1618389 (Refugee)

[2018] AATA 5134

1618389 (Refugee) [2018] AATA 5134 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618389

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Roslyn Smidt

DATE:14 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2018 at 4:44pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – real chance of suffering serious harm – Tamil ethnicity – political opinion – LTTE supporter – mental health issues – significant injury – young age on arrival – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 499
Migration Regulations 1994 (Cth) Schedule 2

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 on 13 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 is claims a citizen of Sri Lanka applied for the visa on 20 June 2016. The delegate refused to grant the visa on the basis that he did not find the applicant’s fears to be well-founded.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The applicant comes from [City 1] in the Eastern Province in Sri Lanka. From the time he was about [age] he frequently lived with an aunt due to problems faced by his parents. He has [siblings], but they also lived separately from the family for much of the applicant’s life. He arrived in Australia by boat in September 2012. At the time he was [a certain age].  His mother and siblings remain in Sri Lanka. His father is currently in [Country 1].

   Mental health issues

10. The applicant has provided evidence from his doctor and a psychologist that states that he has been suffering from a major depressive episode and post-traumatic stress disorder for some time in the context of a traumatic developmental history, current uncertain future and fears for his own safety and the safety of his family.  Symptoms include suicidal ideation, dissociation and self-harming behaviours.  In addition he has suffered from a significant [injury] and suffers from chronic pain and could suffer permanent [injury] in the event of suffering minor physical injury.

    Country information

11. The following brief overview is intended to provide a context for the applicant’s claims. It is based primarily on information provided in DFAT Country Information Report: Sri Lanka DFAT dated 23 May 2018 

12. Following the end of the civil war in May 2009 suspected LTTE members were vetted and thousands of former members or supporters of the group were detained and required to undergo a rehabilitation process. Some were detained under the PTA provisions.  Thousands of troops were stationed in areas previously controlled or strongly influenced by the LTTE and the local Tamil population was closely monitored and sometimes harassed. The situation improved somewhat following a change of government in 2015 when President Rajapaksa was replaced with President Sirisena. President Rajapaksa had been in power since 2005 and took a hard-line in relation to dissent and was seen by many as implicated in human rights abuses against LTTE members and Tamil civilians in the final stages of the civil war.

13. While the situation in the north and east improved significantly after 2015 there continues to be a strong military and police presence in these areas and members of the Tamil community in the north and east continue to report that authorities monitor public gatherings and protests and practise targeted surveillance and questioning of individuals and groups, particularly those associated with sensitive political issues.

14. According to advice from DFAT, Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the group, may be monitored but are at a low risk of being detained or prosecuted. However, the government is determined to ensure that Tamil separatism does not re-emerge. Former members of the LTTE who have not completed rehabilitation and those suspected of current involvement in activities perceived to support separatism may be at risk of monitoring or arrest.  There is also evidence which suggests that the authorities continue to follow and monitor former LTTE cadres and their families.

15. The Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including electronic databases used to vet people returning to Sri Lanka after travelling or living abroad. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.  Returnees are also subject to checks with local authorities in the areas they come from.

16. People who departed Sri Lanka illegally are detained on arrival in Sri Lanka and charged with offences under the Immigrants and Emigrants Act (1949) (the I&E Act). Ordinary fee paying passengers are generally held at the airport no more than 24 hours while background checks are conducted and then transferred to the nearest Magistrates Court. In most cases they face no more than a small fine and are released within a short period.

17. Informed observers agree that use of torture remains a problem in Sri Lanka, although there appears to be some disagreement regarding its prevalence and the circumstances in which it occurs. The UN Special Rapporteur on human rights and counter-terrorism concluded in July 2017 that the use of torture remained endemic and routine, for those arrested and detained on national security grounds. The UK Home Office in 2017 reported a notable reduction in torture complaints, though highlighted new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions. DFAT also note that complaints of torture have decreased and assessed that Sri Lankans generally face a low risk of mistreatment that can amount to torture.

    Summary of claims and evidence

18. In essence the applicant claims that he faces a real chance of suffering serious harm on return to Sri Lanka for reasons of race (this Tamil ethnicity) and political opinion (support for the LTTE).  He claims that he was of interest to the CID before leaving Sri Lanka because of his association with his father who was an LTTE member or supporter and because he sometimes assisted his father when he was working for the LTTE. He also claims that his Tamil ethnicity, his illegal departure and his status as a failed asylum seeker who has spent time in Australia will cause him to be viewed as an LTTE supporter.

    Findings of fact

19. The applicant’s written and oral evidence to the Department and the Tribunal has been somewhat confused and confusing.  There are a number of inconsistencies in his evidence which raise doubts as to the accuracy of some of his claims.  However, I accept that this is primarily the result of his young age on arrival and the distress and mental health issues caused by his life in Sri Lanka and the uncertainty of his future in Australia.  I also accept that he endeavoured to give an honest account of the problems which he and his family faced prior to his departure from Sri Lanka at the hearing, based on his recollection and information provided to him by other members of his family. 

20. The applicant claims that his parents supported and possibly belonged to the LTTE from the 1990s onwards. The exact nature of this involvement is difficult to determine, in part because much of it relates to the time before the applicant’s birth and when he was very young and his evidence necessarily relies on information provided to him by others. Nevertheless I accept that his parents were involved with the LTTE and experienced ongoing problems because of this.

21. I accept that the applicant’s parents were detained from [for a number of years] because of his father’s involvement with the LTTE prior to that time. His evidence regarding this has been broadly consistent since he lodged his protection visa application and he has also provided a copy of a court order and letters from the International Committee of the Red Cross which confirm his parents’ detention.

22. It is plausible that the local authorities monitored the applicant’s parents’ activities after they were released detention and I accept that this occurred.  I noted that there was a ceasefire between 2002 and about 2006 and the LTTE were able to operate openly apart from any military activities. This accords with the applicant’s evidence that he and his father were involved in LTTE organised assistance to victims of the 2004 tsunami.

23. I accept that the applicant’s parents began to provide covert support to the LTTE again in about 2007. This was at about the time that the 2002 ceasefire broke down and the government began a major campaign to defeat the LTTE. The nature and extent of this assistance is unclear. Nevertheless, I accept that the applicant’s father used his fishing boat to transport supplies and people for the LTTE and his family also harboured LTTE members at their home on occasion. I also accept that the applicant played a minor role in some of these activities, for example helping to prepare food for LTTE members at his home and guiding them from his father’s boat to his home.  I also accept that his father’s boat was destroyed or confiscated by the police in about [year] because they suspected he was involved in these activities. .

24. I accept that the applicant’s family continued to be monitored after the end of the civil war in 2009 and that as a result his father was frequently absent. I accept that the CID came to his parental home looking for his father on a number of occasions, but were unable to locate him.  The applicant lived mostly with an aunt during this time, but he was told that the authorities were looking for his father and also inquired about him. It is plausible that the CID inquired about the applicant’s whereabouts given that he was absent from his place of residence.  It is also plausible that given this apparent interest by the CID the applicant’s arranged for him to leave Sri Lanka illegally in mid-2012.

25. I accept that the applicant’s father was arrested in October 2014 and detained for [a number of] days before securing his release by paying a bribe.  According to advice from DFAT former members and supporters who provided material aid to the LTTE remain of interest to the authorities, particularly if they had not been through rehabilitation, as appears to have been the case with the applicant’s father.  I also accept that his father later left Sri Lanka illegally and that he has since been recognised as a refugee by UNHCR in [Country 1].

    Consideration of claims and evidence

26. As set out above, I accept that the applicant’s father was a member of the LTTE or a committed supporter who continued to provide material support the group until the end of the civil war. I accept that the applicant assisted his father in these activities in a relatively minor manner. The question which remains to be answered is whether this background means that the applicant would be of adverse interest to the Sri Lankan authorities if he returned home now and if so whether he would face serious harm as a result.

27. On the evidence currently before me I find that it is highly likely that the applicant’s father remains of adverse interest to the Sri Lankan authorities because of past involvement with the LTTE. While he was briefly detained in 2014 he avoided the rehabilitation process by bribing his way out of detention and later left the country illegally.  As noted above former LTTE supporters and their family members continue to be subjected to monitoring in the north and east of Sri Lanka and in my view it is likely that the applicant would be monitored after he returns to Sri Lanka because his association with his father would raise suspicion regarding his own support for the LTTE and their separatist agenda.

28. In my view this alone would not constitute serious or significant harm. Furthermore, on the evidence before me I find it unlikely that he would be detained or face other forms of serious harm because of his association with his father or for any other reason. However, I believe that the possibility that he might arrested and interrogated about his past involvement with the LTTE, his father’s whereabouts or his activities in Australia and face torture or serious physical ill-treatment while being detained for this purpose within the reasonably foreseeable future cannot be dismissed as remote and insubstantial.  As noted above, police are known to use torture during interrogations in order to extract confessions or information. 

29. After considering all of the relevant evidence I am satisfied that there is a real chance that the applicant would suffer serious harm amounting to persecution at the hands of the authorities for reasons of political opinions likely to be imputed to him if he returns to Sri Lanka within the reasonably foreseeable future. I am therefore satisfied that he had a well-founded fear of persecution in accordance with s.5J of the Act and that he is a person in respect of whom Australia has protection obligations under s.36(2)(a).

30. Given the findings set out above, it is unnecessary to consider whether he is entitled to complementary protection

    DECISION

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

    Roslyn Smidt
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …