1702245 (Refugee)

[2019] AATA 3432

1702245 (Refugee) [2019] AATA 3432 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702245

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Alison Murphy

DATE:13 March 2019

PLACE OF DECISION:  Melbourne

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

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal –attacks by ‘grease men’ – inconsistencies in evidence – relative’s involvement in people smuggling and money laundering – credibility – no real chance of serious harm – decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

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 is a [age] year old male from [City 1], Eastern Province, Sri Lanka who seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka where he claims to fear harm from ‘grease men’ in Sri Lanka, as well as on the basis of his Tamil ethnicity, his political opinion, his religious beliefs, [Relative 4]’s involvement in people smuggling in Sri Lanka and his status as a failed asylum seeker who illegally departed Sri Lanka.

3. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.  A summary of the relevant law is contained in Attachment A. 

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration (DFAT’s Country Information Report for Sri Lanka dated 23 May 2018 and DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014).

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 and applied for the protection visa on 27 March 2013. A delegate of the department refused to grant the visa to the applicant on 28 March 2014, not being satisfied he was a person to whom Australia owed protection. 

7. The applicant first appeared before the Tribunal on 28 July 2015 to give evidence and present arguments. On 14 August 2015 the Tribunal (differently constituted) affirmed the decision under review.  On 19 January 2017 the Federal Circuit Court of Australia quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration.  In its judgement the court held that the Tribunal had failed to put issues arising out of the country information to the applicant at the hearing on 28 July 2015 with sufficient particularity.

8. The applicant next attended a hearing before the Tribunal on 13 February 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

9. The applicant was represented in relation to the review by his registered migration agent. At the conclusion of the hearing on 13 January 2019, I adjourned the review application for two weeks to allow the applicant and his representative to provide further documents or submissions. As at the date of the Tribunal’s decision, no further documents had been received from the applicant or his representative.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

10. It is not in dispute that the applicant is Sri Lankan national and he has produced to the department copies of his Sri Lankan birth certificate, passport, drivers licence and national identity card.  I find that the applicant is a citizen of Sri Lanka and I have assessed his claims that country.

    The applicant’s ethnicity and place of origin

11. I accept the applicant’s consistent evidence that he is of Tamil race from [Village]  in [City 1] in Sri Lanka’s Eastern Province.  In making this assessment I note he speaks Tamil and that his place of birth, [City 1], is stated on his passport.  I note he has at all times participated in departmental and tribunal processes with the assistance of a Tamil interpreter.

    The applicant’s claims of past harm in Sri Lanka

12. In a written statement accompanying his visa application, the applicant claims that between 2000 and 2006, the Liberation Tigers of Tamil Eelam (LTTE) directly controlled the Eastern District of [City 1], during which time it was common to see LTTE offices established throughout the region and LTTE officers roamed the streets.  He claims that during this time, the LTTE held constant meetings in his home [town], conscripting young men and women to join its cause.

13. I accept this to be the case, noting DFAT’s advice that in 1983, conflict broke out between the Sri Lankan military and the separatist LTTE, continuing until the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka in 2009[1]. During this time, the LTTE waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state, Tamil Eelam, in the north and east.  DFAT reports that at its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants[2].

    [1] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018 at 2.2

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

14. The applicant claims that in [year] when he was [aged], he was approached by the LTTE while he was attending a Hindu festival.  The applicant agreed to walk and talk with the man who was not in uniform but had a gun strapped to his chest. When the applicant saw the man was leading him towards a van filled with other LTTE members, he began running in the other direction and managed to escape, believing he would be dragged inside and made to join the LTTE against his will.  I accept his evidence in this regard, noting that it is widely reported that the LTTE recruited thousands of soldiers, including child soldiers, during the civil war.[3]  I accept the applicant’s evidence that when he returned home, he told his parents what had happened and they stopped him attending school for a week, afraid the LTTE would ask about him and somehow track him down.

    [3] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018 at 3.35; Human Rights Watch Sri Lanka: Tamil Tigers Forcibly Recruit Child Soldiers 11 November 2004 at

15. I further accept the applicant’s older [sibling] went missing in or around June 2006 and the family later discovered he had been forcibly recruited to the LTTE. I accept that in or around 2007, a messenger from the LTTE came to the family home and advised that the applicant’s [sibling] had been killed by a gunshot.  Due to the severity of the conflict at the time, the family were unable to travel to [City 2] to identify the applicant’s [sibling], however he was identified by [Relative 1], who was an active member of the LTTE and was located in [City 2].  In making that assessment, I note that DFAT reports that over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed.[4] The UN found credible allegations that both sides committed crimes against civilians.[5]

    [4] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018 at 2.2

    [5] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018 at 2.2; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2.1

16. I accept the applicant’s evidence that his parents separated in about July 2011, when the applicant moved with his mother and another [sibling] to [Village 2], while his father remarried and remained in [Village 1].  I accept the applicant had little contact with his father after the separation and he has still not met his step mother.  I accept that as a result of family pressures, the applicant began attending a [church] in [City 1] with a friend, eventually joining that church and converting to Christianity. I accept that around the same time the applicant met his fiancé at the church and became engaged, with his fiancé moving into the applicant’s mother’s home in [Village 2].

    Attacks by Grease Men

17. The applicant claims in his visa application that in about August 2011, there were widespread attacks in [City 1] by a group called the ‘grease men’ or ‘grease devils’, who are linked to the Sri Lankan army and the Sri Lankan police.  He claims attacks by grease men occurred only in Tamil areas, not Sinhalese areas, and his area was particularly badly affected.

18. The applicant claims that on about 15 August 2011, the youth of [Village 2] met on the grounds of the [Temple] and decided to take action against the grease men, as the police had failed to do so. The applicant claims that on 16 April 2011 he and four friends armed themselves with sticks, logs and steel pipes and hid in a by-lane adjoining the main street, behind [Relative 2]’s shop, where they could see everything occurring on the street.  He claims that at about 2am or 3am, they saw a police jeep drop off about ten grease men, three of whom came towards the applicant’s hiding spot.  When they came close enough the applicant and his friends jumped out and attempted to catch them, but they ran away and escaped into the [armed forces] base near the applicant’s house.  As soon as they entered the grounds of the [armed forces] base, the lights went out.  This led the applicant to believe the grease men were also affiliated with the [armed forces], which was allowing them to hide out on their premises.

19. The applicant claims that at the same time, the police jeep turned around and came back towards the applicant and his friends, stopping in front of them and asking what they were doing. The applicant claims that they did not tell the police officers that they were attempting to catch the grease men, believing this would cause trouble, rather they told the officers they were trying to catch a trespasser.  He claims the police officers threatened them, saying if they did not go home they would beat them and take them away.  He claims he and his friends left, not wanting to put their lives at risk.

20. He claims the following day there was another gathering of the [Village 2] youth, this time in front of [Relative 2]’s shop. The gathering decided that action had to be taken against the police in the area as instead of protecting the population they were escalating the violence by assisting the grease men with their attacks.  He claims the demonstration blocked off [Road] and attracted media attention, producing an untranslated copy of a media report to the department.

21. He claims the police attended almost immediately, and the protesters demanded the police force in the area be rotated out of [Village 2] because they were responsible for attacks by the grease men in the area.  He claims the officers asked how he knew they were responsible and the applicant explained the events of the night before. He was asked to identify the grease men and police officers involved and agreed to do so, as long as he did not have to do it face to face. The police officers offered their security and protection if he assisted in a face to face identification process, and the applicant agreed to do so for the benefit of his community.

22. The applicant claims that at about 1pm that day, approximately twenty police officers were lined up before him and he was able to identify the three police officers who were the grease men from the night before by their facial features and the grease staining their ears and hands.  He states that this was hard evidence that the police and grease officers were one and the same.

23. He claims that the next day he was coming home from work with his friend on or around 17 August 2011, when they were approached by a van which stopped besides them. One of the grease men he had identified the day before got out of the vehicle, threatening to kill the applicant and his family.  The applicant and his friend reported the incident the following day, but the officer failed to register the case.  They were told they would be offered the necessary protection and asked by an irate police officer to go home.

24. He claims that on or around 18 August 2011 he and his friends decided to leave[Village 1] and stay at his father’s house in [Village 1] as the applicant feared for his safety and knew he could not take the threats by the police officers seriously.  He claims in fear of being located, harmed and ultimately killed, he did not seek paid employment when residing with his father and did everything he could to stay out of sight while assisting his father on his farm.

25. He claims that in March 2012 he moved back to his mother’s house in [Village 2], believing it was safe to do so as he had not received any further threats from the grease men and enough time had passed that the incidents of August 2011 would be forgotten.  He claims that in early March 2012 he was riding [Relative 3]’s motorbike home from work when he was cut off by a van which stopped in front of his motorbike.  Two men wearing gloves and helmets dragged him in to the van where he was blindfolded and his mouth taped.  When the van came to a halt three hours later he was dragged out and taken to a room in an old dark building where his blindfold was removed.  There were six or seven men around him, two of whom were police officers he identified in [Village 2] on 16 August 2011. The men beat him, asking why he had agreed to identify them. He was kept overnight and beaten with a stick. Early the next morning he was pushed into the van and dropped off in front of the [Temple], with instructions to bring his friends who were also involved in the identification of the grease men back to the place he had been held overnight. He was told that if he did not do so, or if he contacted the police, he and his family would be killed.

26. I have considered the applicant’s written and oral evidence and the untranslated media report provided to the department. However for the following reasons I do not accept the applicant’s account of these events.

27. Firstly, there are significant inconsistencies in the applicant’s evidence about these events.  In his protection visa application dated March 2013 and at hearing before me in January 2019, he stated that the three grease men he identified were travelling in a police van and he identified them out of a line up of about twenty police officers the next day, after being asked to do so by police officers who attended the protest. This is in contrast to his evidence at the first Tribunal hearing on 28 July 2015 where he stated that it was [armed forces] officers who attended the protest and offered him protection for identifying the grease men and army officers to whom he identified the three grease men. 

28. He also stated in his protection visa application that the grease men escaped when chased into a neighbouring [armed forces] base which turned the lights off, causing him to believe they were under the protection of the [armed forces]. However at hearing before me he stated they escaped over a fence into the police station. When these inconsistencies were put to the applicant at hearing, he stated that he was not aware of the difference between the Sri Lankan police and the Sri Lankan [armed forces] at the time and he has only become aware of this since arriving in Australia. He stated that the facility the grease men had escaped into was an [armed forces] base at the time, but had since become a police station. I consider it implausible that a young Tamil man who grew up in the conflict affected area of [City 1] would not be able to distinguish police officers from [armed forces] officers and I do not accept the applicant’s explanation for these inconsistencies.

29. Secondly, country information does not support the applicant’s evidence that grease men are linked to or under the protection of the Sri Lankan authorities, including the [armed forces] or police. As discussed with the applicant at hearing, reports published in 2011 suggest that grease men or grease devils form part of traditional Sri Lankan beliefs about spirits and devils:

    [T]raditionally a grease devil was a thief who wore only underwear and covered his body in grease to make himself hard to grab…the modern iteration has a far more sinister reputation as [a] prowling attacker of women. 

30. Reports indicate at least 30 incidents involving grease men or grease devils were reported during a wave of attacks on women left vulnerable by the long running conflict along Sri Lanka’s east coast in July and August 2011, resulting in at least 47 arrests. Fear spread among the community and some persons accused of being grease men were attacked and even killed by vigilantes and some of those arrested were vigilantes. The police stated the grease men were merely criminals taking advantage of traditional beliefs in spirits and devils in Sri Lanka’s rural areas, and vowed to punish those responsible for spreading panic. While those reports indicate the police struggled to apprehend the perpetrators and control the vigilantism, it does not indicate that the perpetrators were assisted or otherwise protected by the Sri Lankan authorities[6]. 

    [6] Aneez, S & Sirilal, R 2011, ‘“Grease Devil” panic grips rural Sri Lanka’, Reuters, 12 August < ; Women’s Action Network n.d., ‘Statement by women on the recent attacks on women, impunity and the lack of the rule of law’, MinorityVoices.org website <>

    For these reasons, I do not accept the applicant’s account of chasing three grease men who were dropped off out of a police truck, nor do I accept he identified those three men as police officers in a line up the following day. I do not accept that he was threatened by the grease men or police officers as a result of that identification, nor that the applicant and his friends left [Village 2] for his father’s house in [Village 1] because they feared for their safety from the grease men or the police. For the same reasons I do not accept the applicant was abducted and beaten by the grease men he had identified as police officers in March 2012, nor that those people demanded he deliver to them his friends who were also involved in the identification. 

31. It follows that I do not accept these events had any bearing on his decision to leave Sri Lanka in July 2012. I accept the applicant’s evidence that he applied for a passport and work visa to go to [Country 1] in March 2012 and he was successful in obtaining those documents. I note the Sri Lankan government issued the applicant a passport in March 2012 and I consider it unlikely that would have occurred if the applicant was being pursued by the Sri Lankan authorities as he claims. I do not accept he decided against travelling to [Country 1] because he believed he would be detained at the airport due to his identification of the grease men, rather I consider he merely changed his plans and decided to travel to Australia instead.  I accept his trip to Australia was funded by the sale of property owned by his mother and she now lives with her [sibling]. I note the applicant’s evidence at hearing that his father continues to live and work on the family’s farm lands in [Village].

1. As I have not accepted the applicant was of adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka, I do not accept they have made enquiries about him at his home since his departure from that country. Nor do I accept that his parents have been forced to pay money to the police or that the police have threatened to kill the applicant if he returns to Sri Lanka for any reason relating to his claimed altercation with grease men or the Sri Lankan authorities.

   Assessment of Refugee Convention claims

2. 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 who illegally departed Sri Lanka.

3. In assessing these claims I have given careful consideration to the independent sources cited in the submissions of the applicant’s former representative to the first Tribunal about the situation for Tamils in Sri Lanka.  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. 

4. 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

5. The applicant fears harm in Sri Lanka because of his Tamil ethnicity and as a Tamil man who originates from [City 1] 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 [City 1] in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE. 

6. In assessing the risk of harm to the applicant as a Tamil male from [City 1], 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.[7] In July 2017, the UK Home Office stated that a person being of Tamil ethnicity would not in itself warrant international protection.[8]  DFAT reports that since the end of Sri Lanka’s civil conflict in 2009, the security situation has significantly improved in the north and east of the country and that Tamils have a substantial level of political influence and are represented by numerous Tamil political parties.[9] Each of those sources was discussed with the applicant at hearing.

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

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

   [9] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 3.4-3.7

7. In light of the above information I find that Tamils, including male Tamils living in or originating from [City 1] 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. 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 Tamil male from [City 1] in Eastern Province.

   Assessment of harm on the Convention ground of political opinion

8. 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 family’s connection with the LTTE, his own interactions with the grease men in 2011 and 2012 and because he departed Sri Lanka illegally by boat and has sought asylum in Australia.

   Actual and imputed political opinion as a Tamil from an LTTE family

9. For the reasons set out above, I have accepted the applicant is of Tamil ethnicity and that he is from [City 1] in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE. 

10. The applicant claims that because he comes from an LTTE family, he will be suspected of supporting the LTTE and targeted for harm on this basis.  I have accepted his [sibling] was forcibly recruited to the LTTE in 2006 and killed in 2007.  I have also accepted [Relative 1] was an active LTTE member during the conflict. I accept [Relative 1’s spouse] may have been killed during the conflict and that the applicant was subject to an attempt to forcibly recruit him to the LTTE in about 2005.

11. 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.[10] 

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

12. 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.[11]  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.  While I have accepted that [Relative 1] and [sibling] were members of the LTTE and that his [sibling] was killed in 2007, I do not accept that any member of the family held senior positions within the LTTE.

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

13. 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.[12]

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

14. The applicant disagreed with that information, stating that even now the Sri Lankan authorities think Tamils support the LTTE and are trying to reactivate the conflict. He stated that the information referred to by the Tribunal was only the information it could access and the problems would not come out in public. He said there were so many problems in Sri Lanka, including problems in the parliament two months ago, and the government would not accept any fault. He stated he had read on the internet that other countries were advising against travelling to Sri Lanka.  I noted that I was not aware of any such travel advice and adjourned the review application for two weeks to allow the applicant to provide copies of articles he was referring to. As at the date of the Tribunal’s decision, no further documents have been received from the applicant or his representative.

15. I consider the applicant’s contact and involvement with the LTTE in [City 1] to be consistent with the contact and involvement of Tamil residents of formerly controlled LTTE areas. It is not suggested that he or his family members have been involved in any post-conflict separatist activities in Sri Lanka or Australia, nor that the applicant experienced any harm because of his family’s LTTE connections in the three years he continued to live in Sri Lanka following the end of the conflict in 2009. I do not accept that the involvement of the applicant’s [sibling] and [Relative 1] in the LTTE during the time of the conflict will cause the authorities to take an adverse interest in the applicant ten years after the end of the conflict. Nor do I accept that the applicant’s Tamil race or ethnicity or the fact he originates from 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 and targeted for harm if he returns to Sri Lanka. For these 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 family’s past involvement with the LTTE, 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 with grease men

16. For the reasons set out above I have not accepted the applicant’s claims about his interactions with grease men in 2011 and 2012. It follows that I do not accept he will be imputed with a political opinion that is against the Sri Lankan police or the Sri Lankan regime for any reason relating to grease men.

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

17. I accept the applicant departed Sri Lanka for Australia in June 2012 and he has sought asylum in Australia.  As his passport remains in Sri Lanka, I accept that if he is returned to Sri Lanka he will need a temporary travel document. I accept 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 will likely be viewed as a breach of Sri Lanka’s Immigrants and Emigrants Act 1948 (the I & E Act).

18. As discussed with the applicant at hearing, DFAT reports that between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka and many others have been returned from the US, Canada, the UK and other European countries, most of whom are Tamil. The Sri Lankan government has consistently stated that refugees are welcome to return to Sri Lanka and in February 2017, the Prime Minister stated publicly that asylum seekers from Australia would be welcomed back to Sri Lanka. DFAT acknowledges that returnees face practical challenges to successful return to Sri Lanka, most have incurred significant expenses or debt to undertake their outward journey[13]. At hearing the applicant stated that he believed he could obtain employment and support himself in Sri Lanka.

    [13] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.37 - 5.42

19. As discussed with the applicant at hearing, DFAT reports that most Sri Lankan returnees from Australia are questioned by police on return to Colombo international airport.. During the processing of returnees, the Sri Lankan authorities take photographs, fingerprints and statements from returnees and run checks against the immigration, intelligence and criminal databases. 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[14].

    [14] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.27 - 5.30

20. 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 July 2012, some three years after the conflict ended. Nor do I accept that his family’s LTTE connections or his status as a failed asylum seeker from [City 1] 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. For the reasons set out below, I have not accepted the applicant is suspected of being involved in [Relative 4]’s people smuggling business, nor that there is an open warrant for his arrest in Sri Lanka.

21. As discussed with the applicant at hearing, I accept that the applicant departed Sri Lanka for Australia by boat using a people smuggling venture. As discussed with the applicant at hearing, DFAT advises that the Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected facilitating or organising irregular migration, be charged under the I&E Act and appear in court. I accept that upon return to Sri Lanka, the applicant may be charged with offences under the I & E Act relating to his illegal departure in [year].

22. As discussed at hearing, DFAT advises that persons charged with offences under the I & E Act are transported to the Magistrate’s Court and brought before a magistrate at the first available opportunity, generally within 24 hours unless it is a weekend or public holiday in which case they may spent up to two days in an airport holding cell.[15]

    [15] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.28 - 5.30

23. As discussed with the applicant at hearing, penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, although DFAT reports that most cases result in a fine and not imprisonment.  It states the Attorney General’s Department, which is responsible for the conduct of the prosecutions, claims no person who merely travelled on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, rather fines of between LKR 3,000 (approximately AUD 25) and LKR 200,000 (approximately AUD 1,670) are issued to deter people from departing illegally in the future[16].

    [16] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.32

24. A guilty plea will attract a fine, which can be paid by instalment and the person is then free to leave. If a person pleads not guilty, they will usually be granted bail on the basis of personal surety or a guarantee by a family member although they may need to wait for the guarantor to come to the court before they can leave.[17] At hearing the applicant agreed with that information and stated that he knew he would be able to pay the fine and leave the airport without being harmed, but that his problems would start when he arrived home.

    [17] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.17–5.32

25. 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 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 a couple of days before being brought before a magistrate. 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 in an airport holding cell before being brought before a magistrate.

26. Given the applicant’s evidence at hearing that he could pay the fine and leave the airport, I consider that he will plead guilty to illegal departure and pay any fine imposed upon him. However if he decides to plead not guilty, I consider he will be granted bail when presented to the 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. 

27. The DFAT report states that returnees are treated in the same way regardless of their race or religion and the applicant stated at hearing that he accepted that to be the case. 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.

28. 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.

29. I accept that when the applicant returns to his home area in [City 1], 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 of his political opinion or because he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia or for any other reason.

30. For these reasons I find 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 [City 1] who has family members who were connected with the LTTE during the conflict or as a person who 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.  For the same reasons I find the applicant does not have a well-founded fear of persecution for reasons of his membership of the particular social groups ‘failed Tamil asylum seekers’.

    The applicant’s Christian religion

31. The applicant has consistently claimed that he converted from Hinduism to Christianity in about 2011 while still living in Sri Lanka.  At hearing he told me this upset his parents at the time and caused him some small problems, but he was able to work through those problems. 

32. As discussed with the applicant at hearing, DFAT reports that religion plays a significant role in daily life in Sri Lanka and that most Tamils are Hindus, although some are Christian. DFAT assesses that there are no laws or official policies that discriminate on the basis of religion[18]. The applicant stated he had not claimed to fear persecution because of his conversion or his Christian religion.

    [18] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018

33. On the evidence before me, I do not accept that there to be a real chance that the applicant will face harm for reasons of his conversion to Christianity if he returns to [City 1], now or in the reasonably foreseeable future.

    People smuggling charges

1. In a statutory declaration made 12 August 2018 the applicant claimed that since his departure from Sri Lanka, [Relative 4] had been charged with people smuggling and the applicant and other relatives charged with people smuggling and money laundering. He claims [Relative 4] used the names of the applicant and his relatives to hide the proceeds of his people smuggling business. He claims [Relative 4] remains on the run from the Sri Lankan authorities and as a result the CID monitor his family and all the people associated with [Relative 4] are subject to arrest warrants. He claims if returned to Sri Lanka he will be detained and held in jail for an unreasonably long time for a crime he did not commit and he will be interrogated, tortured or killed.

2. At the tribunal hearing before me, the applicant claimed that he was the subject of an open arrest warrant in Sri Lanka because of [Relative 4]’s involvement in people smuggling.  He claimed that while living in Sri Lanka, he had regularly assisted [Relative 4] in his business by [assisting] his customers from point A to point B, believing it to be a legitimate [business].  He claimed he had more recently discovered [Relative 4] had been operating a people smuggling business as a result of which a number of his family members including the applicant faced charges. Some of those charges relate to the proceeds of [Relative 4]’s people smuggling business being placed into the accounts of the applicant and other family members.

3. At hearing I discussed my concerns with the applicant that these claims had not been made at any of his departmental interviews or to the first Tribunal. Rather they had first been made shortly before the second Tribunal hearing, almost six years after his application for protection. I noted he had not suggested in the details about his employment history provided in his protection visa application that he had ever worked for [Relative 4] or that he had ever worked as a [occupation].

4. The applicant responded he had not worked for [Relative 4], rather he had just assisted [Relative 4] out of respect when [Relative 4] asked him to do so.  When asked how often this occurred, the applicant stated it could be once a week or once a month, whenever [Relative 4] asked him to.  He stated he had not mentioned it before because it had not seemed important. He claimed that it was only recently that he and his family had discovered [Relative 4]’s apparently legitimate [business] was in fact a people smuggling business and a number of his family members faced charges as a result. He claimed [Relative 4] used his relative’s names, including the applicant’s, to hide the money he made from people smuggling.

5. In support of his claims, he produced to the Tribunal documents purporting to be a summons and an open arrest warrant issued by the Magistrate’s court in [City 1] together with English language translations. Those documents are dated 12 February 2016 and 26 March 2016 respectively and indicate there is an open warrant for the applicant for offences under the law of the Department of Emigration and Immigration.

6. At hearing I expressed concern about the credibility of these claims and the genuineness of the documents and advised the applicant that I might seek to have the court documents verified with the court in [City 1]. The applicant stated that if that occurred, the court would have to tell the truth.

7. Following the hearing the Tribunal wrote to the applicant, seeking the applicant’s written consent to the Tribunal asking the Australian High Commission in Sri Lanka to verify the genuineness of the court documents with the Sri Lankan authorities. That letter advised that the Tribunal would not undertake those enquiries without the written consent of the applicant and if that consent was not received by 27 February 2019, the Tribunal would proceed to make its decision on the basis of information available to it at the time. 

8. As at the date of the Tribunal’s decision, neither the applicant nor his representative has responded to the Tribunal’s letter or otherwise given consent for those enquiries to be made. I have considered the possibility that the applicant may have a genuine fear of the Sri Lankan authorities which makes him unwilling to consent to the proposed enquiries and for that reason I draw no adverse inference from his failure to respond to the Tribunal’s letter or consent to those enquiries. I do not consider it appropriate to make such enquiries of the Sri Lankan authorities without the applicant’s express consent, given the applicant’s claims to fear persecution from the Sri Lanka authorities. Further, the making of such enquiries may have the effect of divulging the applicant’s status as an asylum seeker in Australia to the Sri Lanka authorities.

9. However as discussed with the applicant at hearing, I remain concerned about the lateness of the applicant’s claims in this regard and the genuineness of the court documents he has provided. The applicant has never before suggested [Relative 4] ran a people smuggling business or that he assisted [Relative 4] with his business. No evidence has been submitted indicating [Relative 4] used the applicant’s account or the accounts of other family members to hide money from the people smuggling. The applicant’s claim he worked as a [Occupation] for [Relative 4] is not reflected in his employment history details given in his protection visa application. I have considered the applicant’s explanation that this is because he was not actually working for [Relative 4] but in view of my serious concerns about the applicant’s credibility I do not accept that explanation. In these circumstances I do not accept the court documents provided by the applicant to be genuine, nor their contents true. 

10. On the evidence before me I do not accept the [Relative 4] ran a people smuggling business in Sri Lanka, nor do I accept the applicant assisted [Relative 4] in that business. I do not accept the applicant is suspected by the Sri Lankan authorities of being involved with people smuggling, nor that he has been charged with those offences as claimed. It follows I do not accept there to be a real chance the applicant will face harm if returned to Sri Lanka because he is suspected of being a people smuggler.

    Cumulative assessment

11. Having accepted that the applicant is a young Tamil male of Christian religion from [City 1] in Eastern Province whose [sibling] and [Relative 1] were members of the LTTE, who was subjected to an attempt by the LTTE to forcibly recruit him in 2005, 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.

12. 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 religion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

13. I have not accepted the applicant’s claims about his interactions with grease men or that he is the subject of an open arrest warrant or otherwise suspected of being involved in people smuggling in Sri Lanka. I have not 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 Christian religion, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia. 

14. For the reasons set out above, I have not accepted there to be a real chance the applicant will be harmed for the separate or cumulative reasons that he is a young Tamil male of Christian religion from [City 1] in Eastern Province whose [sibling] and [Relative 1] were members of the LTTE, who was subjected to an attempt by the LTTE to forcibly recruit him in 2005, who departed Sri Lanka illegally by boat and has sought asylum in Australia.

15. 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.[19]  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. 

    [19] 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]

16. 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 a couple of days before being brought before a magistrate. 

17. ‘Significant harm’ is exhaustively defined in s.36(2A) as follows:

    (2A)  A non-citizen will suffer significant harm if:

    (a)  the non-citizen will be arbitrarily deprived of his or her life; or

    (b)  the death penalty will be carried out on the non-citizen; or

    (c)  the non-citizen will be subjected to torture; or

    (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)  the non-citizen will be subjected to degrading treatment or punishment.

18. It is not suggested that the death penalty will be carried out on the applicant for any reason. I do not accept on the information before me that there is a real risk that the applicant will be arbitrarily deprived of his life or face torture, cruel or inhuman or degrading treatment or punishment, either during his questioning at the airport or during any period he spends on remand. 

19. 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 3,000 and 200,000 rupees.  The applicant’s own evidence is that he would be able to pay the fine and leave the airport.  I do not 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. 

20. 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.

21. I have accepted that when the applicant returns to his home area in [City 1] in Sri Lanka, his arrival may be noted and he may be questioned by the Sri Lankan authorities. The applicant claims that it is when he returns to [City 1] that his problems will start. 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 young male Tamil who departed Sri Lanka illegally and has sought asylum in Australia, because of his family’s past connections to the LTTE or for any other reason.

22. 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

23. 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).

24. 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).

25. 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

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

    Alison Murphy
    Member

    
    

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. 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.

28. 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).

29. 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.

30. 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’).

31. 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.