1617952 (Refugee)

[2017] AATA 2389

1617952 (Refugee) [2017] AATA 2389 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617952

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:1 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 November 2017 at 9:54am

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Political opinion – Supporter of United National Party – Particular social group – Driver – Failed asylum seeker – Fear of violence – Extortion

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a [age]-year-old Sri Lankan male from [Town 1], Puttalam district in North Western province.  He seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka where he claims to fear harm as a supporter of Sri Lanka’s United National Party, as a [driver] and as a person who departed Sri Lanka illegally and sought asylum in Australia.

3. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. A summary of the relevant law is contained in Attachment A.

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

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

   History of proceedings

6. The applicant arrived in Australia by boat [in] October 2012. He applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013, not being satisfied the applicant was a person to whom Australia owed protection. On 12 June 2014 the former Refugee Review Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

7. The applicant sought a review of the Tribunal’s decision from the Federal Circuit Court of Australia.  By judgment dated [in] October 2016, that court quashed the Tribunal’s decision dated [in] June 2014 and directed the Tribunal to hear and determine the application for review according to law.

8. The applicant appeared before the Tribunal on 19 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

9. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

10. The applicant arrived in Australia by boat and without identity documents.  He later provided the Department with copies of his Sri Lankan passport issued to him [in] 2007, birth certificate, marriage certificate and national identity card. The delegate accepted he is a citizen of Sri Lanka.  I find he is a Sri Lankan citizen and have assessed his claims against Sri Lanka as his country of nationality.

    Credibility

11. I acknowledge the importance of adopting a reasonable approach when making findings of credibility[1].  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

12. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2]. 

    [2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

13. As discussed with the applicant at hearing, I have concerns about the credibility of some aspects of his claims for protection.  The Tribunal’s particular findings are discussed below.

    Personal background

14. The applicant is a [age]-year-old Sri Lankan male of Sinhalese ethnicity and Catholic religion from [Town 1], Puttalam district in North Western province. In his protection visa application he states that he married in October 2008 and his wife and [age]-year-old son remained living in Sri Lanka, as do his parents and sister.

15. He states he undertook his primary education and secondary education in [Town 1], Puttalam, completing his education in [year].  After finishing school he helped his parents at home for a few years before becoming self-employed, driving a [vehicle] between 2003 and 2010. He states that between 2010 and 2012 he lived with a friend in [City 1] and attempted to learn to work as [occupation].

16. He states that in 2009 or 2010 he tried to enter [Country 1] using his own lawfully issued passport but was refused entry because he was not carrying sufficient funds. He states he was deported from [Country 1] back to Sri Lanka.  He departed Sri Lanka for Australia by boat in June 2012.

17. At hearing on 19 September 2017 the applicant confirmed each of these matters and I accept them to be true.

    Claims for protection

18. The applicant’s protection claims are set out in a statutory declaration made [in] October 2012 attached to his visa application.

    Events in [Town 1] in 2010

19. I accept the applicant’s claims that he and his family are UNP supporters and he assisted the UNP during its election campaign prior to the April 2010 parliamentary election. At the first Tribunal hearing he told the Tribunal that in the Puttalam electoral district the UNP got about 40 % of the vote, with two candidates from the UNP elected and six candidates from the People’s Alliance. Independent sources confirm the UNP received 37.8% of votes throughout Sri Lanka[3] and 31% in Puttalam.[4]

    [3] >

    The applicant told me his election activities started when the candidates submitted their nominations, about a month before the parliamentary election which took place on 8 April 2010.  He gave evidence that he worked for UNP [candidates]. He gave evidence he was involved in [various political activities]. I consider the applicant has been consistent in this evidence over a significant period of time and I accept he was involved in those election activities as claimed.

20. At hearing on 19 September 2017 he confirmed that although he had always supported the UNP, he was not involved with any election activities other than during the 2010 parliamentary elections and I find accordingly.

21. The applicant has consistently stated he was not specifically targeted prior to the election in April 2010, although he was aware of several UNP supporters being harmed by People’s Alliance supporters. Rather he claims that after the election he started to have problems with members of the ruling People’s Alliance, who targeted him in several separate incidents. 

22. The applicant claims that two days after the election, people searched for him at his parent’s home.  At hearing the applicant told me that about a week after the election in April 2010, he was driving his [vehicle] in [the] township when he was approached by two men he knew to be People’s Alliance supporters, [Mr A] and [Mr B].  He told me they were among the people given privileges by the ruling politicians to take all the benefits from the [drivers] by making them pay to park at the bus stand, markets and hospital. They told him he had better vanish away from that place and when he refused, they returned with two other men [Mr D] and [another named person] and the four chased and hit him until he ran away. 

23. He gave evidence that he remained in hiding at home for about four days before returning to [Town 1] with his friend [where] he attempted to talk to the [Mr B] and [Mr D] but was again beaten. Three to four days later he went on hire with his [vehicle] in [Town 1] and was again attacked but managed to escape.  He claims he went to the police station once to report the attacks, but they didn’t record his complaint as there was no-one to give evidence against the people who had attacked him. 

24. He claims there was a further incident where two men hired him to drive them [a distance] out of town, where they ordered him to stop and then refused to pay his hire fee.  He told me they hit him and he hit them back.  He stated they phoned others whom they told to join them and so he hurried away from the area in his [vehicle].  At hearing he told me that although these men were not the same men who had attacked him earlier, their faces were familiar to him as those working for the People’s Alliance candidates and he discovered later after describing them to his friends that they were connected to those opposing the UNP.  When asked why he would pick these people up if he recognised them as working for the People’s Alliance, he said he never thought they would attack him and there were lots of people doing this work during the election period.  These incidents all took place within a few weeks of the April 2010 election.

25. At hearing I advised the applicant I was having difficulty understanding how his difficulties with these people related to his election activities for the UNP, given that it seemed to be a dispute about paying money to access designated parking areas. He stated that he had always paid the compensation they were seeking and didn’t have any problems with these people before the election, but after the election they were afraid of losing their power and income to the UNP and targeted him because he had supported the UNP during the election campaign.  I put to the applicant that it seemed strange his difficulties had only started after the election result was known, when it would have been apparent that the UNP had not won the election and the People’s Alliance remained in power.  He stated that one of their local MPs had lost his seat and the People’s Alliance supporters remained concerned about losing power to the UNP.  He also explained he was helping [a candidate] and the UNP during the election campaign because he wanted to stop these people demanding money from [drivers].

26. I accept that in [Town 1] at that time there operated a system where [drivers] had to pay money in exchange for authorisation to park their vehicles in designated areas around the town. In making that assessment I note DFAT advises there are credible reports of corruption in the government and public sector, including several high profile members of former President Rajapaksa’s administration[5]. I accept the persons collecting the money from [drivers] operated with the tacit approval of local politicians and at the time of these events the People’s Alliance were in power.  

    [5] DFAT 2017 DFAT Country Information Report: Sri Lanka 24 January at 2.10

27. I accept the applicant’s claims that those [drivers] who supported the People’s Alliance were able to park their [vehicles] at designated stands in [Town 1], while those who did not were forced to park in unauthorised areas.  I accept the applicant’s work for the UNP during the election campaign meant that he was denied permission to park in those authorised areas, while prior to the election he had been allowed to park there as long as he paid the fees demanded.  I accept that on several occasions the Sri Lankan police forced him to move his vehicle out of the authorised areas.

28. I also accept that in the few weeks immediately following the election in April 2010 the applicant had several altercations with [Mr A] and [Mr B] and their associates.  I accept the reason for these altercations was that they were angry the applicant had supported the UNP during the election campaign because one of the People’s Alliance candidates had lost his seat at that election.  I accept that the applicant was assaulted by [Mr A] and [Mr B] and their associates on three occasions while driving in [Town 1] and that the police did not act on his complaint.  I note his evidence he was able to escape unaided on each of those occasions. I accept the applicant believes the fare evaders were also related to [Mr A] and [Mr B], although he did not suggest they mentioned his UNP activities with him. Rather he claims he later described their faces to friends who told him they were connected to [Mr A] and [Mr B].  Although I have some doubts these people were connected to the People’s Alliance rather than merely trying to evade the fare, I give the applicant the benefit of the doubt and accept it may have been a continuation of the harassment he was experiencing in [Town 1] as a result of his UNP activities.

    Events in [City 1] - May 2010 to June 2012

29. The applicant gave evidence that he left [Town 1] for [City 1] in May 2010 where he lived with a close friend called [Mr C] who was [occupation], working with [Mr C] two or three days a week.  He remained living in [City 1] for just over two years, before leaving Sri Lanka by boat in June 2012.

30. In his protection visa application he stated while he was in [City 1] he learned the People’s Alliance supporters had gone to his wife’s residence in [Town 1] in search of him several times and I accept this may be the case.  Although not mentioned in his written claims, the applicant gave evidence at the tribunal hearings that the people who attacked him in [Town 1] came in search of him in [City 1], going to his home while he was at work. 

31. As discussed with the applicant at hearing, I have difficulty accepting people came looking for him in [City 1].  The applicant’s own evidence was that many people were involved in working for political candidates during the election campaign in April 2010.  The applicant’s involvement was as a worker for two UNP candidates, both of whom had sufficient support to get elected.  The applicant’s involvement commenced only a month before the election was held and his activities at that time indicate he was a low level functionary. While I have accepted he had a number of altercations with People’s Alliance supporters in [Town 1] in the weeks immediately following the election, I do not accept his minor role would have motivated those people to pursue him in the city of [City 1], particularly given the election results were by then known and the People’s Alliance remained in power. 

32. I am also concerned at his evidence that the people who attacked him in [Town 1] located his home in [City 1] and came looking for him there on one occasion, but he was at work when they came. I consider that if these people were sufficiently motivated to search for him and locate his home in [City 1], they would have returned to search for him again over the two years he lived in that city.  When I put this to the applicant at hearing he stated they didn’t return because they couldn’t trace him.  However I consider if they were able to locate the place he was staying, they would have returned had they had any ongoing interest in the applicant.  For these reasons I do not accept that members or supporters of the People’s Alliance pursued the applicant to [City 1] as claimed.

    Work as a [driver]

33. In his protection visa application the applicant states he had worked as a [driver] for many years and it was almost impossible for him to learn a new [trade]. He claims that although [Mr C] offered him some work during this period it was barely enough to survive and the work was not consistent.  He states it was getting to a point where he could no longer depend on [Mr C] who also provided him with free accommodation.  

34. I accept that if the applicant returns to Sri Lanka, he may again support the UNP and he may return to [driving].

    Future risk of harm

35. The applicant claims to be at risk of being seriously harmed by People’s Alliance supporters if he returns to Sri Lanka.  He also claims he will be subjected to harsh treatment by the Sri Lankan authorities because he fled the country illegally and has claimed asylum in Australia. He claims he would be jailed for a long period of time if returned to Sri Lanka and the prison conditions are not humane. 

36. He also claims the Sri Lankan government cannot or will not protect him because it will not favour a UNP supporter over its own People’s Alliance supporters. He claims he is afraid to relocate to another area as he fears being tracked down by the People’s Alliance supporters and also doesn’t have any family members or relatives residing outside of [Town 1].

37. It is submitted on his behalf that he faces harm for reasons of his political opinion (as a UNP supporter who has come to the adverse attention of supporters of the People’s Alliance).  It is submitted that he would also be harmed because of his membership of the particular social groups ‘persons who have fled Sri Lanka illegally’ and ‘[drivers]’.

    Future risk of harm as a UNP supporter who has come to the adverse attention of supporters of the People’s Alliance

38. As discussed with the applicant at hearing, there have been significant changes to the political and security situation since the 2010 election as a result of changes following the end of the long running civil war in Sri Lanka in 2009 and the election of the Sirisena government in 2015. 

39. These changed conditions necessarily impact on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision.  In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test.

40. At hearing I discussed with the applicant the contents of DFAT’s 2017 Country Information Report: Sri Lanka.  DFAT reports that in the years since the end of the long running civil war between the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam in 2009, the security situation in Sri Lanka has greatly improved with the Sri Lankan authorities exercising control over the entire territory of Sri Lanka.  Under the leadership of current President Maithripala Sirisena who was democratically elected in January 2015, the Sri Lankan Government is focused on post-conflict reconciliation, transitional justice, and governance and economic reform[6].

    [6] DFAT 2017 Country Information Report: Sri Lanka 24 January at 2.2

1. In 2016, Human Rights Watch described those changes in Sri Lanka since those elections as ‘momentous’, with the new government abolishing surveillance and censorship of media and civil society groups, embarking on constitutional reform, taking steps to restore the independence of the judiciary and initiating more open dialogue with the international community and human rights groups[7].

   [7] Human Rights Watch 2016 World Report: Sri Lanka  at >

   The changed political environment following the 2015 Presidential and Parliamentary elections in Sri Lanka has a particular relevance to the applicant’s claims, as the UNP whom he supported while in opposition are now in power.  President Sirisena presides over a governing coalition ‘United Front for Good Governance’, consisting of more than a dozen political parties including the UNP.  The UNP won 106 out of 225 seats in Parliament at that election, more than any other political party. The UNP’s leader Ranil Wickremesinghe is now the Prime Minister of Sri Lanka[8]. 

   [8] DFAT 2017 Country Information Report: Sri Lanka 24 January; Parliament of Sri Lanka General Election Results at >

   It is also reported that Sri Lanka’s election processes are now more credible and peaceful than they have been in the past.  DFAT reports that while democratic elections have been held on a regular basis since independence and never marred by large scale violence or rigging, they have not always been described as entirely free and fair.  However the 2015 elections proceeded relatively smoothly with the Presidential election in January 2015 described as generally peaceful and orderly.  International observers described the Parliamentary election in August 2015 as ‘credible, met the key criteria for democratic elections and the outcome reflected the will of the people’[9].

   [9] DFAT 2017 Country Information Report: Sri Lanka 24 January at 3.23

2. I have accepted the applicant and his family are UNP supporters.  I have also accepted the applicant had several altercations with People’s Alliance supporters in the weeks immediately following the 2010 elections. I accept that if returned to Sri Lanka, the applicant may again support the UNP and campaign for them during elections.  However more than seven years have since passed during which there have been significant changes to the political and security situation in Sri Lanka. In particular the UNP won 106 out of 225 seats in Parliament in the 2015 election and now forms part of the governing coalition in power and the UNP’s leader Ranil Wickremesinghe is now the Prime Minister of Sri Lanka.

3. In these circumstances I do not accept there to be a real chance the applicant will be harmed for reasons of his past or future support and/ or election activities for the UNP if he returns to his home in [Town 1], Sri Lanka, now or in the reasonably foreseeable future.  Given the UNP now forms part of the ruling coalition government in Sri Lanka, I do not accept he will be denied state protection by the Sri Lankan authorities in any dispute he may have with other [drivers] for reason of his support for the UNP or any reason relating to his political opinion.

   Future risk of harm as a [driver]

4. I accept the applicant may return to driving a [vehicle] if he returns to Sri Lanka.  However the applicant’s evidence indicates the problems he experienced while driving his [vehicle] in 2010 related to his political activities and support for the UNP rather than his work as a [driver].  He gave evidence that prior to his activities in the election campaign in April 2010, he had not experienced any significant problems in Sri Lanka despite being a [driver] since 2003. For the reasons set out above I have not accepted there to be a real chance the applicant will be harmed for reasons relating to his past or future support of or activities for the United National Party.

5. While I have accepted that persons operating with the tacit approval of local politicians collected money from [drivers] in exchange for permission to park in authorised areas of the township, the applicant’s evidence is that prior to the 2010 election he always paid the compensation sought and this didn’t cause him any problems. As the UNP is now part of the governing coalition in Sri Lanka, I do not accept there to be a real chance the persons collecting money for parking will refuse to grant the applicant permission to park or otherwise target him for harm for reasons of his support for the UNP. In any case I do not accept such demands for payment amount to serious harm for the purposes of s91R(1)(b).

6. For these reasons I do not accept there to be a real chance he will be harmed or extorted by People’s Alliance supporters or any other person in the future for any reason to do with his work as a driver of a [vehicle].  It follows I do not accept the applicant has a well-founded fear of persecution for reasons of his membership of the particular social group ‘[drivers]’.

   Failed asylum seeker

7. In considering whether the applicant will face persecution if returned to Sri Lanka for reasons of his presence in Australia as an asylum seeker, I accept the applicant entered Australia in June 2012 without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

8. At hearing I discussed with the applicant DFAT’s advice that over 1,500 Sri Lankan asylum seekers had been returned to Sri Lanka from Australia since 2008.  DFAT reports that during the processing of returnees, those persons are interviewed and identities checked, which may involve checks in the person’s home town.  Checks are also made against immigration and intelligence databases and in relation to outstanding criminal matters. DFAT assesses that returnees are not subject to mistreatment during processing at the airport[10].

   [10] DFAT 2017 Country Information Report: Sri Lanka 24 January at 5.17 – 5.28

9. I accept that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad. I consider that such questioning will quickly establish that the applicant was not of any adverse interest to the Sri Lankan authorities at the time he left Sri Lanka.  For these reasons I do not accept there to be a real chance that the applicant will be harmed or mistreated at the airport on the basis he is returning as a failed asylum seeker.

10. I have accepted that in 2009 or 2010 he tried to enter [Country 1] using his own lawfully issued passport but was refused entry because he was not carrying sufficient funds and deported back to Sri Lanka. It is not suggested he suffered any harm at the time he re-entered Sri Lanka and I do not accept there to be a real chance he will be harmed for that reason if he returns to Sri Lanka now or in the reasonably foreseeable future.

11. I accept that when the applicant returns to his home in [Town 1], his arrival will be noted and he may be questioned by the Sri Lankan authorities. I do not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he has sought asylum in Australia.

    Illegal departure

12. At hearing the applicant told me he had in the past been issued a Sri Lankan passport which remained with his wife in Sri Lanka but that he had not used that passport to depart Sri Lanka in June 2012, rather he departed by boat without the permission of the Sri Lankan authorities. 

13. I accept the applicant’s departure from Sri Lanka irregularly by boat is likely to be viewed as a breach of Sri Lanka’s departure laws. DFAT reports that Sri Lankan returnees suspected of breaching departure laws are questioned by police on arrival at the airport and charged under Sri Lanka’s Immigrants and Emigrants Act 1949 (the I&E Act). 

14. At hearing I discussed with the applicant DFAT’s advice that persons suspected of leaving Sri Lanka illegally will be arrested at the airport, photographed and fingerprinted and taken to the closest Magistrate’s Court at the earliest opportunity. Those who have been arrested can remain in police custody at the airport for up to 24 hours unless it is a weekend or public holiday in which case those charged may be held in a nearby prison until a magistrate is available. 

15. As discussed with the applicant at hearing, the Sri Lanka’s Attorney General’s department advises that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally. However fines of up to 200,000 rupees ($AU200) have been issued and can be paid by instalment. If a person pleads guilty they will be fined and are then free to go. If a person pleads not guilty they are in most cases immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. There are rarely any bail conditions which are discretionary and there is no general requirement to report to police stations between hearings. DFAT reports that the departure laws are applied to all Sri Lankans, regardless of ethnicity and religion [11].

    [11] DFAT 2015 Country Information Report for Sri Lanka 16 February at 5.17 – 5.28

16. I accept that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held in police custody for a period of up to a few days, but likely less than 24 hours, before being brought before a magistrate. 

17. Having regard to the DFAT advice cited above, I do not accept there to be a real chance he will be harmed during the questioning or any period he is held in police custody awaiting a hearing before a magistrate.  On the basis of the DFAT advice cited above, I do not accept there to be a real chance that the applicant will be denied bail, rather I consider he will be granted bail when presented to court and if convicted of charges under Sri Lanka’s I&E Act he will face a fine of up to 200,000 rupees, about $AU200.  The applicant’s family members remain living in Sri Lanka and I do not accept he will be unable to pay a fine if it is imposed on him. 

18. As discussed with the applicant at hearing, I accept that prison conditions in Sri Lanka are generally poor but having regard to the advice contained in the DFAT report that returnees are treated in the same way regardless of their race or religion I do not accept the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason.

19. The evidence before me does not indicate that law is being applied selectively or in a discriminatory manner for a Convention reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way. I find that any questioning, charge, conviction or penalty to which the applicant may be exposed would arise under a law of general application. As such I find that any brief period the applicant may be required to spend in police custody or prison or any prosecution, fine or penalty on conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Refugees Convention because it does not involve systematic and persecutory conduct pursuant to s.91R(1)(c).

    Cumulative assessment

20. Having accepted that the applicant is a young male from [Town 1] in North Western Province who supports the UNP and drives a [vehicle], who departed Sri Lanka illegally by boat and sought asylum in Australia, I have considered whether the cumulative effect of such characteristics may result in a real chance he will be targeted for harm in Sri Lanka if he returns now or in the foreseeable future.

21. Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for harm by Sri Lankan authorities on the separate or cumulative bases of his actual or imputed political opinion, his membership of the particular social group ‘[drivers]’, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

    Complementary protection

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

23. I have not accepted there to be a real chance the applicant would be harmed for the separate or cumulative reasons of his actual or imputed political opinion, his membership of the particular social group ‘[drivers]’, his deportation from [Country 1] to Sri Lanka in 2009 or 2010 or the fact that he has sought asylum in Australia if he returns to Sri Lanka, now or in the foreseeable future. 

24. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[12]  For the same reasons I do not accept there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

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

25. For the reasons set out above, I have accepted that persons operating with the tacit approval of local politicians collected money from [drivers] in exchange for permission to park in authorised areas of the township. As noted above the applicant’s evidence is that prior to the 2010 election he always paid the compensation sought and this didn’t cause him any problems. As the UNP is now part of the governing coalition in Sri Lanka, I do not accept there to be a real risk the persons collecting money for parking will refuse to grant the applicant permission to park or otherwise target him for harm for reasons of his support for the UNP. In any case I do not accept such demands for payment amount to significant harm for the purposes of s36(2A).

26. For the reasons set out above, I have accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held in police custody for a period of up to a few days, but likely less than 24 hours, before being brought before a magistrate. I have found he will be granted bail when presented to court and if convicted of charges under Sri Lanka’s I&E Act, he will face a fine of up to 200,000 rupees, about $AU200. I have not accepted he will be unable to pay such a fine if it is imposed upon him. In light of the DFAT information cited above, I do not accept there to be a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in s36(2A), either during his questioning at the airport or during the short period that he would spend in police custody or prison before being brought before a magistrate. I have accepted that prison conditions in Sri Lanka are generally poor, but in light of country information cited above I do not accept there to be a real risk the applicant would face significant harm while in police custody or prison as a result of those conditions.

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

    CONCLUSIONS

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

29. 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).

30. 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

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

    Alison Murphy
    Member

    
    

    Attachment A – Summary of Relevant Law

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

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

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

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

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

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