1700877 (Refugee)

[2018] AATA 5655

1700877 (Refugee) [2018] AATA 5655 (10 December 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700877

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Brendan Darcy

DATE OF DECISION:  10 December 2018

DATE CORRIGENDUM

SIGNED:14 May 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘Also on the same file is a copy of the applicant’s Sri Lankan drivers licence indicating his residency in Sri Lanka had been’ at paragraph 23 should be replaced with ‘Also on the same file is a copy of the applicant’s Sri Lankan drivers licence indicating his residency in Sri Lanka had been with Western Province’.

Brendan Darcy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700877

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Brendan Darcy

DATE:10 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2018 at 11:42am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – political opinion – Democratic Party – threats due to leaving party – limited knowledge of Sri Lankan political parties – credibility issues – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5J, 36, 65, 91R, 91S, 424AA, 424A, 438, 499

Migration Regulations 1994 (Cth) Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo & Anor (1997) 191 CLR 559

Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

MZAFZ v Minister [2016] FCA 1081

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 3 October 2014 and the delegate refused to grant the visa on 19 December 2016 on the basis that the there was no overall substantive material or evidence to corroborate any of the applicant’s claims.

3. The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Background

21. The applicant claimed to be born in [location] in Western Province in Sri Lanka on [date] and to be a citizen of Sri Lanka.

22. On departmental file ([number]) is a copy of the applicant’s Sri Lankan passport issued to him [in] 2008. The passport expired [in] 2018.

23. Also on the same file is a copy of the applicant’s Sri Lankan drivers licence indicating his residency in Sri Lanka had been

24. The applicant arrived in in Australia [in] July 2014 while holding a [visitor] visa for business purposes.

25. According to his 866C form submitted to the Department, the applicant resided in [City 1] near Colombo in Western Province between 1989 and his departure for Australia in 2014

26. The applicant claimed to be ethnically Sinhalese; that he can speak, read and write Sinhala and English; and that he belonged to the Buddhist religion.  He also claimed that he has only travelled internationally once which was to Australia via [Country 1] in July 2014.

27. His claimed highest level of educational attainment was a diploma in [a specific subject].

28. It was further claimed that prior to his arrival in Australia, the applicant had worked as a full-time volunteer in party politics between 2005 and 2011 and then worked for [Employer 1] in [City 1] as a [Occupation 1] between 2001 and 2014.

29. In the applicant’s submitted 866B form, he claimed to have married to Ms [A]. It does not indicate he is separated or divorced. He does not claim to have any children or other dependents.

    Written claims for protection

30. The applicant’s written claims for protection were contained in his submitted 866C form. Below is a summary of those claims:

    ·     The applicant claimed he was a member of the Democratic Party of Sri Lanka for a long time and that he worked as the [Occupation 2] to the party's [Occupation 3], [Mr B];

    ·     [Mr B] later crossed over to the ruling party and faced threats. [Mr B] was followed wherever he went and his life came under risk. However, as [Mr B] joined the ruling party, he was able to receive protection from the government.

    ·     As the applicant was very loyal to [Mr B], the applicant also left the Democratic Party. Therefore, the applicant claimed, he also became seen to be an enemy and also became a target;

    ·     Unknown groups came several times to the applicant's house in search of the applicant but he was not home;

    ·     The applicant also claimed that his phone was tapped and he received death threats from unknown people;

    ·     The applicant claimed he hid in other places and he did not live in his house as he feared he would be abducted and tortured.

    ·     The applicant fears revenge from the Democratic Party and therefore left Sri Lanka because of this fear;

    ·     The applicant has experienced harm in Sri Lanka. His freedom was restricted and he had to live in hiding in order to save his life;

    ·     Once, three armed people came to his house in the middle of the night. The applicant's mother opened the door but the applicant heard their voices and escaped via the backdoor. The applicant ran for miles until he reached his friend's house. The next day, he learned the men had pushed his mother to the ground and searched the house, taking some of his documents. They also wrote in red ink on the wall of his room: [threatening phrase];

    ·     After this incident, the applicant lived in a different place each night and he often received death threats. The applicant stopped using his mobile phone and sometimes did not come out of the house for days;

    ·     The applicant further claimed his health was greatly affected and he had to take medication and that his wife and parents were scared something would happen to him;

    ·     The applicant fears he will be tortured and killed if he returns to Sri Lanka as unknown people will raided his house at night and take him away;

    ·     After arriving in Australia, the applicant's parents told the applicant they were still receiving phone calls from anonymous people asking for the applicant's whereabouts. Every day, one or two people would wander around his house. The applicant's wife was also followed by a motorbike once;

    ·     The applicant claims these people want to get rid of him and he fears he will either have his limbs broken or else killed.

    ·     The applicant fears the Democratic Party people or the thugs sponsored by them. Unlike [Mr B], the applicant is not protected and he will be killed by one of the army deserters who are loyal supporters of the Democratic Party leader.

    ·     The applicant claims the Democratic Party believes he secretly helped the ruling party and because the Democratic Party has not been successful in the past few elections, they now take revenge on people in order to release their political frustration and to intimidate people into remaining with their party;

    ·     The applicant's life will not be safe in Sri Lanka as they will come after his life as soon as they learn of his whereabouts; and

    ·     It was further claims the authorities cannot and will not protect the applicant if he returns to Sri Lanka and that the police refused to take down his report of unknown armed men who came looking for him at this house. The applicant also added the authorities have not demonstrated they are capable of protecting its citizens.

31. The applicant had been interviewed by a departmental officer on 8 November 2016 to elaborate on his written claims that he is owed Australia’s protection obligations. At the interview, the applicant submitted an untranslated letter from Sri Lanka to support the applicant’s past political opinion and activities claims.

32. On 24 November 2016, the applicant’s representative submitted a copy of a letter dated [January] 2014 indicating the applicant’s former role in the Democratic Party. Below is an extract of translated version (from Sinhala into English) of the letter:

    [date]/01/2014

    CERTIFICATION OF SERIVCE

    I do hereby certify that [the applicant], NIC No [number] of [address], [City 1] is servicing our Party’s Office as my [Occupation 2] since 4 years.

    Yours faithfully,

    Sgd / illegibly
    [Mr B]
    [Occupation 3]

33. A delegate on behalf of the Minister refused to grant the applicant a protection visa on 19 December 2016.

    Evidence since the lodgement of this review application

34. On 27 January 2017, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. Attached to the review application was a copy of the delegate’s refusal decision.

35. The applicant appeared before the Tribunal at a scheduled hearing to provide evidence and present arguments that he was owed Australia’s protection obligations. HE was assisted by an interpreter in the English and Sinhala languages.

36. The applicant’s representative was not in attendance at the scheduled hearing.

    Non-Disclosure Notice

37. During the scheduled hearing, the Tribunal put to the applicant that it had a non-disclosure document to notify the Tribunal that information pertaining to folios 94 to 98 were not to be disclosed under s.438(1)(b) of the Migration Act 1958. A copy of the Department’s non-disclosure notice was provided to the applicant at the scheduled hearing.

38. The Tribunal stated that it was satisfied the non-disclosure notice had been issued validly at that point in time. It then proceeded to inform the applicant about the adverse information contained in these folios. The applicant responded immediately to this information put to him under s.424AA. The adverse information and the applicant’s responses to that information further discussed below.  

39. At the end of the scheduled hearing, the applicant was provided with an opportunity to submit post hearing submission, including any further responses to the s.424A information, and to do so by 4 December 2018.  

40. The Tribunal did not receive any further documents or submissions, either from the applicant or from anyone on the applicant’s behalf, by 4 December 2018 or right up to the time of making this decision.  

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of Reference

41. The applicant has claimed to be a citizen of Sri Lanka.  He provided a copy of his passport issued by the Sri Lankan authorities to the Department. On the basis of this evidence, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that his country is the receiving country under s.36(2)(aa) of the Act.

42. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of Claims

43. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’.  It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

44. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    Accepted Claims

1. The Tribunal has a number of credibility concerns about the applicant’s testimony during the scheduled hearing but accepts the following about the applicant’s personal circumstances: 

2. The Tribunal accepts that the applicant was born in [year] as claimed; that he is of Sinhalese ethnicity and that he speaks, reads and writes Sinhala. The Tribunal also accepts the applicant belongs to the Buddhist faith tradition as claimed.

3. It also accepts that the applicant’s father, mother, [and siblings] continue to reside in Sri Lanka. It also accepts the applicant has been resided in [a location] prior to his departure where his mother and father resides.

4. Based on the evidence before it, the Tribunal accepts that the applicant is currently not married and that he does not have any children.

   Adverse credibility concerns: political opinion or membership claims

5. In summary, it is the distortive claim of the applicant that he had been a member of the Democratic Party in Sri Lanka and that he had a role in as a [Occupation 2] to a senior official, Mr [B].  When Mr [B] had a [falling-out] with Saranth Fonseka, the Party leader of the Democratic Party (and former commander of the Sri Lankan Army and former Chief of Defence Staff) in [2014], the applicant became an ongoing target for Fonseka and those associated with their leader as he was imputed with being in close association with Mr [B].  At the hearing, the applicant further claimed that he remains a person of interest to these same people for the same reason, if he were to return to Sri Lanka in the foreseeable future as there were still problems in the country for him. The Tribunal also notes that the applicant claimed that Mr [B] had been in hiding in Sri Lanka from Fonseka supporters and he was unsure of well-being or whereabouts. Later in the hearing, he said that he especially feared Fonseka and his supporters if Rajapaksa comes to power with the UNP in the reasonably foreseeable future (in the context of Sri Lanka’s current constitutional crisis). 

6. The Tribunal notes that the applicant was reasonably familiar with the some aspects of Fonseka’s military and political career. The applicant stated that Fonseka had assisted the government ending the Sri Lankan civil war against Tamil separatists in 2009; that he was found guilty of killing surrendering Tamil Tigers and later released or pardoned. While the applicant was able to demonstrate some knowledge about the Democratic Party and its leader, in many critical ways his limited knowledge indicated that his familiarity was shallow and superficial and not commensurate with the applicant’s claimed active membership and activities.  

7. Of particular concern to the Tribunal, however, had been the applicant’s confused, evasive and inconsistent account regarding his roles as a volunteer and as a  [Occupation 2] to a senior party official of the Democratic Party.

8. In the applicant’s written claims for protection in question 12 of the 866C form, the applicant submitted that he worked as a full time volunteer for the Democratic Party between 2005 and 2011. However the letter dated January 2014 and allegedly signed by [Mr B] stated the applicant had been active in the last four years in the Democratic Party, although the party was not established until March 2013. In response to these credibility concerns, the applicant insisted he knew Mr [B] for the last ten when he knew the [Occupation 3] as a neighbour and when volunteered in political activities when he was doing or had just finished his [studies].  The decision record indicates that the applicant informed that he was personally requested by Mr[B] to join the Democratic Party at the end of 2010. These inconsistent and confused timelines about the applicant’s political activities, membership and roles further indicate to the Tribunal the applicant’s claims about holding a role of any significance over any period of time to be vague and inconsistent.

9. During the hearing, the Tribunal further requested the applicant to explain the specific policies of the party and his role in it. In his role as the [Occupation 2] to the Party’s [Occupation 3], it was claimed, the applicant [performed specified duties]. However, when pressed into nominating specific policies of the party, the applicant evasively stated that it was a new party and that he did not have much of a political education. Pressed further, the applicant stated the Democratic Party would prevent waste, robbing and malpractices. The Tribunal said that this respond appeared to very vague and non-specific as political parties in general undertake to achieve such goals. The applicant further evasively replied by stating that the party’s objective was to select the correct candidates with education, character and standing in the community. The Tribunal then asked the applicant to nominate the names of members or candidates of the Democratic Party; to which he responded by stating there were many people and by mentioning only two people, [Mr B] and Sarath Fonseka. Again it would be reasonable for the applicant to have demonstrated considerable more knowledge about the party and its candidtes he claimed to have an organising role. Instead the applicant tied to explain his limited knowledge by inconsistently arguing that he did not have much a political education.

10. More troubling had been the applicant’s description of the party to which he claimed to have belonged as the Democratic Socialist Front. The Tribunal explained that there is no evidence before it that the Democratic Party was socialistic and of that its leader, Sarath Fonseka, was a socialist or even a social democrat. In response to this the applicant insisted the party was also called the Democratic Socialist Front. The Tribunal is aware of a registered Sri Lankan party called the Democratic Left Front (or PVP) but this party belongs as a constituent member of the United People’s Freedom Alliance while the Democratic Party had been absorbed into the UNP (something he had earlier acknowledged). The Tribunal finds it highly unlikely a member of the Democratic Party who had been a  [Occupation 2] to a senior party official would be confused with a socialistic party in alliance with the UPFA. This confused testimony further indicates to the Tribunal that the applicant’s knowledge of Sri Lankan parties was very limited not commensurate with his past membership, roles and activities.

11. The Tribunal has considered that it is possible that the applicant confused his membership with the Democratic Party with the Democratic National Alliance which was coalition of political parties established in 2010 to assist Fonseka in his 2010 presidential in which he was defeated by the UPFA’s candidate, Mahinda Rajapaksa However the applicant did not advance this knowledge and instead emphasised his otherwise vague and confused claims about his membership of the Democratic Party leading up to departure in 2014.  

12. The Tribunal also asked the applicant whether he knew what had happened to the Democratic Party; to which the applicant responded that ‘it was still there’. However the Tribunal said that it was well-known that the Democratic Party had been a short-lived party having been founded in March 2013 and then later dissolved in July 2016 when Sarath Fonseka obtained membership of the United National Party – the then ruling party of Sri Lanka.  This particular response strongly indicates the applicant’s knowledge about Sri Lankan politics to be very shallow and superficial and at variance with someone who had claimed to be ever been involved in Sri Lankan political life over such a long period of time.  

13. Nor was the applicant able to explain how he was able to work full time in [a specific industry] (as a [Occupation 1]) while he was a [Occupation 2] to such a notable political party. 

14. The Tribunal also asked the applicant to specifically outline how the applicant remained a person of interest given the dissolution of the party or whether he experienced threats or harm prior to his departure. The applicant insisted that [Mr B] had denounced Fonseka in [2014] and said there was a [social media post] about it. The Tribunal located the [social media post] indicating that Mr [B] made controversial comments about [Fonseka].[1] As there was no audio to hear the video, the Tribunal asked the applicant to outline the controversial comments; however he was unable to. Had the applicant had urgent or deep fears about returning to Sri Lanka it would be reasonable to expect the applicant to elaborate on the comments leading to political fallout given it is critical to the applicant’s claims he was targeted in the past and remains an ongoing person of interest to supporters of Fonseka based on his political opinion, imputed or otherwise, if he returns to Sri Lanka in the reasonably foreseeable future.      

    [1] [Source deleted]

15. During the hearing, the Tribunal enquired whether it should rely on the submitted document from Mr [B] given the country information from the Department of Foreign Affairs and Trade (DFAT) about the prevalence of fraudulent documents from Sri Lankan visa applicants and given the quality of the letter seemed to be easily reproduced on any personal computer. In its most recent country information report (23 May 2018), the Department of Foreign Affairs and Trade (DFAT) states that attempts to use fraudulent documents are common and that the Department is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE (Tamil Tiger) uniforms for use in asylum seeker applications. DFAT assesses that document fraud is prevalent in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents. The Tribunal assesses that this country information, in combination with the applicant’s limited knowledge about the Democratic Party and his vague and often evasive responses about his membership and activities, invites the Tribunal to seriously consider the letter in question was fraudulently obtained to knowingly augment the applicant’s either weak, heavily embroidered or contrived claims for protection.

16. When cumulatively considering the applicant’s responses about his past activities and his knowledge about Sri Lankan party politics, the Tribunal finds that the applicant had been evasive, vague and often internally inconsistent as well as inconsistent with the publicly available facts.  The applicant demonstrating only limited and superficial knowledge relevant to his claims for protection. Of specific concern had been the applicant’s admission that he had little political education although he had been a volunteer in party political activities since 2005 and that he had been a [Occupation 2] to a senior party official with responsibilities [for specified tasks].  Had the applicant been a genuine full time supporter of the Democratic Party and with a close professional association with a senior official such as Mr [B] for any period of time, it would be reasonable to expect the applicant to elaborate on the party’s policies, its platform, its candidates and its short-lived history in a considerably more detailed, consistent and meaningful manner than presented in his written and oral claims. Furthermore, in the context of these adverse credibility considerations, the Tribunal places no weight on the ‘Confirmation of Service’ submitted to the Department as reliable evidence based on the prevalence of fraudulent documents for migration purposes emanating from the applicant’s home country, the inconsistent claim in the letter dating February 2014 regarding four years of service given the Democratic Party did not exist more than year since the letter was dated and the applicant’s inability to explain how he managed a full time job as a [Occupation 4] or a [Occupation 1] while he was a [Occupation 2]. In summary, the Tribunal’s adverse credibility concerns about these specific claims regarding past political membership and activities are very deep and they have invited the Tribunal to consider other aspects of the applicant’s claims had been significantly embellished or fabricated for migration purposes and not because the applicant had any genuine or deep or urgent fears of serious or significant harm in returning to Sri Lanka. 

    Adverse credibility concerns: past Incident of threats and harm

17. The Tribunal has also considered whether the applicant had experienced any incidents of past threats or harm in the past. In this regard, the Tribunal notes the applicant stated in his written claims that ‘unknown groups’ came several times to his house to search for the applicant but he was not home; that his phone was tapped and he was receipt of death threats from unknown people; that he was forced to hide and that he experienced harm (although it does not elaborate on the harm experienced).  The written claims make a specific claim about eluding the unknown people when they came to house in the middle of night seeking him, searching for documents, pushing over his frail mother and that they vandalised his room.  During the hearing, the applicant however the applicant claimed there were many incidents of people seeking his whereabouts that he never experienced any threatening phone calls or threats face to face, that they came to the house in March or April 2014 once but he was not there. He further stated that his mother and no other family members had been harmed. When the Tribunal read out the written incident in which he was forced to flee his home in the middle of the night, in which his mother was harmed and in which assailants had vandalised, the applicant claimed that he forgot about this significant incident. As discussed in the hearing, the Tribunal finds any incident that involved harming a family members and vandalism and threatening messages in paint ([specific phrase]) is unlikely to be forgotten. Neither was the applicant able to explain the inconsistency between his written claims in receiving threatening phone calls and his oral claims that he did not. Nor was he able to account for the written claim about experiencing harm in the past and stating during the hearing that he had not.

18. In the context of the Tribunal’s earlier adverse credibility concerns and findings, the Tribunal finds that the applicant’s inconsistency accounts between his written and oral claims about past threats and incidents of harm in this regard cast considerable doubt that claimed incidents of threats and harm ever credibility occurred and that they had been either significantly embellished or fabricated solely for migration purposes.

    Section 424AA information and the applicant’s responses

19. During the scheduled hearing, it was explained to the applicant that the Department’s non-disclosure notice withholds information on the basis it contains information between a third person unrelated to the applicant’s case that he may or may not know. The gist of the information is that the applicant had been interviewed on 8 November 2016 about the business for which he had claimed to have worked and had been sponsored to visit Australia for business purposes. The applicant’s answers to those questions differed markedly by a third person who also claimed to work for the same company.  The differences included that the business, [Employer 1], sold different products and the number of employees. The second piece of information was a copy of the applicant’s boarding pass between [Country 1] and Australia and that of a third party which indicated that the applicant was seated on the same aisle on the same flight as the third person who was interviewed about [Employer 1]. 

20. The third piece of information had been disclosed by a third person which indicated that the applicant had travelled to [several countries] and were later deported from these countries and that he produced fake documents for fraudulent purposes and that he travelled to Australia to visit Australia to live permanently in Australia. The Tribunal explained to the applicant these pieces of information may be relevant as it questions the credibility of claimed travel history and the reasons for seeking Australia’s protection obligation and that, indeed, the applicant’s overall credibility as a reliable and credible witness had been considerable doubt cast upon it and that they may make the reasons or part of the reason for affirming the decision not to grant a protection visa, depending on his responses.

21. Although he was reminded that he did not need to respond immediately, the applicant proceeded to respond to this information immediately.

22. With regard to the differences in the answers about [Employer 1], the applicant responded by stating that the applicant knew only about the [specified] side of the business and the other [employee] must have had other responsibilities but it was the company that had sponsored his visitor visa. However he was unable to explain the differences in the number of employers given by the applicant and the third party.

23. With regard to the boarding pass indicating that he applicant had travelled with a third party who had been interviewed about [Employer 1], the applicant responded in stating that he did not notice or recognise a fellow [employee] from the company in the same aisle on the same flight and that he was only aware of this when it was brought to his attention in the departmental interview. He further explained that while they were [both employed as Occupation 1] they were [responsible for] different businesses within the holding group to explain the non-recognition of the third party. 

24. With regard to the anonymous accusation that he had travelled overseas and had been subsequently deported, the applicant claimed that there is no evidence on his passport that he travelled to those countries. As a complete copy of the applicant’s passport was on the departmental file, the Tribunal accepted this. The applicant said no one can prove he travelled internationally as the accusation claimed. The Tribunal asked whether it was possible he travelled on a fake or fraudulently obtained passport; again the applicant insisted he did not travel as indicted by the adverse information. With regard to the specific accusation that the applicant had been involved in producing fake documents for migration purposes, the applicant said he had not and that he could not think of anyone who would make such claims against him and that he genuinely came to Australia to assist with identifying [products] for the business and that he not undertake working for a false business for migration purposes with a third party. (The Tribunal notes that the applicant has earlier stated that he did not return to Sri Lanka while on this business trip because his mother said the situation for his safety had not improved or had deteriorated, according to the decision record).

25. At the time of making this decision and with MZAFZ v Minister [2016] FCA 1081 in mind, the Tribunal is satisfied the non-disclosure notice had been issued validly in accordance with s.438(1)(b). It is also satisfied the applicant was provided a fair opportunity to respond to the information put to him under s.424AA and that the Tribunal had not breach the sources of information or the privacy of any third party to the applicant (or his representative) in carrying out its s.424AA responsibilities.

26. There are some elements to the applicant’s responses that appear to be persuasive. In particular the Tribunal has in mind that the accusation that the applicant travelled to other countries only to be later deported in the past cannot be substantiated.

27. However, in the context of the Tribunal’s earlier adverse credibility findings and concerns, the Tribunal finds that his responses were not credible or reliable. It is not plausible that that the applicant was unaware of another [Occupation 1] from the same business on the same flight in the same aisle. It is not plausible that they had such widely different understandings about the scope of the business in what it retailed and in respect to the number of employees. These credibility concerns strongly invite the Tribunal to seriously consider that the applicant and a third party had undertaking to migrating to Australia under the false pretences that they were [both Occupation 1] of a Sri Lankan business; that the applicant had been practiced in producing fake, bogus or fraudulent documents to deceive the Australian authorities; and that the applicant travelled with a third party in a non-genuine business trip with the aim in seeking asylum or long term residency. Indeed, the Tribunal’s concerns as so deep and troubling in the context of the applicant lacking overall credibility in his claims, that it finds that the inference that the applicant had travelled to other countries using false documents – perhaps under another name that had been genuine passport but fraudulently obtained or on an earlier passport prior to 2008 or both – to be credible.

    Post hearing submission 

1. At the end of the hearing, the Tribunal provided that applicant an opportunity to submit any further documents or arguments to substantiate his claims. In particular, the Tribunal found the evidence written and oral evidence about the applicant’s marriage unclear as the applicant claimed to have been married in early 2014 and divorced but had not shared a household with his wife when he departed for Australia in 2014.

2. However, neither the applicant nor anyone on his behalf provided any documents or submissions by the agreed date (4 December 2014) or at any time right up to making this decision. Furthermore the Tribunal did not receive any requests for an extension or explanations in not being able to provide further documents.  In the context of the Tribunal’s other credibility concerns, this non-responsiveness with regards the applicant’s post hearing opportunity further indicates that the applicant did not have any genuine or deep or urgent fears of persecution for the claimed Convention or non-Convention reasons, either at the time of application or into the foreseeable future, or there that there are any substantial reasons to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, faces a real risk of significant harm arising from the applicant’s written and oral claims.

   Cumulative Credibility Findings

3. The credibility of the applicant’s claims has been of central importance in assessing the applicant’s critical or dispositive claims about past harm leading to the applicant facing a well-founded fear of persecution for a Convention reason or a real risk of significant harm, pursuant to s.36(2)(aa).

4. The Tribunal’s specific credibility concerns are outlined above. With particular emphasis on the applicant’s overall inconsistent testimony at the scheduled hearings with the written claims and the applicant’s limited knowledge country information about the Democratic Party, as well as his lack of responsiveness to a post hearing opportunity, the Tribunal finds that these credibility concerns and findings are so deep that it is unable to provide the applicant any benefit of the doubt about his dispositive claims. In making this finding, the Tribunal finds that the applicant has undertaken an elaborate means to fraudulently entry into Australia and to submitted fraudulent documents to augment his protection claims that were not merely or substantially embellished – but had been fabricated. For these reasons, the Tribunal finds that the applicant has comprehensively undermined the credibility of his dispositive claims that he is owed Australia’s protection obligations.

5. Based on these cumulative credibility findings, the Tribunal does not accept the applicant had ever been a member or volunteer or supporter of the Democratic Party, the Democratic Left Front or any other party that may be confused with the Democratic Party. It does not accept the applicant was ever invited by any Democratic operative to participate in the party, including Mr [B] or held any meaning role or membership in that organisation, let alone any association with [Mr B] that would triggered the ire of Mr Fonseka and his supporters or ‘thugs’ sponsored by the Democratic Party for any claimed reason.  Neither does it accept that the submitted letter allegedly signed by Mr [B] is a compelling document that supports his claims as the Tribunal finds that the document to be fraudulently obtained and knowingly submitted to deceive Australian decision makers. Indeed, the Tribunal does not accept the applicant had ever known or been a neighbour of Mr [Mr B] in the past.

6. Based on the same adverse credibility findings, cumulative considered, the Tribunal does not accept as outlined in his inconsistent written and oral claims that the applicant has been targeted by having his phone tapped, through violent or suspicious threats, including threatening phone calls, either in Sri Lanka or Australia. It does not accept  that any ‘unknown people’ or any people connected with the Democratic Party or Mr Fonseka had ever suspiciously enquired about the whereabouts of the applicant to anyone, including his family members or that they forcibly entered, searched, vandalised and used graffiti to threaten the applicant. It does not accept the applicant ever eluded such politically motivated persons, including by relocating to other parts of Sri Lanka. Neither does the Tribunal accept the applicant accept his health was greatly affected or that any of his family members had been harmed, followed or received threats at any time in the past based on these contrived claims for protection.

7. Nor does it accept that the applicant, if he were to return to Sri Lanka, will be a person of interest at all to Mr Fonseka, any former members of the now defunct Democratic Party, or anyone in authority or who is politically motivated to have the applicant as these claims about political opinion, imputed or otherwise, have been contrived solely for migration purposes.

8. It further finds the applicant has not presented credible reasons for it to believe that he had not departed his home country to irregularly arrive in other countries in the past for migration purposes; that the business the applicant claimed to have supported his visitor visa had not been contrived for migration purposes or that he had not knowingly travelled with a third person seeking to deliberately deceiving Australian authorities to seek long term residency in Australia and not because the applicant had any genuine claims that he is owed Australia’s protection obligations.

9. Indeed, the Tribunal’s credibility concerns are so deep that it cannot be confident that the applicant has ever been formally married or divorced given his confused testimony during the scheduled hearings about his marriage and his non-responsiveness in submitting any documentary evidence about his claimed marriage.

10. Based on these findings, the Tribunal further finds based on these cumulative findings that he did not have any genuine or deep or urgent subjectively held fears of being killed or tortured or any other serious harm amounting to persecution based on his political opinion, imputed or otherwise or for any related Convention or non-Convention reason, either at the time of departure from Sri Lanka, when the applicant applied for a protection visa, or at the time of his scheduled hearings with the Tribunal.

11. Neither does the Tribunal accept the applicant had any subjective or objective fears of persecution based on Convention reasons, including his political or any other related Convention or non-Convention reasons if he were to return to Sri Lanka into the reasonably foreseeable future.

12. Accordingly, the Tribunal does not accept the applicant will be a person of interest within anywhere in Sri Lanka to the authorities or anyone else, either on arrival or in the general community, if the applicant were to return to the Sri Lanka, for any Refugees Convention reasons, based on his specific claims for protection, now or into the reasonably foreseeable future.

13. Based on the Tribunal’s same overall adverse credibility findings, cumulatively considered,  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 there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, based on this fabricated dispositive written, oral and documentary claims.  

    Residual claims and cumulative findings

14. At no stage did the applicant claim he held any well-founded fears arising from his Sinhalese ethnicity, his religion as a Buddhist or any other Convention or non-Convention reason including his physical or mental health or economic circumstances. Nor did he advance any other reasons relating to the complementary protection provisions.

15. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:

    In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

16. The Tribunal is satisfied there are no more residual claims to consider in this review application.

17. Having considered the applicant’s claims, both cumulatively as well as individually, the Tribunal finds that there is no real chance that should he return to Sri Lanka, now or in the reasonably foreseeable future, that the applicant will encounter serious harm capable of amounting to persecution. The Tribunal does not accept on the evidence before it and based on its findings above, that the applicant has a well-founded fear of being persecuted for any of reasons outlined in s.5J(1)(a) of the Act, if he returns to his home country of Sri Lanka, now or in the reasonably foreseeable future.

18. Accordingly the applicant does not satisfy s.36(2)(a).

19. Having considered the applicant’s claims cumulatively as well as individually, 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 there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s.36(2)(aa) of the Act.

    Additional Finding

20. The Tribunal finds that the applicant had intentionally provided it with false and misleading evidence, either ignorant to or with a blatant disregard to the offence provision contained in section 62A of the Administrative Appeals Tribunal Act 1975.

    Conclusion

21. 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).

22. 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).

23. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Brendan Darcy
    Member