1700854 (Refugee)

1700854 (Refugee) [2019] AATA 4990 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700854
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Louise Nicholls
DATE:15 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 April 2019 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – Tamil fisherman – harassment by armed forces over fishing permit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZEPZ v MIMA (2006) 159 FCR 291
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of Sri Lanka and he is now almost [number] years of age. He claims he was born in [Village], a fishing village in the North Western Province of Sri Lanka. The applicant departed from Sri Lanka by boat in June 2012 and arrived in Australia as an illegal maritime arrival [in] June 2012.
The applicant applied for a protection visa on 1 November 2012. On 26 September 2013 a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The applicant has sought review from the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural History
The applicant initially sought review of the delegate’s decision at the Refugee Review Tribunal (RRT) on 7 October 2013. The RRT, differently constituted, affirmed the delegate’s decision on 22 January 2015.
On 2 February 2016 the Federal Circuit Court dismissed the applicant’s application for judicial review. On 28 November 2016 the Federal Court allowed an appeal against the Federal Circuit Court’s decision to dismiss the application. The Federal Court set aside the RRT’s decision and remitted the application to the Tribunal[1] for hearing and determination.
[1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.
The RRT had found that the applicant did not satisfy the complementary protection criterion in s.36(2)(aa). One of its findings was that the applicant was an illegal departee from Sri Lanka, and based on country information, he would not face a prolonged period in detention because the country information indicated he would be granted bail.
The Federal Court found that: the RRT had made an unstated assumption that a relative would provide surety for bail; that assumption was made without evidentiary foundation; it formed a critical plank in the Tribunal’s conclusion that the applicant did not satisfy the criteria for the grant of the visa prescribed in s.36(2)(aa); and the applicant was not on notice that this was a dispositive issue potentially forming a critical plank in the Tribunal’s reasoning.
The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The applicant had attended a hearing before the RRT on 27 November 2014. The Tribunal has listened to a recording of that hearing.
The applicant appeared before the presiding member of the Tribunal on 14 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted by way of video conference from Darwin and the hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to the RRT could be taken into account in the review. The Tribunal took further evidence from the applicant on his background, his claims and his current circumstances.
What material has been provided by the applicant?
The applicant made an application for protection on 1 November 2012. In the section asking him for his reasons for claiming protection he referred to his “Statement of Claims”.
He also provided the Department of Immigration with a statutory declaration made on 24 October 2012 which set out his “Statement of Claims” and attended an interview with the delegate on 21 June 2013.
The applicant provided the Tribunal with a copy of the delegate’s decision record dated 26 September 2013 and submissions made by the applicant’s representative dated 13 November 2013.
The applicant attended a hearing at the RRT on 27 November 2014 and the RRT affirmed the decision under review on 22 January 2015.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in Attachment A.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[2] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[3] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
[3] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[4]
[4] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.
In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the RRT hearing.
Background
The applicant was born in [Village] in the North Western Province of Sri Lanka. [Village] is a Tamil fishing and prawning village located on the coast about [number] kilometres north of the capital, Colombo.
The applicant is of Tamil ethnicity and is a Hindu. He speaks, reads and writes in Tamil, he speaks Sinhala and has some basic English language skills. The applicant’s parents and [siblings] are living in Sri Lanka. The applicant is not married.
Before the applicant arrived in Australia in 2012 he was working as a fisherman in [Village]. The applicant previously lived in Adelaide but moved to Darwin about three years ago as he has some friends living there. He is not working and claims that his friends are financially supporting him and have done so for the last two to three years. He lives in a shared house and spends his days watching movies, playing cricket and attending the gym.
Country of reference
The applicant claims he was born in Sri Lanka and is a citizen of Sri Lanka. He arrived by boat as an illegal maritime arrival and did not have a passport. However, he provided other identity documents including a Sri Lankan birth certificate, a Sri Lankan identity card and a Sri Lankan [high school certificate]. He has consistently claimed that he is of Sri Lankan nationality and he was familiar with the geography and culture of Sri Lanka.
Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is a receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in his statutory declaration accompanying his application for protection and in submissions made by the applicant’s representative. The claims for protection were further discussed with the delegate on 21 June 2013.
The applicant gave oral evidence concerning his claims at an RRT hearing on 27 November 2014 and a Tribunal hearing on 14 March 2019.
The applicant claimed he was working as a fisherman in [Village], Sri Lanka in 2011 and 2012. He claims that he and his employer, [Mr A], went fishing one day in 2012 without a fishing pass which resulted in some conflict between [Mr A] and the Sri Lankan Armed Forces. He claims that he was later questioned, threatened and beaten by the Army personnel who were looking for his employer. He also claimed that they were searching for him and he left Sri Lanka because he feared he would face serious harm at their hands.
Essentially the applicant claims that he will face serious and significant harm if he returns to Sri Lanka because he is a young Tamil male, because he has imputed antigovernment opinions arising from his interactions with the Sri Lankan Armed Forces in 2012, as a failed asylum seeker and because he left Sri Lanka illegally.
In giving evidence about the conflict between [Mr A], the applicant and the members of the Sri Lankan Armed Forces the applicant has variously described them as Sri Lankan Army officers, Army personnel and Army people. The Tribunal put it to him at hearing that the country information suggested that it is more likely that members of the Sri Lankan Navy (SLN) rather than the Army were present in [Village] in 2012. He stated he did not know if they were Army or Navy. For the sake of consistency and despite varying descriptions, the Tribunal has referred to these individuals as members of the SLN throughout this decision.
The applicant’s representative made submissions on the applicant’s claims in 2013. In those submissions the representative reiterated the claims made in the applicant’s statutory declaration of 24 October 2012. The Tribunal has taken into account the submissions in making its findings.
The applicant’s representative submitted that the applicant would be persecuted on the basis of his Tamil ethnicity. He stated that the Sinhalese population form the majority in Sri Lanka and controlled the Police Force, the Army and much of the state apparatus. Tensions between the two ethnicities have been long lasting and violent culminating in a civil war which ended in 2009. Tamils continued to be regularly abused and persecuted by the Sri Lankan authorities and are suspected of affiliation with the Liberation Tigers of Tamil Eelam (LTTE). He submits that country information shows that Tamil ethnicity alone is enough to make the Sri Lankan authorities suspect LTTE ties. He submits that the applicant situation is made worse by the fact that Tamils who seek asylum in the West and are returned are even more likely to be suspected of LTTE links. The applicant’s representative referred to the United Nations High Commissioner for Refugees (UNHCR) guidelines of December 2012 and a report by the UK Border Agency operational guidance note in March 2011. He also referred to an UNHCR report dated April 2009.
The applicant’s representative also submitted that the applicant fears persecution by the authorities on account of his imputed political opinion. He fears he will be targeted and killed by the SLN or an associated paramilitary group like the Karuna Group or the EPDP.
He also fears persecution arising from membership of a particular social group, that is, as a returnee from a Western country and an illegal departee. He submits that Tamil returnees from the West are particularly vulnerable and likely to be detained and tortured if returned. They are suspected of criticising the Sinhalese dominated government and being involved in pro-Tamil activities in the West. Further their attempt at seeking asylum is usually seen as an admission of involvement with the LTTE.
The applicant claims he cannot seek protection from the Sri Lankan authorities because they are the ones responsible for his persecution. The Police Force, the Army and other authorities are drawn from the Sinhalese majority and have a demonstrated tendency to persecute rather than protect the Tamil minority. Given his ethnicity as a Tamil and imputed political profile as supporting the LTTE, the authorities will not accept his subjective accounts of harm.
The applicant’s representative submitted that the applicant will encounter difficulties as a returned failed asylum seeker and would undoubtedly be the target of persecution upon his return.
Assessment of claims and evidence
Is the applicant an ethnic Tamil from [Village], Sri Lanka?
The applicant has consistently claimed, and the Tribunal accepts, that he is a young Hindu Tamil male from [Village] village, Sri Lanka. He provided a copy of his school records which support this evidence. His parents and two siblings continue to live in [Village].
The applicant gave evidence, which is supported by country information, that [Village] is a small fishing village on the coast, north west of Colombo. It has a majority Tamil population and the main industry of the village is fishing. However, it is not located in the north or east of Sri Lanka which were the areas mainly affected during the civil conflict between the government and the LTTE. The applicant claimed and the Tribunal accepts that there were about five or six Singhalese families living in [Village] at the time he left Sri Lanka in 2012.
Was the applicant a fisherman?
The applicant claimed and the Tribunal accepts that after the applicant left school at the end of [year] he worked as a fisherman in [Village] for about a year and a half.
In his statutory declaration of 24 October 2012 the applicant stated that before he left Sri Lanka he worked as a fisherman and generally left home at 4 am and returned at 7 am each day.
In his interview with the delegate he explained that there were many fishing boats in [Village] and that the operators of those boats would call for people to work on the boats so he joined the fishing workforce. He told the Tribunal that his father had been a fisherman. The applicant claimed that his father works as a fisherman earning about Rs.1000 a week and only gives his mother Rs.300 a week for the family support. His father and his sister’s husband are currently working in the fishing industry in [Village].
He told the delegate that he had a number of different employers during the year and a half years that he worked as a fisherman.
He told the Tribunal that the usual routine was to leave on the fishing boats at 4am in the morning and return by 7am when the catch would be taken to the markets and sold. He would normally receive about one third of the sale amount of the fish. He told the Tribunal it was hard to make money as you could not guarantee the amount of fish you caught each day. He provided his share of the payment to contribute to his family’s support. He stated that his father was not a very good provider for the family as he spent a large amount of his payments on alcohol.
The Tribunal accepts his evidence that his last employer was a boat owner, [Mr A], who was about [age] years old.
Conflict between [Mr A] and personnel from the Sri Lankan Armed Forces
In his statutory declaration of 24 October 2012 the applicant stated that before he left Sri Lanka he needed a pass to go fishing as a Tamil and if he questioned the need for a pass he would be threatened and hit.
One day his boss, [Mr A], called him to go fishing; they were late leaving so they went without a pass. On that day they caught about 150 kilograms of fish. When they returned from fishing, two members of the SLN stopped them and asked about their passes. [Mr A] asked them why only Tamils needed passes and he was badly beaten by the SLN officers. [Mr A] retaliated and ran off and the officers chased after him. Some other Tamils told the applicant to go home. He told his mother about the incident and did not return to fishing for three to four days.
In his interview with the delegate he stated that one day he and [Mr A] forgot to bring their fishing pass so he was fishing without a pass. On that day they caught a large amount of fish, that is, about 150 kilograms. After they took the fish to be sold they were approached by two members of the SLN and were asked about their passes.
[Mr A] asked why only Tamil fisherman had to carry passes. The SLN members attacked [Mr A] who retaliated and ran away. After that, other workmates told the applicant to go home so he went home and told his mother what had happened. When asked how [Mr A] escaped he claimed he pushed them into the sand and ran away. The applicant was about 30 to 40 metres away when this happened and he then went home.
The delegate did not accept some aspects of the applicant’s account of events. In his submissions to the Tribunal following the delegate’s decision, the applicant’s representative addressed some of the concerns expressed by the delegate.
The applicant’s representative noted that the delegate did not accept that the altercation between the [Mr A] and two members of the SLN was credible due to the fact they did not have the fishing passes on them. He referred to the delegate’s finding that fishing passes are no longer issued by the Sri Lankan Army or Navy but rather by the Department of Fisheries (DoF). The representative submitted that the fact that passes are no longer issued by the SLN does not stop the SLN from stopping people and questioning them, especially Tamils. [Mr A] had spoken back to the members of the SLN and this gave them more than enough reason to beat and threaten the applicant and [Mr A]. He stated that in areas previously controlled by the LTTE there is a strong army presence to monitor Tamils in the area.
At the RRT hearing the applicant gave evidence he and [Mr A] were running late and did not hand over the pass when they went to fish. He and the owner of the boat caught 150 kilograms of fish. They went to the market and sold the fish. They then went to load the nets and were about to go home when two SLN members came up to them and asked about the fishing pass. [Mr A] questioned why only the Tamils had to have passes. The members of the SLN beat him but he got up and he ran away.
When questioned, the applicant stated they did not hand in the fishing pass to the checkpoint because they were late and wanted to get to the fishing areas. The members of the SLN found out they had gone out without a pass. [Mr A] was angry at the pass system and challenged them and was beaten. When [Mr A] got up from being beaten he shielded himself and touched the officers. They were very angry and chased him. The applicant was standing back and other people told him to go to his house. He does not know if he was identified. When asked why he remembered the date [in] May 2012 so clearly he stated that it was date of the incident which caused him to leave Sri Lanka.
[Village], fishing passes and the fishing industry
The applicant’s claims for protection arise from his claim that he and his employer went fishing one day without a fishing pass, his employer was mistreated by the Sri Lankan authorities for this reason and the applicant was subsequently mistreated by authorities. As a result of this mistreatment and his fears of future harm, the applicant departed Sri Lanka.
In considering these claims the Tribunal has considered the country information on [Village],[5] fishing licences and people movements from Sri Lanka in 2012.
[5] Also known as [alternative spelling].

Figures from the 2011 census indicate that there were [number] Sri Lankan Tamils in [District].[6] An April 2011 article in [a privately owned English-language Sri Lankan newspaper],[7] refers to [Village] comprising “a population of around 15,000; the majority of whom are Tamils”,[8] while an August 2012 article by a former [office bearer] of [an organisation] indicates that [Village] is a Tamil village in which nearly 20,000 Hindus are permanently resident.[9]
[6] Department of Census and Statistics, Sri Lanka 2012, A2 : Population by ethnic group according to districts, 2012, <
[7] [Source deleted]
[8] [Source deleted]
[9] [Source deleted]
An August 2012 [news source] article indicates that “[t]he [Village] area is ethnically Tamil, but the end of fighting between the government and Tamil rebels in 2009 after decades of warfare has failed to bring any peace dividend.”[10]
[10] [Source deleted]
A September 2012 article in [Newspaper] refers to young Tamils in [Village] saying the village lacked basic facilities and job opportunities, and claiming to be marginalised because of their ethnicity.[11] Another article in the same newspaper indicates that [Village] did not have piped drinking water, a proper public transport system or sealed roads, despite government promises at election time.[12]
[11] [Source deleted]
[12] [Source deleted]
The Tribunal accepts that [Village] is a majority Tamil Hindu village and that its main industry is fishing. [Village] is, however, not located in the north or east of Sri Lanka which were the areas in which the conflict between the government forces and LTTE generally took place.
The applicant was questioned extensively about fishing passes by the delegate and at the first and second hearings.
In his original statement the applicant stated that as a Tamil boy he needed a pass to go fishing and that if he questioned why only Tamils needed a pass, he would be threatened and hit.
He claimed that one day he and his boss, [Mr A], went fishing without a pass. When they returned from fishing some members of the SLN asked about their pass and why they were fishing without a pass. [Mr A] questioned why Tamils needed a pass and then became involved in an altercation with the officers.
The evidence that the applicant gave to the delegate and at the hearings regarding the “fishing pass” indicated that he did not know much about the nature of the pass, which agency was responsible for issuing the pass or how the pass operated.
In summary his evidence was that the “fishing pass” was issued to the owner of the fishing boat, it had to be handed into the Army or Navy officers located in [Village] before going out fishing and handed back on return to the village. The applicant did not have a pass in his name; he stated the pass was issued to the boat operator, in this case, [Mr A]. The applicant claimed he used to show his identity card when he went out fishing and the operator of the boat handed in his pass.
Country information indicates that all commercial fishermen in Sri Lanka must have a fishing licence. In November 2012, the Australian Department of Foreign Affairs and Trade (DFAT) advised the Department of Immigration and Citizenship that the DoF “is the regulatory body dealing with fishing matters in Sri Lanka and is the only organisation with the authority to issue fishing licences in the country”. The DoF stated that the SLN cannot and does not issue fishing licences for fishing boats, although during the conflict, boats were not allowed to go to sea without a pass issued by the navy. Those passes were no longer issued, although, due to security reasons, the navy still may carry out security checks on boats before they leave to go to sea. Post adds that it “is not aware of any reports that Sri Lankan Tamils (or any other ethnic grouping) are mistreated if they are caught illegally fishing”.[13]
[13] Department of Foreign Affairs and Trade 2012, Country Information Report No. 12/67 – CIS Request Sri Lanka: Questions arising from recent applications, 29 November
The Tribunal considers that the fishing pass referred to by the applicant is not a fishing licence, but the pass issued by the Navy which allowed fishing boats to go to sea during the civil conflict which ended in 2009. The issue is whether passes were still used in 2012 after the end of the civil conflict and whether the passes were issued by the SLN.
A February 2009 article on the World Socialist Web Site[14] reported that “[a] small navy camp has been established in [Village] as a base for patrolling”, and refers to “a small number of navy personnel” in the area.[15]
[14] The World Socialist Web Site is published by the International Committee of the Fourth International, which claims to be “the leadership of the world socialist movement”. World Socialist Web Site n.d., About the World Socialist Web < World Socialist Web Site 2009, [source deleted]

On 10 May 2013 a request was sent to DFAT concerning the presence of an Army base in Udappu.[16] On 6 June 2013 DFAT provided the following information.[17]

A. Does the post have any information, or can the post make inquiries, about the presence of an Army base in [Village]?
Post assumes the question relates to a place called [Village – alternative spelling] located on Sri Lanka's west coast just south of [Town].
Post does not have any information about the presence of an Army base in [Village]. Post made inquiries with the Divisional Secretariat in [Village 2], the local government authority which covers [Village]. The Divisional Secretariat told post there was an army camp in [Village] during the war. The camp was withdrawn after the war ended. Divisional Secretariat officials were not sure when exactly the camp was removed from the area.
[16] RRT Country Advice 2013, Country Information Request – LKA42229, 10 May
[17] Department of Foreign Affairs and Trade 2013, DFAT Report 1509 – RRT Information Request: LKA42229, 6 June

A February 2009 report claimed that fishermen in [Village], a Tamil fishing village in North Western Province, needed to be in possession of both their national identity cards and fishing passes when fishing. The article, on the World Socialist Web Site, refers to the comments of a fisherman from the village, who said that “[e]ven when we go to sea we have to carry our national identity cards, in addition to the fishing pass.”[18] This is consistent with the applicant’s evidence as to the requirement to show a fishing pass and also to show his identity card but the Tribunal notes the report was made in 2009.

[18] World Socialist Web Site 2009, [source deleted]

The delegate and the RRT were both concerned that the applicant’s evidence regarding the fishing pass and presence of the Army was not consistent with some country information suggesting the passes were no longer required in 2012 and there were no Army bases in [Village]. When the Tribunal discussed the country information with the applicant he stated that he did not know if the officers who beat [Mr A] were from the Army or Navy. Further he continued to assert that the passes were still required in 2012.

There is some information suggesting that a small Navy contingent remained in [Village] after the end of the conflict. There is also some country information which suggests that the Navy continued to patrol the area and passes were still required in 2012 although the Tribunal notes the conflicting reports on this issue. The country information indicates that the continuation of security checking did not relate to concerns about the LTTE or separatist activity but appeared to relate to concerns regarding the illegal smuggling of people and goods in 2012.

The upsurge in people smuggling in 2012 has been reported by a number of different sources.

The UNHCR guidelines on assessing asylum seekers from Sri Lanka[19] noted in 2012 that

The number of Sri Lankans attempting to leave Sri Lanka in an irregular manner on boats is reported to have increased significantly since the start of 2012. It is difficult to ascertain the exact reasons for these attempts to depart; the motives are speculated to be mixed in nature.6 Irregular departures from the country by sea are a common occurrence in Sri Lanka. Previously, such departures primarily took place from Negombo, located 40 kilometres from Colombo along the north western coastal belt. The Sri Lankan authorities, including the navy and the police, have increased their vigilance in the relevant locations and have strengthened surveillance in Sri Lanka’s territorial waters.
[19] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (December 2012)

An article in Ground Views[20] reports on the upsurge of asylum seekers from Sri Lanka travelling by boat in 2012

The Jakarta Globe notes that, “While most boats originate in Indonesia, there has been a recent spike in attempted crossings from Sri Lanka.” In addition, over 250 Sri Lankans have been detained after having tried to leave the country illegally by boat.
The trafficking of people should be a concern for the State, especially in light of so many incidents being reported over the past few months.
Points of Departure
Through its interviews, TSA has discovered three points of departure: Udappu (Puttalam), Vettilaikkerni (Jaffna) and Salli (Trincomalee), all of which are Tamil areas. Regardless of where they depart from, most boats eventually go through Trincomalee Harbor. Some interviewees have made the distinction between “points of assembly” and “points of departure.”
[20] Troubled Waters: Corruption and Human Trafficking in Post War Sri Lanka 19 July 2012 >
The International Organisation for Migration reported on its safe migration awareness campaign in the town of Udappu in 2013. It reported
On 17 January 2013 the International Organization for Migration (IOM) organized an awareness campaign in the town of Udappu located in the District of Puttalam, as part of on-going efforts to curb irregular migration from Sri Lanka.
….Participants who attended recent outreach activities in the coastal town of Udappu included some 37 students 16 years of age and above. As a village by the sea, Udappu has been identified as a port of departure for irregular migration in western Sri Lanka. Anecdotal evidence suggests that some 800 people have migrated irregularly from this location utilizing both from sea and air routes. Statistics regarding irregular migration are difficult to obtain given the often undocumented or falsified nature of the movement.
….The information session in Udappu provided a lively forum for students from two local schools to discuss safe migration. The students put forth their concerns and comments, with many holding different views on migration. When asked why individuals might choose to leave Sri Lanka illegally, the answers were similar to findings from other regions of the country. The students cited economic challenges as the top push factor with many suggesting it is the only reason they would consider leaving the country. They say the scarcity of economic opportunities in the district compelled many to violate immigration and emigration policies and seek better opportunities abroad.[21]
[21] The Dream of Finding "Greener Pastures" Safe migration awareness campaign 22 February 2013;The Island;

In 2013 the World Socialist Website interviewed a Sri Lankan journalist about the economic conditions which had driven increasing numbers of Sri Lankans to travel to Australia by boat. In that interview the journalist noted that

SJ: We visited the remote village of Udappu in the northwestern coastal belt. It was very poor. Several families were living in huts with thatched roofs. There was no proper government transport, only temple buses, and only dirt roads. The villagers reported that hundreds of fishermen and youth had gone to Australia. Out of a population of about 5,000, between 750 and 2,000 people had fled.
One person explained the oppressive conditions the fishermen faced. He told us his two brothers had fled because after the fuel prices rose, villagers could earn only 50 or 100 rupees (40 to 80 US cents) a day from fishing. Though the war had ended, they also had to obtain passes from the navy every day before going to sea, which meant being at the checkpoint by at least 4 a.m.

The August 2012 [news source] article indicating that “[t]he [Village] area is ethnically Tamil” refers, however, to continuing fishing restrictions in [Village]. It indicates that “[f]ishing restrictions, a legacy of the decades-long separatist war, have also persuaded locals that the industry will never prosper and that they should try to migrate.” A local community leader in the [Village] area said that “[i]t is three years after the end of the war, but fishermen are still required to get a ‘pass’ from the navy before setting out to sea. We can’t just row out to fish”. Naval authorities said that the checks were “to prevent the illegal boat traffic abroad.”[22]

[22] [Source deleted]

Sri Lanka’s Western Naval Command, responsible for the area in question, informed DFAT in 2012 that:

During the conflict, under the state of emergency, the navy issued fishing permits to fishermen in areas where there was no Department of Fisheries representation. With the lifting of the state of emergency it no longer had responsibility for issuing any fishing permits. The navy said that it does undertake security checks of fishing vessels and crew before boats depart at some marshalling points around Sri Lanka to prevent illegal smuggling of goods and persons. This involves checking registration details against lists provided by local fishing cooperatives.[23]
[23] DIAC Country Information Service 2012, Country Information Report No. 12/67 – CIS Request Sri Lanka: Questions arising from recent applications, (sourced from DFAT advice of 29 November 2012)

Reports indicate that for many small scale fishermen both Tamil and Sinhalese, fishing became increasingly economically unviable after the end of the civil conflict. In 2012, Sri Lankan fisherman incurred dramatic increases in the costs of fuel.[24] During a protest by fishermen from a variety of ethnic and religious backgrounds in Chilaw, North Western Province in February 2012, a fisherman was shot dead by police.[25]

[24] Haviland, C 2012, ‘Bus strike called off’, British Broadcasting Corporation (BBC), 13 February

[25] Haviland, C 2012, ‘Protesting fisherman shot dead’, British Broadcasting Corporation (BBC), 15 February

Interviews with would-be asylum seekers in Sri Lanka in 2012 indicate that many, including former fishermen, were motivated to leave by the decline in the viability of fishing and the absence of job opportunities in the country[26].

[26] No risk too high for Sri Lankans wanting to migrate’ 2012, Lanka Business Online, 19 August, source: Agence France-Presse; ‘SRI LANKA: More people boarding boats to Australia’ 2012, Integrated Regional Information Network (IRIN) -United Nations, 12 July

Taking into account the applicant’s evidence and the country information set out above, the Tribunal accepts that in or around May/June 2012 fishing boats were still being scrutinised by the SLN and that in [Village], security checking of fishing passes may have taken place at that time. The country information indicates and the Tribunal accepts that the purpose of this checking was to prevent illegal people smuggling ventures which were widespread in [Village] and other regions of Sri Lanka in 2012.

The Tribunal also accepts that [Mr A] and the applicant went fishing without a pass sometime in 2012. They left without handing in the pass because they were late in leaving the village that morning and they took the risk of fishing without handing in the pass. It also accepts that after they returned from fishing that day, [Mr A] was questioned by members of the SLN and he became involved in a disagreement where he was pushed to the ground. It also accepts that he either touched or pushed them when he got to his feet before he ran away. The Tribunal accepts that they may have been angry as a result of the confrontation and chased [Mr A].

The applicant’s evidence is that he observed this disagreement and then went home where he stayed for about three to four days. The applicant gave evidence that the members of the SLN did not know his name and he did not know what happened to [Mr A]. The applicant claims that this incident took place [in] May 2012. The applicant could not explain why he remembered the date so clearly. However, as discussed with the applicant, the information he gave in the entry interview was not consistent with the evidence he gave to the delegate and to the Tribunal about the timing of these events. While the Tribunal accepts the confrontation took place it does not accept it took place [in] May 2012.

Was the applicant mistreated by members of the armed services in June 2012?

Following the incident involving [Mr A] and the SLN, the applicant claimed he went to his home where he stayed for a few days and did not go out fishing. He claimed that after a few days he went out into the village where he was discovered by the same members of the SLN who had beaten his employer. He claims they beat and kicked him and threatened with harm if he did not disclose his employer’s whereabouts. He also claimed that he went to stay at his aunt’s house in [Village] and that the members of the SLN came to her house searching for him. After this, his family decided he should leave Sri Lanka on one of the boats travelling to Australia.

He has provided information on these claims in his statement, in his interview with the delegate and in oral evidence at the first and second hearings.

In his statutory declaration he claimed that a few days after the incident with [Mr A] he went back towards the shore and the two SLN members who beat his boss came towards him on a motorbike. They caught him and threw him down on the ground, hitting and kicking him and questioning him about the whereabouts of his boss. They told him they would come back and do this again and if he did not reveal where his boss was staying, they would kill him.

He went home and told his mother and she went to the pharmacy for medicine. He stayed at home for five days and then his mother arranged for him to go and stay at his aunt’s house. Around June 2012 the same two SLN members and another officer came to his aunt’s house looking for him. His aunt told them he did not live there and she did not know where he was and they left. Later his mother called him and told him that the only way he would be safe is if he left on a boat leaving for Australia. That same day his father came and took him to the boat near Colombo and he travelled to Australia by boat.

The applicant told the delegate that after his employer was beaten the applicant stayed at home for three to four days and did not go out fishing. After four days he went to the shops. On his way home he went to the beachside to walk and relax and he saw the same two SLN people. He tried to escape but they called him over and they kicked him. They asked him about his boss and he told them he did not know where he was and had not seen him. They told him next time they saw him he should pass on his boss’s details or they would kill him. He claimed he was injured and sore after the beating. He went home and his family got some medicine from the pharmacy and he spent the next five days in bed.

He claimed that his mother then arranged for him to go and stay with his aunt. When asked where his aunt lived he stated that she lived about 20 kilometres away. He claimed he walked to his aunt’s house and it took him about an hour.

He told the delegate someone came looking for him at his aunt’s house after three days. He stated that some Sinhalese neighbours passed the message to the SLN that he was staying with his aunt. He could not explain why he believed these people passed on the message. He stated someone turned up at his aunt’s house and he feared that if it was the same two SLN officers they would have killed him. He assumed it was the same two SLN people. When questioned further he told the delegate he was not sure who turned up at the house but he thought it was the same officers who had beaten him. When they came to the house his aunt told him to hide.
He claimed that he hid and the officers searched the house looking for him. They asked for him by name and his aunt said she did not know where he was staying. He stated that the members of the SLN had not been to his parents’ home looking for him and as far as he is aware no one visited his home to ask about the earlier incident.
The delegate questioned how the Sinhalese neighbours would know that the SLN were looking for the applicant. He did not know how they knew but said his mother had made the decision for him to stay there.
He stated that after the visit to his aunt’s house his mother arranged for him to come to Australia. Initially he told the delegate that the SLN had not visited his parents’ home but later in the interview told the delegate that when he telephoned his mother she said the SLN had been to the house and asked about his whereabouts.
Prior to the RRT hearing the applicant’s representative made submissions on the delegate’s decision. He noted that the delegate was concerned with an inconsistency with dates. The delegate had noted the evidence given by the applicant that the incident where the applicant was beaten by two members of the SLN occurred [in] April 2012 and the incident with [Mr A] occurred [in] May 2012. The delegate also noted a further inconsistency with the dates relating to the applicant’s departure from his aunt’s house. The representative submitted that the applicant offered approximate dates and believes the applicant was misunderstood.
At the RRT hearing the applicant claimed he stayed home for about three to four days after the incident with [Mr A]. After four days he went to the shops and on his way home he saw the same SLN people who had fought with [Mr A]. He tried to ignore them but they called him and they kicked him with their boots. They asked about his employer and he told them he did not know his whereabouts. They told him if they saw him again they would kill him. They told the applicant that they would come again and he went home and told his mother about this incident.
He was hurt and sore so went home and his family got some Panadol from the pharmacy and he spent the next five days in bed. He then went to stay at his aunt’s house on his mother’s advice. She was concerned that they would come again.
He stated that at the time he encountered the SLN people, [Mr A]’s boat was still on the beach and the boat had a registration number. The RRT put it to the applicant the SLN could have easily found [Mr A] because they could have waited for him or traced him through his boat details. The applicant stated he did not know much about [Mr A] and he did not know where he lived; he just called the applicant to come and work on his boat from time to time.
He claimed that he went to stay at his aunt’s house. He stated his aunt lives in [Village] but a long way from the beach. He thinks the Sinhalese people might have told the SLN people where he was staying. The RRT put it to him that he had previously stated that there were only about five Singhalese families in [Village]. He claimed that some Sinhalese people lived next to his parents’ house and some lived near his aunt’s house. He claimed that Sinhalese people who lived near his aunt’s house knew he was staying there but he was not sure how they knew; they may have seen him out on the street. The RRT put it to him that he had visited his aunt before and it would not be unusual for him to stay at his aunt’s house. He asked him to explain why they would convey this information to the SLN. He stated he did not know.
He gave evidence that when the SLN people came to his aunt’s house [in] June 2012 his aunt told him to go outside and hide. He was worried they might kill him if he did not tell them where [Mr A] was staying. The SLN people searched the house and then left. When asked why he remembered that date so clearly he stated they were searching for him and he was anxious.
His family knew there were many boats going to Australia at this time and they checked to see if he could get on a boat. His parents and aunt paid for the trip partially using loans and help from other people. He did not want to leave but his family wanted him to be safe in Australia.

100. The applicant told the RRT at the first hearing that he was told by his mother that the SLN visited his parents’ home asking about his whereabouts after the applicant left Sri Lanka.
101. At the second hearing the applicant stated that after his employer had been beaten the applicant went to the beach and the officers saw him. They kicked him with their boots. He claimed they were looking for [Mr A]. The Tribunal asked him why the officers did not come to the applicant’s home and question him. He stated he was outside his home when the officers saw him. He then stated they did come to his parents’ house. He could not explain why they did not come to his parents’ home if they knew where he lived.
102. The applicant claimed he did not know his employer’s address or any other details about him despite claiming that he worked for him for about one year.
103. The Tribunal asked him to explain why the SLN officers had not searched for the applicant’s employer at the address registered to him on his fishing pass or boat. He stated he did not know what was happening outside his own house.
104. He claimed that he had moved to his aunt’s house to avoid their adverse attention. The Tribunal put it to him that if the SLN had been committed to finding him they could have made enquiries and found him in the village before he went to his aunt’s house. He was not able to adequately explain why they did not find him at his home. The Tribunal put it to the applicant that it appeared he was not able to expand on a rehearsed version of events.
105. After a few days at home he went to stay at his aunt’s house which was about five to six kilometres from his house. He stayed with his aunt for about one week and on the sixth day an SLN vehicle stopped outside the house and he hid himself in the bush area outside his aunt’s house. The same two SLN officers came to the house. The Tribunal asked him how he knew that they were the same SLN officers when he had previously stated he did not know if they were the same officers. He claimed he saw them in the street in their uniforms. His aunt told him they searched the house. The Tribunal put it to him that he had previously said he did not know if it was the same two SLN officers who came to his aunt’s house. He stated that he saw the vehicle and their uniforms before he hid himself. He stated that the officers must have heard from someone else that he was staying with his aunt. His aunt called and told his mother and then his aunt told him that boats were leaving Sri Lanka.
106. The applicant was asked by the delegate and by the Tribunal how the Army officers would know he was living at his aunt’s house. He claimed that Sinhalese neighbours passed the message to the Sinhalese SLN officers. He was asked how Sinhalese neighbours would know the SLN was looking for the applicant and he stated he did not really know. At the RRT hearing he said his parents had Sinhalese neighbours and his aunt had Sinhalese neighbours. The RRT pointed out that he had previously stated that there were only about five Sinhalese families in [Village]. The applicant stated he was not sure how they found out he was living with his aunt. Perhaps the neighbours realised there was a new person staying with his aunt and passed the message on. As the applicant had told the RRT he visited his aunt for short periods, the RRT put it to him his presence at his aunt’s house would not have been unusual.
107. In considering the evidence the Tribunal notes there are some minor inconsistencies regarding timeframes and dates, but has not taken an adverse view of the applicant’s evidence for this reason. It also notes he refers to Army officers or personnel throughout his evidence, but the Tribunal accepts that the difference between Army and Navy personnel was not particularly important to him and he variously referred to them as Army officers, people or personnel. The country information indicates that there was no Army base in or near [Village] in 2012 but that there was a small Navy contingent in [Village] at that time. The Tribunal considers it more likely that the applicant is referring to members of the SLN in his claims.
108. In considering the applicant’s claimed account of events the Tribunal does not accept that [in] June 2012 the applicant was beaten and kicked by members of the SLN because he could not give them the whereabouts of his former employer/ workmate [Mr A]. It also does not accept that they threatened they would kill him on the next occasion they saw him or that they attended his aunt’s house in [Village] searching for him some days after the claimed beating.
109. The Tribunal considers that the applicant has contrived an account of events to support his claim for protection. It finds he has used the disagreement between [Mr A] and the angry reaction of the members of the SLN to formulate an account of events where he has been mistreated, threatened and pursued and which gives rise to his claimed motivation for leaving Sri Lanka. However his account of events is not plausible for a number of reasons.
110. The applicant could not explain why the SLN were so committed to finding [Mr A] after a relatively minor incident and why they pursued the applicant and [Mr A] for an extended period of time after that incident.
111. The Tribunal finds that if the SLN had wanted to locate [Mr A] they could have used more reliable methods of enquiring about his whereabouts using registration information they had for his fishing boat.
112. The applicant could not plausibly explain why, if they were committed to finding [Mr A] and they had found out the applicant’s identity and where his aunt lived, they did not come to the applicant’s parents’ home and question his parents, or the applicant before he went to his aunt’s home. He lived in a small village and he told the Tribunal his home was close to the beach. If the SLN had been stationed in or near [Village] the Tribunal considers they would have been able to find out where the applicant lived if they had chosen to do so.
113. In the delegate’s decision record, which was given to the Tribunal, the delegate asked the applicant to explain why he told the interviewing officer twice at his entry interview that he had been beaten [in] April 2012 which was before the date he stated his employer was beaten. When the Tribunal asked him about this issue he stated he could not clearly remember the dates at the entry interview. He claimed the incident with his employer had taken place [in] May 2012.
114. The Tribunal accepts that the applicant may have found it difficult to remember exact dates at the entry interview; however, this is not consistent with the evidence he gave of his recall of specific dates at the Tribunal hearings. The Tribunal considers he memorised these dates and was not recalling them from his recollection of those claimed events. Of itself the Tribunal does not consider this significant. It would be expected that an applicant may sometimes wish to memorise dates and events, particularly if his account of events has been previously questioned. However when taken in the context of other considerations the Tribunal finds the inconsistent evidence supports its finding that these events did not take place as claimed. The Tribunal considers the inconsistency supports its findings that his claims of mistreatment are false.
115. During his initial entry interview the delegate also noted that he had previously claimed he stayed at his aunt’s house for two months and not for a few days. As set out in the decision record given to the Tribunal, when the delegate put this inconsistency to the applicant, he stated he only stayed at his aunt’s house for three days. At the second hearing the applicant stated that at the time of the first interview he could not remember the dates very well. However, the Tribunal considers that there is a significant difference between staying with his aunt for two months and staying with her for a few days. It does not consider that this discrepancy can be explained by his claim that he failed to recall dates clearly. The Tribunal considers the inconsistency supports its findings that his claims of mistreatment are false.
The applicant’s departure from Sri Lanka
116. In his statutory declaration the applicant stated that after the officers attended his aunt’s house his mother telephoned him there and told him there was only one way he would be safe from authorities and there was a boat leaving for Australia. His father came on the same day and took him to the boat located near Colombo and he then left Sri Lanka by boat.
117. At the interview with the delegate the applicant stated that his mother made the arrangements for him to come to Australia. He stated the decision to leave was made [in] June 2012 and he left from Negombo[27] on a boat [the next day]. His mother arranged the departure through an agent and his father took him to the boat. The cost of organising his departure was about 10 lakhs.[28] His mother used the sale of jewellery as well as a loan from the bank to raise the funds.
[27] A large coastal seaport near Colombo.
[28] The term “lakh” is used for the numerical unit of one hundred thousand Sri Lankan rupees.
118. The delegate noted that the arrangements to leave were made [in] June 2012 for a departure [the next day]. The delegate questioned how the arrangements for the loan and sale of jewellery could have taken place in such a short period of time. The applicant stated that half the funds were paid after the boat left Sri Lanka so his mother had time to raise further funds.
119. At the first hearing the applicant’s representative submitted that the applicant left soon after the SLN officers started searching for him and this supported his claim that he was motivated to leave Sri Lanka on account of his fear of harm. The RRT Member noted the evidence that there were a significant number of other passengers from the village of [Village] on the boat in which the applicant travelled. He put it to the representative that there could have been other reasons as to why the applicant left on that particular boat.
120. The applicant gave evidence, which the Tribunal accepts, that he left Sri Lanka without a passport from the coastline near Colombo.
121. The Tribunal noted that the applicant had claimed that his family only had one day to arrange for his departure on a boat leaving Sri Lanka. It put it to him that the short period of time would not have been enough to arrange the disposal of jewellery, the application for a loan and for arranging a place on a boat to Australia. The applicant stated there were many boats leaving to go to Australia. The Tribunal put it to him that in one day his mother pawned jewellery, contacted an agent to organise departure, collected money and his father transported the applicant to Colombo to join a particular boat. The Tribunal questioned this evidence but the applicant reiterated that this was what happened.
122. As the Tribunal has not accepted that the applicant was beaten and threatened by members of the SLN, or that he fled to his aunt’s home or that the members of the SLN were searching for him at his aunt’s home, it does not accept the applicant’s claim that the reason he left Sri Lanka was because he feared serious harm at the hands of Sri Lankan authorities. The Tribunal also does not accept that the applicant’s family arranged for him to leave Sri Lanka with one day’s notice. It does not accept that the applicant’s mother and family members could have contacted an agent, arranged transportation on an illegal people smuggling boat near Colombo, raised the money needed by way of the sale or pawning of jewellery and loans, and taken the applicant to the boat launching area all in the space of one day. While the Tribunal accepts the evidence of the applicant and country information that there were many boats leaving the general area in 2012 it does not accept that arrangements could have been made so quickly.
123. The country information indicates that [Village] is a majority Tamil village which had suffered economic and community disadvantage following the civil conflict which ended in 2009. The country information indicates that a large number of people living in [Village], in particular younger people, illegally departed on boats around 2012. The applicant stated in his statutory declaration and gave evidence to the Tribunal that it was difficult to earn a reasonable living from the fishing industry and his own family struggled to make ends meet. The Tribunal considers that the applicant was motivated to leave Sri Lanka to improve his economic and social circumstances and not because he feared serious harm from the SLN or any Sri Lankan authorities.
Does the applicant meet the refugee criterion?
124. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real chance of persecution for reasons of his Tamil ethnicity, as a young male Tamil, a young Tamil male fisherman, for imputed anti-government opinion or for reasons of his membership of a particular social group being an illegal departee from Sri Lanka or a failed asylum seeker.
125. The Tribunal does not accept that if the applicant returned to Sri Lanka he would face harm as a Tamil, a young Tamil male or a young Tamil male fisherman. The applicant’s representative submitted that the Sinhalese form the majority in Sri Lanka and control much of the state apparatus and Tamils are persecuted by the Sinhalese majority. The latest DFAT Country Report on Sri Lanka[29] notes that
[29] DFAT Country Information Report Sri Lanka 23 May 2018 p2.5
2.5 Sri Lanka’s most recent census in 2012 estimated that 74.9 per cent of the population was ethnic Sinhalese, 15.4 per cent was Tamil, 9.2 per cent was Muslim or Moors, and 0.5 per cent were ‘others’. Over a quarter of the Tamil population (4.2 per cent of the total population) are of Indian origin and are known as Plantation Tamils, Hill Country Tamils or Up-Country Tamils. ‘Muslim’ in Sri Lanka describes both ethnicity and religion. Sinhalese and Tamil are the two official languages, with Tamil used mostly in the north and east. English is widely spoken.

126. The Tribunal accepts that tensions between the Sinhalese and Tamils are long standing. The DFAT report notes
Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including through employment and education advantages. Following independence, the balance shifted and successive Sinhalese-led governments introduced discriminatory policies, including making Sinhala the country’s only official language from 1956-1987, and restricting access to higher education for Tamils. These actions contributed to a sense of marginalisation in the Tamil community and led to calls, from the 1950s onwards, for a separate Tamil state, Tamil Eelam, in the north and east of Sri Lanka.[30]

[30] DFAT Country Information Report Sri Lanka 23 May 2018 p 2.1

127. However, it does not accept the submission that Tamils continue to be abused and persecuted by the Sri Lankan authorities for reason of their Tamil ethnicity. It also does not accept that being Tamil necessarily leads to a suspicion of affiliation with the LTTE or that being a Tamil failed asylum seeker leads to that conclusion. DFAT notes
3.2 Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
3.3 DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils
3.4 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
3.5 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.

128. DFAT notes, during the civil conflict which ended in 2009, Tamils reported that they were monitored, harassed, arrested or detained by security forces due to a perception that they may have been LTTE supporters. DFAT notes that some monitoring continues in the north and east.
3.11 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.

129. The Tribunal accepts the evidence that the applicant’s family live in a Tamil village in the north west region of Sri Lanka. There is no evidence of current monitoring, harassment or surveillance in that area. There is no claim, or any evidence, indicating that the applicant or any family members were members of the LTTE or that there is any perception that they are members or supporters of the LTTE.
130. The applicant’s representative referred to the UNHCR guidelines of December 2012 and a report by the UK Border Agency operational guidance note in March 2011. He also referred to an UNHCR report dated April 2009.
131. The 2009 UNHCR report[31] refers to conditions in Sri Lanka at the end of the civil conflict in 2009. The situation in Sri Lanka has changed considerably since that time.
[31] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (December 2012)
132. The UNHCR guidelines which were published in 2012 refer to certain risk profiles. The guidelines do not suggest that being a Tamil, a Tamil youth or a Tamil fisherman on their own fits into any of the identified risk profiles. There is no other information before the Tribunal indicating that being a Tamil, a young Tamil male or a Tamil fisherman would bring the applicant to the adverse attention of the Sri Lankan authorities.
133. With respect to the 2011 UK Border agency report the Tribunal notes it has been superseded by more recent advice. In June 2017 the UK Home Office report on Tamil separatism[32] noted in its policy summary that
[32] Country Policy and Information Note Sri Lanka: Tamil separatism; UK Home Office June 2017
3.1.2 A person being of Tamil ethnicity would not in itself warrant international protection.
3.1.3 Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state.

134. Information in the latest DFAT report refers to a history of discrimination and marginalisation of the Tamil community. However, country information indicates that since his election in 2015, the government of President Sirisena has taken steps to improve the situation for the Tamil community. The report notes that Tamils have a substantial level of political influence and that Sri Lankans of all background face a low risk of official or societal discrimination based on ethnicity, including access to education, employment or housing.[33]
[33] DFAT Country Information Report Sri Lanka 23 May 2018 3.3
135. While there is some information suggesting that Tamils from the north and east of Sri Lanka may face language related difficulties in obtaining some forms of employment and may be affected by the poor economic circumstances in areas affected by the conflict, the Tribunal finds that the applicant will not face such difficulties. He is from the north western village of [Village] which is located a short distance from Colombo; his family home is in [Village] and he has indicated in his application form that he speaks both Tamil and Sinhala.
136. Taking into account the evidence of the applicant and relevant country information, the Tribunal does not accept that there is a real chance the applicant will face serious harm for reasons of being a Tamil, a young Tamil male or a Tamil fisherman if he returns to Sri Lanka now or in the foreseeable future.
137. The Tribunal does not accept that the applicant will face harm from Sri Lankan authorities because he observed a disagreement between his former employer/workmate [Mr A] and members of the SLN in 2012. For reasons set out earlier in this decision the Tribunal does not accept that he was questioned, threatened or mistreated by members of the SLN following that incident. Accordingly it does not accept that the applicant will be imputed with an anti-government political opinion. It does not accept that he left Sri Lanka because he feared harm from the SLN as a result of the claimed events. It follows that the Tribunal does not accept he will face harm from the SLN or any Sri Lankan authorities for this reason if he returns to Sri Lanka now or in the foreseeable future.
138. The Tribunal does not accept the applicant’s representative submission that the applicant will face a real chance of persecution by the authorities on account of his imputed political opinion. It does not accept he will be targeted and killed by the SLN, the SLA or an associated paramilitary group like the Karuna Group or the EPDP.
139. The applicant claimed that he left Sri Lanka illegally. His representative submitted that this would also lead to an imputation that he was a member or supporter of the LTTE.
140. The Tribunal accepts that the applicant left Sri Lanka illegally and the current country information indicates that on return he would face questioning and prosecution for breaches of the Immigrants and Emigrants Act. DFAT reports[34]
[34] DFAT Country Information Report Sri Lanka 23 May 2018 p.5.28 -5.36
5.28 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, 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. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
5.29 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which 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 the person’s claimed hometown police, contacting the person’s 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.
Offences under the Immigrants and Emigrants Act
5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
5.34 The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
5.35 DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
5.36 DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.

141. The Tribunal accepts that the applicant will most likely be prosecuted on his return to Sri Lanka as he left Sri Lanka without a passport. Country information indicates that he will be questioned at the airport on his return, possibly held in detention at the airport holding cells for a short period until he is brought before a magistrate. DFAT states that “detainees are not subject to mistreatment during processing at the airport.”[35] On his appearance he may plead guilty and will be subject to a fine and would then be free to leave. The fines for first offenders are in the order of $25 AUD and can be paid by instalments. If he chose to plead not guilty he would be granted bail, with[36] or without surety, and would be required to later return to court to appear on the charges.
[35] DFAT Country Information Report Sri Lanka 23 May 2018 p.5.29.
[36] In SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 the court found that the reference to surety in the country information referred to acting as guarantor and should not be assumed to refer to the payment of a sum of money.
142. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of any charge and conviction under the illegal departure provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka), as this is a law of general application.
143. Enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[37] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[38] The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[39]
[37] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.
[38] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20].
[39] Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 (Tamberlin J, 8 July 1999) at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001).
144. However, a law of general application is capable of being implemented or enforced in a discriminatory manner.[40] If a law of general application is enacted for a selective purpose, or enforced selectively, and such selectivity can be attributed to a Convention ground then this may come within the scope of the Convention.
[40] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [21], Applicant S v MIMA (2004) 217 CLR 387 at [42].
145. Even if a law or its application results in discriminatory treatment, such treatment will not necessarily constitute persecution. Where a law or policy results in discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group, the question of whether the discriminatory treatment constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[41]
[41] Applicant A v MIEA (1997) 190 CLR 225, at 258 per McHugh J; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45]. In Applicant S v MIMA (2004) 217 CLR 387, SZDTM v MIAC [2008] FCA 1258 (Dowsett J, 19 August 2008) at [62].
146. The country information available to the Tribunal indicates that prosecution for departing illegally from Sri Lanka is not applied in a discriminatory manner and “all returnees to Sri Lanka are subject to these standard procedures, regardless of ethnicity and religion”.[42] The Tribunal considers that the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws to govern exit and entry from Sri Lanka and the provisions are appropriate and adapted to achieving the legitimate object of regulating Sri Lanka’s borders.
147. At the hearing before the current Tribunal the country information relating to treatment of returning illegal departees at the airport was put to the applicant. The applicant made no comment on the information. The Tribunal put it to him that the information indicated that if he was prosecuted for illegal departure bail would generally be granted, with or without surety. The Tribunal noted his evidence that he had a supportive family who had raised money for his previous travel costs and with whom he had kept in regular contact. The Tribunal put it to him that, even in the event he required a surety, that his family would be willing to provide that surety. He did not disagree or make any further comment.

148. With respect to his claim that he would be harmed as a returning failed asylum seeker the Tribunal put it to him that he could return to the village of [Village] where his family lived or to Colombo where there was a large Tamil community.
149. According to DFAT, there are at least one million Sri Lankan Tamils living outside Sri Lanka, in countries such as Canada, the United Kingdom, France, Germany, Switzerland, Australia, Malaysia, the Netherlands, Norway and Denmark, and in the Indian state of Tamil Nadu.[43] The Sri Lankan diaspora has a long history of persons seeking employment overseas with the aim of improving their own economic well-being, and that of family members remaining in Sri Lanka.[44]
150. The most recent DFAT report[45] on the treatment of returnees who have departed illegally from Sri Lanka notes
Returnees
5.37 Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and 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, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.
….5.40 While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.
….5.42 DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.
[42] DFAT Country Information Report Sri Lanka 23 May 2018 p.5.29
[43] Department of Foreign Affairs and Trade 2014, DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam, 3 October, pp.6-7
[44] Cooray, D 2014, ‘Asylum seekers and host country impacts: a case study of Sri Lanka’, Migration and Development, pp.77-79; Asia Economic Institute n.d., Impact of remittance’s in Sri Lanka’s economical development <
[45] DFAT Country Information Report Sri Lanka 23 May 2018

151. Several sources refer to continuing arrests and detention, however, in much reduced numbers. However, sources suggest that persons at risk appear to be those who have engaged in Tamil separatist activities abroad or fund raising for such activities, membership of proscribed organisations and people smugglers.
152. The Tribunal finds that on return to Sri Lanka the applicant would not face a real chance of serious farm for reasons of being a failed asylum seeker or failed Tamil asylum seeker. There is no evidence suggesting that the applicant or his family have real or perceived LTTE connections which would bring him to the adverse attention of Sri Lankan authorities. There is no evidence that the applicant was involved in separatist activities. He left Sri Lanka in 2012 at a time when, according to the country information set out earlier in this decision, a large number of people departed illegally looking for economic improvement overseas. In the short term he would most likely return to [Village] where his parents and siblings are living and working.
153. The Tribunal does not accept the applicant’s representative’s submission that Tamil returnees from the West are particularly vulnerable and likely to be detained and tortured if returned; that they are suspected of criticising the Sinhalese dominated government and being involved in pro-Tamil activities in the West; or that their attempt at seeking asylum is usually seen as an admission of involvement with the LTTE. As set out above the Sri Lankan authorities may have an adverse interest in returning nationals who have been activists for a separate Tamil state, high profile LTTE members or persons who have committed criminal offences. There is no current information indicating that Tamil returnees are subject to mistreatment unless they have this profile. The applicant does not fall within such a profile.
154. Taking all of the findings set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of ethnicity, real or imputed political opinion, membership of a particular social group or any other Convention related reason.
Does the applicant meet the complementary protection criterion?
155. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.
156. The Tribunal accepts that the applicant is a young male Tamil and he is a Hindu. It accepts that his family lives in [Village] in the north west of Sri Lanka and that the applicant will return to his family’s home village if he returns to Sri Lanka.
157. For reasons set out earlier in this decision, the Tribunal does not accept that the applicant will be imputed with anti-government opinions because he observed a disagreement between his employer/workmate and members of the SLN, or that he has imputed LTTE connections for reasons of his Tamil ethnicity, his illegal departure from Sri Lanka or as a failed asylum seeker.
158. Taking these matters into account it does not accept that he will be arbitrarily deprived of his life or face the death penalty if he returns to Sri Lanka. He has not committed a criminal offence in Sri Lanka or Australia and has not engaged in any Tamil separatist activities while in Australia.
159. While there is some information suggesting that the Tamil majority village of [Village] faces economic and structural disadvantage, the Tribunal does not accept that if the applicant is affected by such disadvantage that this amounts to significant harm as defined in the Act. His parents and siblings are living and working in [Village] and there is no evidence that they are unable to subsist in that environment.

The Tribunal accepts that the applicant departed from Sri Lanka without a passport and was in breach of the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) and will most likely be subject to prosecution on his return.
However, country information indicates that it is likely he will be questioned and held at the airport on his arrival in Sri Lanka and that he will not be subject to harm while at the airport or in the airport’s holding cells. Information indicates he will be brought before a magistrate within a short period and he may elect to plead guilty and pay a fine in the order of 25AUD. If he pleads not guilty he may apply for bail. Bail is generally granted for passengers on people smuggling ventures on their own surety or by guarantee of a family member. DFAT reports[46] that
[46] DFAT Country Information Report Sri Lanka 23 May 2018 p. 5.32
A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.

162. The Tribunal accepts the applicant could be detained for a short period whilst awaiting a bail hearing if he pleaded not guilty. There have been a large number of voluntary and involuntary returnees to Sri Lanka and no consistent reliable reports of such persons suffering significant harm, as defined in the Act, as a result of being held in detention whilst awaiting charge or a bail hearing. As discussed with the applicant, in the event a surety is required, it considers that members of his family would provide that surety.
163. The Tribunal does not accept that being fined for illegally departing Sri Lanka amounts to significant harm in the relevant sense. It may cause some financial hardship for the applicant depending on his financial circumstances; however, as discussed with the applicant at hearing he has given evidence of a supportive family and the Tribunal considers that they will provide him with a level of support on his return which is commensurate with their circumstances.
164. The Tribunal has considered the country information on the conditions he might face during any short period of detention if he is detained pending a bail hearing. The current country information evidence indicates that persons are held in detention at the airport’s holding cells and the person is taken at the earliest opportunity to the closest Magistrate’s Court when the responsibility for the person is transferred to the courts and prison system. The information indicates that a mere passenger on a people smuggling venture will not attract a custodial sentence and will generally be granted bail on his own surety or with a guarantor.[47]
[47] DFAT Country Information Report Sri Lanka 23 May 2018 5.30 -5.35
165. The Tribunal does not accept that questioning at the airport or a short detention in the airport’s holding cells or elsewhere amounts to significant harm. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. Furthermore there is no evidence which suggests that the authorities would intend to cause suffering by virtue of conditions in detention.
166. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
167. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
168. 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).
169. 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 criteria in s.36(2).
DECISION
170. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Louise Nicholls

Senior Member
ATTACHMENT A
RELEVANT LAW
171. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
172. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
173. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

174. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
175. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
176. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
177. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
178. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
179. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
180. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
181. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
182. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
183. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
184. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
185. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2019] AATA 4990

15 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction