapaksa coming into power is no different from the situation he was in when he suffered harm because that also was during the time Rajapaksa was in power.

    The opposition party supporters who are known to him are still in his village.

    Also the threat of harm internally from [Councillor A] and [Official B] continue to exist.

    [Mr A] who assaulted his son is still in Negombo.

    Though he is a strong supporter of Mr Rajapaksa, neither he nor his government can protect him.

100.   The applicant said he would receive death threats if he returned to Sri Lanka. He initially told the Tribunal that he last received threats in 2010. He said his son was involved in political activities with him as was the rest of his family. He said the family were members of [Organisation 1] in Negombo.  [Official A] was a [local] member who is now a Member of Parliament in Mr Rajapaksa’s faction.  He was elected in the 2015 Parliamentary elections.

101.   In support of his claims that he and members of his family were members of the UPFA the applicant submitted the following documents:

·     A translated copy of an undated letter from [Official A] identifying the applicant and other family members as ‘active members’ of the UPFA and the applicant’s wife, a member of [a Women’s organisation].

·     A translated copy of a letter from [Official A] and [Official B] (stamped by [Councillor A] Member of [Council 1] , dated [in] January 2010 titled ‘Active Meeting in Electoral Area – United People’s Freedom Alliance’ and addressed to ‘[the applicant]’, asking the recipient to attend a meeting regarding the upcoming election as the addressee had been ‘appointed as a UPFA Active Member’ in the electorate area.

·     A translated ‘Presidential Election 2005 – Appointment of Polling Agents’ letter signed by [Official B] and dated [in] November 2005 identifying the applicant as a Polling Booth Representative at the Presidential election in favour of Presidential Candidate Mahinda Rajapaksa (plus photocopy of original).

·     A ‘report of the Residence’ from Grama Niladhari’s office dated [in] February 2013, confirming the applicant’s address in Negombo and stating, ‘I confirm that he underwent political threats’.

102.   The Tribunal notes the Departmental file also contained a document titled ‘local authorities, [Council 1] candidate preferences for the United People’s Front Alliance, United National Party and Sri Lanka Muslim Congress dates [in] October 2011 (marked [number]). It is not clear from the file if this is country information obtained by the delegate or information from the applicant.  However, the Tribunal considers that the information confirms, consistent in the applicant’s claims, that “[Official C]” who the Tribunal understands to be [Official A][20], and “[Councillor A]” were candidates for the UPFA in the [Council 1] Election.

[20] [Source deleted]

103.   The Tribunal notes country information regarding the prevalence of document fraud in Sri Lanka,[21] however, the Tribunal accepts the documents provided in conjunction with the applicant’s evidence and country information, establish the applicant and other members of his family were members of the UPFA.  The Tribunal also accepts the applicant worked as a polling agent in the 2005 election. 

[21] 2019 DFAT Report, page 73.

104.   He said he was last in contact with [Mr A] at the Reconciliation (Mediation) Board.  He had made a complaint to police following an attack against his son in 2010 and it was referred to the Reconciliation (Mediation) Board. He said the incident was in  Negombo.  He said he and his son were putting up elections posters and they were assaulted. He said on a different occasion his son was assaulted while returning home on his motor bike. When he came home they went to the police station.  The police came with him to the spot where his son was assaulted.  When police came the people who assaulted him were no longer there. Before they went there his son was taken to the hospital where he stayed for three days with a ‘swollen face’.

105.   He said [Mr A] then came to his house and threatened to harm him if he didn’t withdraw his complaint to the police. He said his son had identified [Mr A] as the person who assaulted him. He said he knew [Mr A] because they were from the same village.  He said when they came to the house they stood outside at about 8 pm at night.  He said when he went to the police they said they would direct the complaint to the Reconciliation (Mediation) Board.  He said he couldn’t remember the date of the Mediation Board but he confirmed both he and his son attended.  He said at the Mediation Board, they came to an amicable settlement. He said they had no choice because of the threats received at that time and because they were under duress.

106.   The Tribunal asked whether, to the applicant’s knowledge, [Mr A] or people he was associated with had killed anyone and he said he was not aware.  When asked what made him think they would make good on their threats against him the applicant said, ‘there is a possibility they can do it’.  He said they told his son if he continues to support the SLFP and UPFA they would kill him.

107.   The Tribunal asked about [Councillor A].  The applicant said that during the municipal election he supported the UPFA.  [Councillor A] asked for his support but he was supporting [Official C]. [Councillor A] lost at the municipal election. After about two days he organised a couple of people to assault the applicant. He said they were riding a motorcycle and they waited on the road and struck him.  He said he knew them and knew they were supporters of [Councillor A]. He said he couldn’t remember when it happened but he thought it was in 2011.  The Tribunal asked whether it was before or after the mediation with [Mr A] and he said it was after.

108.   He said that even though he went to the police station the police did not act on it because [Councillor A] was a former member of the municipality. The Tribunal asked him to explain why the police wouldn’t act because a former member was involved when he was working for a current member.  He said they are influential, they all belong to the same party.

109.   With respect to [Official B], the applicant claimed that at the 2010 general election he worked for [Official A] and his preferences went to other people at the election.  [Official B] lost and ‘then came with his people and threatened me’ because he had not supported [Official B]. The Tribunal queried whether the direction of preferences was a party decision. The applicant said [Official A] was man who told him to direct his preference to other people. The Tribunal queried why [Official B] singled him out and he said that in his area he took a prominent role, putting up posters, leaflets and canvassing.  He said [Official B] is not a member in the parliament but he is an organiser of the UPFA.

110.   The Tribunal queried whether any threats had been made against his family in Sri Lanka and he said ‘no’. The Tribunal put to him that if all his family were involved in political activities it might be reasonable to expect that threats would be made to other family members remaining in Sri Lanka.  He said his wife never received threats. The Tribunal queried whether that might suggest he was no longer of interest to those people and he said they will start again when he gets involved in politics.

111.   The applicant confirmed his wife was a member of a women’s [organisation] [connected to Official A]. He submitted the letter from [Official A] stating the applicant’s wife was a supporter of [Organisation 1]. However, when asked why she would not receive threats, the applicant said, ‘Maybe because she is a woman’.

112.   The Tribunal put to the applicant for comment that the delegate had not accepted that Sri Lankan authorities would have any particular interest in the applicant on return to Sri Lanka.  The Tribunal discussed with the applicant the delegate’s finding that country information did not indicate UPFA or SLFP supporters are persecuted in Sri Lanka due to political opinion. The Tribunal noted that there was nothing in the 2018 DFAT Report inconsistent with this finding. The Tribunal put to the applicant that the 2018 elections were generally peaceful (reportedly the most peaceful in history).  The applicant said he did not accept this.  He said the underworld was very active in Sri Lanka by which he said he meant the thugs that were involved in this situation.

113.   Pursuant to its obligations under s.424AA the Tribunal put to the applicant that his son had provided a different account of the claimed events in his application for protection. At the hearing the Tribunal put this information to the applicant. Following the hearing, the information was put again to the applicant in writing pursuant to s.424A. The information was as follows:

·     According to information before the Tribunal the applicant’s son claimed he fled Sri Lanka because of his political opinion as a supporter of [another named party]. He claimed the applicant had been actively involved and they attended campaign meetings and put up posters. He claimed he was assaulted in 2010 by a UNP supporter. He reported it to police who investigated and arrested the perpetrator. He was too afraid to attend the court hearing. The applicant received constant threats from the UNP supporter. If the UNP gain power there would be no safety for supporters of [his named] Party. The authorities are not interested in settling disputes of a political nature. He attempted to file police complaints about threats in the past and the police just called the two parties together to settle it between themselves.

·     The applicant told the Tribunal he and his son had been attacked and hospitalised by supporters of the UNP in 2010. However, information before the Tribunal suggests that his son claimed he was assaulted while alone. Information suggests his son claimed that he was alone and one person from a group of three on the ‘three-wheeler’ hit him.

·     The applicant told the Tribunal he went with the police to the scene of the beating but his son did not attend because he was in hospital. However, information before the Tribunal suggests that his son claimed he was taken by police to the site and the applicant spoke to people nearby. According to this information the police were able to identify who committed the attack from statements of those nearby. His son then went to hospital.

·     The applicant told the Tribunal that his son was in hospital for three days. Information before the Tribunal suggests he said he was in hospital for one day.

·     The applicant told the Tribunal that his son had attended mediation in relation to the attack against him. Information before the Tribunal suggests his son claimed he did not respond to the letters requesting he attend the mediation and he did not attend.

·     At the final hearing the Tribunal also put to the applicant that while he had claimed that he and his son had continued to suffer threats following the attack in 2010 and the mediation, his son had said he had not been subjected to any more threats in the two years since those events and when he departed from Australia.

114.   The RRT decided in 2015 that the applicant’s son was not owed protection due to events claimed to have occurred in 2010. That decision was upheld on appeal. 

115.   The Tribunal explained that the information was relevant because inconsistencies in information regarding events central to his claims and inconsistences in the account of events provided by the applicant and his son may lead the Tribunal to doubt the truthfulness of the applicant’s evidence and to consider that his claims lack credibility. It may also cause the Tribunal to not accept that the applicant has been harmed as claimed or that he has a genuine fear of being harmed on return to Sri Lanka. It may cause the Tribunal not to accept that the applicant has a well-founded fear of persecution if he returns to Sri Lanka or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

116.   At the hearing, the applicant explained that there were two incidents, one when they were both attacked putting up campaign posters and another when his son was attacked alone. He said it was during election time about two months after the first incident, but he couldn’t remember the exact date. He said it was following the second incident that he went to the police.  He said his son was afraid to mention the person’s name out of fear.  The Tribunal pointed out that he had said his son didn’t attend the site of the beating but his son said he did. The applicant said that when his son gave the statement he thought it might go against the applicant and that’s why he gave the statement in that manner. The Tribunal queried how it would go against him and he said that he thought if he involved the applicant in giving the statement ‘it won’t have any effect’. He said it happened the way he described it not the way his son described it.  When the Tribunal asked whether he could think of any reason why his son would have described the incident of the assault differently to the applicant, the applicant said it was because his son didn’t want the applicant to get his name into this issue so he wanted to show that he was the one involved in the whole incident.  The Tribunal pointed out that the inconsistency wasn’t that his son did not mention the applicant in his account, it was that his account was different to the applicant. The applicant said his son said he went alone instead of getting him involved.

117.   The Tribunal queried why his son would have claimed to have been in hospital for one day if he was there for three and the applicant said he [the son] was nervous. He said he had a swollen face and had x-rays taken and confirmed he had been in hospital for three days. In relation to whether the applicant’s son attended the mediation, the applicant said he had the documents to prove his son went to the reconciliation (mediation).  The Tribunal queried why he would have said he didn’t attend if he did and the applicant said he had thought it might adversely affect the application.

118.   In response to the letter the applicant’s representative confirmed the applicant’s responses before the Tribunal.  He stated that the applicant ‘has no idea why his son said this or whether there were issues with the interpretation when his son gave the evidence’.

119.   At the final hearing the applicant testified that he couldn’t recall when he last received threats but that after the mediation council they  received threats. He said both he and his son received threats. He said they wouldn’t let them live in peace. He said they told the other villagers and the message was relayed to them by the villagers. He said there was no further physical harm just threats via the villagers and his son was aware of the threats.

120.   The Tribunal put to the applicant that country information suggested that political parties are free to operate, including high profile elected representatives and office holders and low profile party members, supporters and volunteers, including people putting up fliers and handing out leaflets.[22]

[22] 2019 DFAT Report, at [3.51], page 32; see also 2014 DFAT Report, at [3.34].

121.   The Tribunal put to the applicant that the fact that he claimed police had investigated the attack against his son and mediation was ordered and undertaken may suggest police do take action in relation to such complaints of violence when they arise in a political or election context. This may also support country information suggesting political parties operated relatively freely. The applicant said the attempt at mediation was effective because they consented to mediation but they only did so because there were threats against their lives. The Tribunal asked how mediation was used in  Sri Lanka in this context and the applicant said matters were sent to mediation and then a decision was made as to whether they would go to court.

122.   In support of the claims regarding the mediation, the applicant provided translated letters from the ‘Mediation Board’ titled ‘Notice to call for a discussion to come to settlement in terms of the Mediation Board Act No 72 of 1988’ dated [in] February 2012 and [March] 2012 and a ‘Document issued in connection with the settlement of the Dispute/offence’ dated [in] March 2012.  The settlement document was purportedly signed by the applicant’s son and [Mr A] and noted that the parties met [in] March 2012 and discussed the assault. The parties:

agreed to forget the dispute created between us by my [Mr A’s] assault on party 1 [the applicant’s son] and to apologies to [the applicant’s son] and he agreed to this so we came to a settlement.

The document is purportedly signed by three mediators.

123.   The Tribunal discussed with the applicant at the final hearing that the fact his account of the events of the mediation differed from those of his son cast some doubt on the authenticity of the documents.  This concern was reinforced by country information suggesting document fraud was common in Sri Lanka including in the context of asylum applications abroad.[23]  The applicant said that the Tribunal could call the contacts on the documents and check his account.  The Tribunal noted that there were no contact details evident on the translated documents provided.  The Tribunal notes that the applicant did not offer to provide further details.

[23] 2019 DFAT Report, page 73.

124.   In any event, the Tribunal does not accept that it must necessarily make enquiries to satisfy itself about whether or not a document is genuine.  Whether the mediation documents are genuine is a matter of fact.  To determine this the Tribunal must consider objective circumstances on which a reasonable satisfaction could be achieved.  The Tribunal accepts that a failure to make an obvious inquiry about a critical fact could give rise to jurisdictional error for failure to complete the review in the particular circumstances of a case.   However, the Tribunal rejects any suggestion that attempting to contact the mediation board was a critical fact required to determine whether the documents were genuine, having regard to all the circumstances of the application. 

125.   The Tribunal had significant concerns about the authenticity of the documents relating to the mediation on the evidence before it.  These principally stem from information that the applicant’s son claimed not to have attended the mediation and the lack of any reasonable explanation for him to have denied having done so.  In such circumstances the Tribunal does not regard that it would be unreasonable to conclude the documents had been created to support the claims for protection. However, giving the applicant the benefit of the doubt, the Tribunal accepts the documents as evidence the applicant’s son attended a mediation with [Mr A] and the mediation was settled.  The only explanation the Tribunal can find for the son’s denial of having attended the mediation is that he did not believe it would support his claims to fear harm from [Mr A]. The Tribunal regards that the fact the matter was mediated is a plausible explanation for the son’s admission that no further threats of harm had been received from [Mr A] in the two years following from the assault and prior to leaving Sri Lanka.

126.   As noted to the applicant at the hearing, the Tribunal regards that the fact a mediation occurred supports a finding that the police were prepared to action the applicant’s son’s complaint against [Mr A] and that a settlement in the matter was reached. There is nothing in the documentary material that supports a claim the assault was politically motivated or that threats were ongoing.  The applicant’s son claimed he had not been the subject of any further threats following the incident with [Mr A].  This is combined with a lack of any evidence to corroborate the applicant’s claim of ongoing threats of harm from [Mr A], UNP or internal party rivals.

127.   In support of his claims to fear harm due to his political activities, the applicant also submitted a ‘Report of the Residence’ from Grama Niladhari’s office dated [in] February 2013, confirming the applicant’s address in Negombo.  This letter also stated ‘I confirm that he underwent political threats.  At the final hearing the Tribunal queried the original of the letter and the role of Mr Niladhari. 

128.   He said he had been sent the letter from his family at home.  He said Mr Niladhari administered the village.  The Tribunal asked why a statement that he had been subject to political threats would be included in a residence document and the applicant said it was because  he is the administrative officer and he made a complaint to him about the threats so he was aware. He said he was an officer of the government and before you go to the police you file a complaint with the village officer and if you want to go higher you go to the police. The Tribunal queried whether the applicant had mentioned reporting the threats to the village officer previously and he said he had not because he informed the Department about mentioning it to the police.

245.   The applicant claimed that the applicant faces additional danger because on return there is likely to be a large investigation as to how the applicant left Sri Lanka and who organised the boat. The applicant believes that he may be harmed in questioning.

246.   No independent evidence has been provided to the Tribunal of serious or significant harm being faced by failed asylum seekers returning to Sri Lanka who had left unlawfully by boat as a result of questioning by authorities about the circumstances of departure or by the individuals who had organised illegal boat departures. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm based on questioning by authorities as to the circumstances of him leaving Sri Lanka or by the organisers of the boat on which he left.

247.   The Tribunal does not accept on the evidence that the applicant would be suspected of being an organiser of the illegal boat from Sri Lanka. The Tribunal is therefore not satisfied that there is a real chance of serious or significant harm being faced by the applicant as a result of any more significant legal sanctions as a result of being accused of being a people smuggler.

248.   Further, and as a result of these findings, the Tribunal does not accept there is a real chance the applicant would be at risk of persecution due to imputed links to the LTTE due to being a skipper of a people smuggling boat.  The Tribunal does not accept there is a real risk he would be charged for offences he did not commit because he would be suspected of having links to the LTTE on this basis.

Security situation in Sri Lanka and Sri Lankan Catholics

249.   The Tribunal acknowledges that the incidents of Easter 2019 created a level of insecurity in Sri Lanka. However, despite events of 2019, DFAT notes that the security situation in Sri Lanka, particularly in the north and east, has ‘significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country.’[53]  It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[54] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[55] Similarly, the Full Court in A v MIMA explained that where the decision maker has a view based on available material that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort feared, in the absence of evidence advanced by the applicant, the decision maker will be entitled to reject the contention that the applicant is unable or unwilling for a Convention reason to avail him or herself of the protection of that country.[56]

[53] 2018 DFAT Report, page 11.

[54] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.

[55] (2004) 222 CLR 1 at [26].

[56] [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) at [42]. Note that some aspects of the discussion of protection in that case may not be consistent with what was said about the second limb of Article 1A(2) in the joint judgment in MIMA v Respondents S152/2003 at [28].

250.   The Tribunal accepts that while the Easter Sunday terror attacks have added to the applicant’s concerns about returning to Sri Lanka, Country reports indicate that the Catholic community has resumed its activities with heightened security, but there has been no sustained violence against them The Tribunal does not accept based on the evidence before it that the applicant faces a real risk as a Catholic attending church or that he would be unable to attend church or other religious festivals due to a risk from Islamic extremists in Sri Lanka.. The applicant did not substantiate his claim, and the Tribunal has found no credible evidence to indicate that anti-Catholic violence amounting to persecution were well-founded. 

Fishing in Indian territorial waters

251.   The Tribunal notes that in his arrival interviews the applicant stated he had left Sri Lanka because it was difficult to fish because of enforcement activities by Indian authorities when fishing boats strayed into Indian territorial waters.  He stated that he had been arrested for fishing in Indian waters by Indian authorities in 1994. The Tribunal notes the applicant did not raise any fears of harm on this basis in his application for protection or before Tribunal.  However,  for the sake of completeness the Tribunal has considered whether this gives rise to a claim for protection. 

252.   There is no information before the Tribunal that the applicant was mistreated when arrested by Indian authorities or that enforcement actions were directed towards the applicant other than for the reason of his boat entering Indian territorial waters on an unauthorised basis. There is no evidence that such enforcement was on a discriminatory basis.  The Applicant’s claim in his arrival interviews was that this made it difficult to fish.  He did not allege he had been harmed or feared harm on this basis.  Further, there was no evidence that the Sri Lankan authorities were involved in the actions of the Indian authorities in any way, including on a systematic or discriminatory basis.

253.   In any event, the applicant did not provide any basis on which the hardship claimed arises by reason of race, religion, nationality, membership of a particular social group or political opinion. Further, the Tribunal finds that the applicant has provided no evidence that the economic circumstances to which he has referred in his claims, amount to systematic and discriminatory conduct with respect to him.  Accordingly, the Tribunal finds that the applicant does not face persecution involving systematic and discriminatory conduct, for the purpose of the refugee criteria in Malaysia now or in the reasonably foreseeable future from any person or for any reason on the basis of engaging in fishing activities including in Indian territorial waters.

Cumulative factors

254.   The Tribunal considered whether the combination of factors affecting the applicant would mean he has a real chance of serious harm if he returns to Sri Lanka.

255.   The Tribunal considered whether the applicant has a well-founded fear of persecution due to his political association with members the SLFP and UPFA; from the members of the UNP; because the Sri Lankan authorities will identify him as a ‘Skipper’ if he returns to Sri Lanka and he will be imprisoned or fined for his suspected people smuggling activities; because the Sri Lankan authorities will identify him as having left Sri Lanka illegally on two occasions and he will be imprisoned or fined as a result; because his personal details were released in a breach of the Department’s data in 2014 and the Sri Lankan authorities will know where he is and the nature of his claims, because he is a Catholic from Negombo and is at risk from Islamic extremists or for any other reason. The Tribunal is not satisfied there is a real chance he would be seriously harmed due to any or all of the combination of these factors.

256.   Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted for any of the reasons claimed or for any other reason.

Does the applicant meet the refugee criterion?

257.   Based on the evidence before it, the Tribunal finds the applicant’s claims that there is no real chance that, if he is returned to Sri Lanka, he would be seriously harmed by members of the UNP or political opponents within the SLFP and UPFA including [Councillor A], [Official B] or [Mr A] lack credibility.

258.   The Tribunal finds that considered individually and cumulatively, there is nothing to suggest that the applicant would face persecution now or in the reasonably foreseeable future as a result of political support for the SLFP or UPFA, due to government responses to the Easter terrorist bombing attacks in Sri Lanka, as a Catholic living in Negombo, as a suspected ‘skipper’ or people smuggler, as a failed asylum seeker or for any other reason.

259.   The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act. As the Tribunal has found that none of the applicant’s claims individually or cumulatively result in him meeting the criteria to have a well-founded fear of persecution, he does not meet s.36(2)(a) for the grant of a protection visa, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Does the applicant meet the complementary protection criterion?

260.   The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances.

261.   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of 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’).

262.   The meaning of significant harm is set out in s.36(2A) of the Act. A non-citizen will suffer significant harm if the person will be arbitrarily deprived or his or her life, the death penalty will be carried out, the person will be subjected to torture, the person will be subject to cruel or inhuman treatment or punishment, or the person will be subjected to degrading treatment or punishment.

263.   Under s.36(2B), there is taken not to be a real risk of significant harm if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk of significant harm, or the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm, or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

264.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

265.   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

266.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

267.   The Tribunal has found that the applicant does not face a real chance of serious harm now, or in the reasonably foreseeable future, as a result of political support for the SLFP or UFPA, due to government responses to the Easter terrorist bombing attacks in Sri Lanka or as a Catholic from Negombo. For the same reasons, the Tribunal finds he does not face a real risk of significant harm as a necessary and foreseeable consequence of his return to Sri Lanka for those reasons.

268.   The Tribunal finds that the applicant has family support in Sri Lanka and professional qualifications as a skipper that mean he can seek employment there. The Tribunal notes that Negombo is a fishing area and the applicant claims more than 30 years’ experience as a fisherman. The Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his return to Sri Lanka, he will suffer significant harm in terms of being arbitrarily deprived of his life, subjected to torture, subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment for these reasons.

269.   Again, while the applicant did not raise as a claim in his application for protection a fear of harm due to fishing activities and territorial waters enforcement actions by the Indian government, for the sake of completeness the Tribunal has considered whether such a claim would give rise to a claim for complementary protection.  There is no information before the Tribunal that the applicant was mistreated when arrested by Indian authorities or that enforcement actions, that such actions were arbitrary or that they  were directed towards the applicant, other than for the reason of his boat entering Indian territorial waters. As noted above, the applicant’s claim in his arrival interviews was that the activities of Indian authorities made it difficult to fish.  He did not allege he had been harmed or feared harm on this basis. There is no evidence that the actions of the Indian government expose the applicant to a real risk of significant harm in terms of being arbitrarily deprived of his life, subjected to torture, subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment.  The Tribunal finds there is no real chance the applicant would suffer significant harm from Indian authorities on return to Sri Lanka or in the reasonably foreseeable future.

270.   The Tribunal has accepted above that there is a real chance of the Sri Lankan authorities detaining the applicant on his arrival at the airport for several hours and then detaining him on remand pending bail or fines. The Tribunal has accepted he could be held for several days. The Tribunal has also found that the conditions in detention are overcrowded and unsanitary; and that he may be fined, and/or subject to lengthy court processes.

271.   As noted above, the ‘real risk’ test imposes the same standard as the ‘real chance’ test. For the reasons that follow, the Tribunal is not satisfied that such treatment, individually or cumulatively, amounts to significant harm anywhere in Sri Lanka.

272.   Based on country information about the treatment of detainees and the applicant’s prior experience on return to Sri Lanka, the Tribunal does not accept that the applicant’s treatment whilst in detention at the airport or in remand, or the duration of his detention potentially over several days, amounts to significant harm as defined in s.36(2A) of the  Act. The Tribunal does not accept the applicant would be denied medical treatment for diabetes while being questioned or in detention.  Further, the Tribunal does not accept the applicant would not have access to universal health care available to Sri Lankans on his release.  The Tribunal does not accept, based on the available country information that any period in prison in Sri Lanka gives rise to a real risk of torture and it is not satisfied having regard to the applicant’s personal circumstances that there is such a real risk. The Tribunal is not satisfied that the applicant’s Catholic faith, background, or other circumstances give rise to a real risk of him being treated differently from other returnees who are detained and being subject to significant harm.

273.   The Tribunal notes that the applicant’s detention arises in the context of lawful sanctions by the Sri Lankan authorities in the administration of the I&E Act. The definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ all include a qualification for an act or omission that causes, or is intended to cause the relevant harm ‘only from, inherent in or incident to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.’ However, given its assessment that the applicant’s prospective treatment does not involve ‘significant harm’ as defined in ss.36(2A) the Tribunal does not need to determine whether it arises in the context of lawful sanctions consistent with the ICCPR.

274.   The Tribunal accepts that remand facilities in Sri Lanka may be overcrowded and unsanitary.  However,  the Tribunal does not accept that these conditions arise as the result of Sri Lankan officials’ acts or omissions that are intended to cause severe pain or suffering, of a kind that amounts to torture, or cruel or inhuman treatment or punishment; or extreme and unreasonable humiliation that amounts to degrading treatment or punishment. Rather, country information indicates that poor conditions arise from the Sri Lankan authorities’ limited resources.[57]

[57] 2018 DFAT Report, at [5.18]; 2019 DFAT Report, at [5.2]

275.   Further, the Tribunal does not accept that the applicant’s detention or charging and conviction under the I&E Act would involve the death penalty or arbitrary loss of life. The Tribunal also does not accept that the imposition of a fine as punishment for the applicant’s illegal departure, or any processes associated with the grant of bail or any court proceedings including payment of bail, the appearance of a family member at the court or requirements to attend court at regular intervals amounts to significant harm.

276.   The Tribunal is not satisfied fines would amount to pain or suffering, whether physical or mental, being inflicted on the applicant or that there is any intention to cause extreme humiliation as would amount to cruel and unusual punishment degrading treatment or punishment or any other significant harm through the imposition of such fines. The Tribunal is not satisfied the applicant would be subject acts or omissions which would amount to significant harm including in any post-return monitoring or detention for questioning.

277.   For the reasons detailed above, the Tribunal does not accept that the applicant would be wrongly identified as a ‘skipper’ and charged as a people smuggler notwithstanding he has departed illegally from Sri Lanka twice.  Based on the evidence before the Tribunal and the applicant’s prior experience on return to Sri Lanka the Tribunal does not accept there is a real risk he would be identified as a people smuggler.  Accordingly the Tribunal does not accept he would be subject to interrogation or prolonged detention associated with the investigation of suspected people smuggling activities.  The Tribunal also does not accept that the applicant would be imputed to be a supporter of the LTTE due to suspected people smuggling activities.

278.   Finally, the Tribunal does not accept that there is a real risk that the applicant will face harm that amounts to significant harm, on the basis of his circumstances as a whole – including as a Catholic from Negombo, a political supporter of the UFPA and SLFP, as a failed asylum seeker; as a person who had departed Sri Lanka illegally on two occasions, as a suspected people smuggler or ‘skipper’, as a people smuggler suspected of links to the LTTE or on the basis of any factors give risk to a real risk of him being subject to significant harm.

279.   For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

280.   As a result, the Tribunal finds the applicant does not meet the criteria in s.36(2)(aa) of the Act.

CONCLUSION

281.   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 s.36(2)(a).

282.   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).

283.   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

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

Simone Burford
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means 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 Covenant;

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 Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

rajapaksa-premadas-count-continues, ‘Gotabaya elected President of Sri Lanka’, The Guardian, 17
November 2019; ‘Sri Lanka’s new president picks brother Mahinda Rajapaksa as PM’ Al Jezerra, 20
November 2019
prime-minister-set-resign-election-setback-191120111642357.html;

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Citations

1617561 (Refugee) [2020] AATA 3526

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

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