1702978 (Refugee)

[2021] AATA 4521

1702978 (Refugee) [2021] AATA 4521 (8 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702978

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Lilly Mojsin

DATE:8 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 8 October 2021 at 11.50 am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – political opinion – membership and activity in political party – attacks and threats by members of rival party – assisted during irregular migration boat voyage – economic conditions – credibility – no mention of death threats at arrival interview – inconsistent evidence about role on boat – uncle skipper of boat and brother a crew member – brother’s voluntary return to support pregnant wife – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth),

CASES

SZSSJ v MIBP FCAFC 2015

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 on 6 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 10 September 2015. He was born in [Town 1], [City 1], Puttalam District North Western Province and is a [Age 1] year old national of Sri Lanka, he is a Christian, and speaks Sinhalese. He did not marry when he resided in Sri Lanka.

3. [In] August 2012, he arrived on [Island 1], travelling by boat as an undocumented maritime arrival (UMA).  His brother and uncle also travelled with him. [In] September 2012, his brother returned to Sr Lanka voluntarily.

4. The applicant had lodged an application for a class XA protection visa but this application was found to be invalid under section 91K of the Act. The applicant made another application, Safe Haven Enterprise (Class XE, Subclass 790) visa (SHEV), on 10 September 2015.

5. The delegate refused to grant the visa as the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to Sri Lanka and therefore did not meet the requirements for that visa. The applicant sought review of the delegate's decision.

6. The applicant, who lives in Canberra, appeared before the Tribunal on 4 March 2021 to give evidence and present arguments, by Teams Video. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal determined it was reasonable to hold a hearing by Teams video. The Tribunal had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

8. The hearing on 4 March 2021 was adjourned to 17 March 2021. That hearing was subsequently adjourned at the applicant’s request to obtain further information. The Tribunal scheduled a hearing for 8 July 2021.

9. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant, his representative and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

   CRITERIA FOR A PROTECTION VISA

10. See Annexure A  

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. A written record of the interview with the applicant held on 10 October 2012 is held on the Department file. I note that the recording of this interview has not been located by the Department. A handwritten record indicated that the applicant told the interviewer that he left Sri Lanka because he did not have a job and economic pressures were rising.

12. The record of interview indicated that the applicant told the Department that he was unemployed from 2005 to 2009 and in about 2009 to 2012 he was [an Occupation 1], self-employed in [Town 2] [City 1]. He claimed that he was beaten up, by government supporters, in October 2010 and hospitalised. He does not know their names. It happened at night. There was an election and immediately after the election when he was going to the shops, he was caught and beaten.  It happened again in March 2011 by the People’s Alliance because he worked in the election against them. They came again one week before he left, his mother told them he was not at home. The applicant also said that he had an uncle connected to politics. He was a member of the UNP [United National Party] who contested a seat. The applicant was an active member of the UNP. They also went on protest marches. He assisted by canvassing, putting up posters and demonstrations.

13. The applicant confirmed that his uncle and brother were driving the boat. He was helping. He said that he was frightened when he arrived and did not mention the death threats made to him when he said at his arrival interview that he came to Australia for economic problems. He had been on the high seas and his mental condition was not normal.

14. By statement dated 25 June 2015 [also dated 14 January 2016] the applicant claims:

    • I was born in [Town 1], Puttalam of Sri Lanka on [Date 1]. I am [Age 2] years old. I fled Sri Lanka [in] July 2012.
    • I am a Sinhalese Catholic by ethnicity. My family has been long time political supporters of the United National Party of Sri Lanka. Consequently, I too became a strong supporter of the United National Party from an early age.
    • I schooled at [named school]. I completed my secondary education until I reached Year 11 program in [Year 1]. I can speak, understand and write in Sinhalese. 
    • I left Sri Lanka [in] July 2012 and arrived at [Island 1] [in] August 2012.
    • I am [an Occupation 1] by profession, and I was employed in Sri Lanka as [an Occupation 1].
    • [Mr A] is the husband of my mother's sister. He is a fisherman by trade and he functioned as a skipper of fishing boats in Sri Lanka.
    • At [Town 1[of Puttalam District I was a supporter of the United National Party. I campaigned for the United National Party in the elections. I was repeatedly threatened to stop supporting the United National Party by the supporters of the Provincial Councillor [Mr B]
    • In April 2010, I was at [a] shop at [City 1] to have dinner.  [Mr B] too visited this shop with his entourage and the police. When I was coming out of the shop, I accidently bumped onto [Mr B] who reacted violently. The police were present at the scene and intervened and asked me to leave the shop.
    • Within two days of the incident, the supporters of [Mr B] visited my village and looked for me. The threats that were issued were that I would be assaulted if were to be found.
    • On the 18 March 2011, I was assaulted by the supporters of the Provincial Councillor [Mr B] because of my persistent support to the United National Party. I was grievously injured because of this assault. I suffered a fracture in my [body parts] and extensive other injuries. Sharp weapons were used to assault me.
    • I had only survived this assault because I was admitted to the hospital by [Mr C], a friend of mine. I had been unconscious at the time of admission to the [City 1] Hospital.
    • I was treated in the hospital under the Bed Head Ticket BHT/[Number] for 12 days as a resident patient. However, due to political pressures from [Mr B] I was prematurely discharged from the government hospital. Thereafter, I was forced to seek treatment in an expensive private hospital.
    • After I recovered, I was moving around to avoid the threats of [Mr B]. I moved to [Location 1], [Location 2], [Location 3] but I continued to receive threats from the supporters of [Mr B].
    • In May 2012 I visited [Workplace 1] to work while the supporters of [Mr B] accosted me and cut me using a knife after threatening me.
    • [Mr B] wields political power across the government establishment. Therefore, not only, would a complaint to the police be futile it would exacerbate the reprisals against me.
    • Therefore, fearing for my life, I decided to speak to my uncle and depart to Australia to a boat seeking protection. 
    • I contacted my uncle [Mr A]. I joined the boat as a member of the crew to depart to Australia. I did not make a payment to join the boat. I was asked by my uncle to perform functions of a crew member. 
    • I assisted my uncle in navigation of the boat and maintenance of sanitation and food supply in the boat in the long journey to Australia. I navigated the boat when my uncle, [Mr A] was tired. I cooked food for the passengers. I maintained the toilets in the boat. I helped the passengers overcome sea sickness by bathing them.
    • I reached Australia and I was held in detention. I was a victim of the privacy breach by the department of Immigration where our personal details were made accessible via the World Wide Web. This data breach was discovered by the journalists of the Guardian Newspaper. I fear that my data may have been accessed by the Sri Lankan intelligence.
    • I fear that the Sri Lankan intelligence may have provided information to the relevant authorities imperiling my safety in Sri Lanka, if I were to be returned to Sri Lanka. 
    • Because of my assistance to the skipper of the boat I would be treated as a people smuggler in Sri Lanka.
    • I am advised that section 45C of the Immigrants and Emigrants Act of Sri Lanka renders my participation to be eligible to be suspected as a facilitator of the boat. This would, I fear entail prolonged denial of bail, torture while in custody to elicit information about those who organised the boat journey and possible freeze of all assets.
    • I fear that if I were forced to return to Sri Lanka I would be seriously harmed because I would be suspected of being a facilitator of so- called "people smuggling" activities under s.45C of the Sri Lankan Immigrants and Emigrants Act. This suspicion will, I fear, result in denial of bail for prolonged periods, torture while in custody and possible freezing of all assets.
    • I fear that the failure of the Australian government to protect my private data has given the Sri Lankan government access to my personal information that could be used against me when I reach Sri Lanka.
    • I fear that if I were forced to return to Sri Lanka, [Mr B] of the United People's Front Alliance would call out his threat to kill me.
    • I fear this harm from the Sri Lankan government.

15. An untranslated statement by his brother, untranslated statement [Mr D] Member of [Town 3] Pradeshiya Sabha, [Mr D]’s UNP membership card, untranslated statement by [Mr C] and untranslated statement by a Doctor was provided to the Department. Also submitted was a Report Failed Asylum Seekers: Sri Lanka by the Edmund Rice Centre dated 21 August 2014 and a 2015 article about the refugee problem in Europe and a letter written to Australia’s PM in 2015 about climate change.

16. At a Department interview, it is recorded by the delegate that the applicant stated he obtained a passport as he hoped to go somewhere and everyone in Sri Lanka had a passport. The [workplace] where he worked was in [Location 4], in the same area as his family home. He worked for 3 or 4 months in the [Workplace 2] and then had his own [business].

17. He campaigned for UNP. Prior to 2010 when he was not working, he arranged a campaign, posters and supported UNP full time. He was campaigning in a year he cannot recall for [Mr D] and [Mr F] and [Mr G] at the one time. He was organising campaigns, posting posters, organising meetings. He was part of a team involved in campaigning, as were his family. In order to organise a meeting he dealt with publicity and meeting people. He was repeatedly threated by [Mr B]’s supporters to stop campaigning from 2010. They have an underworld group. They threatened they would seriously harm him. They attack whoever supports UNP. In 2010 [Mr B]’s position was MP. He continues to be an MP.  

18. In March 2011 they attacked him. [Mr B] was elected. After 2010 election there was fighting and they made big trouble and punched him.  He was a leader of the team. So UNFP targeted every member of the team and he was ear marked for attack. Asked if they were local people he said a few of them were opposition.

19. He said that on March 2011 he was attacked and in hospital for nearly 2 weeks, then discharged and sent home. He had serious injuries. He was bedridden for 1 year and after that he could not work.  On the day he was going home, he saw a van and the people started to assault him. People who rescued him said it was [Mr B]’s people.  He could not move and had to stay at home. Asked how he knew about political pressure and early discharge from hospital, he said that doctors refused to do a 2^nd operation to his [body part] and told him to go home. His father made big trouble so he continued to get treatment from the private hospital.

20. After he recovered in March/April 2012 he went back to work to his new shop and the people found him and threatened him, so he continued to move around and stay at various places. Asked if he continued to be engaged in political activities, he said that he could not move and was not involved in politics. Asked why he continued, he said [Mr B] was always angry with him personally. Asked why he continues to have a grudge, he responded that even his brother had been arrested by police and assaulted. [Mr B] has a grudge against his family and want to keep him under control. He will come looking for him even when he returns again.  There were 5 people burned in a van near his home.

21. His brother was fined 10 000 rupees for drug dealing when he returned home. He was interviewed by the CID.

22. A statement by the applicant’s brother, undated, stated that he returned to Sri Lanka to Australia as his pregnant wife was critically ill.

    In December 2012, I arrived at the Katunayake Airport in Sri Lanka. The security division of Sri Lanka, C.I.D. arrested me and questioned for hours. They asked me the name of the captain of the boat. I said that I did not know. They also asked who arranged this journey. When I said I did not know, they threatened me and said they would beat me. I was really scared and told them that my brother took me. Then they asked my brother's full name. I asked why. Then they verbally abused me and said that they would take care of him. They kept asking my brother 's name. I was scared and gave my brother' s name. Later they informed me that I should report to the C.I.D. every time they call me. Later they asked me whether we took L.T.T.E. members to Australia. I told them that I did not know if they were Tamil or Sinhalese. Then they started beating me. They realised (not clear). They were looking at me for a few minutes and (not clear). They asked me the names of the owners of the boat. As I did not know who they were, I said I did not know. Then they asked me if my brother knew who they were. I told them that I do not know if my brother knew them. Then they repeatedly asked me that question by putting me in a difficult situation. Then they asked me to sign a declaration in three places without giving me the opportunity to read the statement. Then they released me after a few minutes. They called me every two to three months and asked me to go to the C.I.D. headquarters. But I did not go there. The reason is that they could not do anything as the Australian representatives who accompanied me to Sri Lanka and the IOM representatives were there at the time. I thought, They would beat me if I went alone to C.I.D. I wouldn't go. Now I live in Sri Lanka with fear for my life. The reason is that the Narcotics arrested me stating that I use drugs. They took me to a building that belongs to [City 1] police after arresting me. They then intimidated me saying that they would send me to jail for life imprisonment unless I show them the place I buy drugs.  Then  Narcotics  gave  me  money  to  buy  drugs  from [certain named people]. Later, five of them were arrested and dropped me in the place where I was. At the time, six of us were in [City 1], at the place where I mentioned before. The following morning, they produced me alone in [City 1] court. I was given a Rs.10,000 fine and discharged. I later went to meet the officers of the Narcotics. I asked them if the people I trapped would cause any harm to my life. They told me that these people would not come out for many years. At the time, the government belonged to Mahinda Rajapakse. The Presidential Election was very close. The Presidential Election was held. Maithreepala Sirisena became the president of Sri Lanka. The people who were convicted under section 54 for drug related offences were in the jail. But, Maithripala Sirisena's government discharged all of them. Then I received death threats over telephone calls indicating that they would kill me. As a result, I live in Sri Lanka with constant fear of death. I do not have any relief.

23. The applicant’s mother’s statement of 13.12.2017 to Police

    While I was sleeping at my home  alone at 0400 in the morning on 13.12.2017, I heard the noice of people talking in a vehicle. As I do not have any houses near my house, I was suspicious and thought someone was approaching my house. I heard someone telling [Mr H], come outside, we came to kill you. I am the only person at home at the time. My husband and children had gone to work. I turned all the lights on around our home. I heard someone was running away from our home. I did not see that person. I heard the noice of three to four vehicles in a distance of 300 meters from my home. I am scared that someone will harm my two sons.

24. A [Mr C] stated that he saw the applicant being assaulted by a group of unidentified people on 18 March 2011 at the by-road of [Location 5].  The witness hid. The applicant, who was bleeding left.

25. Statement by [Mr D] that he was Member of Local Government of UNP in Local Government Election in 2006.  He had to leave the area due to death threats. The applicant was subject to assaults by [Mr B] and his political supports and due to sustained serious cut injuries and damages of head and face had to undergo surgery at [a] Hospital [in City 1]. The applicant and his family were unable to get legal aid though they had to face numerous death threats and harassments.   The applicant left to Australia. His parents also have become helpless due to this political revenge.

26. At a Tribunal held on 3 March 2021 the applicant said that he came to Australia in 2012 as an illegal boat arrival. He was crew on the boat. The Australian authorities ie the Australian police did not charge him with any offence.  His brother was a crew member. His uncle was the skipper. His brother went back to Sri Lanka in 2012, after 4 months.  His uncle is still in Australia, he lives in Adelaide. The applicant is not in touch with him.

27. The applicant lives in Canberra. He does not work at the moment but he worked previously as [an Occupation 1]. It is partly due to Covid and his mental and health condition, as he is not able to concentrate at the [workplace], so he has taken time off work.  He decided to take the time off himself. He has no children. He is not married, he has a girlfriend who is in Sri Lanka. It has been 9 years since he saw his girlfriend.  He owns a property in Sri Lanka, it was a gift from his grandmother. He has his own business but because of COVID it could not continue. When he feels able, he works a day or two for another person.  He owns his own car.

1. Asked why he does not want to return to Sri Lanka, he said that it is a great risk to return, he wants to live. He fears harm from [Mr B], a parliamentarian, with whom he had a lot of problems before he left Sri Lanka and also the current Sri Lanka government.  He has been labelled a terrorist in Sri Lanka and he still has that label.  If he is returned to Sri Lanka, they can justify that he was involved in terrorist activities in the past and will put him in jail.

2. Asked what terrorist activities he was involved in, the applicant said that in his boat the majority passengers were Tamils. The Sri Lankan government considers that he illegally brought the LTTE to Australia.  The government believes this because he has brought a number of people in the boat who belong to another ethnicity and language and the government think it is an unusual thing and they consider it terrorist activity. He has no idea how many people who have come to Australia so far have returned to Sri Lanka.

3. I put to the applicant that he stated that he was just crew.  He agreed. I asked why people would report him to be a terrorist, he said he played an active leading role, talking to the passengers of the boat and in matters relating to management. He was actually considered the leading member, so that what the reason. Put that this was not what he told the Department.  He responded that all he can say is that he told the same story to the Department and he does not know how that was recorded.

4. Asked exactly what he did on the boat, he said that daily during the 12 hours daily ride he was talking to the passengers who were nervous and he calmed them down. They had limited amount of food and water so he prepared and distributed food and water.  Also, when they started the voyage, he set up a roof, he organised the toilet areas and give adequate protection for women. Asked whose boat it was, he said that he does not know. Asked who organised for him to go on the boat he said that it was his aunt who told him about the boat voyage. He was organised onto the boat by his uncle who presently lives in Australia. He wanted to leave the country whatever way possible, as he felt his life was not safe.

5. Asked if other passengers identified him as the captain of the boat, he said that his uncle was skipper of the boat, he is a quiet person, does not talk much and he does not get involved in management. The applicant was playing a leading role talking to the people. The passengers might have said that he was the real captain.  It was put has not been charged with any people smuggling offence, he said no. Put if he was the person captaining the boat and involved in terrorist activities, he would have been charged. He said that was one of the reasons that almost all people who came with him in the boat were released from detention. He was detained for almost 3 years and they were carefully going through his details.

6. Asked if he was paid money for coming on the boat, he said no. Asked who organised people onto the boat, he said that he does not know. He has no idea whatsoever.

7. Explained that PV does not protect those who have broken law in their own country and that people who are facilitators, organisers and skippers (captains of boats) may be convicted under Section 45c of Sri Lankan law and have received prison sentences of one year. DFAT states that 'the Sri Lankan government distinguishes between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling offences'.  

8. Put that if the authorities consider he was a facilitator he could receive a sentence of 12 months. It is not clear if crew are treated as facilitators. Sri Lanka has an operational judicial system in which the applicant could obtain a fair trial if it was unjustly claimed that he had facilitated or organised the boat. Sri Lankan Constitution provides for the right to a fair trial, and an independent judiciary generally enforced this right.

9. The applicant said that he did not play any role in facilitating or organising the trip and he only joined the trip and he only assisted the captain during the trip.  He said his only attention was to leave the country and only after he got into the boat and he was not aware he was going to take part in any activity. He got some training for 2 to 3 days after he got in the boat so that he could help.

10. Asked what happened to him in Sri Lanka, he said that he got into trouble because of his involvement in political activists in particular, [Mr B] the politician. He was actively organising political activities, he was canvassing organising political meetings, speaking to people and he created political enemies. Consequently, he was assaulted by political opponents.

11. The applicant was a member of UNP. He joined the party after he finished school joining in 2007/2008. Other members of his family were supporters of UNP.  His father was a very active member. The applicant has 2 brothers. The eldest brother is [Age 3] and the younger is [Age 4] years old. He is [Number] years younger. His brother is a fisherman and lives away and whenever he has free time, he goes home to their parents.  Most of his time he spends away on a boat. His wife and child live with his parents.  His youngest brother does casual jobs and lives at home with his parents.

12. All his family were supporters of UNP. His father was involved. His father was a strong active member of UNP, their house was burned down when he was a child. His father is now over 60 years. He does not work. Asked how the family support themselves he said that he does not know. he  thinks his brother does that.

13. Asked what he had to do to join the UNP, he said that it is difficult to explain in a few words, there are a variety of different activities and responsibilities. Campaigning activities, many other things.

14. Asked again how he became a member of the party, he said that one reason was his father’s active involvement in the party and the party identified him as an active member because of his organisational and speaking abilities. That was a reason he was encouraged to join the party. Asked if he had to do anything at all to join the party, he said that it is different to party membership in Australia you had to demonstrate your commitment and that you are really capable of taking part in party activities.

15. Asked for the activities that he did, he said that he was very active just before and during the before election campaign, he was campaigning, put up posters, cut outs and meeting with voters and trying to convince them to vote for the party.  Getting involved in campaigns and putting up posters, organising meetings are significant tasks and you need a lot of commitment and devotion of his time. Asked where the offices were he said that one was in Maraville and the other in Puttalam. These were regional headquarters. The headquarters were in Colombo. He said he did not really remember that much.

16. Asked if those putting up posters, meeting with voters, putting up cut outs and canvassing were required to be members of the party, he said it is difficult to say, everyone who got involved were party members and he was an active member. Asked if he had a position in the party in his branch, he said that as an active member he was involved in organisational activities of the party in his region. He answered to regional party leadership, [Mr I] [UNP Parliamentarian] and Hector Puhami.

17. Asked about the party hierarchy, and who was at the top of the party, he said that Kremasing was the leader. He said almost every village has a party cell or branch. Normally Sri Lanka tradition political activities mainly popup during election campaigns and party sets up village level sets or branches. Between elections there were not much activities when there were no elections. Still in the quieter period the members meet and discuss political activities. The village branch activities are reported to the local parliamentarian and they can bring up matters with party hierarchy.

18. There were not a fixed number of members in the branch, it varies, can be 10 to 50. There is no fixed number. The branch meets with influential party member parliamentarian at his house, the responsibility of establishing the office for branch is with the local representative at divisional council.

19. Asked about officers ie a person holding a position in the party in the branch and how many. The applicant said that usually this is a decision made by member of regional council who is an influential party member, he would decide if branch has 1 decision making members or few other members.  The applicant said he was an active member for 3 years. Asked if he had to pay to join, he said he that there was no membership fee and he did not have to renew membership every year.

20. Put that any person over 15 year may obtain membership of the UNP, and "should register in a branch at the electorate level". The only requirement to become a party member is to purchase a "membership token" that gives the individual membership to the party for a year. Party membership lapses after 12 months if not renewed. Tokens are purchased from local level party officials who often sell them "house to house". He said he is not familiar with what I said, he was an active member and did not have to do that

21. It was put that electorates are made of several branches at the ward level, where each branch covers a few election booths. Party members in a village or ward may form gatherings of at least 25 members to form a branch. Each branch has a committee of eight officers; those officers become delegates at the electorate level. There is no process to appoint leaders of branches, since leaders at the electorate level have "the discretion to select village level leadership to consolidate [their] power [and] authority within the electorate".  I put that he has no idea of the branches in the village and how the whole system works. The applicant responded that he does not know where the Tribunal got this information but at grassroots level the activities are different or how they functioned.

22. Asked about harm that occurred in him in Sri Lanka I asked when this first occurred. He responded that the incident in 2010 were not serious but serious was in 2011. Asked what happened in 2010 he said that prior to the major incident in 2011, there were arguments and a number of fights. He cannot remember the dates.

23. In 2010 he was subject to a number of assaults, at least 2 assaults.  He cannot remember dates. Asked to describe those assaults, he said that these occasions normally start with political opponents arguments and then there are fights.  It is not unusual in the Sri Lankan political arena. You get into arguments and have fights.

24. In 2010 he was injured twice. There were a lot of scars on his body. They were not serious injuries. He cannot recall what happened. It started with arguments and ended up in fights.  On some occasions he was alone and on some occasions some people were with him .

25. In 2011 it was a major incident he made up his mind he would not be safe in Sri Lanka any longer.  It was election day and after he finished election activities, he was on his way home. He was attacked by supporters of [Mr B]. Asked how he knew they were his supporters, he said that at the time of assault he could not identify who assaulted him, there was an eye witness and later he found out they were [Mr B]’s supporters. He was involved at election activities at the village school. He was going back to his home, he was walking on the walking path and near the bridge a vehicle with strangers stopped and they got out and assaulted him. They broke his [body part] and damaged his shoulder and teeth.  There were 5 – 6 people. Asked for any other injuries, he said there were minor injuries. There were a number of bruises and cuts, as they used knives, but they were not very serious injuries. The witness, was [Mr C] known as [Nickname 1]. He did not come to his aid. [Nickname 1] told him who was responsible for the injury after the incident. For about 6 months he was bedridden. [Nickname 1] was terrified to speak out, he found out from [Nickname 1] a number of months later. 

26. Asked if when he was in hospital the police came and spoke to him, he said that the day after he was admitted to the hospital the police came to see him. He could not even remember what the police said and he could not figure out what they were asking, he was not feeling well. Asked when he was feeling better if he spoke to the police, he said no because he did not want the same thing to happen to him again. 

27. Asked if [Nickname 1] told him who was responsible before or after he left hospital, he said that it was after he returned from hospital. He was in hospital for about 2 weeks and was unwell.  After 2 weeks, his father wanted to discharge him from hospital and get private treatment from a private hospital, [Name] Hospital. He was not really admitted but he was visiting regularly until his wounds were fully healed. He was discharged from [Town 3] hospital within hours and was then transferred to [City 1] hospital, which is bigger. He was in [City 1] hospital for about 2 weeks and he was taken home by his father. His father was not happy with [City 1] hospital so his father took him home and his father arranged for him to be treated via a private hospital, he stayed at home whilst being treated in the private hospital. 

28. [Nickname 1] told him that a group of people assault him and he fell on ground and they continued to assault him until they left. Asked how he found out who the people were responsible that said that during election day, he said it was a tense situation. [Mr B]’s strong supporters were intimidating people and abusing people and causing problems and that is why he believes [Mr B]’s supporter are responsible.  I put to him that he suspected it was [Mr B]’s supporters, and responded that he saw the followers of [Mr B] created problems during election day.

29. [Nickname 1] could identify the people who attacked him and said that the vehicle used by his attackers was the same vehicle used by [Mr B] for his election.  [Nickname 1] said the names were nicknames [Nickname 2], it is the only name he can remember. It is extremely difficult to figure them out. He gave him a number of names but he could not remember them all.

30. Asked why he did not go to police when he had the names, he said that he was scared to go to the police and make a statement against a powerful politician as he can get into trouble.  Asked if he reported it to the party organisation, he said that he did. Asked what they did about it, he said that they were very concerned and sympathetic and assisted him in many ways and gave him and his family protection. A few people almost everyday stayed at their home to ensure it did not happen again. He said that this happened until he could get out of bed. It was during the first month he got full protection and he could always call them. Asked why they did not report it to the police, he said that even the political party ie. the regional leaders, immediately after the incident, were reluctant to report to the police. This was because those that assaulted him had direct connections and they would not get impartiality. Later they reported the incident to the police. He does not have a complete record but he is confident they would not do that.

31. Asked if injured after that incident he said that in early 2012, April or  May, because he was not fully recovered, he went to his [workplace] to work, a few people entered the [workplace] and were trying to grab him. He knew his life was in danger so he escaped and ran away. It was the turning point in making his decision to leave the country.  

32. Asked about where he worked for the election in 2011, he said that he was working at [School 1] on election day. He stopped election activities in the late afternoon. The election was for Provincial Council. [Mr B]  was a candidate. The election was won by [Mr B]’s Party. Asked if they won that polling booth or if they won election over all for the provincial council, he said they won the whole election.

33. Asked him in that case why he was concerned about reporting to police. He said he did not report to police because of his knowledge and experience the way Sri Lankan police operate, things could get worse if he reported the incident. He had no confidence or trust in them.

34. I put to him that [Mr B] was not behind attack as he has no evidence of that because he has said he could not recognise people and [Nickname 1] only knew nicknames of people. It was also put that someone could have stolen [Mr B]’s car and attacked him and other people. He responded that it is like a dream and in Sri Lanka he cannot think about such a thing.  [Mr B] is so powerful and has such connections with influential people and no-one can challenge him. A group of people have no reason to attack, it is only possible it was motivated for political reasons. He said that he had at that time quite significant political differences with him and he has reasons and motivation to harm and attack him.

35. [Mr B] knew who he was and how influential the applicant was and clearly identified his abilities and because of his active campaigning [Mr B] was aware that he could win his supporters over.  Put that he has not indicated he has ever met [Mr B] personally. He said that he has very clearly indicated that he met with [Mr B] and his supporters, they had a heated argument and [Mr B] challenged him he would teach him a lesson.  That incident happened before the assault, it was at [a Hotel] in [City 1] before the incident of assault. A few police officers controlling traffic were able to disperse them.

36. Asked when this happened, the applicant said that it was before incident of assault, it was in 2010 or early 2011.  Asked him what he was doing in the hotel, he said they went there to have dinner. [Mr B] and his supporters entered the hotel. They were about to leave hotel after dinner and about to have a face to face meeting. [Mr B] was near the cashier, the applicant  accidentally brushed his shoulder. He gave the impression he was the one he was looking for said as [Mr B] said “you are the person I am looking for”  in a friendly chat. The traffic officers managed to disperse them.  The first thing he gave the impression to the applicant was that he was the one he was looking for. His violent character is known in the neighbourhood. He then said the words were said in a sarcastic way, it was not heated or threatening. He was giving the applicant a hint and the applicant thought it was a danger sign. The police came because [Mr B] was a provincial council member. Probably he gave him a clear signal to be silent and if he tried to continue his political activities he would have a problem.

37. The police came to the scene because at that time he was a provincial council member and very active with police. The culture is like that, the police would approach the politicians to show their respect and he would have used official vehicles and the police probably dropped in to pay their respect.

38. Post hearing the applicant’s adviser advised that ,

    “as adverted to at the commencement of the last hearing on 3 March 2021, on the evening before that hearing, 2 March 2021, the applicant discovered that his parents in Sri Lanka had been taken into police custody that night. Our client has instructed that there is a lawyer involved in Sri Lanka who went to the police station and had the parents released from custody, and we are currently attempting to obtain the police admission/release documents and a letter from the Sri Lanka lawyer to confirm what this was all about. We are still waiting to hear from the lawyer.

    Secondly, during the break in the hearing on 3 March 2021, we sought instructions from the applicant as to what visa his uncle currently holds in Australia. We had been surprised during the opening part of the hearing to hear that the uncle was living in Adelaide, which we had not previously known. Our subsequently obtained instructions are that the uncle is living in Australia on a protection visa. We were hoping that we would be able to get some further information from the uncle about this before the hearing reconvened; however our client is no longer close to his uncle and we have been unable to get anything about the uncle’s claim for protection. We therefore request that the Tribunal obtain a copy of uncle’s protection visa file through its own processes. The uncle’s full name is [Mr A].

1. At a hearing held on 8 July 2021, the applicant’s adviser requested that the Tribunal obtain the uncle’s file. I put to the applicant that I did not consider it relevant to the decision before me. The applicant was given additional time of 2 weeks post-hearing to provide any further information. I put the applicant that he could obtain any further information from his uncle or subpoena the file. This application has been on going since February 2017, and they have had ample time to address this issue. 

2. I noted that the applicant provided his mother’s telephone number on the Tribunal hearing form. I asked the applicant if he wished the Tribunal to call his mother. I drew to his attention that no statement or information had been provided by the applicant’s mother to the Tribunal,  as required by the President’s Direction other than a statement provided in 2017.

3. I asked the applicant if he feared harm for his religion, Catholic as no claims of harm had been made for his religion. He said Sri Lanka is Buddhist and there are issues regarding religion there. He said that there was no physical harm to him personally but he has had mental issues in Sri Lanka because of his religion. He said that people are all equal and there should not be any differentiation people behave differently and it affects him mentally. When he was small he was studying to be a pastor and he gave that up. He did not have problems with his dress or way he looked, but he had mental issues about how he feels. It is the inner being in him as to how it is seen. “We are all equal but people take religion too seriously”. I put again that he did not suffer any harm for his religion. He said he cannot show any mental stress. I put to the applicant that if he returned to Sri Lanka he would be able to attend mass. He said that he has lived in Australia more than 10 years and he does not go to mass now but he goes to an Anglican church. His family are still Catholic. Put if he went back to Sri Lanka he would be able to go to any church and practise his religion, as desired. He said there is no issue about going to a church in Sri Lanka but he needs to live properly. He will not suffer physical harm but mentally it will be stressful to get feedback from community.

4. I put to the applicant that by statement dated 24 January 2016, he said that in April 2010 he was at the [shop] at [City 1] to have dinner.  [Mr B] visited this shop with his entourage and the police. When he was coming out of the shop, he accidently bumped onto [Mr B] who reacted violently. The police were present at the scene and intervened and asked him to leave the shop. At the previous Tribunal hearing he had said that in 2010 or early 2011 he and a few friends went to [a Hotel] in [City 1] to have dinner. When they finished dinner as they were leaving, he accidentally brushed against [Mr B], who was near the cashier who said to him “you are the person I am looking for”  in a friendly chat. The traffic officers came in and managed to disperse them. The words were said in a sarcastic way, it was not heated nor threatening. I put to the applicant that his evidence was inconsistent ie. it was inconsistent as to location of the incident, and [Mr B]’s reaction.  

5. The applicant responded that he described what happened to him and what is recorded. He indicated that the spelling was different. He said the hotel is referred to as an eatery or shop. In regard to the police he said that he cannot accept that, he has always said the police came later. He then asked if there was any place that he had said that. I indicated it was in his declaration dated 24 January. He responded that he did not say that as at that time his English was not as good and he did not have an interpreter. What [Mr B] said was a warning.

6. I put to the applicant that at the previous hearing when asked where the headquarters of UNP were, he said in Colombo. Independent evidence before the Tribunal[1] the party headquarters is located in the city of Pitakotte [Pita Kotte], near Colombo. Pita Kotte is a city located in Sri Lanka - some 8 km South-East of Colombo[2].  The applicant responded that Pittakotte is a suburb of Colombo.  

   [1]

   [2]

7. I asked the applicant to confirm the injuries he had suffered when he was hospitalised on one occasion. He said he suffered [body part] injuries and one injury near his shoulder and he lost 4 teeth.

8. I explained to the applicant that there were documents in Department file, untranslated, if he wished the Tribunal to take them into consideration then he should provide a translation.  

9. I put to the applicant that he had told the Department initially at IMA Entry Interview dated 10.10 2012 that he was hospitalised in October 2010 for 4 weeks after the attack by government party supporters and it took him 6 months to walk again. At the Tribunal hearing he had said he was hospitalised in 2011 after the election and he was attacked by [Mr B]’s supporters and hospitalised for 2 weeks. I put that this evidence was inconsistent. He said that if he has given some information at entry interview he feels it was recorded incorrectly.

10. I put to the applicant that he said in his statement dated January 2016 that due to political pressures from [Mr B] he was prematurely discharged from the government hospital, thereafter he was forced to seek treatment in an expensive private hospital. At the previous Tribunal hearing he said that after 2 weeks in hospital his father wanted to discharge him from hospital and get private treatment from a private hospital, [Name] Hospital. His father was not happy with [City 1] hospital so his father took him home and his father arranged for him to be treated via a private hospital. He stayed at home whilst being treated in the private hospital, attending that hospital regularly until his wounds were fully healed.  He responded that when he was in hospital there was an element of risk, his father as a protective measure took him out of the hospital for private treatment. He knows that he was attacked by [Mr B]’s people and his father knew that. He was bedridden in hospital and his father was concerned and worried and took him out.

11. I put to the applicant that it is recorded in his arrival interview that he confirmed that his uncle and his brother were driving the boat. He  also stated that he did not know how to drive the boat. By statement dated January 2016 he stated that he assisted his uncle in navigation of the boat. I put that his evidence was inconsistent. The applicant responded that he did not say that to Department. He said that he was [an Occupation 1] in Sri Lanka and had not driven a boat before, but after 2 days he had to take the wheel and he was hanging onto the wheel. As they got closer to [Island 2] there was confusion and he suggested they go to [Island 1].    

12. I put the applicant that by statement dated  January 2016 he said that he undertook maintenance of sanitation and food supply in the boat, cooked food for the passengers, maintained the toilets in the boat and helped the passengers overcome sea sickness by bathing them. I put that at the Tribunal hearing he said that he played an active leading role on the boat, talking to passengers and in matters relating to management. He was actually considered the leading member. I put that this information was inconsistent as he has not, until the Tribunal hearing, claimed to responsible for matters relating to management on the boat nor that he was considered the leading member. He responded that he never said he did maintenance to look after toilets. He said his job was in regard to operation of the wheel. Asked who did the food supply or hygiene he said that there was a separate person who managed food supply and sanitation. They were on boat for 23 days and he helped people with various matters. He  helped erect a room and set up the ladies toilet.   

13. I put that the information in that data breach was accessed 123 times[3], via IP addresses, and did not disclose if detainees had made any protection claims or include current or former addresses, phone numbers, contact information, or health information. There was nothing in the data breach that would not be known to the Sri Lankan authorities. That is, that he was in community detention because he arrived as an irregular maritime arrival.

    [3] SZSSJ v MIBP FCAFC 2015

14. Asked if he had specific concerns due to the data breach the applicant said that he has major issue as from time they came to Australia Immigration said it would not be divulged and “we do not know what was disclosed”. He disagreed that his contact number was not divulged. 

15. As I put to him, even if this data breach had not happened, I would have accepted that he would be able to be identified as a failed asylum-seeker when he goes back to Sri Lanka because he will be returning involuntarily from Australia. People who return involuntarily are processed at the airport by various Sri Lankan Government departments. He responded that the issue arises if he is involuntarily returned, he said he does not want to go back and he will commit suicide rather than go back. It is bad enough and he has been here for 9 years.

16. Asked what he fears about returning to Sri Lanka he said that he does not want to go back to be killed by various people harming him.

17. I put that political parties in Sri Lanka are allowed to operate as they wish and report that on election date there are incidents, but not a great many incidents. Further office holders, members etc put up flyers and hand out leaflets all over the country. There is no evidence to suggest this is different for any ethnic group and no widespread systematic attacks against opposition parties. There are attacks on specific individuals.  I put that even if he returned to Sri Lanka there is no evidence to suggest he would be targeted merely because he is a supporter of UNP. He said that for example there is in recent times Silver shot a UNP member has now been pardoned and released. A UNP Member is now in prison. These are all people in high places and if  public figures can be treated like that, he is an ordinary person.

18. I put that there is no evidence than other than his illegal departure that he has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him. He responded that he did not have any issue at that time but now there is, he has brought 90 people into Australia and he is treated as a terrorist. It is not on autopilot, there is himself, his brother and uncle who had to steer the boat to come to Australia. It was 111 people who came to Australia. Asked if he made arrangements with people smugglers, he said that he did not have anything to do with that. He said until he got in the boat, he did not know he was a crew member. He did not pay any money to get on the boat. Asked if he owes any money for the trip to Australia, he said that he did not have to pay money he was going to contribute to the work. That was the arrangement he had with his uncle. The people who gave the boat to his uncle told him to get people to help him on his journey to Australia.

19. I asked the applicant to confirm when he was in Sri Lanka, he did not have any outstanding criminal matters with the police. The applicant confirmed he has not been  arrested, taken in for questioning or monitored by Sri Lankan authorities.  I put it to him that there was no evidence that he would be considered as being a terrorist on his return. He said that he managed the boat as a crew person. He said the other parties did not know he was part of the group.

20. I explained to the applicant that if he returned, he would be questioned and possibly charged with illegal departure. I outlined the information regarding the treatment of returnees, that Sri Lanka returnees are questioned at the airport and where illegal departure is suspected police at the airport make an arrest, and then responsibility for the detainee is taken over by the courts. Passengers are usually charged and released on bail if they plead not guilty and fined if they plead guilty.

21. A guilty plea will attract a fine to be paid in one sum or by instalments and the defendant is free to go. The fine for a first offence is equivalent to AUD25. If the returnee pleads not guilty, he or she is released on their own guarantee or guarantee by a family member. Sometimes a charged person is required to report until finalisation. The Sri Lankan Attorney General's Department has advised that no mere passenger has ever been given a custodial sentence, however fines are issued to deter people from leaving illegally.

22. The applicant responded that if he is sent back the issue is not paying the fine. Once the matter cools down the relevant people will know that he is back.  Asked who the relevant people were, he said that it is [Mr B] who is an MP who can do anything and get away with it. He came here not to earn money but to protect his life.

23. Put that he has stated can pay a fine and he does not fear harm from authorities for illegal departure or crew ship and not issue of a fine. His main issue is the threat to his life by [Mr B].  Asked why [Mr B], who is an MP, would continue to pursue him. He said that he is such a person that put him in hospital, and he knows what will happen.

24. I asked about the drug offences that his brother was charged with and what sort of punishment he received. He said that this occurred on a number of times and drugs were planted in his vehicle. As he is over here, they realise he has some resources to help his brother. He is working as a fisherman. He is at sea all the time. The applicant sends money to his mother from Australia, his brother supports himself and his family.  

25. The applicant’s mother gave evidence from Sri Lanka. She said that she can explain what happened to her son. She has 3 children. [The applicant], [Mr H] and [Mr J]. Two live with her and work in the sea. They are both away at sea now. [Mr H] has one [child]. [The applicant] and [Mr H] left in 2012 to go to Australia. They went with her sister’s husband. They went because they had a lot of problems in 2010 in [City 1], they had a problem with [Mr B]. She is speaking with some fear at the moment, [Mr B] was threatening her son. Asked if both sons went to have dinner. She said that on that occasion it was [the applicant] only.  

26. On 2^nd occasion, after 2011 elections, her husband was not very active and her son was very active and working for the party in 2011. [Mr H] was not connected to the party so much but he was taken away as they were scared. While on the road some people of [Mr B] attacked him. She was at home and was told, so that she and her husband ran to the road. They saw their son who could not speak and they put him in the vehicle and took him to [Town 3] hospital and then took him to [City 1] hospital. She was there too with her husband. Her son was in hospital for a considerable period of time about 18-20 days. He was taken out before discharge by doctors as they were afraid of keeping him there in hospital. [Mr B] was close to the hospital and they gave their son private medical assistance. He was unable to work for 1 year at home, he could not do a job and he was walking with crutches.  He was at home for a year and she was looking after him.

27. Asked why he left in 2012 she said he was afraid of his life. He left because he was afraid of his life as various things happened. [Mr H] left with [the applicant] and nothing happened to him. [The applicant] took [Mr H] because they feared these issues would turn. I put to her that he left because he wanted to work and earn money. She said no when [the applicant] left things would turn towards [Mr H]. Put that he did nothing wrong. She responded that is how things can be in Sri Lanka. He also had some legal problems also. [Mr H] was taken a number of times when he is back, police took him away 2 times and 3^rd time he was charged and put in prison for 6 months in 2014. Asked why he came back from Australia she said that his wife was pregnant and her condition was bad so he returned back to Sri Lanka. He is out on the boats most of the time as the fishing trip takes 1.5 months. She is supported by her husband.  [Mr J] is at home and he helps them. [Mr H] is not at home, he lived in the same compound but not in the same house.

28. When [Mr H] is back from trips he stays in main house and when he leaves his family goes to his home and his wife goes to her father. He has a newly built house. Put he is able to earn an income since coming back from Australia. He has only had a problem with police in 2014 over drug charges. Put [Mr B] is not interested in harming their son [Mr H].  She agreed but it said she was very fearful he would have problems and he is at sea and has no issue.

29. Put UNP only got one seat in parliament in last election. Asked what has happened to UNP members, she said that she does not know. Asked why [Mr B] would be interested in anyone who is member of UNP, she said that is his characteristics, he is politically active.  Put he is aggressive to those people who do not do what he wants politically. He is angry with all those active party members. Put does not appear to be anyone left.

30. Asked if anything happened to her in past 12 years, she said we are not active in politics but those will happen if active. Asked if she has ever been arrested or detained by police, she said that it was a month before last, they were taken by police and through a lawyer they got out. She said that they do not know why they were taken away, they were let out. When they were in the town they did not have their ID cards so they were taken away. Asked if there were any requirements by Sri Lankan authorities during COVID she said that there is a requirement that they wear masks, it was not the case at that time. She said the lawyers do not explain things. She does not have to go back to the police or the court. There is no such requirement.

31. When her son came home from hospital he was suffering from his [body part], it had broken bones, he was on crutches. He could not walk properly for about 10 months as his bones were hurting. Even now he has a limp. He did not go to work for about a year. He was at home with her and her husband. When he got better, he went to work in his shop, it was in [Town 2]. He worked there about 1.5 years. He was working for somebody else. It is the next village. He went back to work in the same shop, he worked there until the incident that happened. Then he stayed at home. There was an incident that occurred when he was at the shop and he had to flee and go into hiding.  This incident occurred at the shop at [Town 2].

32. The adviser asked the applicant’s mother how many incidents there were of [the applicant] being attacked in Sri Lanka, she said that the main incident happened to him. The adviser asked again if there were 3 incidents described today, she said that one in [Town 2] Road incident and when he returned to the shop . She said a number of people were attacking her son on the road. The other party were afraid of other people, they were [Mr B]’s associates.   

33. There was this incident with [Mr B]. Asked how she knew who the people were, she said ‘we know it was his people, my son had seen the people’. It was put to her this was not from her own knowledge. She did not personally see the people who attacked her son.

34. I put to the applicant that in his PV he stated he worked for [Workplace 2] and the information now is that it is not the same [workplace]. He responded that he was actually having partnership with guy and they ran another [workplace]. He said that he moved around from place to place and that is how he lived.

100.   Asked why [Mr B], who is an MP, would continue to pursue him. He said that he is such a person that put him in hospital, and he knows what will happen.

101.   I put that [Mr B] does not pursue little people. He said that he is not such a minor activist. He has certain groups of people supporting him and the power he can wield in terms of politics. When he was in Sri Lanka, he was a person who did not agree with his politics and was opposing him so much and he always considered him as a credible person.

102.   The applicant then stated that he wished to highlight that he is bisexual person and it is totally accepted is Australia. Asked if he notified his advisers, he said that he had not even told his advisor before.  Asked what he feared about returning to Sri Lanka, he said it is not a major issue and in Sri Lanka he is ashamed of it.  Asked if he will suffer any harm in Sri Lanka for his bisexuality, he said that there have been small incidents in Sri Lanka but here it is more open. Asked when he found out he was bisexual he said it was when it was small. Asked if there were any incidents that occurred, he said that it is very confidential and a private matter and not disclosed here. Asked if he had a partner, he said that he has now gone to Sydney. He is no longer in that relationship.  He does not have any long-term relationship, but he has friends.

While I was sleeping at my home  alone at 0400 in the morning on 13.12.2017, I heard the noice of people talking in a vehicle. As I do not have any houses near my house, I was suspicious and thought someone was approaching my house. I heard someone telling [Mr H], come outside, we came to kill you. I am the only person at home at the time. My husband and children had gone to work. I turned all the lights on around our home. I heard someone was running away from our home. I did not see that person. I heard the noice of three to four vehicles in a distance of 300 meters from my home. I am scared that someone will harm my two sons.

103.   A post hearing s.424A letter, dated 5 July 2021 and reissued on 3 August 2021 [as reissued due to typographical error] was sent to the applicant stating:

·     At the Tribunal hearing held on 8 July 2021 the Tribunal put to you that at your entry interview on 10 October 2012 you advised that you were hospitalised in October 2010 for 4 weeks after an attack by government supporters whereas at the Tribunal hearing held on 4 March 2021 you advised that you were hospitalised in March 2011 after an attack by [Mr B]’s supporters

·     At the Tribunal hearing held on 8 July 2021 the Tribunal put to you that at your entry interview on 10 October 2012 you advised that your uncle and brother were driving the boat. You stated that you did not know how to drive the boat. By statement dated 14 January 2016 [also dated 25 June 2015] you stated that you assisted your uncle in navigation of the boat.

·     At the Tribunal hearing held on 8 July 2021 your mother gave evidence to the Tribunal and said that after the claimed attack in March 2011 you remained at home for about 12 months because of your injuries. You had been on crutches for injuries to your [body part]. You lived at home. In a statement made on 14 January 2016 [also dated 25 June 2015] you stated that after you recovered, you were moving around to avoid the threats of [Mr B]. You moved to [Location 1], [Location 2], [Location 3].

This information is relevant to the review because it is inconsistent. If we rely on this information in making our decision, we may find that you have not been truthful and may affirm the decision under review.

104.   The applicant provided the following information with a post hearing submission, on 3 August 2021

§Chaminda Jayasinghe Research Paper ‘The Law Enforcement Process Pertaining to Returnees from Australia’

§Qualifications of Chaminda Jayasinghe

§Immigrants and Emigrants (Amendment) Act No 31 of 2006

§SBS Australia Dangerously Close to the Abuse of Fleeing Sri Lankans

105.   The applicant provided the following post hearing submission, on 3 August 2021.

In regard to the Tribunal putting to the applicant that at his entry interview on 10 October 2012, he advised that he was hospitalised in October 2010 for 4 weeks after an attack by government supports whereas at the Tribunal hearing held on 4 March 2021, he advised that he was hospitalised in March 2011 after an attack by [Mr B]’s supporters by referring to page 10 of the applicant’s entry interview, it is clear there were two separate occasions where he was attacked by [Mr B]’s supporters. When asked “How did this affect you on a day-today basis?”, he responded that he was “beaten up twice” and hospitalised once. Indeed, whilst the first occasion was in October 2010, the second occasion took place in March 2011. It is possible that due to mental and emotional stress, including sleep deprivation for 23 days of travel by boat to Australia, the applicant may have confused the two dates as to when he was hospitalised.

However, the medical report dated 18 June 2015 by [Dr L] highlights the following injuries:

• Stabbed in his head with a metal sheet;
• Broken teeth as a result of assault on his face with a pistol
• Wound in his face which required stitches
• Deep knife stab in his back
• Broken bones with large wounds as a result of assaulting with an iron bar.

[Dr L] confirmed in his report that the applicant’s injuries were treated, and the applicant was a resident patient from the 18 March 2011 to the 30 March 2011 and was later treated as a clinic patient.

The above information is consistent with the evidence given by the applicant’s mother where he had mentioned that the witness, [Mr C], told her and her husband that the applicant was being attacked by a group of people on the road. She then rushed to find her son lying on the road. She took the applicant to the hospital where he was admitted for about 18 to 20 days before he was prematurely discharged and treated at a private facility for the injuries he sustained during the attack.

In regard to the role that the applicant performed on the boat from Sri Lanka to Australia, the key issue relates to the fact that he provided conflicting recounts on 10 October 2012 and 27 January 2016. In the former instance, he explained that he did not know how to steer a boat and that his uncle and brother did all the driving. Given that they do not have access to the statement provided on the 27 January 2016, it is difficult to consider whether there was a contradiction in what the applicant put forward on the two separate occasions. However, in paragraph 14 of the statement provided on the 25 June 2015, the applicant stated that he assisted his uncle in navigation of the boat when the uncle was tired, among other assistance, such as, maintenance of sanitation and food supply. Although this does seem to contradict his statement on 10 October 2012, we submit that this confusion is largely due to the mental and emotional stress that the applicant was faced with during his travel between Sri Lanka and Australia. After a considerable period of time travelling at sea, his mental state was unstable, thus he answered with the first thing that came to his mind when questioned, as mentioned within his entry interview in October 2012.  We submit that the account that he gave on 25 June 2015 gave him further time to collect his thoughts and stabilise his mental condition – an opportunity not afforded to him during his initial interview in October 2012.

In regard to the conflicting evidence provided by the applicant’s mother during the Tribunal hearing on 8 July 2021 and the applicant’s statement dated 24 January 2016 the adviser did not have a copy of the statement dated 24 January 2016 and are unable to comment on what was stipulated in this statement to provide further clarification.

In relation to the mother’s evidence, she submitted the applicant was ill and unable to work for about a year after the March 2011 attack. She further submitted that he was at home, and she was looking after the applicant during his recovery period from injuries sustained during the attack.  Due to the poor translation and interpretation, it is possible she may have misunderstood the meaning of “at home”, and that she in fact meant the applicant was “in her care” during the time he was recovering from his injuries. After the applicant relatively recovered from his injuries, he attempted to resume employment at a [workplace] where he was a partner. During one of his visits to the [workplace], an incident took place where the applicant was about to be attacked, potentially from the same group of people that attacked him in March 2011. He then fled and sought refuge at the neighbouring house before he left to return home. The applicant maintains his submission that he was moving around after he recovered to live with his relatives in different parts of the town, in order to avoid threats from [Mr B].

There are number of documents relied upon by the applicant that were translated but was not before the decision maker. These documents were provided to the Tribunal via email on 1st of March 2021.

These later translated documents were part of the Department File, however, have not been translated prior to 1 March 2021. The translated documents included.

1. Information Book of [City 1] Police station Entry Book extract of [Ms L] (mother of the applicant) dated 13th December 2017 provided at [City 1] Police Station. States that an incident has occurred on 13 December 2017 where she heard a group of people threatening to kill her family members. This incident was immediately reported to the Police.

2. Cash Receipt- [Number] for copying fees for [Number] (Police Information Book Entry)

3. Statement of [Mr N], Member of Provincial Council, North-western Province dated 1 April 2018. States the applicant is well known to him in the field of politics and engaged as a member of the United Nations Party (UNP). Acknowledges the harassment received as a result of being an active member of the party.

4. Statement of [Mr C] dated 29 March 2016, a friend of the applicant states as an eyewitness of the incident that occurred on 18 March 2011 where the applicant was assaulted with weapons by a group of unidentified people. In fear of his safety, he has decided to hide and observe the attack and later conveyed the incident to applicant’s parents.

5. Statement of [Dr L] dated 18th of June 2015, medical superintendent of
[Hospital], [City 1] states that the applicant was admitted to [City 1] Hospital on 18 March 2011. The applicant had wound and was treated as a resident patient until 30 March 2011.

6. Statement of [Mr H], applicant’s brother undated that states his version of events including that his version of events of the boat journey, treatment he received by the Sri Lanka authorities, detailed events of torture he was subject to, and his general fear of life as a result of his involvement with the applicant.

7. Statement [Dr. L] dated 18 June 2015, medical superintendent of
[Hospital], [City 1] states that applicant was admitted to the [City 1] Hospital on 18 March 2011 with serious injuries.

i. Stabbed in his head with a metal sheet;

ii. Broken teeth as a result of assault on his face with a pistol;

iii. Wound in his face which required stiches;

iv. Deep knife stab in his back; and

v. Broken bone with large wound as a result of assaulting with an iron bar.

6. INCONSISTENCIES OF STATEMENTS DATES
a. We note the Tribunal Member has referred to two statements by the applicant during

the proceedings.

i. Statement dated 27th of January 2016; and

ii. Statement dated 24th of January 2016.

We do not have copies of these statements.

b. We note that we are in receipt of below statements made by the applicant.

i. Statement dated 25th of June 2015; and

ii. Statement dated 14th of January 2016

c. We note our first request to the Tribunal to obtain a copy of the Tribunal file was made

on 19th of November 2020, 3rd of December 2020, and 11th of January 2021. We sought

a copy of the material kept by the Tribunal. We then received material from the Tribunal

via electronically. It appears to us that there are inconsistencies between the material relied upon by the member and us.

REASONS AND FINDINGS

REASONS AND FINDINGS

106.   As a copy of the applicant’s passport, issued [in] 2010 expiring [in] 2020, was provided to the Department, therefore, as the Department has accepted this copy passport as evidence of the applicant’s identity, I therefore accept that the applicant is a national of Sri Lanka and is not a national or citizen of any other country or has a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Sri Lanka is the applicant's “receiving country” for the purposes of s.36(2)(aa).

107.   I have before me the Department's file relating to the applicant. A copy of the delegate’s written decision record was submitted to the Tribunal by the applicant with his review application. At the Tribunal hearing on 8 July 2021 I brought to the applicant’s attention that there were some documents in the Department file that had not been translated. The applicant provided to the Tribunal a number of Sri Lankan documents, with translations, that appear to be identical to the untranslated documents in the Department file.

108.   I note that in a response to the Tribunal’s s.424A correspondence, sent on 8 July 2021, the applicant’s advisor drew to the Tribunal’s attention dates of statutory declarations made by the applicant. The s.424A letter sent by the Tribunal had inadvertently provided incorrect dates of the applicant’s statutory declarations. The Tribunal sent another s.424A letter to the applicant, correcting the dates of the statutory declarations. No further submission was received from the applicant after the 2^nd s.424A letter was sent, with the corrected dates of the applicant’s statutory declarations.

109.   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

110.   There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.

111.   I accept that there is need for caution when assessing entry interviews. The applicant had only recently arrived in Australia and it is well known there are pressure and stress that comes from such a boat journey. I accept that vagueness or inconsistencies in recounting peripheral details should not impugn an applicant’s credibility. I accept that applicants can and do come from regimes where authority figures may be viewed with some fear and mistrust. I accept that there may be inconsistencies caused by interpreting problems, mistrust of authority, cultural differences, fear etc.  I accept that the time that has passed from the arrival interview, the protection visa interview and the Tribunal hearings, and should be considered. I am mindful of National Legislative Bodies/ National Authorities, Australia: Guidance on the Assessment of Credibility for Tribunal Members and various international publications on this issue. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

112.   The Sri Lankan Civil War started in 1983 and formally ended in 2009 with the Sri Lankan Army defeating the separatist Liberation Tigers of Tamil Eelam (LTTE). The applicant claims membership of United National Party, [UNP]. Most of its popular members quit UNP  before the 2020 elections and contested under a different party known as the Samagi Jana Balawegaya or United Peoples' Front (SJB), returning 54 members to the new parliament.

113.   Political parties in Sri Lanka are largely free to operate as they wish. This applies to representatives, office holders, members and general supporters or volunteers, including people putting up fliers or handing out leaflets. There is no evidence to suggest this differs between Sinhalese, Tamil, Muslim or other representatives, office holders, members, supporters or volunteers of the various parties. There are no widespread or systematic attacks against opposition political activities. However, attacks against specific individuals are frequently reported by credible sources.

114.   Recent COISS information states there are no banned political parties in Sri Lanka and serious incidents of inter-party violence are rare. While there were a number of electoral law violations and other incidents, during both the August 2020 parliamentary elections and November 2019 presidential polls, independent observers state that there were fewer than in previous elections. Country information suggests that while elections in Sri Lanka have not been marred by large­ scale violence or rigging; they have not always been described as entirely free and fair[4]. There were twenty-nine incidents of pre-election violence in Puttalam District before the 2010 general election, of which 26 are attributed to the UPFA as perpetrators[5].

[4] DFAT Country lnformation Report - Sri Lanka", Department of Foreign Affairs and Trade, 18 December 2015.

[5] Final Report on Election Related Violence and Malpractices. Parliamentary General Elect ion - 2010. 8th April 2010 ", Centre for Policy Alternatives, 01 October 2010

115.   The UNP in 2020 suffered maximum set back[6]. Delayed by the COVID-19 pandemic, 2020 parliamentary elections resulted in a landslide victory of the Sri Lanka Podujana Peramuna led by Mahinda Rajapaksa gaining 59.09% of the votes, securing 145 seats in parliament and the SJB gaining 23.90% votes and 54 seats. The UNP suffering its worst defeat in its history, receiving a total of 249,435 votes, which was 2.15% of votes cast. For the first time in its history, it failed to win a single seat in parliament, having only gained one national list seat.  Ranil Wickremesinghe indicated his willingness to step down from the position.

[6]  The applicant claims that as a UNP member he was attacked and harmed by a politician [Mr B] and his supporters. As a consequence, he fled Sri Lanka, by boat, on a boat skipped by his uncle. Since arrival in Australia he initially claimed he was just helping his uncle, the skipper of the boat and later he claimed to have been a facilitator on the boat trip.

117.   I accept that [Mr B] is a politician and a member of the Parliament of Sri Lanka. He was elected from [named electoral district] in 2015.He is a Member of the United People's Freedom Alliance. Previously he was a [Provincial Councillor]. [Mr A] had been arrested several times for assaults of political opponents. In [Year 2] he and [another person], [Mr O], assaulted and obstructed [a then Divisional Secretary] and in [Year 3], during the presidential election, he and his supporters attacked an office of the candidate [Mr P] and assaulted his supporters. On [Date 2][7] he was charged and granted bail for a [Year 4] incident where it was alleged that he hurled a bomb at the police and on [Date 3][8] he and his brother were arrested, and released on bail, for assaulting [a] Divisional Secretary when he was inspecting a [building] in 2007.

[19]

Between 2010-11 and 2018-19, 3716 Sri Lankan nationals returned from Australia to Sri Lanka or a third country. Many others returned from the US, Canada, the UK and other European countries. Returnees to Sri Lanka arrive at Colombo’s Bandaranaike International Airport – currently the only location for returns.

Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department, and – at times – the Terrorism Investigation Division process returnees at the airport. These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. Where there are outstanding criminal warrants, criminal procedures will apply.

A May 2021 UK Upper Tribunal decision found that additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on the stop or watch electronic databases (see below for more information).  Prior to the return of an individual travelling on a temporary travel document, Sri Lankan authorities are likely to have obtained information on matters including whether the individual is associated with a particular diaspora organisation; whether they have attended meetings and/or demonstrations and the nature of their involvement in these events; any social media presence they might have; and whether they have been involved in any political lobbying. In keeping with this, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including through the use of ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. Those who appear on this list will reportedly be detained at the airport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.

According to the UK Upper Tribunal, returnees who appear on this list will fall into one of two categories: those who, because of their existing profile, are deemed to be of sufficiently strong interest to warrant detention once they return to their home area or place of resettlement; and those who are of interest, but not at a level sufficient to justify detention at that point in time. This latter group will be monitored.

Individuals with LTTE links will likely face further questioning, although sources indicate this would depend on the case. For example, the UNHCR told a January 2020 UK Home Office fact finding mission that high-profile ex-LTTE members would be subjected to additional questioning but may not be detained, although the Attorney General’s Department and the CID says former LTTE cadres would only be of interest if there was a pending criminal case against them and that mere membership of the LTTE would not make someone of interest – a point also confirmed by an NGO.

Processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. The International Organization for Migration (IOM) meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance.

If the returnee is suspected of departing illegally, they can be charged under Sri Lanka’s Immigrants and Emigrants Act (I&E Act). Arrests are made by the Police Airport Criminal Investigations Unit. Arrested individuals can remain in custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival (up to two days in the event that a magistrate is not available to hear their case, such as on a weekend or public holiday) before they are presented at the Negombo Magistrate’s Court, after which they are placed in the custody of the courts or prison services. The magistrate makes a determination on the next steps for each individual; facilitators or organisers of people smuggling ventures, including the captain and crew of the boat, are usually held in custody, but bail is normally granted to fare-paying passengers.

Facilitators or organisers of people smuggling ventures convicted under the I&E Act normally receive prison sentences of between one and three years depending on the extent of their involvement, with sentences usually closer to three years. Fare-paying passengers receive a fine varying from LKR 3,000 (approximately AUD25) to LKR200,000 (approximately AUD1,633), although fines of between LKR15,000 and LKR20,000 (approximately AUD122 and AUD163) are typical.

Most returnees continue to be Tamil.  While the UK Upper Tribunal found that returnees whose details do not appear on the stop or watch databases will in general be able to return home without any further action by Sri Lankan authorities, upon the completion of immigration procedures it is (as stated above) not unusual for returnees – especially those with a former LTTE connection – to experience further checks at home, although the period of monitoring can vary. Many Tamil returnees choose to return to the north due to family links or because it is their place of origin, or because of the relatively lower cost of living.  Failed asylum seekers receive limited reintegration assistance, and credible sources state that returnees may face financial difficulties reintegrating into their communities, due to the sale of their belongings to fund their passage overseas. However, societal discrimination is not considered to be a major concern.

1. The UK Home Office found that the processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. Detailed reporting included photographs of the airport receiving facilities. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the persons local police and there is no central police database.

172.   I outlined to the applicant the information in the UK report regarding the treatment of returnees. Sri Lanka returnees are questioned at the airport and where illegal departure is suspected under the I & E Act police at the airport make an arrest, take photographs and fingerprints, and at the earliest opportunity take the detainee to the closest Magistrate's Court and then responsibility for the detainee is taken over by the courts. Passengers are usually charged and released on bail if they plead not guilty and fined if they plead guilty.

173.   DFAT[20] states that for returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

[20] DFAT Country Information Report Sri Lanka November 2019

174.   A guilty plea will attract a fine to be paid in one sum or by instalments and the defendant is free to go. The fine for a first offence is equivalent to AUD25. If the returnee pleads not guilty, he or she is released on their own guarantee or guarantee by a family member. Sometimes a charged person is required to report until finalisation. The Sri Lankan Attorney General's Department has advised that no mere passenger has ever been given a custodial sentence, however fines are issued to deter people from leaving illegally.

175.   Generally, the amount of time in detention is very short, that is, up to 24 hours and occasionally up to 2 days. There is no country information indicating that detention at the airport or Magistrate's Court would be harmful.

176.   I put to the applicant that if he returned, he would be questioned and possibly charged with illegal departure. He will be held at the airport until he is conveyed to the local Magistrate's Court where he will be held until he comes before a magistrate. This is either within 24 hours or at the most 2 days. There is no evidence that detainees are subject to mistreatment during such detention. As the evidence indicates he has a supportive family, I consider he will have no difficulty in being released on bail either on his own or his family members' guarantee. I note the applicant has been working in Australia and would be able to pay the fines or bail.

177.   I accept that the applicant may be charged with an offence under the I & E Act as the evidence is that he left Sri Lanka in breach of the provisions of the Act. As set out in the delegate's decision record, the  Department inadvertently published  a document on its website that tabulated details regarding several people in immigration detention on 31 January 2014. This included their names, nationalities, dates of birth and means of arrival in Australia but did not disclose reasons for detention, protection claims, nor did it include current or former address, phone number or contact details.

178.   The Department notified the applicant of the data breach and the applicant's then representative responded in writing, arguing in summary as follows:

I note the 'data breach' occurred when information regarding persons in immigration detention in Australia as at 31 January 2014 was accessible online for a short period of time, before the Department removed the information from its website. This included personal details about the applicant. I accept that the data breach may have resulted in the Sri Lankan authorities and others becoming aware that the applicant was in migration detention in January 2014 and some may assume he had sought protection in Australia.

179.   In a statement dated 25 June 2015 [also dated 14 January 2016] the applicant acknowledged the data breach stating that the data breach was discovered by the journalists of the Guardian Newspaper. He said “I fear that my data may have been accessed by the Sri Lankan intelligence”. I put that the information in that data breach was accessed 123 times[21], via IP addresses, and did not disclose if detainees had made any protection claims or include current or former addresses, phone numbers, contact information, or health information. There was nothing in the data breach that would not be known to the Sri Lankan authorities. That is, that he was in community detention because he arrived as an irregular maritime arrival. 

[21] SZSSJ v MIBP FCAFC 2015

180.   At hearing when asked if he had specific concerns due to the data breach, the applicant said that he has major issues as from the time they came to Australia, Immigration said it would not be divulged and “we do not know what was disclosed”. He disagreed that his contact number was not divulged.  As I put to him, even if this data breach had not happened, I would have accepted that he would be able to be identified as a failed asylum-seeker when he goes back to Sri Lanka because he will be returning involuntarily from Australia. People who return involuntarily are processed at the airport by various Sri Lankan Government departments. He responded that the issue arises if he is involuntarily returned, he said he does not want to go back and he will commit suicide rather than go back. It is bad enough and he has been here for 9 years.

181.   I accept that the applicant has been in Australia for 9 years and that he does not want to return to Sri Lanka. I accept that the data breach may have resulted in the Sri Lankan authorities and others becoming aware that the applicant was in migration detention and some may assume he had sought protection in Australia.

182.   I am satisfied that there was nothing in the data breach that would not be known to the Sri Lankan authorities should the applicant be removed from Australia to Sri Lanka in the future. I do not accept that the applicant’s data has been accessed by Sri Lankan intelligence who have provided the information to relevant authorities. I am of the view it is pure speculation as the information in that data breach did not disclose any protection claims or include current or former addresses, phone numbers, contact information, or health information. Therefore I do not accept that the applicant’s safety has been imperiled as a consequence of the data breach. I am satisfied the only information disclosed and within the knowledge of the Sri Lankan authorities is that he was in detention because he arrived as an irregular maritime arrival.

183.   Even if I  accept that the applicant could be positively identified based on available information released on the website, and for this and other reasons advanced, the Sri Lankan authorities were aware that the applicant had sought asylum in Australia, for reasons that follow including country information about the treatment of failed asylum seekers/returnees to Sri Lanka, I find the applicant does not face a real chance of serious harm or significant harm on return as a failed asylum seeker, within a reasonably foreseeable future.

184.   Having regard to the assessment of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that the applicant will be treated differently from anyone else returning to Sri Lanka because he is a Sri Lankan failed asylum seeker or that there is a real chance that he will be persecuted because of any political opinion imputed to him because he is a failed asylum-seeker, because he left Sri Lanka illegally or because of the length of time which he has spent in a western country if he goes back to Sri Lanka.

185.   As I indicated to the applicant, I accept that he may be charged under the I & E Act of Sri Lanka with offences relating to his illegal departure. I consider that this will simply be the application of a law which applies generally to everyone in Sri Lanka and I do not accept on the evidence before me that there is a real chance that the law will be applied to him in a manner which discriminates for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

186.   DFAT assesses that the Sri Lankan authorities differentiate between fare-paying passengers and the facilitators or organisers of irregular migration. The authorities are more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures (generally those individuals who arranged the finances for a people smuggling venture and recruited the crew, and the crew themselves).

187.   The applicant does not claim to have any outstanding criminal matters with the police. There is no evidence the applicant was arrested, taken for questioning, or monitored by Sri Lankan authorities. I am satisfied, as stated above, that the applicant did not suffer any harm in Sri Lanka for his political opinion or perceived political opinion. The applicant has not claimed any involvement in terrorist groups.  I do not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he would be suspected of being a terrorist.

188.   I am not satisfied that the applicant has a well-founded fear of persecution on the basis of any charge and conviction under the illegal departure provisions of the I& E Act, as this is a law of general application. There were no instances of prosecution for departing illegally from Sri Lanka being applied in a discriminatory manner and all returnees to Sri Lanka are subject to standard procedures, regardless of ethnicity and religion.

189.   Further, I have no evidence before me to suggest the applicant will face a real chance of serious harm for reasons of being a failed asylum seeker, or significant harm, if he returns to Sri Lanka now or in the foreseeable future.

190.   I accept that crew of a boat that illegally comes to Australia can be charged and imprisoned for 3 years. I do not accept that the applicant was crew or facilitator of the boat, I am satisfied that he was a fare paying passenger.

191.   In light of the above findings I am not satisfied that the applicant has a well-founded fear of persecution due to his illegal departure from Sri Lanka. I am satisfied that the chance of the applicant being seriously harmed or the risk of the applicant being significantly harmed if detained is remote.

192.   I am required to assess if the applicant, on his return to Sri Lanka, will suffer significant harm, as a Sinhalese Catholic, who left Sri Lanka illegally. In considering whether there is a real risk, I have considered country information set out earlier in this decision.

193.   There is no evidence before me that the applicant, if charged under the I & E Act on his return to Sri Lanka, as a  Sinhalese Catholic, he would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment.

194.   I do not accept that questioning at the airport or a short detention in the airport's holding cells or at the Magistrate's Court amounts to significant harm. There is no material before me to suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources.

195.   The country information indicates that there is no evidence of mistreatment either at the airport or at the court for the very short period in which the applicant might be detained. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. Furthermore, there is no evidence to suggest that the authorities would intend to cause suffering by virtue of conditions in detention. Therefore, while I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.

196.   There is no evidence before me of mistreatment either at the airport or at the court for the very short period in which the applicant might be detained. The UK Home Office report conducted a fact-finding mission in late 2019 in which its officers specifically focused on this issue. The evidence indicates that the applicant was a fare paying passenger on a people smuggling venture and the country information indicates that, as such, he would not be taken into custody and would be granted bail. I reject the applicant’s claim he will be tortured or killed on return.

197.   I accept the applicant may be anxious or stressed about being detained but there is no evidence to support a claim, that the applicant's mental health is such that detention would amount to cruel, inhuman or degrading treatment in his circumstances. Whilst he told the Tribunal, at hearing, that because of his mental and health condition he decided to take time off work himself, the applicant does not suggest that he sought medical help and there is no evidence before me to suggest that the applicant has a diagnosed mental health condition.

198.   Other than his illegal departure there is no evidence before me that that the applicant has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him.

199.   The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. 

200.   There is no evidence that there is a widespread condition of violence in Sri Lanka and as I do not accept that the applicant was threatened or harmed by non-state actors in Sri Lanka before his departure, I do not accept that there is a risk or a chance, of suffering serious or significant harm, from non-state actors, within a reasonably forseeable future.

201.   While I accept that the applicant may be charged under the I & E Act, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.

202.   DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face.

203.   Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

CONCLUSIONS

204.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

205.   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).

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

DECISION

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

Lilly Mojsin
Member

ANNEXURE A

208. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

210.   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

211.   Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

212.   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

213.   In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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receiving country,  in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

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5H   Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

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5J    Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill‑treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36    Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

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

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

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

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

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

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

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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