1620199 (Refugee)

[2020] AATA 2094

1620199 (Refugee) [2020] AATA 2094 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620199

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Simone Burford

DATE:5 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 05 June 2020 at 4:39pm

CATCHWORDS

REFUFEE – protection visa – Sri Lanka – political opinion – Sri Lanka Freedom Party (SLFP) – United People’s Front Alliance (UPFA) – involvement in anti-drug campaigns – low-level supporter and campaigner – harm from rival politician or his supporters – credibility concerns – inconsistent or implausible evidence – wife and children returned to Sri Lanka – delay in applying for protection – immigration history – returnee and failed asylum seeker – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 dependants.

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 7 November 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 14 December 2015. The Delegate refused to grant the visa on the basis the Delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in 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 30 November 2016. He provided a copy of the Delegate’s decision with his application for review. 

4. The applicant attended a hearing before the Tribunal on 1 May 2019 to give evidence and make submissions in support of the review application. The hearing was assisted by an accredited interpreter in the English and Sinhala languages. The applicant was not represented in relation to the review.

5. The applicant was provided with additional time following the hearing to provide further evidence and submissions. Additional material was received following the hearing and has been considered by the Tribunal in reaching a decision on the application.

6. The Tribunal notes that at the time the application was lodged there was a second applicant (the applicant’s wife) and two dependent applicants (the applicant’s two children) on the application.  A ‘Withdrawal of application for migration or refugee review’ form signed by the second applicant was filed with the Tribunal on 12 January 2017 (the Withdrawal).  The Withdrawal included the two dependent applicants. At the hearing the Tribunal discussed the Withdrawal with the applicant and he confirmed it was the intention of the second applicant to withdraw her application and those of the dependent applicants.  The applicant also confirmed that the second applicant and dependent applicants (the applicant’s wife and children) left Australia [in] January 2017.  This was consistent with Departmental member records.  The applicant indicated they had returned to Sri Lanka.  This is discussed further below.

7. Following the hearing, the Tribunal accepted the Withdrawal of the second and dependent applicants and found that the Tribunal no longer had jurisdiction with respect to those applicants.  Accordingly, this decision is made with respect to the applicant only.

8. Following the hearing the applicant was permitted additional time to submit additional evidence or submissions.  A copy of the applicant’s Sri Lankan passport, issued [in] 2010, was submitted to the Tribunal following the hearing. No other material or submissions were received.

9. The issue in the review is whether the applicant has a well-founded fear of persecution in Sri Lanka from former Sri Lankan politician Mervyn Silva and his supporters, or for any other reason or whether complementary protection provisions otherwise apply.

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

    LEGAL FRAMEWORK

    Criteria for a protection visa

11. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, 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.

12. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

13. 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).

14. 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.

15. 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

16. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility assessment

17. 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 paragraph [196].

18. 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.

19. 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.

20. 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.

21. Section 5AAA of the Act clarifies that 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. Applying this section, 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. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[6]

    [6] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [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].

22. The 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.

23. 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 held 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.

24. 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

25. The applicant travelled to Australia on a Sri Lankan passport and the Delegate had no concerns with his claimed nationality or identity. The applicant confirmed at the hearing that he was a Sri Lankan national and stated that he was not a citizen of any other country. He provided a copy of his expired Sri Lankan passport to the Tribunal.  The Tribunal accepts that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly.

26. The Tribunal finds that the applicant is a citizen of Sri Lanka, which is also the receiving country for the purpose of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in the third country for the purposes of s.36(2)(aa) of the Act.

    The applicant’s migration history

27. According to the Delegate’s decision, he arrived in Australia [in] August 2012 on a [Student] visa. That visa expired [in] September 2014.  He returned to Sri Lanka from [Date 1] March 2013 to [Date 2] March 2013 to accompany his wife and eldest child to Australia. They arrived as dependents on his student visa on [Date 3] March 2013.  On 24 August 2014 the applicant applied for a [Further Stay] visa.  This was refused on 17 November 2014.  On 2 December 2014 he filed an application for review of that decision with the Migration Review Tribunal.  The decision was affirmed by the Tribunal [in] November 2015.  His second child was born in Australia on [date].  He filed the application for the protection visa on 14 December 2015.

28. The applicant stated that he had travelled to a number of countries other than Australia, including to [Country 1] from 2003–2006 where he was studying and then working, and [Country 2] for eight months in 2011 where he worked as [an Occupation 1], and [Country 3] as a stopover on his way to Australia. The Delegate’s decision indicates that the applicant lived in [Country 1] for three years but no longer has a right to enter.

    Material before the Tribunal

29. 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.

30. 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. The applicant was interviewed by the Department on 6 October 2016.  Details of the evidence provided by the applicant at that interview is summarised in the Delegate’s decision.

31. Before the Department he provided a copy of his passport and additional documents detailed in the Delegate’s decision, including:

    ·A letter from the applicant’s mother to his wife dated 26 September 2014 stating that the applicant should not return to Sri Lanka as she was threatened by unknown persons who were looking for the applicant.

    ·A good character certificate signed by [Mr A], dated [March] 2016 regarding Sri Lanka Freedom Party (SLFP) membership, temple and anti-drug activities.

    ·A support letter dated [December] 2015 from the United People’s Front Alliance (UPFA) Minister, [Mr B] stating the applicant was a leading active member and due to threats received he was forced to flee Sri Lanka.

    ·A lease for a property for the period [January] 2011 to [December] 2012 in the name of the applicant’s wife for a property in Sri Lanka.

    ·A medical certificate dated [May] 2012 from [a] Hospital regarding the applicant saying he underwent a ‘medicine examination’.

    ·Media articles relating to Mervyn Silva and his anti-social activities dated from July 2009 to May 2013.  None of the incidents or activities stated in the articles were linked to the applicant directly.

32. Copies of those documents were also provided to the Tribunal.  In addition, the applicant provided the following documents to the Tribunal:

    ·A translation of a letter from [Mr C], Member of Parliament, [District 1], dated [June] 2018 (including accredited translation).

    ·A copy of a letter from [Mr B], Member of Parliament, dated [June] 2018 (including accredited translation).

    Country information

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

34. The Tribunal notes that the relevant material contained in the 2019 Report was materially the same as the country information report put to the applicant at the hearings. The Tribunal was satisfied that issues arising from country information canvassed in the 2019 Report had been raised with the applicant at the hearing.

35. The relevant country information is discussed further below.

    Background

36. The applicant is a [age]-year-old Sri Lanka national.  He is a Buddhist of Sinhalese ethnicity.  He has a [Qualification] from [University 1 in Country 1].[7] He was enrolled in [a] Course at [University 2] in August 2012 but he later withdrew.

    [7] His application refers to the country of study as [Country 3], however the applicant told the Tribunal at the hearing that he studies in [Country 1] and the Tribunal accepts this is a typographical error.

37. He is married with three children.  As noted above his family were in Australia from March 2013 to January 2017 when they returned to live in Sri Lanka.  His third child was born in [date] in Sri Lanka.

38. Prior to coming to Australia he was living in [City 1], Sri Lanka where he was working as an [Occupation 1] for a company called [Company 1].  The company was in [Town 1]. He had been working for them for a few months before he came to Australia.

39. He was living in [City 1] with his wife and members of her family. He said they had been living there for about a year. Before [City 1] he was working in [Country 2] and prior to that he had been living in [Suburb 1] for about a year. Prior to that he had been living in [Town 1] with his parents for about two years. These are all areas of the Western Province of Sri Lanka where the applicant grew up. Prior to going to [Country 2] the applicant had been working for about two years for the same company, [Company 1].

40. His wife and children are living in [City 1] with her parents.

41. His parents remained in [Town 1] until about three years prior to the hearing when they sold house and moved to [Suburb 2], Western Province. They live with his younger brother who is unmarried.

42. The applicant said his wife went back to Sri Lanka when she was pregnant with their third child.  He said they didn’t have anyone to help with the children or during the pregnancy, which she was concerned about, so she decided to go back.

43. He said she found out she was pregnant about one-and-a-half months before she went back.  The Tribunal queried how, if his daughter born on [date] his wife could have been aware of the pregnancy one-and-a-half months prior to travelling home [in] January 2017. The applicant said that when she understood she was pregnant she decided to go. He said she found out the minute she was pregnant because she was very sick during that time, the first few weeks.

44. He travelled to Australia to undertake a two-year [course] at [University 2].  However, he did not complete that degree.

45. He has been working in various roles in Australia but at the time of the hearing was working part time for [Company 2] as [an Occupation 2].

1. He has not returned to Sri Lanka once since he returned in 2013 to collect his wife and child. He is contact with his family in Sri Lanka.

   Overview of claims

2. The applicant claims there is a real risk he will face serious or significant harm on return on a number of grounds. The Delegate’s decision summarises the claims contained in the application for protection as follows:

   • The applicant and his family decided to depart Sri Lanka to Australia to escape the constant threats received by the family from former Minister Mervyn Silva and his supporters. Due to his wife being pregnant at the time of his departure she arrived the following year.
   • The applicant and his family are being targeted due to the applicant speaking out against Mervyn Silva’s anti-social activities such as drug dealing, inhuman treatment, illicit gambling, bribery, human trafficking, kidnapping and torture during the [District 2] election campaign, where [Mr B] was elected.
   • A few months prior to his departure in 2011 the applicant was beaten by Mervyn Silva’s supporters. He also received other threats and attacks prior to this event.
   • The applicant and his family moved to [City 1] to avoid threats from Mervyn Silva and his supporters in [District 2], however following the move he was found once more.
   • The applicant is unable to relocate as he will be found by Mervyn Silva supporters and it will be negatively affect his employment prospects and his children’s education.
   • The authorities are unable to protect him due to Mervyn’s influence.
   • The applicant fears he will be killed by Mr Silva’s supporters who continue to question other family members on the applicant’s location in return.

3. As noted above, the applicant attended an interview with the Department on 6 October 2016. According to the Delegate’s decision he made the following additional claims and amendments to his claims:

   • From 2008 until his departure in 2012, the applicant was involved in a national anti-drug program linked with Buddhist temples, where he assisted at the temple in the area he was residing at the time. His role was to have people attend the fortnightly meetings. It was his involvement in a program that put him in conflict with Mervyn Silva in addition to his activities with [Mr B].
   • Apart from the Provincial Council Elections in 2009, where he assisted [Mr B], and an election in 2010 of which he is unsure of, he has been involved in no other elections. However, he would still assist [Mr B] and the SLFP.
   • [Mr B] was competing with Mervyn Silva for leadership of the SLFP causing animosity between them. The applicant stated at anti-drug meetings that Mr Silva was involved in drugs and assaults. The applicant obtained this information from the media and did not hold any knowledge that he was already available in the public space.
   • He was assaulted on two occasions:
   • 26 December 2011, where he was taken from his home, beaten and had [Body Part 1 injured] and detained for two days by Mervyn Silva supporters. He was released on the proviso he not be involved with any political or temple activities.
   • In May 2012, he was involved in an argument with Mr Silva’s supporters at his home, resulting in bruising around his head and chest. He reported the assault to the police and was treated at hospital.
   • The applicant’s family and his parents-in-law have informed him that they have been contacted by Mr Silva’s supporters enquiring on his return and that he will be harmed if caught.
   • The authorities are unable to protect them due to Mr Silva’s political influence.
   • He is unable to relocate to other areas of Sri Lanka, as Mr Silva has influence in Sinhalese majority areas, and that the Sinhalese are being targeted by Tamils in Tamil majority areas.

4. The applicant agreed this was a fair and accurate summary of his claims for protection.  Although not expressed as claims by the applicant the Tribunal also considered whether he faces harm on return to Sri Lanka as a returnee from the West and/or as a failed asylum seeker.

5. Pursuant to these late claims, the applicant seeks protection in Australia under s.36(2)(a) of the Act and claims to hold a well-founded fear of persecution in Malaysia now and for the foreseeable future for the essential and significant reason of his actual or imputed political opinion. 

6. He also seeks complementary protection in Australia under s.36(2)(aa) of the Act on the grounds that, on return to Malaysia there is a real risk that he would suffer significant harm now, and in the reasonably foreseeable future, from agents of harm associated with Mervyn Silva.

   Claims relating to harm from Mervyn Silva or his supporters

7. The applicant claims he will suffer harm on return to Sri Lanka from Mervyn Silva and his supporters on the basis of his activities opposing Mr Silva and due to his support for a political rival, [Mr B].

8. The Tribunal asked the applicant about his experiences in Sri Lanka that make him fear returning to where he lived before coming to Australia.  He said when he was in Sri Lanka he ‘received so many threats, during the time I was there I received several threats on my life and my wife has received threats over the phone.’  He said that was the reason his parents and wife had warned him not to return.  He said his wife went to the police station a number of times but the police did not record her statement.  He said the police were not interested in investigating his wife’s complaint and he realised there was a real danger for his life as police were not interested in investigating. He said a ‘powerful politician’, Mervyn Silva, was involved.

9. He said that when there is a politician involved and there is a complaint against the politician the police are reluctant to record the complaint.  The Tribunal asked when his wife received the threatening calls and he said about a year prior to the hearing.  The second was a few months prior to the hearing.  The persons who called asked whether he had returned to Sri Lanka.  The Tribunal asked what they said and they told her if they return to Sri Lanka his wife would be in danger. He said she recognised who the caller was because it was the people who had threatened him before. He said she knew them to be people belonging to the same group, Mervyn Silva’s supporters, because they asked the same questions. When the Tribunal queried what questions, he said they asked about his whereabouts and said if he returns to Sri Lanka he will be in danger. He said when he was in Sri Lanka every time he moved to different places ‘they found me out’.  He said he thought two people called in the evening. He said she first went to report it to [City 1] police station, when they were reluctant, she went to [District 1] police station, about 15 kilometres away. The Tribunal asked whether anything else had happened and he said, ‘only the threats over the phone.’  He said his mother-in-law was also home when his wife received the calls.

10. The Tribunal asked why the applicant thought he was at risk of violence from Mr Mervyn Silva and his supporters.  The applicant said, ‘they took me by force, assaulted me and [injured] my [Body Part 1].’ He said Mr Silva is a drug trader and in his area ‘we launched a campaign against this person and against his activities. He got angry with me over this issue.’ The Tribunal asked what the applicant’s role in the campaign was and he said he ‘organised campaigns against the use of drugs and drug education service campaign to educate people about dangers of drug use, another MP he joined us in this campaign.’  He said this was around 2007 in [Town 1].  He said he joined the campaign when [Mr C] (Minister) was running it and he became involved in organising the campaign.  He said his job was to get people to come to meetings.  He said ‘I persuaded a lot of people to come support the campaign.  Went from house to house and persuaded people to attend the meetings.  After that there were a lot of people who attended the meetings.’  He said [Mr C] had a meeting hall where the meetings were held and they also used a school.  He said they held about 30 or 40 meetings. He said at the meetings [Mr C] and [Mr B] accused Mervyn Silva of being involved in drug trafficking. They campaigned against Mervyn Silva. The applicant testified that in Western Provence Mervyn Silva was very powerful.

11. He said that when he was doing the door knocking, he had ‘a lot of friends with me’. The Tribunal asked whether any of the other people who he did the door knocking with, were threatened or injured and he said they also had the same issues he faced.  He said they were also assaulted and two of these people were killed since he left. He said they were called [Mr D] and [Mr E] but he didn’t know their last names.

12. He said he did the campaigning until the end of December 2010 when he went to [Country 2]. He said he also printed brochures and collected money to support this program.  The Tribunal asked what happened to the money and he said [Mr C] had initiated a fund for a scholarship program and most of the money went to this because the anti-drug campaign was targeted to the younger generation organised through [Mr C]’s office (Minister) and [Mr B] (an MP). He said [Mr C] is an SLFP Member of Parliament elected in [year]. [Mr B] is a Member of Parliament elected ‘long after, [year]’.  The Tribunal asked him about the letters from [Mr C] and [Mr B].  He said his wife obtained the letters.

13. The Tribunal asked if he had done anything other than being involved in the anti-drug campaign which brought him to the attention of Mr Silva and he said ‘No, just this’.  He said he belonged to the SLFP and supported the anti-drug campaign.

14. The Tribunal queried what Mr Silva was doing now.  The applicant said he was a member of the SLFP but he went against then President Siresena who was not a member of the party.  He said he was still supported by then Prime Minister Wickremesinghe but he is no longer a Minister. He said Mr Silva is still very influential.

15. He said he didn’t have any evidence Mr Silva was influential but ‘if you listen to the news you can see he is involved in activities that are harmful to the society.’

16. The Tribunal indicated it had not seen country information that suggested Mr Silva was supported by the current Prime Minister.  The applicant said the reports were in the Sinhala language including television programs that have allegations about Mervyn Silva’s activities.

17. Before the Department the applicant said that on 26 December 2011 he was taken from his home, beaten and had his [Body Part 1 injured] and was detained for two days by Mervyn Silva supporters. He was released on the proviso he not be involved with any political or temple activities.  Before the Tribunal he said four or five people came to his house and took him away and assaulted him.  He said he thought it was in 2008.  The Tribunal asked whether it was before or after he went to [Country 2] and he said it was before he left for [Country 2].  He said at the time he was living in [City 1] with his wife and her parents.  He said he was walking on the road when they came and took him.  He said he was walking on a road closer to [City 1] town going to a shop to buy food.  He said they blindfolded him and took him in a van.  He said he didn’t know where they took him but it was about 10 kilometres away. They said that if he continued to be involved in the campaign, they would kill him and they [injured] his [Body Part 1].  He said he went to the [City 1] hospital for treatment. 

18. He said they dropped him somewhere and after that he had to undergo treatment for about a month for the injuries he suffered. He said they held him for one-and-a-half days.  He said he wasn’t blindfolded then but he was in a house that was ‘not a very old house’. He said there were four or five people and they fed him once. 

19. The Tribunal queried whether his family had gone to the police when he was missing and he said they thought he was on a campaign.  When the Tribunal pointed out he said he was walking to the shops he said, ‘after the campaign I went to the shop I go from one place to the other.’  The Tribunal pointed out he was in [City 1] where he lived so why would his family have thought he was away campaigning for a day-and-a-half.    He said they left him by the roadside and people took him to the hospital. He said he went to the police station but when Mervyn Silva’s name came up they did not want to investigate.  He said there were police officers stationed in the hospital, they did not want to record a statement because of Mervyn Silva.

20. The Tribunal queried whether he mentioned it to [Mr C] at the time and he said he did but he did not take action as he was a minister in the same cabinet.  He said:

    ‘For people like us, no security no safeguards don’t consider us, we are not important to them.’

21. The applicant told the Department that in May 2012 he was involved in an argument with Mr Silva supporters at his home, resulting in bruising around his head and chest. He claimed he reported the assault to the police and was treated at hospital. When the Tribunal asked whether there were any other incidents where he went to the hospital, he said that during the campaign it was ‘quite normal for people to come and assault us’ and there were several assaults during these campaigns.  He said he couldn’t remember the date and time when he went to the hospital because it was 10 years ago.  He thought it was ‘3 months before the major incident.’ He said he couldn’t remember the date and time because it was 10 years ago.  He said that certificate related to the major incident in 2008.  He couldn’t recall when the other incident when he went to the hospital was, maybe in 2008 or 2007 when he was working on the campaign.

22. The Tribunal asked again if the period he worked on the campaign was up to 2010 when he went to [Country 2].  He said he was involved in the campaign when work permitted but not full time.  The Tribunal queried how much time he was spending working on the campaign and he said it was in the evenings and on weekends. He confirmed he was not involved in the campaign when came back from [Country 2] which on his evidence was for several months in 2011.

23. The applicant indicated he was forced to move regularly to avoid threats from Mr Silva’s supporters.  His application indicates he lived in an address in [Town 1] until November 2010 when he moved to an address in [City 1].  He moved to an address in [Suburb 3] in January 2011 and then went to [Country 2] from March to June 2011. When he returned, he went to the same address in [City 1] moving in August 2011 to an address in [Town 2] until February 2012, then [Suburb 4] until May 2012 and then back to the same address in [City 1]. From his evidence he was living with his parents prior to going to [Country 1] (the Town 1] address) and with his in-laws in [City 1].  His in-laws and parents remain at the [City 1] and Town 1] addresses.

24. The Tribunal noted the applicant’s wife and children had returned to Sri Lanka and been living there for a number of years.  The Tribunal queried why they were not at risk.  The applicant said they were at risk and had received two threats over the phone.  The applicant said after four or five years living in Australia his wife thought the threat was over but after going there she discovered the threats were still there.  He said that up to now nothing had happened but the phone threats but that his wife ‘lives in fear’.

25. He said that other than the threats to his wife there were no threats to other family members who remained in Sri Lanka.

26. He said he could go anywhere in Sri Lanka but the risks remained the same. When asked whether there was any other reason or basis on which he feared harm on return to Sri Lanka the applicant said the main reason for not being able to go back was the threat to his life and because his family will be affected there.  When asked if he planned on engaging in campaigning activities on return to Sri Lanka he said ‘no’.  He said he had not engaged in any political activities since leaving Sri Lanka.  When asked why if he wasn’t engaging in such activities, he would be targeted he said that ‘when I am in this country, they have still been looking for me’.

27. The Tribunal discussed the Delegate’s findings with the applicant. The Tribunal noted that the Delegate accepted that the applicant was a supporter of the UPFA during the 2009 provincial elections based on the large number of UPFA votes in the area. However, given the history between [Mr B] and Mr Silva, the Delegate noted it was odd that the letter from [Mr B] did not mention Mr Silva and instead referred to ‘the opposition’.  The applicant said [Mr B] wouldn’t mention him as he is a politician and Mr Silva is a politician.  He said even though they were in the same party, the opposition meant Mr Silva.

28. The Delegate noted that country information indicated [Mr B] had denounced Mr Silva personally several times. Due to the disparity between the documents supplied and the applicant’s testimony before the Department the Delegate placed little weight on the document and found that the applicant was not as politically active as he had claimed.

29. The Delegate also raised a concern that the applicant had difficulty stating when and what occurred during the alleged assaults. Initially he said he was attacked in the middle of 2010 and then October 2010 and finally it occurred in 2 June 2011. This contradicted the secondary account that the incident had occurred on 26 December 2011. 

30. The Delegate also raised concern that the medical evidence the applicant provided did not indicate that he had suffered any injuries and only stated that he had a medical examination.  The Delegate raised a concern that the applicant claimed that the first assault was due to his support for [Mr B] however that assault occurred two years following the last activities he could describe being involved with for [Mr B] and it was not plausible that he would be targeted at that time. The Delegate did not accept he was attacked in 2011. 

31. As noted above, the applicant provided several documents in support of his application.  These included a medical certificate which notes the applicant was subject to a ‘legal medical examination’.  The document is dated 21 May 2012.  The certificate notes ‘this patient [the applicant] is subject to a legal medicine examination and copy of the police is handed over at the hospital police station, [City 1].’ It does not provide any details of the reasons for the examination or the results, diagnosis or treatment. As noted by the Delegate, the document contains little detail regarding the reasons for the hospital visit and examination report and as such is of limited value in supporting the applicant’s claimed events.  The Tribunal accepts the document as evidence of a hospital visit by the applicant on 21 May 2012 and that this visit was the subject of a legal medical examination.  However, given the limited details contained in the documents the Tribunal gives the document little weight in support of the applicant’s claims.

32. The applicant submitted a letter from [Mr A], who the Delegate noted was associated with a Buddhist temple in [City 1], dated 5 March 2016. The letter says the applicant ‘participates in all religious, cultural and social activities of this temple.’ It also states:

    In the past, he took leadership in awareness programmes like ‘Mathata Thitha’.  He shines in all programmes aimed at developing and protecting the society and the youth.  Being an active member of the Sri Lanka Freedom Party, he contributed immensely to protect and guide the youth.

    Although the applicant claimed before the Delegate that he came in conflict with Mr Silva due to his involvement in assisting the temple with an anti-drug program, he did not mention his involvement with the temple before the Tribunal.  He said the anti-drug program was organised by [Mr B] and [Mr C] and he thought the campaign had commenced in 2007.  He said he was involved in that campaign until December 2010 when he went to [Country 2]

1. In any event, although the letter mentions ‘Mathata Thitha’ (an anti-alcohol program) it does not refer to any threats or issues associated with the applicant’s activities at the temple and as such is of limited value of evidence of those claims.  Further, the Tribunal notes the Delegate’s observation that it was unlikely that the applicant assisting at the temple would make him a target for those opposed to those programs as that would most likely fall on those in a leadership role at the temple. The Tribunal places limited weight on the letter as evidence the applicant suffered harm in Sri Lanka as a result of involvement with activities at his local Buddhist temple including in relation to an anti-drug/anti-alcohol program.

2. The applicant also submitted two supporting reference letters from [Mr B] (dated 16 December 2015 and 14 June 2018) and one from [Mr C] (dated 18 August 2018). [Mr B]’s letter of December 2015 notes that the applicant is well known to him and was an active member of UPFA in [Suburb 5].  The letter says the applicant ‘was playing a leading role in organising political meetings of the party facilitating various functions and supporting political activities of the members of the Party’.  The letter notes that due to this:

   He had to face numerous threats from the supporters of the opposition he told me that he was intending to leave the country to escape from these people. I am of the opinion that he will have to face vengeful acts and threat if he returns to Sri Lanka.

   In his letter of June 2018 he notes that the applicant told him he was going overseas due to ‘serious threats’ from the supporters of opposition parties due to his ideas and activities.  The letter states:

   Taking into consideration the current political situation in the country and the close relationship between politicians and the underworld, I believe he will be subjected to political victimisation and face threats from these elements.

   The letter notes that the applicant’s wife and children ‘informed me they live in fear and their safety is of grave concern’.

3. [Mr C]’s letter says the applicant ‘was actively involved in political activities’.  The letter notes that:

   Because of his active involvement in the 2010 election campaign to support the candidacy of Mr Mahinda Rajapakse in the Presidential election and my election campaign in propaganda and promotional activities he and his family were harassed by the activities of opposition parties…

   Due to the current situation in Sri Lanka it is not safe for him to return to the country.  His relatives have told me that it is risky for him to live here and his wife and three children have also received threats recently.

4. While the Tribunal accepts the letters as evidence supporting his claim to have supported political candidates of the UFPA and SFLP the Tribunal notes the references to the threats received as a result of these activities appear to be based on reports from the applicant or his wife rather than direct knowledge of the members.  Further, the level of involvement in political activities which they describe is at odds with the description of his activities provided by the applicant to the Department and the Tribunal.  The Delegate’s decision notes the applicant said he had supported [Mr B] in the 2009 Provincial Council elections and an election in 2010 which he wasn’t sure about.  Before the Tribunal the applicant said he had organised the anti-drug campaign meetings for [Mr B] and [Mr C].  The Tribunal asked if he had done anything other than being involved in the anti-drug campaign which brought him to the attention of Mr Silva and he said ‘No, just this’.  He said he belonged to the SLFP and supported the anti-drug campaign. Further, there is no mention of the applicant having raised [Mr C]’s involvement before the Delegate.  However, given references by applicant to ‘[Mr B]’ may have been references to either man the Tribunal gives the applicant the benefit of the doubt in this regard. The Tribunal notes the letters do not indicate whether their assessments of future harm are based on assumptions the applicant would engage in similar campaigning in the future, which the applicant told the Tribunal he did not intend to do, or due to the political opposition maintaining a personal political grievance against the applicant.

5. The Tribunal further notes that the Delegate raised a concern that the letter from [Mr B] did not refer to Mr Silva, notwithstanding he was an active political rival of his whom he had publicly criticised.  The Tribunal notes the later letter and that of [Mr C] similarly do not identify from whom the threats had come or from whom the applicant would be at risk in the future. The Tribunal considers the general nature of these references suggests the writers are acting on the information reported to them by the applicant or his wife in requesting the letters.  Accordingly, while the Tribunal places weight on the letters as evidence supporting the applicant’s claimed political activities in 2009 and 2010 the Tribunal places limited weight on the letters as evidence the applicant has suffered harm or would suffer harm in the future.

6. The applicant also submitted a copy of his letter from his mother to his wife dated 26 September 2014.  The letter notes:

   Those people came looking for [the applicant]. Inquired from me about [the applicant]. They asked me whether [the applicant] is coming in the near future.  I told them that I am not aware.  They said that they received news that [the applicant] has come home. Therfore came to look for him. They scolded me very badly. Shouted at me. Not only that, they threatened me. They are nasty people.  Do you intend to come here soon.  You need not come soon.  Whenever you are, be careful. Do not tell outsiders about yourselves. Do not trust anyone. Take care.

   (errors in original)

   The Tribunal notes the letter describes the threats in very general terms and does not indicate who the threats were made by or what they were in relation to.  Further, the Tribunal notes that despite the applicant’s mother claiming to have received this letter, the applicant told the Tribunal that other than his wife no other members of his family had been threatened.  Further, the Tribunal notes that despite this reported threat the applicant said no members of his family including his mother and his wife’s parents had ever been harmed by Mr Silva’s supporters or anyone else making threats.  In addition, the Tribunal notes the applicant’s wife returned to Sri Lanka in early 2017 notwithstanding this report of threats.  This suggests the applicant’s wife was not concerned about the threats at that time. Accordingly, the Tribunal places limited weight on the letters as evidence the applicant has been threatened with harm or would suffer harm in the future from Mr Silva or his supporters. 

7. The Tribunal notes that the Department file also contained a lease agreement in the applicant’s wife’s name for the period from January 2011 to January 2012.  It was not referred to in the Delegate’s decision or by the applicant at the hearing before the Tribunal. Accordingly, it was not clear what reliance the applicant sought to place on the lease.  However, the Tribunal has taken it into account and accepts it as evidence that the applicant’s wife had leased a property in [Suburb 6] during that period. The Tribunal also accepts from the residential details on the application that the applicant did not live in [Suburb 6] for the full year with the applicant travelling to [Country 2] in March.  The applicant told the Tribunal he thought his wife lived with her parents while he was in [Country 2].  The Tribunal accepts the applicant moved address several times during this period.

8. As noted earlier, the Tribunal discussed with the applicant country information, including that included in the Delegate’s decision, relating to Mr Silva. 

9. The Delegate’s decision contained the following country information regarding Mervyn Silva:[8]

   Mervyn Silva held a number of ministerial posts in the Rajapaksa government, most recently as Minister for Public Relations and Public Affairs.  He was reportedly a childhood friend of Mahinda Rajapaksa and entered politics under his partonage.  He is a member of the Sri Lanka Freedom Party (SLFP), although he did switch to the United National Party (UNP) in the years 1993-2000.  Following the recent election in which Maithripala Sirisena became president, Mervyn Silva is no longer a Minster, but remains a Member of Parliament (MP).  He has pledged his support to President  Sirisena.

   There have been a number of reports of Mervyn Silva using intimidating behaviour as a Minister, including threatening journalists and, in 2007, threatening a magistrate judge who remanded his son for an alleged nightclub assault.  In a widely reported incident, Mervyn Silva tied a civil servant to a tree in 2010.  He was also allegedly involved in corruption and associated with ‘underworld figures. A 2010 US government cable released by Wikileaks described him as an alleged chief patron of ‘drug dealers’.

   According to a former Sri Lankan security services officer, drug kingpins in Sri Lanaka have political patrons in the government, chief among them Dr. Mervyn Silva, a Member of Parliament and the Minister for Labor.  Associates of his (which he has since disavowed had been charged with the murder of a local council member. The Findings of the investigation were reportedly not made public.  A 2012 Sunday Leader article details alleged corrupt activities and extortion by a in his electorate, [Suburb 5].  The article reports that three local council members, who had been allied of Silva, had turned against him and were supporting the allegations. One of those council members, Hasitha Madawala, was later murdered by associates of Silva.

   [8] Citing the following: ‘Mervyn Silva opens his mouth with Hard Talk’ 2015, Hiru News, 9 March 2015; ‘Sri Lanka’s once-powerful ex-president faces backlash’, Associated Press, 23 January 2015; Jansz, F, ‘Meet the real Mervyn Silva’, The Sunday Leader, 2 May 2010; ‘Nathaniel C., ‘I will contest – I have nothing to hide – Mervyn Silva’, The Sunday Leader, 15 March 2015; International Crisis Group 2009, Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights, 30 June 2009; ‘Taxman Assaulted in Matara’ 2010, The Sunday Leader, 12 August 2010; ‘Civil Service condemn Dr. Mervyn’, 2010, BBC Sinhala, 3 August 2010; ‘One heck of a nation’, The Nation, 20 April 2010; ‘Wikileaks: Mervin Silava is a drug kingpin patron chief’, Colombo Telegraph, 26 September 2011; Senevirirtne, M 2012, ‘Thuggery: Father, Son and Holy Ghosts’, Colombo Telegraph, 13 September 2012; ‘Cable: Sri Lanka nabs drug traffickers’ 2010, Wikileaks, 24 February 2010; ‘Mervyn’s disciplinary report out in two weeks’ 2013. Celyon Today, 8 September 2013; ‘Bar Committee Expresses concern over bribery commission’s failure on Mervin and Abeygunawardena investigations’ 2013, Colombo Telegraph, 23 October 2012; ‘Kelaniya - Mervin’s waterloo’ 2010, The Sunday Leader, 15 January 2012.

10. The Delegate’s decision contained the following country information regarding [Mr B]:[9]

    [Mr B] is the [office bearer] of [a] Pradeshiya Sabha (being the third and lowest level of government in Sri Lanka, specifically part of the divisional council (in [Suburb 5])), and who provided information against Mervyn Silva regarding allegations of bribery and corruption in that area.  He has received threats from Mervyn from armed attacks during the 2009 provincial elections, in which [Mr B] was elected, onwards.  Currently he is a member do the SLFP and Member of Parliament from the [District 2].

    In addition, the material before the Tribunal included several media articles referring to disputes between Mr Silva and [Mr B], including accusations of violence.[10]

    [9] Citing the following in addition to the articles cited earlier: ‘Sri Lanka government minister accused of trying to create anarchy in his electorate’ Colombo Page, 26 April 2012; PS Chairman Minister Mervyn responsible for armed attack’ Sunday Times (Sri Lanka), 19 July 2009; ‘Kelaniya dispute to police’, Hiru News, 7 February 2014.

    [10] ‘[Source deleted].

11. Mr Silva and [Mr B] remain members of the Sri Lankan Parliament.[11]  Recent reports indicate he will contest the next election as a UNP candidate.[12] However, other reports indicate he remains publicly active as an SLFP member and supporter of President Sirisena.[13]

    [11] >

    The Tribunal notes that no specific information regarding either politician was contained in the 2018 or 2019 DFAT Reports.  However, the 2018 Report notes that:

    DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.

12. The Tribunal notes that following the hearing 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.[14]  Rajapaksa, the candidate for the Sri Lanka Podjana Permuna (SLPP), defeated the UNP candidate, Sajith Premadasa. While this arguably lessen the ability of the UNP, and by extension Mr Silva, to exercise power the Tribunal does not place significant weight on this, as regardless of the change in government, given the general volativity of Sri Lankan politics the Tribunal accepts that UNP, and Mr Silva,  will remain an active player in Sri Lankan politics for the foreseeable future. In this regard the Tribunal notes that parliamentary elections are due to be held in June 2020. In any event, given the findings by the Tribunal on the risk to the applicant from the UNP (detailed elsewhere in this decision) the Tribunal does not regard the change in government to be material to the outcome of the review.

    [14]  ‘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 >

    The Tribunal accepts, on the basis that it is plausible, that the applicant was a supporter of the SLFP and UPFA and was involved in supporting anti-drug campaigns in his home area in the period from 2007 to 2010.  Based on country information the Tribunal accepts that Mr Silva and [Mr B] remain active members of Sri Lankan politics and would likely be so for the foreseeable future.

13. However, the Tribunal does not accept on the evidence that the applicant is at risk of harm from Mr Silva or his supporters due his prior political activity, support for an anti-drugs campaign or for any other reason.

14. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were marked inconsistencies in his statements and his testimony regarding aspects of his claims including in relation to events which occurred in Sri Lanka and of the harm, or threats of harm, he claimed to suffer as a result of his activities there. This includes the fact that he initially claimed to have suffered harm in 2011 and 2012 but later told the Tribunal he had not suffered any harm since returning from a period living in [Country 2] from March to June 2011.  Before the Department he claimed to have been hospitalised twice but could only recall the year of one of those events.  The applicant also originally claimed to have been supporting anti-drug campaigning activities through his Buddhist temple but made no mention of the temple before the Tribunal and said the campaign was organised by two politicians, [Mr B] and [Mr C]. 

15. On critical aspects of his claims he struggled to provide meaningful detail, context or corroborative evidence or provided evidence which was markedly different to prior accounts.  The degree of inconsistencies in the account of his core claims were such that in the Tribunal’s view they cannot be satisfactorily explained by the passage of time since the events or by any aspects of the personal circumstances of the applicant. 

16. The Tribunal had concerns regarding the applicant’s claims to have been abducted and held by supporters of Mr Silva.  The applicant told the Tribunal this attack occurred in 2010 before he went to [Country 2].  The Tribunal confirmed this with him on several occasions.  However, the Delegate’s decision records that the applicant initially said the attack occurred in 2010 but when it was put to him this conflicted with his wife’s account, he said she was right and it had occurred in 2011.  This was after the applicant returned from [Country 2] and well after he said he ceased involvement in the anti-drugs campaigning.  Further, the applicant told the Tribunal he had not suffered any harm after he left for [Country 2] (March 2011) yet the hospital report relates to a visit in May 2012, just prior to his travelling to Australia and again well after he told the Tribunal he ceased the political activity he says brought him to the adverse attention of Mr Silva.  In addition, the applicant claimed to have been abducted while walking to the shops near his in-laws’ home where he was living with his wife.  He claims he was held for two days but his family did not report his disappearance to police because they thought he was away campaigning.  The Tribunal does not regard this explanation as credible.  It is reasonable to expect that if he had been away campaigning, rather than walking to the shops for food his family would have been aware of this.  It is also reasonable to expect they would have been concerned about his whereabouts, particularly in circumstances where he claimed to have been receiving threats associated with his campaigning work.

17. The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence.  The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events.  The Tribunal is also mindful that reliance on interpreters may result in inconsistences in evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to clarify dates and evidence where it appeared to contradict earlier sworn statements.

18. However, the Tribunal found the large number of inconsistencies or vague or contradictory evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or issues in translation.  On the basis of the serious inconsistencies in the applicant’s statements over time the Tribunal did not find the aspects of the applicant’s evidence to be credible.

19. The Tribunal notes that the applicant’s wife and children returned to Sri Lanka in January 2017 and have remained there.  When it was put to the applicant he suggested she and the children did not fear harm and were not at risk of harm on return to Sri Lanka, the applicant claimed that his wife thought things in Sri Lanka had improved but discovered on return that they had not.  This was notwithstanding threats the applicant claimed were made to his mother which had caused the applicant to fear the situation in Sri Lanka had worsened since he left in 2012 leading to the filing of his protection visa in 2014.  The Tribunal did not regard the applicant’s explanation for his family’s return to Sri Lanka to be credible. 

1. The Tribunal notes that taking the applicant’s claims regarding the threats made against him at their highest he claims that two phone calls have been made to his wife since she returned to Sri Lanka.  No other action has been taken against his family and no members of his family have been harmed including his mother and his wife’s parents who have remained in the homes they were living in prior to his departure.  At no point has he or any of his family members been physically harmed or otherwise harmed as a result of these threats. Further, the applicant does not claim that he or any member of his family has been targeted by Sri Lankan authorities due to his political or anti-drug related activities. The Tribunal does not accept on the evidence that they would attempt to do so in the future, particularly given the applicant indicated he does not intend to engage in campaigning which is consistent with his lack of political involvement or activity since leaving Sri Lanka.

2. The Tribunal finds that the fears of persecution from Mervyn Silva, his supporters or authorities are not genuinely held by the applicant. 

3. Further and in any event, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm on return to Sri Lanka due to his participation in anti-drug campaigning in Sri Lanka, his support for [Mr B] or [Mr C] or other political opponents of Mr Silva’s or for any other reason.  Given significant inconsistencies in the applicant’s account of claimed harm in Sri Lanka the Tribunal does not accept the applicant’s claims to have been physically harmed in the past by Mr Silva or his supporters.  Further, the applicant’s evidence was that he ceased the political activities which brought him to the attention of Mr Silva and his supporters, participation in an anti-drug campaign, in December 2010.  He said he had not participated in any activities since that time, including while in Australia.  Further he said he would not participate in such campaigning if he returned to Sri Lanka though he would support [Mr B].  While the Tribunal accepts that there may be political animosity between [Mr B] and Mr Silva the Tribunal does not accept as credible a claim that he would be targeted more than eight years after he ceased participating in an anti-drug campaign in Sri Lanka.  Even were the applicant to continue to support the SLFP or UPFA the Tribunal finds on his evidence this would be as part-time volunteer and supporter.  The Tribunal finds there is no real chance the applicant would face serious harm as a result of such activity from Mr Silva or his supporters now or in the reasonably foreseeable future.

   Returnee and failed asylum seeker

4. The applicant did not raise any concerns regarding his return to Sri Lanka on the basis of being a failed asylum seeker.  The Tribunal has considered the available country information contained in 2019 DFAT Report and finds that there is no evidence the applicant would face a real chance of serious harm in the foreseeable future in Sri Lanka on the basis of being a failed asylum seeker.

5. There is no evidence that there was anything irregular in the applicant’s departure from Sri Lanka and on his own evidence he has travelled in the past.  The Tribunal acknowledges that if the applicant returns to Sri Lanka in the reasonably foreseeable future, the Sri Lankan authorities may well infer from the length of the applicant’s stay that he was in Australia seeking protection, even though his application is confidential.

6. The Tribunal notes the applicant’s family travelled home to Sri Lanka in early 2017 and the applicant has not raised any claims they have suffered harm on this basis. The applicant holds a valid Sri Lankan passport.

7. DFAT’s most recent report provides the following information on the treatment of returnees:

   Exit and Entry Procedures

   5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure,

   such as a seaport or airport, and without a valid passport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.

   5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.

   5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

8. In relation to the conditions for returnees, DFAT has provided the following relevant information: [15]

   5.43 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country or origin or a third country. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.44 The Sri Lankan Government has consistently stated that refugees are welcome to return and, in August 2016, released a ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Prime Minister Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with caution.

   5.45 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   …..

   5.50 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

   [15] DFAT Country Information Report Sri Lanka 4 November 2019

9. As stated above, the Tribunal has found that the applicant had not come to the adverse attention of Sri Lankan authorities prior to his departure from Sri Lanka. The Tribunal is not satisfied the applicant is a person of interest to the authorities because of his involvement in anti-drug campaigning, support for political figures opposed to Mervyn Silva or for any other reason. There is no evidence he has not been arrested or detained in the past. There is no evidence to suggest that he would be on a government watch-list or subjected to monitoring by the authorities when he returns to his home area.

10. Having considered the applicant’s profile and the country information, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm if he returns to Sri Lanka as a failed asylum seeker from a Western country now or in the reasonably foreseeable future.

    Additional issues – delay in seeking protection and immigration history

11. The applicant came to Australia in August 2012. He told the Tribunal he left because of threats from Mervyn Silva supporters in Sri Lanka, yet he did not seek protection until December 2015.  This raises a concern as to the extent of his claimed fears in Sri Lanka. 

12. As detailed in the Delegate’s decision and raised with the applicant at the hearing, he did not mention the claims he has now raised in his application or requests to remain in Australia. 

13. The Delegate’s decision notes that the applicant stated in his further student stay application submitted on 24 August 2014 that he was planning to complete further study in order to run a business on return to Sri Lanka. The Delegate noted he failed to mention to the Department (or the Tribunal on review) at any time prior to his protection visa application the risk of harm in Sri Lanka or that he could not return.  The applicant stated that he came to Australia because he thought the Sri Lanka situation would improve but it had not, it had worsened.  In 2012 when he came to Australia it was not safe.  However, he stated that in 2012 he didn’t have any intention to stay in Australia at that time.  The Tribunal queried how the situation had worsened since 2012 and the applicant said that for the ordinary person there is no rule of law, people can’t get help from police if something happened to them and that situation has not changed.  The applicant stated that there was no law and order in the country. He said his wife thought when she went back the situation might get better but then she realised that is not so. He said his wife says the situation is worse there than it was in 2012.

14. It was put to the applicant his behaviour with respect to his visa history may indicate that he applied for asylum as he had no other options available in order to extend his stay in Australia.  This may suggest that his claims of being harmed upon return to Sri Lanka were not genuine.  The applicant said that he came here to study and then his visa was about to expire and he was about to go back to Sri Lanka and that is when he decided to apply for a protection visa.  He said he could have applied for the visa as soon as he arrived but he didn’t want to do that because he was studying. He said he applied because he couldn’t get a visa.  He said he came to Australia with the intention of staying in Australia with his family.

15. The applicant claimed in his application that the reason for his travel to Australia was to seek safety from threats in Sri Lanka however he failed to apply for asylum until just prior to his visa expiring, after the expiry of the first student visa and following the decision of the Migration Review Tribunal to affirm the refusal of the second student visa. The applicant told the Delegate he was hoping to achieve residency through the student visa path and he applied for asylum when he had no other choice. The Delegate noted that he did not complete any studies in Australia and in addition to his initial enrolment in a [course] he had enrolled in and failed to complete less qualified courses. The Delegate noted that the applicant had said that due to working and family commitments he had been unable to complete his studies and that this was the only way he and his family could remain in Australia.

16. The applicant told the Tribunal that when he was studying he had difficulties in continuing studies because of the workload.  He said he was under stress and due to those reasons he could not complete his studies. He said it was because of the stress and also what was happening in Sri Lanka.  He said he paid money to the university and he came here to study.

17. The Tribunal put to the applicant that the fact that he did not apply until his student visa was expiring and he had been rejected for another might suggest that his protection claims were not genuine and designed to allow him to remain in Australia. He said he genuinely came here to study and he wanted to continue his studies.  The Tribunal put to the applicant that his migration history suggests he left Sri Lanka to study but not because he faced a risk of harm.  He said it was his intention to study in Australia and find employment and stay until the situation in Sri Lanka improved. He said his idea was to study here first and then stay in Australia and eventually return to Sri Lanka.

18. The Tribunal is not persuaded by the applicant’s explanations for his delay in seeking protection and his failure to raise his claims earlier. The applicant had ample opportunity to seek advice and assistance and the Tribunal regards that he would have done so in a more timely fashion if he had left Sri Lanka because of threats from Mervyn Silva or his supporters or if he feared returning to Sri Lanka for those reasons. The Tribunal finds the applicant’s failure to apply for protection earlier or to raise his fear of claimed harm on return to Sri Lanka in the context of his attempt to extend his stay in Australia on a student visa are an indication that he was not fearful of serious harm when he arrived in Australia and did not fear harm on return. 

19. These findings contribute to the Tribunal’s concerns regarding the genuineness of the applicant’s claims for protection as detailed above.

    PROTECTION ASSESSMENT

    Cumulative factors

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

21. In particular, the Tribunal considered whether his previous political activity supporting anti-drugs campaigns, support for political figures who were opponents of Mervyn Silva or return as a failed asylum seeker from Australia would mean he would come to the attention of authorities.  The Tribunal is not satisfied there is a real chance he would come to the attention of Sri Lankan authorities or face harm from Mervyn Silva or his supporters such that there would be a real chance of harm or adverse treatment due to any or all of the combination of these factors.

22. 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?

23. Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Sri Lanka, he would be persecuted either or both as an anti-drugs campaigner and supporter of political opponents of Mervyn Silva lacked credibility.

24. The Tribunal finds that considered individually and cumulative, there is nothing to suggest that the applicant would face persecution now, or in the reasonably foreseeable future, as a result of being either or both an anti-drugs campaigner and supporter of political opponents of Mervyn Silva and lacked credibility.

25. 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?

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

27. 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’).

28. 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. 

29. 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 whether 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.

30. 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.

31. The Tribunal has found that the applicant does not face a real chance of serious harm due to his history of involvement in political activities supporting opponents of Mervyn Silva, his involvement in an anti-drugs campaign, as a returnee from the West or failed asylum seeker or for any other reason.  For the same reasons, the Tribunal finds he does not face a real risk of significant harm. 

32. The Tribunal finds that the applicant has some family support in Sri Lanka and professional qualifications and skills that mean he can seek employment there.  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. 

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

   CONCLUSION

2. 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).

3. 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).

4. 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

5. 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.

   …