1701693 (Refugee)

[2018] AATA 918

1701693 (Refugee) [2018] AATA 918 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701693

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:8 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2018 at 2:31pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity – Tamil – Religion – Hindu – Freedom of religion – No discrimination - Political opinion - Tamil National Alliance – Imputed support for LTTE – Abducted and harmed - Very significant changes to political and security situation since end of conflict - Young male Tamil departed Sri Lanka illegally –- Claimed asylum - Risk of torture or mistreatment for returnees – Low and continues to reduce

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a [age] male from Batticaloa, Eastern Province, Sri Lanka.  He seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis of his Tamil ethnicity, his Hindu religion, his actual or imputed political opinion as a supporter of the Tamil National Alliance (TNA), his imputed support for the Liberation Tigers of Tamil Eelam (LTTE) as a young Tamil male and his profile as a young male Tamil who departed Sri Lanka illegally and claimed asylum in Australia.

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

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

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

   History of proceedings

6. The applicant arrived in Australia by boat [in] July 2012. He applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] August 2013.

7. The applicant sought a review from the former Refugee Review Tribunal which affirmed the delegate’s decision on 26 March 2015. 

8. The applicant sought review of the Tribunal’s decision from the Federal Circuit Court of Australia and [in] December 2016 the Court quashed the Tribunal’s decision and directed this Tribunal to reconsider and redetermine the review application according to law.  The court held the Tribunal fell into jurisdictional error by failing to check the authenticity of a letter submitted by the applicant authored by [Mr A], Member of Parliament.

9. The applicant appeared before the Tribunal on 31 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

10. At the conclusion of the hearing, at the request of the applicant’s representative the Tribunal adjourned the review for four weeks to allow further evidence and submissions to be produced.  The Tribunal also wrote to the applicant providing links to the country information the Tribunal had discussed with him at hearing.

11. On 28 February 2018 the applicant provided further documents and submissions to the Tribunal. 

12. The applicant was represented in his review application by his migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

13. It is not in dispute that the applicant is a Sri Lankan national and he has produced to the Department of Immigration (the Department) copies of his Sri Lankan birth certificate, national identity card and driver’s licence.  The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

    The applicant’s ethnicity and place of origin

14. I accept the applicant’s consistent evidence that he is of Tamil race from the Batticaloa district in Sri Lanka’s Eastern Province.  In making this assessment I note he speaks Tamil and that his place of birth, Batticaloa, is stated on his national identity card.  His birth certificate records his place of birth as [a] village in Batticaloa, and his pupil’s record sheet indicates he attended school in that village.

    The applicant’s claims of past harm in Sri Lanka

15. In a written statement accompanying his visa application, the applicant claims that during the election campaign in 2010, he volunteered to work on behalf of a Tamil political party.  The name of that political party has been the subject of some confusion, which appears to have arisen at least in part from a mistranslation in a letter from a Sri Lankan member of parliament for the Batticaloa district, [Mr A]. That letter is dated [in] August 2012 and was submitted with the applicant’s visa application.  An accompanying English language translation of that letter states the applicant was involved with the election campaign for the TULF party (the Tamil United Liberation Front).  However at interview and the first Tribunal hearing, the applicant advised his activities were with the Tamil National Alliance (TNA).  During these proceedings he has also referenced the Tamil Federal Party.  The delegate considered this to be an inconsistency in his evidence.

16. In September 2017 the Tribunal asked the Department of Immigration and Border Protection to verify [Mr A]’s letter through Australia’s High Commission in Sri Lanka.  The response received by the Tribunal indicated that [Mr A] had been contacted and confirmed verbally and in writing that the letter was genuine and its contents true, but the High Commission’s Tamil translator had noted the reference in the translated letter to TULF (Tamil United Liberation Front) was incorrect and should read ‘Illankai Tamil Arasu Kachchi’ (ITAK), being [Mr A]’s political party.  A further English language translation of [Mr A]’s letter was submitted to the Tribunal in January 2018 and states the applicant was involved in the last election campaign on behalf of the Tamil Federal Party. 

17. Country information indicates the TNA formed in 2001 as a political alliance of a number of Tamil political parties, including TULF (previously known as the Tamil Federal Party).  As a coalition of Tamil political parties, the TNA has contested all elections since 2004 under the name of ITAK.[1]  At hearing the applicant confirmed his political activities in Sri Lanka commenced in 2010 and were with the TNA.  I accept that each of the political parties referenced by the applicant are or have been in some form part of the TNA coalition and draw no adverse inference from the apparent inconsistencies in various names given to that political party.

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 2.23; Lansford, T (ed), Political Handbook of the World 2015 – Sri Lanka, Washington DC: CQ Press, 2015 at p. 1379 UK Home Office, Sri Lanka: Country of Origin Information (COI) Report, 7 March 2012, p. 228 >

    In view of the applicant’s consistent account throughout this process of his political activities for the TNA and the corroborative evidence of [Mr A], I accept he became involved in the TNA a couple of months before the parliamentary elections in April 2010 and that he was actively involved in campaigning for the TNA and [Mr A] during that election campaign, at which [Mr A] was elected as a member of parliament.  I accept this work required him to travel to different villages and campaign for votes, place political posters throughout villages and make speeches promoting the TNA.

18. I also accept the applicant was involved in the Tamil Hindu Youth Movement for four years and it was through that organisation that he came to know [Mr A].  I accept the applicant’s evidence at hearing that there were disagreements between the TNA and other Tamil and national political parties, including the former Tamil militant group Tamil Makkal Viduthalai Pulikal (TMVP), who tried to prevent TNA supporters from campaigning.  When asked whether he personally experienced difficulties, the applicant stated he was personally told he must stop his campaign work by supporters of a number of political parties opposed to the TNA, but mainly the TMVP.  I accept this to be true.  I also accept that after the April 2010 election the applicant continued to attend meetings at the TNA offices in Batticaloa and be involved in political discussions and meetings.

19. The applicant claims to have been threatened by political opponents of the TNA in 2011 and abducted in February 2012.  The delegate did not accept either of these things occurred, however I accept the applicant was subjected to threats as a result of his political activities, noting the corroborative evidence contained in [Mr A]’s letter. The applicant’s evidence is that these threats took the form of three or four threatening phone calls received in about July 2011.  When it was put to him that there seemed a long gap between his election campaigning and the threats made to him, he stated that in the immediate aftermath of the elections the TNA’s opponents were secure in the knowledge they had won the election and conscious of scrutiny of the Electoral Commission.  He stated the threats started later as the parties prepared for further elections in September 2012.

20. I accept the threats caused the applicant to leave Batticaloa and relocate to Colombo, where he remained for approximately six months in the second half of 2011.  At hearing the applicant told me that he was still fearful in Colombo as he was surrounded by Sinhalese and believed the TMVP might be watching him and so he returned to his home in Batticaloa in January 2012.

21. The applicant claims that as a result of his political activities, he was abducted by an armed group [in] February 2012 and detained until [date] February 2012, during which time he was beaten and threatened.  At hearing he showed me a large scar on his [body] which he states was from an injury he received while detained.  He claims his abductors accused him of working for the TNA and warned him against his continued involvement in that party.

22. He has variously described his abductors as members of TMVP, members of a militant group, members of an opposition political party and members of the Karuna group.  This was another instance in which his evidence was thought to be inconsistent by the delegate, however I note that TMVP was formed by Colonel Karuna, initially as a paramilitary group, but later transforming to a political party which split into two factions, one of which was known as the Karuna group.[2]  Therefore I accept there is no material inconsistency in the applicant’s descriptions of his abductors over time.

    [2] Department of Foreign Affairs and Trade, Paramilitary groups in post-war Sri Lanka, 20 May 2010

23. I accept the applicant’s account of his abduction, noting [Mr A]’s reference to that event in his letter dated [in] August 2012. In making this assessment I note the applicant has been generally consistent in his claims since 2012.  Domestic and international observers have linked the TMVP to incidents of violence in the east of Sri Lanka and noted that some elements are believed to have retained arms, even after its formal disarming in March 2009.[3]  In 2012 it was reported that Karuna group members were still armed, although they claimed otherwise, and ‘the faction continues to operate in northern and eastern Sri Lanka, threatening the lives of Tamil citizens or the lives of their families’.  The Karuna group’s targets reportedly included anyone opposing the Sri Lankan Freedom Party, President Rajapaska’s ruling party.[4]  Amnesty reported in 2012 that political activists were among those targeted by paramilitary gangs linked to security forces and government aligned political parties.[5] 

    [3] Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010, October 2010, pp. 36–37

    [4] Immigration and Refugee Board of Canada, Sri Lanka: The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups, LKA103950.E, 17 February 2012

    [5]

24. I accept the applicant’s evidence that he was physically mistreated by his abductors and that he suffered an injury to his [body] which is badly scarred.  I accept he was released by his captors [in] February 2012 after they became convinced he would not continue to campaign for the TNA, and he remained living at his home in Batticaloa for about four months, departing Sri Lanka for Australia by boat at the end of June 2012.

25. I accept the applicant departed Sri Lanka by boat and without permission from the Sri Lankan authorities.  I accept such a method of departure is illegal in Sri Lanka.

    Assessment of Refugee Convention claims

26. The applicant claims that to have a well-founded fear of persecution for the Convention reasons of race, religion, political opinion and his membership of the particular social group of failed asylum seekers returning from a western country.

27. In assessing these claims I have given careful consideration to the independent sources cited in the submissions of the applicant’s representative about the situation for Tamils in Sri Lanka.  Those documents include a summary of Sri Lanka’s political history prepared by the applicant’s representative, further submissions on the applicant’s claims and further information about the situation in Sri Lanka.  Also provided was a letter from S Pratheepparajan; an information report about Sri Lanka authored by Dr Lionel Bopage, Michael Cooke, Fr Pan Jordan OP, A Ratnakanthan, Chris Slee and Nalliah Suriyakumaran; a report by the Sri Lanka Campaign dated February 2018; a letter from two British MPs to Hon Boris Johnson, Secretary of State urging him to expel Sri Lanka’s Defence Attache in London for his conduct at a protest outside the Sri Lankan High Commission in London; an article about Brigadier Priyanka Fernando, Sri Lanka’s Defence Attache in London, articles about the UN Special Rapporteur’s visit to Sri Lanka in 2016 and an article about Buddhistisation of Tamil areas.

28. I have considered as well other independent sources before the Tribunal discussed with the applicant at hearing and those cited in the delegate’s decision. 

29. In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider whether there is a real chance the applicant will face serious harm if returned to Sri Lanka now or in the foreseeable future and this assessment is a forward looking test.

    Assessment of harm on the Convention ground of race

30. The applicant fears harm in Sri Lanka because of his Tamil ethnicity and as a Tamil man who originates from Batticaloa in Eastern Province.  For the reasons set out above, I have accepted that the applicant is of Tamil ethnicity and that he is from the Tamil majority area of Batticaloa in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE. 

31. I have carefully considered the information to which I have been referred by the applicant’s representative and I consider much of that information to be consistent with other information before the Tribunal, in particular as to the mistreatment and in many cases persecution of Tamils during the conflict and in its immediate aftermath.  I note the February 2018 report by the Sri Lanka Campaign suggests that Tamils in the north and east of Sri Lanka continue to bear the brunt of oppressive state practices and is based on the statements of 27 Tamils who reported experiencing surveillance, harassment and intimidation after January 2015.  I accept that some Tamils, particularly those described in the report as former LTTE cadres, human rights activists, war survivors and citizens engaged in dissent, may experience such actions.

32. However I do not accept the submission that all Tamils in Sri Lanka face harm for reasons only of their Tamil race or their origins from the north or east of the country.  In assessing the risk of harm to the applicant as a Tamil male from Batticaloa, I give weight to the UNHCR’s most recent assessment in its 2012 Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka (the Eligibility Guidelines), which assesses that being of Tamil ethnicity and originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection.[6] DFAT reports that since the end of Sri Lanka’s civil conflict in 2009, the security situation has dramatically improved in the north and east of the country.[7]  In July 2017, the UK Home Office stated that a person being of Tamil ethnicity would not in itself warrant international protection.[8]  Each of those sources was discussed with the applicant at hearing.

    [6] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 2.37–2.39

    [8] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, 2017 at 3.1.2

33. In light of the above information I find that Tamils, including male Tamils living in or originating from Batticaloa or Eastern Province Sri Lanka, do not face a real chance of serious harm solely on account of their Tamil ethnicity or their profile as Tamil males. I have considered the applicant’ It follows that I do not accept there to be a real chance the applicant will suffer serious harm if returned to Sri Lanka solely on the basis of his Tamil race or the fact he is young male from Batticaloa in Eastern Province.

    Assessment of harm on the Convention ground of political opinion

34. The applicant claims he will face persecution in Sri Lanka on the basis of his actual and imputed political opinion.  He claims this perception will arise as a result of a combination of factors including his Tamil race, his political activities for the TNA, his involvement in the Tamil Hindu Youth Movement and his past interactions with the TMVP party and other political opponents of the TNA and because he departed Sri Lanka illegally by boat and has sought asylum in Australia.

    Actual and imputed political opinion as a Tamil

35. For the reasons set out above, I have accepted the applicant is of Tamil ethnicity and that he is from Batticaloa in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE.  I have not accepted there to be a real chance the applicant will suffer serious harm if returned to Sri Lanka, solely on the basis of his Tamil race or the fact he is young male from Batticaloa in Eastern Province.

1. The applicant claims that the Sri Lankan government treats every Tamil as a suspected LTTE member.  He claims if returned to Sri Lanka, he will be suspected of supporting the LTTE and targeted for harm on this basis. 

2. I accept that Tamils in Sri Lanka faced harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and its immediate aftermath and that some Tamils and non-Tamils face a continuing risk of persecution by the Sri Lankan authorities in the post-conflict phase. The UNHCR Eligibility Guidelines identify a number of profiles requiring particular careful examination, including persons suspected of certain links with the LTTE.[9] 

   [9] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, UNHCR, 21 December 2012 at p. 5

3. As discussed with the applicant at hearing, those Eligibility Guidelines state that the links to the LTTE that may continue to expose individuals to treatment which may give rise to a need for international protection go beyond prior residency within an area controlled by the LTTE.  Rather the Eligibility Guidelines suggest that such links may include persons who held senior positions with considerable authority in the LTTE civilian administration, former combatants or cadres, former LTTE supporters who were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists, and family members who are dependent on or closely related to persons with such profiles.[10]  It is not suggested that the applicant held such a position with the LTTE or otherwise had any involvement with that organisation and I find he did not. 

   [10] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012 at p. 27

4. As discussed with the applicant at hearing, the UK Home Office reports that the LTTE has not held any military power or political authority since the end of the civil war in 2009 and assesses that being of Tamil ethnicity does not in itself warrant international protection.  It assesses that persons who have (or are perceived to have) a significant role or are otherwise active in post-conflict separatism may be considered a threat to Sri Lanka as a single state and may, depending on the circumstances, require international protection.[11] 

   [11] UK Home Office Operation, Country Information and Guidance about Tamil Separatism in Sri Lanka, 28 June 2017 at 3.1.1–3.1.11

5. While I accept the applicant has campaigned for the TNA since the end of the conflict and would re-join that organisation and continue his political activities if he returns to Sri Lanka, I do not accept this is evidence of any role in post-conflict Tamil separatism.  In making that assessment I give weight to the country information cited below and discussed with the applicant at hearing, which indicates the TNA broke links with the LTTE in 2009 and now practises moderate politics, having renounced Tamil separatism after the end of the conflict.[12]

   [12] >

   In such circumstances I do not accept the applicant’s Tamil ethnicity or the fact he originates from Batticaloa, an area formerly controlled by the LTTE, means that there is a real chance that he will be imputed to be a sympathiser or supporter of the LTTE or opponent of the Sri Lankan government if he returns to Sri Lanka and targeted for harm on that basis. For the same reasons I find that there is no real chance he will be targeted for harm because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity or the fact he originates from an area formerly controlled by the LTTE. 

   Actual and imputed political opinion on the basis of involvement in the Tamil Hindu Youth Movement and support for the Tamil National Alliance

6. I have accepted the applicant was involved in the Tamil Hindu Youth Movement which is how he met [Mr A].  I have also accepted the applicant is a supporter of the TNA and that he campaigned for that party in Batticaloa during the 2010 elections.  I have further accepted that after the election finished, he continued to attend the TNA offices in Batticaloa and attend meetings and participate in discussions during the time he remained living in that city prior to travelling to Australia in June 2012.  I accept the applicant’s involvement in the Tamil Hindu Youth Movement increased his visibility as a campaigner and supporter of the TNA.

7. I have accepted he campaigned in particular for TNA candidate [Mr A] who was elected to parliament in the April 2010 election and remains a sitting member of parliament.  I accept he has remained in telephone contact with [Mr A] while living in Australia and that if he returns to Sri Lanka, he will resume his support for and activities with the TNA.  I consider his evidence at hearing displayed some knowledge of Tamil politics and political parties and I accept he may over time become a senior member of the TNA and perhaps run for election himself.

8. The applicant claims that, as a result of his political support for the TNA, he will be targeted for harm by the Karuna group and TMVP as well as the Sri Lankan authorities.  He claims the Karuna group acts with impunity in Sri Lanka, that it works on behalf of the Sri Lankan government and is responsible for many human rights abuses.

9. In considering whether he has a well-founded fear of persecution on the basis of his past (and future) support for and activities with the TNA, I have had regard to a number of independent sources discussed with the applicant at hearing as well as the independent sources referred to in the submissions of the applicant’s representative.

10. The UNHCR Eligibility Guidelines identify a number of profiles requiring particular careful examination, including certain opposition politicians and political activists.[13] The Eligibility Guidelines refer to a small number of persons detained and imprisoned allegedly for political reasons in the period leading up to their 2012 publication and those Eligibility Guidelines have not been revised since that time.  The only reference to the TNA is a report that, in June 2011, a meeting in Jaffna attended by TNA parliamentarians was disturbed by 40 to 50 men wearing army uniforms.[14] 

    [13] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012 at p. 5

    [14] Ibid at p. 28

11. While I have accepted that the applicant has been involved in the TNA in the past and may again be involved with that party if he returns to Sri Lanka, I do not accept there to be a real chance that he will face harm for this reason if he returns to Sri Lanka, now or in the reasonably foreseeable future.  This is because of the very significant changes to the political and security situation in Sri Lanka since the end of the conflict in 2009 and the 2015 elections.

12. As discussed with the applicant at hearing, DFAT reports the security situation in Sri Lanka, including the east of Sri Lanka, has improved dramatically since the end of the conflict. The presidential election held in January 2015 saw the election of President Maithrapala Sirasena and the subsequent parliamentary election in August 2015 was won by a coalition of parties, the United National Front for Good Governance[15].  The Tamil vote was reportedly significant in President Sirasena’s victory and the TNA now formally leads the Opposition.  DFAT reports that there are a number of Tamil political parties, with the largest alliance of parties operating under the umbrella of the TNA. The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council. The TNA leader Rajavarothiam Sampanthan is leader of the Opposition.[16]

    [15] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, 2016 at 5.1

    [16] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 24 January 2017 at 2.23, 2.25, 2.37–2.39

13. As discussed with the applicant at hearing, Human Rights Watch World Report for 2016 describes the 2015 elections as follows:

    Elections in Sri Lanka brought about momentous changes after nearly a decade of increasingly autocratic rule. . . The new government quickly abolished surveillance and censorship of media and civil society groups, embarked on constitutional reforms to restrict executive powers, and took steps to restore the independence of the judiciary. In contrast to the combative approach of the Rajapaksa government, it also initiated a new, more open dialogue with the international community, including human rights organizations[17].

    [17] Human Rights Watch, World Report 2016, 2016 at 527

14. I have carefully considered the independent sources to which I was referred by the applicant’s representative regarding the Karuna group and its persecution of supporters of the TNA.  I accept that during the conflict and for several years afterwards TNA candidates, staff and supporters faced attacks and harassment by the military and the Sri Lankan authorities as well as opposition Tamil parties including the TMVP and the Karuna group. However the materials before me do not suggest this harassment is ongoing. I have been referred to several sources indicating Karuna remains politically active in the east of Sri Lanka and I accept this to be the case, but none of them suggest he or his associates are targeting TNA supporters. As discussed with the applicant at hearing, DFAT refers to an attack on a TNA political meeting in Kilinochchi in March 2013 but notes that this kind of practice has not been reported since Sirasena became President.[18] 

    [18] Department of Foreign Affairs and Trade, Country Information Report: Sri Lanka, 18 December 2017 at 3.67

15. As discussed with the applicant at hearing, the TNA reportedly broke links with the LTTE in 2009 and now practises moderate politics, having renounced Tamil separatism after the end of the conflict.[19]  Also discussed at hearing was information indicating the TNA is now the official opposition party in Sri Lanka, holding 16 seats of parliament and the majority of seats in the Northern Provincial Council.  In these circumstances, I do not accept that the applicant’s past or future support for the TNA will cause him to be perceived by the Sri Lankan authorities as an LTTE supporter or a person seeking to promote Tamil separatist politics in Sri Lanka.   

    [19] >

    I am mindful that the applicant may participate in future election campaigns if he returns to Sri Lanka.  However as discussed with the applicant at hearing, DFAT reports that the 2015 presidential and parliamentary elections proceeded relatively smoothly: the Presidential election was generally peaceful and orderly and the parliamentary election was described by observers as credible, with the outcome reflecting the will of the people.[20]  I consider the submission that TNA supporters will be targeted in future elections to be merely speculative.

    [20] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 3.23

16. I note that the politician the applicant campaigned for in 2010 remains a sitting member of parliament and the material before the Tribunal does not suggest he has been targeted for harm for his political activities.  Nor does the country information to which I have been referred by the applicant and his representative suggest that TMVP or the Karuna group or any other political party or group continue to target TNA supporters.

17. For these reasons, I do not accept there to be a real chance that the applicant will be targeted for harm by the Sri Lankan government or its agencies and authorities if he returns to Sri Lanka for reasons of his past or future political activities with the TNA.  For the same reasons I do not accept there to be a real chance the applicant will be targeted for harm by the TMVP or the Karuna group if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    Actual and imputed political opinion as a person who departed Sri Lanka by boat and sought asylum in Australia

18. I accept the applicant departed Sri Lanka for Australia in June 2012 and he has sought asylum in Australia.  As he does not have a passport in his possession, I accept if he is returned to Sri Lanka the circumstances of his return may cause the Sri Lankan authorities to become aware of or infer that he departed Sri Lanka illegally and has sought asylum in Australia.  I accept the circumstances of his departure may be viewed as a breach of Sri Lanka’s Immigrants and Emigrants Act 1948 (the I & E Act).

19. The applicant claims that as a Tamil, and a failed asylum seeker who departed Sri Lanka illegally, he will be treated as a suspected LTTE member and targeted on his arrival.  He claims even if he is not initially targeted because of the media attention, once the media attention goes he will be persecuted by the authorities.

20. As discussed with the applicant at hearing, DFAT reports that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture and mistreatment and it assesses the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the I & E Act.[21]  Most Sri Lankan returnees from Australia are questioned by police on return to Colombo international airport and where an illegal departure from Sri Lanka is suspected, they are charged under the I & E Act.[22]  I accept there to be a real chance that upon return to Sri Lanka, the applicant will be charged with offences relating to his illegal departure in 2012.

    [21] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 4.21–4.22, 5.17–5.28

    [22] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 5.17–5.28

21. As discussed at hearing, DFAT advises that during the processing of returnees, the Sri Lankan authorities run checks against the immigration, intelligence and criminal databases and that for returnees travelling on temporary travel documents police will seek to confirm a person’s identity by interviewing the returnee and conducting checks in a person’s home location.  Persons charged with offences under the I & E Act are transported to the Magistrate’s Court at the first available opportunity, generally within 24 hours unless it is a weekend or public holiday in which case it may be a few days.[23]

    [23] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 5.17–5.28

22. I accept that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad. However I consider that such questioning, in conjunction with intelligence, will quickly establish that the applicant was of no adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka in June 2012. Nor do I accept that his past or future support for the TNA or his status as a failed asylum seeker who sought international protection in Australia will cause him to be imputed with a political opinion that is pro-LTTE or pro-Tamil separatism or otherwise adverse to the Sri Lankan government.

23. DFAT reports that if a person pleads guilty they will be fined on a case by case basis and are then free to go and that fines may be paid by instalment. DFAT reports that in most cases if a returnee pleads not guilty they are immediately granted bail by the magistrate on personal surety, with any bail conditions being imposed on a discretionary basis.  DFAT reports that children are never subject to bail or fines and that ordinary passengers are generally viewed as victims and that penalties are more likely to be applied to those suspected of being facilitators or organisers of people smuggling ventures.  DFAT advises that it has been informed by the Sri Lankan Attorney General’s Department that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally.[24]

    [24] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 24 January 2017 at 5.17–5.28

24. In response to the above information, the applicant told me that these things related to the general situation, but that his situation was different.  He also stated that the Australian government and other foreign governments and organisations who authored these reports got their information from the Sri Lankan government, who were trying to avoid international scrutiny and were not truthful in their account of the treatment of Tamils.  He said the Sri Lankan government hated Tamils even though the conflict was over. 

25. He stated his former flatmate in Australia had been taken into immigration detention and deported from Australia and continues to be monitored and interrogated by the CID in Sri Lanka.  He stated that if the Tribunal wanted to know about the situation for Sri Lankan Tamil returnees, it needed to speak to them and not take the word of the Sri Lankan government.  He asked me to contact the Australian High Commission in Sri Lanka to confirm the mistreatment of his flatmate on return to Sri Lanka.  He also suggested I Google the situation for Tamils in Sri Lanka.  At hearing I explained to the applicant that I could not make inquiries of the Australian or Sri Lankan governments about other individuals not involved in this review application and invited him to submit any further documentation he wished me to consider after the hearing.

26. As noted above, the applicant and his representative provided further documents and submissions after the hearing, including a letter from [name] who states that after coming to Australia by boat in 2012, he was deported back to Sri Lanka in October 2016 after his visa application was rejected.  He states since that time he has been interrogated and tortured on many occasions by the Sri Lankan security forces and CID over the phone and in person.  He states he is unable to lodge a complaint about this and is suffering depression and living in hiding. 

27. However the Tribunal has no information about the nature of any interest the Sri Lankan authorities may have in [name], including his profile (if any) or the reasons he has been interrogated.  He does not suggest he has been detained or charged under the I & E Act or any other act and gives no details of the interrogations and torture he claims to have suffered.  For these reasons I give little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka.

28. I have carefully considered the information to which I have been referred by the applicant’s representative and I note in particular the criticisms of the DFAT report contained in the Information Report about Sri Lanka, authored by Dr L Bopage et al, which questions the evidence for DFAT’s assertion that failed asylum seekers may be safely returned to Sri Lanka[25].  That report goes on to refer to lengthy periods of pre-trial detention lasting on average for three to four years, the use by the Sri Lankan authorities of torture and other inhuman and degrading punishments to obtain confessions and suggests the DFAT report should not be used as the basis for assessing the fate of refugees.  However given my findings below, I do not accept that the applicant will face a lengthy period in pre-trial detention for offences under the I & E Act. 

    [25] Dr L Bopage, M Cooke, Fr P Jordan OP, A Ratnakanthan, C Slee and N Suriyakumaran January 2018 Information Report Sri Lanka as attached to the submissions of the applicant’s representative dated 28 February 2018

1. On the evidence before me, I find that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a period most likely less than twenty four hours but possibly as long as several days while awaiting a bail hearing. I do not accept on the information before me that there is a real chance that the applicant will face harm during this process, either during his questioning at the airport or during any period he spends on remand. In making this assessment I note DFAT’s advice that it assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I & E Act[26].

   [26] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 18 December 2015

2. I accept DFAT’s assessment that prison conditions in Sri Lanka are generally poor. On the evidence before me, I find that the applicant may face a fine if he pleads guilty to offences under the I & E Act and that if pleads not guilty he will be granted bail when presented to court.  I consider that if convicted of charges under Sri Lanka’s I & E Act, the applicant will be fined and I do not accept there to be a real chance that he will be sentenced to a jail term. 

3. Having regard to the advice contained in the DFAT report that returnees are treated in the same way regardless of their race or religion I do not accept that the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason. I am satisfied that the I & E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity.

4. The material before me does not indicate Sri Lanka’s immigration laws have a discriminatory intent or impact or that the law is being applied selectively or in a discriminatory manner for a Convention reason. I find that any questioning, charge, conviction or penalty to which the applicant may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way. As such I find that any brief period the applicant may be required to spend in jail or any fine he may incur as a result of prosecution or penalty on conviction for an offence will not be directed at the applicant for any of the five Convention grounds.

5. I accept that when the applicant returns to his home area in Sri Lanka, his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given my findings above, I do not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia or for any other reason.

6. For these reasons the Tribunal finds that the applicant does not have a well-founded fear of persecution for his political opinion reason of his Tamil ethnicity, either alone or in combination with any imputed political opinion imputed to him as a young Tamil male from Batticaloa who has and will continue to support the TNA and been involved in the Tamil Hindu Youth Movement and departed Sri Lanka illegally and would be returning to Sri Lanka as a failed asylum seeker.  I find that any fear on these bases is not well founded. 

   The applicant’s Hindu religion

7. The applicant claims to face harm if returned to Sri Lanka on account of his Hindu religion. I accept the applicant is of Hindu religion.  I have accepted he was a member of the Hindu Youth Movement for four years prior to travelling to Australia and I accept the letter produced from that organisation to be genuine.

8. As discussed with the applicant at hearing the Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism ‘a foremost place’.  At hearing the Tribunal discussed with the applicant DFAT’s advice that Hindus are the second largest religious group in Sri Lanka, that most Tamils are Hindu and that all four major religions in Sri Lanka are recognised.  DFAT assesses that there is little official discrimination on the basis of religion and that most Sri Lankans are able to practise their faith freely.  The Tribunal discussed with the applicant that while DFAT reported instances of attacks on Muslims in Sri Lanka, it did not suggest such attacks affected other groups such as Hindus.

9. The applicant stated the DFAT report was a lie and [distance] from his home there was a Buddhist temple even though no Buddhist people live in the area. He said the Sri Lankan authorities want to create interreligious conflict between Tamils and Buddhists and were settling Sinhalese people in Tamil areas to change the demographics of those areas. I accept there may at times be tensions between Hindus and Buddhists in the applicant’s area of Batticaloa. I accept that Buddhists have their favoured status enshrined in the Constitution and that the Sri Lankan authorities since the end of the conflict have sought to move non-Tamils into some traditionally Tamil dominated areas.

10. However the applicant does not claim to have been harmed for reasons of his Hindu religion in the past.  He has been active in the Hindu Youth Movement and has been able to practice his religion freely in the past.  The letter he has produced from the Hindu Youth Movement does not suggest that the applicant or other members of that group experience harm for that reason.  On the evidence before me, I do not accept that there to be a real chance that the applicant will face serious harm for reasons of his Hindu religion if he returns to Batticaloa, now or in the reasonably foreseeable future.

    Land grabbing and Sinhalisation

11. I note the submissions and articles before me about land grabbing and Sinhalisation in Tamil areas.  DFAT also reports that local communities in the north have complained about military involvement in commercial enterprises which they allege undercut local enterprises, although DFAT notes that since he was elected in January 2015 President Sirisena has overseen the return of some land previously held by the Sri Lankan army.[27]

    [27] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 16 February 2015 at 2.15–2.22

12. I accept that tensions remain around the Sinhalisation of Tamil areas and significant areas of Tamil land have not yet been returned to them.  It is not suggested that land belonging to the applicant or his family was seized and not returned. I am not satisfied on the evidence before me that the applicant faces a real chance of harm if he returns to Batticaloa, Sri Lanka as a result of these processes.

    Mental health issues

13. It is submitted the applicant suffers from mental health issues, although no medical evidence has been provided to the Tribunal.  However I accept this process has caused him significant distress and anxiety.  On the evidence before me I am not satisfied the applicant faces a real chance of harm if returned to Sri Lanka for reasons of his mental health.

    Cumulative assessment

14. Having accepted that the applicant is a young Tamil male of Hindu religion from Batticaloa in Eastern Province who was involved with the Tamil Hindu Youth Movement for four years and campaigned on behalf of the TNA in the 2010 election campaign and would continue his political activities if he returned to Sri Lanka, who departed Sri Lanka illegally by boat and has sought asylum in Australia, I have considered whether the cumulative effect of such characteristics may result in a real chance that the applicant will be targeted for harm in Sri Lanka if he returns now or in the foreseeable future.

15. Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for serious harm by Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

    Complementary protection

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

17. I have not accepted there to be a real chance that the applicant would be targeted for harm by the Sri Lankan authorities, the TMVP, the Karuna group or other Tamil or mainstream opposition parties for reasons of his past or future support for the TNA if he returns to Sri Lanka, now or in the foreseeable future.

18. Nor have I accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil race, his Hindu religion, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia. 

19. For the reasons set out above, I have not accepted there to be a real chance the applicant will be harmed for the cumulative reasons that he is  a young Tamil male of Hindu religion from Batticaloa in Eastern Province who was involved with the Tamil Hindu Youth Movement for four years and campaigned on behalf of the TNA in the 2010 election campaign and would continue his political activities if he returned to Sri Lanka, who departed Sri Lanka illegally by boat and has sought asylum in Australia.

20. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[28]  For the same reasons I do not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

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

21. For the reasons set out above, I have accepted the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  I do not accept on the information before me there is a real risk that the applicant will face significant harm as that term is exhaustively defined in s.36(2A), either during his questioning at the airport or during any period he spends on remand. 

22. I have found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I & E Act, he will likely face a fine of between 5,000 and 200,000 rupees.  I do not accept that the applicant will be unable to pay such a fine if it is imposed upon him.  Nor do I accept on the evidence before me that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in s.36(2A), either during his questioning at the airport or during the short period that he would spend on remand. 

23. In considering whether the applicant may face harm while on remand awaiting a bail hearing, I have accepted that prison conditions in Sri Lanka are generally poor. I have had regard to PAM3 which sets out that detention is not of itself a breach of Article 7 of the International Covenant on Civil and Political Rights although it may be in some circumstances, depending on the nature and context of the treatment, its duration, its physical and mental effects and other relevant factors.  In this case the short period the applicant will spend on remand causes me to not to be satisfied there is a real risk he would face significant harm as a result of poor prison conditions.  Nor do I accept there to be a real risk the applicant would face significant harm from any other person or group during the short period he will be on remand.

24. I have accepted that when the applicant returns to his home area in Sri Lanka, his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given my findings above, I do not accept there to be a real risk he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia or for any other reason.

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

    Conclusions

26. 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).

27. 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).

28. 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

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

    Alison Murphy
    Member

    
    

    ATTACHMENT A – THE RELEVANT LAW

30. 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.

31. 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).

32. 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.

33. 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’).

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