1704947 (Refugee)

[2019] AATA 1349

1704947 (Refugee) [2019] AATA 1349 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704947

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:11 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 January 2019 at 11:20am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – imputed or actual political opinion – pro-liberation of LTTE – antigovernment  – missing person is applicants brother  – Religion – member of Roman Catholic – social group –  young Tamil male  – departed Sri Lanka illegally – failure to obtain asylum – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994 Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

SZTGM v MIBP [2017] HCA 34

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant arrived in Australia by boat [in] July 2012 and provided a copy of his Sri Lankan passport and national identity card to the Department of Immigration (the Department).  The delegate had no concerns as to his claimed nationality.  The Tribunal is satisfied the applicant is a national of Sri Lanka.

3. The applicant applied for the visa on 2 January 2013 and the delegate refused to grant the visa on 23 December 2013.

4. The Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a Protection visa on 30 July 2016.  The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by the Federal Circuit Court [in] March 2017.     

5. The applicant appeared before the Tribunal on 11 September 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. The issue in this case is whether the applicant faces a well-founded fear of persecution for a Convention reason or otherwise whether the complementary protection provisions apply.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

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

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims and evidence

13. The applicant – a [age] year old married man from Batticaloa district in eastern Sri Lanka – claims to fear serious harm from the authorities on return to Sri Lanka on imputed (pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government) political opinion grounds and as a young Tamil.  He also fears serious harm as a failed asylum seeker, as a Christian and because he departed Sri Lanka illegally. 

14. The applicant set out his initial claims for protection in the visa application and a statutory declaration that accompanied it, dated 12 December 2012.  In the declaration, he states that he left his country due to his life being in danger; that his brother-in-law was kidnaped  [in] April 2009; he lodged a complaint along with his sister with the police station but they did not register the case until he insisted; [a few] days later he registered the matter with [Agency 1] in Batticaloa; his brother-in-law has never been found; [in] June 2009 the applicant was kidnapped (maybe because of his active involvement in his brother-in-law’s case); he was beaten, tortured and has marks over his body; his captors threw him away [in a specified location], presuming he was dead; a fisherman found him and informed his family who took him to a relative’s house; his mother nursed him there; [in] June 2009, the kidnappers went to his sister’s house looking for the applicant and they raped his sister and tortured his mother; the applicant moved to his wife’s relative’s house and the kidnappers came to his home twice looking for him; he decided to move to Colombo but the threats continued back home; and therefore he decided to leave Sri Lanka.  

15. The applicant stated in his statutory declaration that he fears being harmed by government security agencies because of his race (Tamil), religion (Christian), imputed political opinion and membership of the particular social group of ‘young Tamil’. 

16. Material provided in support of the visa application included:

    ·a letter from the police in [Town 1]

    ·a receipt of the complaint to the [Agency 1]

    ·a translated death certificate with respect to [Mr A] (the applicant’s brother-in-law)

    ·letters of support from church representatives

    ·a translated letter from a justice of the peace (JP)in Sri Lanka

    ·a translated letter from the applicant’s sister (and wife of [Mr A])

    ·a translated letter from the applicant’s wife

    ·photographs showing scars on parts of the applicant’s body and head.

17. Material provided to the first Tribunal in support of the review included material previously submitted to the Department as well as the following documents:

    ·two translated letters from the applicant’s employer when he lived in Colombo, [name] Company

    ·a copy of a letter from an attorney-at-law and notary public stating the applicant rented a property in Colombo in 2011 and 2012

    ·an English translation of a newspaper article purportedly reporting on [Mr A]’s  kidnapping in 2009. 

    ·a statutory declaration from the applicant dated May 2014.

18. Before the current Tribunal the applicant submitted a copy of his mother’s Sri Lankan national identity card and a translation of a list of appointees to [a workplace] in 1984, which include his mother’s name, as evidence that his mother used to work [there]. 

19. In a prehearing written submission[1] to the Tribunal the representative provided more details about the applicant’s religious beliefs and a new claim in relation to his sister (purportedly only recently brought to her attention by the applicant) as follows:

    ·At the end of 2016 his sister was about to give evidence to the Sri Lankan [Agency 1] about the disappearance of her husband when she received a visit from Special Task Force (STF) officers making threats.  She left for [Country 1] where she remains. 

    ·The applicant attended [College] in [Sri Lanka]. 

    [1] Dated 5 September 2018

20. The representative also submitted the following documents:

    ·A copy of a letter translated from Sinhalese to English to [name deleted][2] (the applicant’s sister and wife of [Mr A]) dated [July] 2015 from the [official] to the Presidential Commission to Investigate into Complaints Regarding Missing Persons (the Presidential Commission) advising dates and time to attend a public sitting of inquiry regarding missing persons.

    ·A copy of a translated news [article]

    [2] The spelling of the applicant’s sister’s name appears either as ‘[name]’ or ‘[name]’ in the various documents provided.

21. In his oral evidence to the current Tribunal the applicant detailed his experiences in Sri Lanka that led to him leaving there in mid-2012.  He also explained why he fears returning there now, summarised below.

22. The applicant said he was born in [Village 1], Batticaloa district, where he lived until he was [age], and went to Colombo for eight months to work [in Occupation 1].  When he returned to Sri Lanka he returned to [Village 1].  He left Sri Lanka in July 2012, by boat.  Prior to that, he lived in Colombo, working with a company that sold [goods], from January 2010.  His wife and children joined him in Colombo from Batticaloa in around April 2011.  They returned to Batticaloa when the applicant left Sri Lanka.

23. The applicant said his brother-in-law (married to his [sister]), who was [an employee] [of a company], was taken away from his home [in] April 2009 by a uniformed police officer and another person in civilian clothes.  His sister – who was at home with her husband at the time – told the applicant the police officer said they were to conduct an inquiry and then release him.  The applicant, who was working on the same street at the time, said he saw a man in a police uniform and a car parked in front of their house: he thought [an official] may have been visiting, who usually has police protection.  Half an hour later, his sister called him and told him the police had taken her husband away for an inquiry.  The applicant went immediately to her house then together they went to the [Town 1] police station and enquired about the applicant’s brother-in-law.  They were told he was not there and when they asked to lodge a complaint, the police told them to enquire at neighbouring police stations and to return in two days.  The applicant said he argued with the police officer at the station, asked to see the officer in charge and requested that they take down his brother-in-law’s details, which they did eventually.  Afterwards the applicant and his sister went to the STF army camp and Karuna Group camp nearby to make enquires: they told them they did not know his whereabouts.  The applicant and his sister then returned to his sister’s house.  [In] April 2009, they made a complaint with [Agency 1] in Batticaloa and then visited the ‘fourth floor, CID[3] office’ in Colombo where they enquired about the applicant’s brother-in-law.  The applicant said the CID officer took his sister’s details, including her phone number and he gave his name to them.  They then returned to Batticaloa.

    [3] Criminal Investigation Department

24. The applicant said he thinks his mother and [sister] returned to the [Town 1] police station two days after the first time he went with his sister ([in] April 2009).  The applicant went to other places looking for his brother-in-law, including STF camps, and the Karuna Group office in  Ampar  district where he talked to one of the leaders, [name deleted]. 

25. The applicant said [in] June 2009 he was abducted by people in a white van and on two motorbikes whilst walking to his [sister’s] house in Batticaloa [later that night].  He was blindfolded, had his legs tied and was beaten whilst being driven somewhere.  After about two hours, the van stopped and the applicant was taken to some place with a cement floor where he was cut with a knife and beaten unconscious.  He awoke in the back of a moving van and heard his captors say that he was finished now before they stopped and threw him [in a specified location].  A local fisherman – who knew the applicant from when he used to work [in] the area [and] who knew the applicant’s [parents] – found the applicant in the early morning.  The fisherman contacted the applicant’s parents and the applicant’s mother and sister came and took the applicant to his aunt’s house in [Village 1].  His mother [provided him with medical treatment].  The next day, the applicant moved to his wife’s uncle’s house, located around [number of] kilometres from his home.  Around twoweeks later the applicant recovered and whilst staying at his wife’s uncle’ house, he returned to work [in Occupation 1] in Batticaloa district.

26. When asked who he thinks abducted him and why, the applicant said he is sure it was the STF, possibly because they thought he was going to make a complaint about the kidnapping of his brother-in-law or because his brother-in-law may have said something about the applicant when being interrogated.  The applicant told the Tribunal he was very close with his brother-in-law and spent a lot of time and effort trying to find out what happened to him, including through friends and church contacts.  However after the applicant was abducted, he stopped making enquiries.

27. The applicant said after he visited the CID in Colombo, some people came to his house when he was not at home and told his wife they were his ‘friends’ and asked for the applicant’s phone number.  His wife gave them his phone number because she mistakenly thought they were his friends.  The applicant told the Tribunal he received many phone calls from unidentified numbers with the callers asking about his brother-in-law’s case (in Tamil) and threatening him around this time: he said they started from around July 2009 (around a month after he was abducted).  The applicant said he changed his mobile phone number; however, a few months later, he changed back to his old SIM card because he had provided that as the contact number to the many people he had enquired about his missing brother-in-law.  

28. The applicant said sometime after he was abducted, members of the Karuna Group and STF came to his sister’s house looking for him and sexually assaulted his sister and mother who were present at the time, and damaged the house.  Before leaving, they warned the applicant’s sister and mother not to tell anyone.  When asked why they were harmed, the applicant said because [Agency 1] in Batticaloa were going to conduct an inquiry about his brother-in-law’s disappearance.  He said they had telephoned his sister in May2009 and told her to attend the [Agency 1] office.

29. The applicant moved to Colombo for work in January 2010.  Around a week after he arrived in Colombo, some people came to the office where he was working looking for him: he thinks it was the STF.  Whilst in Colombo, his wife – who had initially stayed living in their home in Batticaloa with their children – said some men in a van enquired about the applicant one day, outside their home.  

30. The applicant said he visited Batticaloa twice during the time he lived and worked in Colombo: once to get a character certificate from the government agent [in] September 2010 and the second time to bring his wife (and children) back to Colombo.  When he left Sri Lanka the applicant’s wife and children went back to Batticaloa (in around April 2012) and returned to their own house.  They are still there and his children attend school.

31. The applicant said [his sister] left Sri Lanka in around October 2016 and is currently residing in [Country 1].  She left because STF members (in uniform) had visited her home one night in around September 2016, including one of the people who had kidnapped her husband and belongs to the STF camp in [Town 1].  They used bad language.  The applicant’s aunt who was staying there asked what the problem was and they left.  The applicant said his sister was scared, went to stay with a cousin in Colombo and then went to [Country 1].  When asked why the STF visited her in 2016, many years after her husband had disappeared and given the applicant’s evidence that his sister did not pursue the case after being attacked in 2009, the applicant replied that he does not know but noted that she was staying alone and they were ‘torturous’.  He added that there are problems in Sri Lanka for people looking for missing people because the authorities think they will register and revive the problem again.  When asked if his sister did, the applicant replied ‘yes’, noting that she went to all the protests for missing people.  He said she was about to give evidence to [Agency 1].    

32. The applicant told the Tribunal that his mother currently lives in [Village 1], at another sister’s house and looks after [his sister’s] [children].

33. The applicant said he fears members of the STF who were active in 2009 and specifically those involved in his brother-in-law’s kidnapping who his sister has allegedly identified.  He said even now [Town 1] and Karathavu(Ampara) STF camps are still there.

    Findings on the applicant’s past experiences in Sri Lanka

34. The Tribunal accepts the applicant’s brother-in-law – [Mr A] – disappeared in April 2009 and has not been seen since.  Evidence has been provided which supports this claim, including a copy of his death certificate, the related police report, a receipt from [Agency 1] recording the complaint, and a newspaper article.  This event is also mentioned in the letters of support provided, including from church leaders, a JP in Sri Lanka and the applicant’s sister and his wife.  The Tribunal notes inconsistent evidence has been provided with respect to who actually took the applicant’s brother-in-law from his home at the time, which causes some concern.  That is in his initial statutory declaration[4] provided to the Department and the applicant’s wife letter[5] to the first Tribunal, it is stated that unknown persons in a white van took the applicant’s brother-in-law.  However, the applicant told the Tribunal that it was a policeman, with others. This was also reflected in [his sister]’s letter. Whilst of some concern, the Tribunal is willing to give the applicant the benefit of the doubt in this instance, noting the evidence before it about his brother-in-law’s disappearance has been otherwise consistent and supported by other documents, as mentioned. 

    [4] Dated 12 December 2012

    [5] Dated 25 July 2013

1. The Tribunal also accepts the applicant (and his sister) reported his brother-in-law’s disappearance to the police, [Agency 1] and [Agency 2] and made enquiries with a number of individuals and groups, including local STF and Karuna Group members, to try and find out what happened to him around this time.  However, for the reasons below, the Tribunal does not accept the applicant went to the CID in Colombo.

2. The Tribunal does not accept the applicant’s claims to have experienced problems from the authorities or anyone else thereafter because of his enquiries into the matter, including being kidnapped in June 2009.  Nor does the Tribunal accept the applicant’s sister or other family members had experienced problems.  This is because of a number of concerns with his evidence in this respect, as follows.

   a.Inconsistencies exist in relation to the applicant’s alleged kidnapping [in] June 2009, which cast doubt on his claims in this respect.  For example, in the applicant’s wife’s letter[6] provided to the first Tribunal, she said her husband was abducted on [date] June 2009 and when she reached him (at the spot where he was found by the fisherman) she cried because he was seriously wounded.  However at the Tribunal hearing, the applicant said the fisherman (who found him) contacted the applicant’s parents, and the applicant’s mother and sister came to where the applicant was and took him to his aunt’s house in [Village 1]: not his wife.  As well, in [his sister’s] letter to the first Tribunal, she states that they brought her brother to her house and treated him there: not to the applicant’s aunt’s house.   

   b.There is inconsistent evidence about what happened (and when) to the applicant’s mother and sister when the STF and Karuna Group members allegedly visited after [Mr A] disappeared.  That is, the applicant told the current Tribunal that the STF sexually assaulted both his mother and sister in May 2009, before his alleged kidnapping.  However in his statutory declaration[7] provided to the Department, he states that they went to his sister’s house looking for him and tortured his mother and raped his sister.  Furthermore, his sister fails to mention being raped in her letter provided to the first Tribunal and instead states that this group came to her house and beat her and her mother and used abusive language and demanded to know the whereabouts of her brother  [in] June 2009, which is after the applicant’s alleged kidnapping  [in] June 2009.  Whilst the Tribunal does not necessarily expect the applicant to remember exact dates, it would expect him to remember whether the STF came looking for him (and sexually assaulted his mother and sister) before or after he was purportedly kidnapped.  As well, as recorded in the delegate’s decision record (a copy of which the applicant provided to the Tribunal), the applicant told the delegate at interview that his mother was tortured and sister raped by STF when they attended his house looking for him [in] June 2009.  He told the first Tribunal (as recorded in that decision record) that after he and his sister went for an interview at  [Agency 1 in] June 2009, people came to his sister’s home and beat and raped her whilst her children were there, but did not mention his mother. 

   c.The fact that the applicant’s sister stayed living at her home after the alleged sexual assault by the STF and Karuna Group up until she went to [Country 1] in 2016 casts some doubt on the alleged attack.  At hearing, the applicant said she lived for some time at his [sister’s] house after the attack, which was [a few] kilometres away, but only for around a week before returning home.  

   d.The Tribunal finds it implausible that the applicant (and his sister) – both Tamils – voluntarily visited the ‘fourth floor’ of the CID office in Colombo looking for his brother-in-law in 2009 in the immediate post war period, as claimed, given the applicant’s own evidence at hearing that all kidnapped people were taken to the fourth floor and killed.  When asked if, therefore, he was afraid, the applicant said at the time he did not have any problems: he just went and gave details and asked if his brother-in-law was there.  He noted that he had already lodged a police complaint. 

   e.With respect to the applicant’s claims to have received threatening phone calls around this time, the Tribunal finds the fact that he changed his SIM and then returned to his old one shortly after indicates that he was not particularly fearful at the time, even taking into account his explanation that he did so in order to be contacted in relation to his missing brother-in-law. 

   f.The applicant stayed living and working in Batticaloa district after his alleged abduction in June 2009 until he moved to Colombo in January 2010 which does not indicate he was particularly fearful or of adverse interest to anyone.  At hearing, the applicant said that whenever he travelled from home, he wore a helmet, he did not appear in public, and he did not reveal his identity.  However this explanation is undermined by his evidence that he continued to work as a [Occupation 1] in different parts of the district.

   g.The applicant’s wife (and children) stayed living in their house in Batticaloa after the applicant was allegedly kidnapped (and people had come looking for him) and did not join him in Colombo until over a year after he moved there, which casts doubt on his claims to have been at risk (and by association, his family) in Batticaloa.  At hearing, the applicant said he did not take his wife and children to Colombo with him initially because the room provided by his company was small.   

   h.The applicant’s claims at hearing that he was in hiding in Colombo is undermined by the fact that he worked [for] [a] company from [January] 2010 to [July] 2012 as set out in the letter[8] provided to the Department by the applicant from his then employer.

   [6] Undated, however it contains a translation stamp dated 25July 2013

   [7] Dated 29June 2012

   [8] Dated 23 July 2013

3. Given these concerns, the Tribunal does not accept that the applicant was kidnapped, beaten and tortured on [date] June 2009; that he received threatening phone calls after his brother-in-law was kidnapped; that STF members and/or others visited his home at least twice looking for him after his brother-in-law was abducted; that his sister and mother were raped or tortured by the STF and Karuna Group members in June 2009; that the applicant was in hiding in Colombo; or that unknown persons were looking for him in Colombo, including by visiting his work office.  The Tribunal also does not accept that the applicant visited the fourth floor of the CID office Colombo looking for his brother-in-law or that he gave the CID his contact details at the time as claimed. 

4. In reaching this conclusion, the Tribunal has had regard to the letters of support provided by church leaders who state, among other things, that the applicant was kidnapped and threatened by those who kidnapped his brother-in-law.  The Tribunal has also had regard to submissions made in the letters from the applicant’s wife and his sister.  However, they do not overcome the serious concerns the Tribunal has with this aspect of the applicant’s case and the Tribunal gives these letters little weight.    

5. The Tribunal has also had regard to the photographs provided which show scarring on the [applicant].  However, whilst the Tribunal accepts the applicant has scars, the cause of those scars could be for any number of reasons.

6. In assessing whether the applicant faces a real chance of serious harm from the authorities on return to Sri Lanka on the basis of his brother-in-law’s disappearance, the Tribunal has considered the new claim before it that his sister has had to leave Sri Lanka (in 2016) due to threats from the authorities because of her renewed interest in pursuing her husband’s missing persons case.

7. The Tribunal has concerns with aspects of the applicant’s claims about [his sister] for the following reasons.  This includes because on the one hand he told the Tribunal that his sister did not pursue the matter after she was allegedly sexually assaulted in 2009; however, on the other hand, he said she attended protests for missing persons and when asked if she had registered to revive the case, he said ‘yes’.  However his oral evidence on this point – as well as details about her attendance at protests – was vague, confused and somewhat implausible.  For example, he said she went to all the protests for missing people (he did not know the dates) which the Tribunal finds implausible.  He said she started around a year before he came to Australia then added that he has stopped talking to her about these kinds of things.  When asked why he failed to tell the Department and first Tribunal that his sister had attended these protests (around a year before he came to Australia), the applicant revised his evidence and said he does not think she attended protests at that time, stating that it was a year before she went to [Country 1] (in October 2016). 

8. As well, the applicant’s evidence as to whether his sister actually gave evidence to the PresidentialCommission or [Agency 1] about her missing husband is confused and contradictory.  For example, at hearing, he said [his sister] (and his mother) were threatened and harmed by the STF and Karuna Group members in 2009 because [Agency 1] in Batticaloa had telephoned his sister in May 2009 and told her to attend [Agency 1] office.  Later, when talking about the STF again visiting and threatening his sister in 2016, the applicant said she was about to give evidence to [Agency 1].  As mentioned, in his evidence to the first Tribunal the applicant stated that his sister went for an interview at [Agency 1] [in] June 2009, and people came to her house afterwards and beat and raped her.  He made no mention at hearing about his sister giving evidence to the Presidential Commission in 2015, and his sister also fails to mention giving evidence to the Presidential Commission, or that she was due to give evidence to [Agency 1] in her letter provided to the Tribunal dated ‘2018-09-02’.  However in the letter to the applicant’s sister from the [official] to the Presidential Commission dated [July] 2015, which the representative provided to the Tribunal, [his sister] is asked to attend the inquiry   [in] August 2015.  Furthermore, in the newspaper article which was also provided (dated [August] 2015) it reads as if [his sister] gave testimony to the commission about her missing husband.  Yet in her written submission to the Tribunal, the representative states that the applicant’s sister was about to give evidence to the Sri Lankan [Agency 1] at the end of 2016 when she was visited (and threatened) by STF officers, which prompted her to leave the country. 

9. The Tribunal has accepted [the applicant’s sister] lodged a complaint about her missing husband in 2009 with the [Agency 1] in Batticaloa, and given the Tribunal has accepted that [the applicants sister’s] husband went missing in 2009, it is plausible that she may have attended some protests about missing persons in the past in Sri Lanka.  However, given the confused and at times inconsistent evidence before it about [the applicant’s sister] alleged activities thereafter, the Tribunal does not accept that she gave evidence at the Presidential Commission, gave evidence to the [Agency 1] in 2009 or at any other time or was about to give evidence to the [Agency 1] in late 2016 about her missing husband.

10. The Tribunal also finds it odd that the STF visited the applicant’s sister at her home in 2016, around seven  years after her husband went missing.  Given this, combined with the concerns set out above, the Tribunal does not accept that STF members – including one who allegedly took away her husband in 2009 – visited the applicant’s sister in late 2016 and threatened to kill her as claimed.

11. The Tribunal accepts that [the applicant’s sister] left Sri Lanka in October 2016 and currently resides in [Country 1]; however, there could be a number of reasons why she left the country.   

12. In reaching this conclusion, the Tribunal has had regard to the letter provided from the applicant’s sister dated  [July] 2015 from the [official] to the Presidential Commission advising dates and times to attend a public sitting of the Presidential Commission; the letter from the applicant’s sister dated ‘2018-09-02’ in which she describes the incident that allegedly occurred on [in] September 2016 when four persons in STF uniform came to her house to enquire about her husband; and the news article [in] August 2015 allegedly about the applicant’s sister’s witness testimony given to the Commission.  However these letters and the news article do no overcome the concerns the Tribunal has with the applicant’s evidence in this regard, and the Tribunal gives them little weight.

13. For the reasons above, the Tribunal accepts the applicant’s brother-in-law disappeared in April 2009, and he and his sister reported him missing to the police, the [Agency 1] and according to his sister in her letter to the first Tribunal, [Agency 2].  It also accepts the applicant made enquiries with groups and individuals including the Karuna Group and STF locally around this time.  However it does not accept that the applicant was of any adverse interest to the authorities and/or Tamil paramilitaries active at the time as a result, or subsequently. 

14. The Tribunal accepts the applicant’s sister left Sri Lanka in late 2016 and may have been involved in attending some missing persons protests beforehand and accepts this is a sensitive issue for the Sri Lankan government.  However it does not accept that she has been threatened by the STF as a result, including because she had given evidence to the Presidential Commission or had given in the past or was due to give evidence to the [Agency 1], prior to leaving Sri Lanka, about her missing husband.  The Tribunal also notes that the rest of the applicant’s family members and his brother-in-law’s parents have remained living in eastern Sri Lanka, yet they have not reported being threatened or harmed by the authorities or anyone else.  The applicant claims this is because he and his sister were more active in trying to find out what happened to him.  The Tribunal accepts they reported the matter to the police, [Agency 1] and [Agency 2] and may have been active in searching for him around the time of his disappearance and shortly thereafter. However, for the reasons above, it does not accept that the applicant or his sister were threatened or harmed by the authorities or groups linked to the authorities as a result.

15. Taking into account these considerations, and for the reasons above, the Tribunal finds remote the chance the applicant would face serious harm from the authorities or groups linked to the authorities on return to Sri Lanka because he reported his missing brother-in-law to the police, [Agency 1] and [Agency 2], he enquired about his brother-in-law, or because his sister attended missing persons protests in the past.  Accordingly the Tribunal does not accept the applicant faces a well-founded fear of serious harm from the authorities or anyone else on return to Sri Lanka on imputed (pro-LTTE/anti-government) or actual political opinion grounds, or from belonging to a family with perceived links to the LTTE, in the foreseeable future.  

16. The Tribunal has considered if the applicant would pursue his brother-in-law’s case on return to Sri Lanka.  The Tribunal accepts in the immediate aftermath of his disappearance the applicant made a number of efforts to try and find his brother-in-law.  However on his own evidence he stopped after his alleged kidnapping in mid-2009 and did not pursue the matter whilst remaining in Sri Lanka until 2012.  Given this, and the passage of time since his brother-in-law’s disappearance, the Tribunal is not satisfied that the applicant would pursue his brother-in-law’s case on return to Sri Lanka now or in the foreseeable future and therefore would not face a real chance of serious harm from the authorities or others as a result.

    Tamil ethnicity

17. The Tribunal has considered if the applicant faces a well-founded fear of persecution on the basis of his Tamil ethnicity, including his membership of a particular social group of ‘young Tamil’ as submitted, ‘young Tamil males’ and ‘young Tamil males from the Eastern Province of Sri Lanka’.  

18. The Tribunal accepts the applicant is a Tamil male, now [age], originally from Batticaloa in the Eastern Province of Sri Lanka. It accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection,[9] including being from the east and/or an area previously controlled by the LTTE.  Neither, as discussed at hearing, in general would a person who evidences past membership or connection with the LTTE warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state.[10] The Tribunal accepts the applicant’s brother-in-law went missing and the applicant has attempted to help find out what happened to him, along with his sister.  For the reasons above, the Tribunal does not accept the applicant experienced any problems from the authorities in Sri Lanka in the past as a result, and he has not indicated that he has been active in the diaspora community since leaving Sri Lanka. 

    [9] DFAT, Country Information Report Sri Lanka, 23 May 2018; UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017; and UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December 2012.

    [10] UK Home, Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

19. At hearing, when asked if his brother-in-law supported the LTTE, the applicant said he cannot say, but ‘most probably’.  When asked why he thinks so, the applicant said because he worked at [a named company], he was instructed by the LTTE to collect money for them, and he may have had LTTE contacts.  When he was kidnaped, they contacted [a number of] people connected to the LTTE who also have not returned.  The applicant said that after his brother-in-law was kidnapped, they constantly asked questions amongst themselves as to why, pondering whether he was connected to the LTTE.  Also, three days before he was kidnapped, the grama sevaka  (village headman) in [a named] district was kidnapped; as people who held these kinds of positions were subject to kidnapping at this period of time, the applicant speculated that his brother-in-law might have had LTTE connections.  The applicant said he went to many households of those kidnapped in the area and found out all were associated with the LTTE. The Tribunal accepts as plausible that his brother-in-law may have had LTTE connections, and/or was perceived by the authorities as such.  However, taking into account country information as set out above and discussed at hearing that in general a person who evidences past membership or connection with the LTTE does not warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state, the Tribunal finds remote the chance the applicant would be imputed with a pro-LTTE political opinion and face serious harm from the authorities as a result of the authorities perceiving his brother-in-law to have had LTTE links in 2009 on return to Sri Lanka.

1. The Tribunal acknowledges that military and security forces remain in the Northern Province of Sri Lanka and parts of the east, and operate a number of commercial businesses as well as continue to occupy some fertile farming land in the north and restrict access to some fishing areas.[11] Although not confirmed, it is also willing to accept the applicant’s claims that even now, STF camps are still in his home area (that is the Eastern Province). However, as discussed at hearing, DFAT report that the security situation in the north and east has improved significantly since the end of the conflict in May 2009, with greater freedom of movement and a reduction in the military’s involvement in civilian life, and that most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula or smaller surrounding military camps.[12]  Further, DFAT note that the government has publicly claimed that military involvement in civilian activities has ceased.[13]

   [11] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 2.11.

   [12] Ibid at 2.32 and 2.36.

   [13]  Ibid at 5.4.

2. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assess that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the current government.[14]  They do state, however, that surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues, ‘including missing persons, land release and memorial events’.[15] Whilst the Tribunal accepts the applicant’s brother-in-law remains missing and the applicant and his sister reported him missing at the time and made some enquiries, for the reasons above, the Tribunal does not accept that the applicant or his sister experienced threats, harms or any other problems, the kidnapping occurred  over nine years ago and the applicant has not claimed to have been involved in any related protests or investigations, and therefore the Tribunal finds remote the chance that he would be monitored and possibly face serious harm from the authorities on return on this basis or more broadly as a Tamil associated with politically sensitive issues.  

   [14]  Ibid at 3.11.

   [15]  Ibid at 3.9 and 3.11.

3. At hearing, when this country information was discussed, the applicant questioned why, if there is civilian rule in Sri Lanka, people are still armed and military camps remain.  He noted that many Sri Lankans who have been arrested on suspicion of LTTE links are still lamenting in jails, despite Sirisena’s promise to release all political prisoners.  He added that although no country officially exposes their problems, they exist.  He accepted that there has been some progress under Sirisena, but reckoned it to be about ‘20 to 30 percent’ whilst many problems – including political prisoners – continue.  He added that he does not believe this government will stay in power and noted in May 2018, Mahinda Rajapaksa, Gotabaya Rajapaksa and around 20,000 people conducted a protest in Colombo, calling for Mahinda Rajapaksa to become president (again).  The applicant said he is sure that will happen and Sri Lanka will go back to the way it was in 2009, the Karuna Group will re-emerge, and Rajapaksa will reinstate them and give them the same power as before.  

4. The Tribunal has had regard to the applicant’s concerns about the former President Rajapaksa regaining power in Sri Lanka.  It notes on 26 October 2018, Sri Lankan President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa, in a move that was widely condemned as in breach of the country’s constitution.[16]  This plunged Sri Lanka into a political crisis.  On 16 December 2018 after months of turmoil and legal challenges to the President’s move to sack Prime Minister Ranil Wickremesinghe and replace him with Mahinda Rajapaksa (among other things), Ranil Wickremesinghe was reinstated as Prime Minister of Sri Lanka and Mahinda Rajapaksa has resigned after Sri Lanka’s Supreme Court ruled that President Sirisena had acted illegally in November by dissolving parliament and calling snap polls.[17]  Whilst this has, at least for now, restored some stability to Sri Lanka’s political crisis, it is too early to say with confidence that stability will be maintained in the reasonably foreseeable future, and it does not necessarily mean that Mahinda Rajapaksa has left the political scene in Sri Lanka.  However, even if Rajapaksa comes to power, the Tribunal finds it speculative as to whether the situation will revert back to how it was in 2009, and the immediate post-war period, including that the Karuna Group and other paramilitaries would become powerful again.  Given the Tribunal’s findings that the applicant was not of adverse interest to the authorities and paramilitaries in the past or of any ongoing adverse interest, the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka even if Rajapaksa returned to power in the foreseeable future.

   [16] ‘Sacked Sri Lanka PM given ‘deadline’ to vacate residence’, Aljazeera, 28 October 2018 

   [17] BBC News Asia, ‘Ranil Wickremesinghe: Sri Lanka reinstates ousted prime minister’, 16 December 2018,

5. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity and in the immediate aftermath of the war.  However, in light of the end of the war in May 2009 and the country information cited above that assesses being of Tamil ethnicity does not on its own warrant international protection, and the improved security situation, the Tribunal finds  the applicant does not face a real chance of suffering serious harm on account of being a Tamil, a young Tamil, a young Tamil male or a young Tamil male from the Eastern Province of Sri Lanka, alone or in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed above and below. 

   Fear of kidnapping by paramilitaries

6. The Tribunal has considered the applicant’s concerns about ongoing paramilitary activity in Sri Lanka including a fear of being kidnapped. 

7. In his statutory declaration dated May 2014 provided to the first Tribunal, the applicant states that Tamils have been targeted by the authorities since the civil war and that there have been kidnappings and killings by the Sri Lankan government and groups working for them, such as the Karuna Group and Pillayan.

8. At the Tribunal hearing, the applicant said that although the Karuna Group and other paramilitaries are no longer operating in public, there are a lot of activities going on behind the scenes, including threats and extortion.  He also said that the Karuna Group lives near his [sister].  Asked why, then, his wife and the rest of his family still live in Batticaloa, the applicant said because they have houses in Batticaloa and have nothing to do with these things: he was more involved in his brother-in-law’s case and his sister, who is now in [Country 1], wanted to find out what happened.  For the reasons above the Tribunal does not accept the applicant’s claims to have been kidnapped, harmed or threatened by the authorities or paramilitaries in the past in Sri Lanka because of his efforts in looking for his missing brother-in-law or for any other reason.

9. As discussed at hearing, DFAT state the following about disappearances in Sri Lanka:

   Systematic abductions using white vans, often leading to enforced disappearances, occurred during the conflict and post-conflict periods. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 referred to incidents where police did not follow protocol during arrest. DFAT understands that disappearances are no longer common[18]. 

   [18] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 4.7

10. At hearing, the applicant said nowadays in Sri Lanka there are many sword assaults, and he referred to protests in Colombo which indicate that many people think that Rajapaksa should be brought back to power.  He said these people are hidden away, but if Rajapaksa returns, everything will be in the open and Tamils will face serious problems. 

11. On the basis of DFAT’s advice that disappearances are no longer common, and given the Tribunal’s findings that the applicant was not of ongoing adverse interest to the authorities or paramilitaries in Sri Lanka due to his investigations into brother-in-law’s disappearance or for any other reason, the Tribunal finds remote the chance the applicant would face serious harm from paramilitaries, including kidnapping, extortion and sword assaults, on return to Sri Lanka in the foreseeable future.  His fear of persecution on this basis is not well founded.

    Failed asylum seeker from the west

12. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on a return to Sri Lanka as a member of a particular social group of failed asylum seeker from the west and on related imputed (anti-government) political opinion grounds. 

13. In his statutory declaration dated May 2014 the applicant states that he fears as failed asylum seeker, he will be abducted and beaten by Sinhalese and Tamil people working for the government and he believes they are from the Karuna Group and the STF.  In an attached submission, the applicant’s then representative refers to country information regarding the targeting of failed asylum seekers, dated in 2014. 

14. The Tribunal acknowledges the applicant’s concerns about what might happen to returnees, including (Tamil) failed asylum seekers if detained on return to Sri Lanka.  At hearing, the Tribunal discussed the standard procedures for processing involuntary returnees as set out in the DFAT Country Information Report on Sri Lanka.  In that report, it is stated as follows:

    Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. [19]

    [19] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.28 and 5.29.

15. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of ethnicity and religion. DFAT further state that they understand that detainees are not subject to mistreatment during processing at the airport.[20]

    [20] Ibid at 5.29.

16. Also as discussed, DFAT state that during 2008-2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka, and many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil.  DFAT state further that although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links or because of the relatively lower cost of living compared to the south.[21]  

    [21] Ibid at 5.37.

17. As discussed at hearing and previously mentioned, the UK Home Office reports that in the UK country guidance case of GJ & Others, the UK Upper Tribunal identified as one of four risk categories individuals who are or perceived to be a threat to the integrity of Sri Lanka as a single state because they have or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[22] Such country information indicates that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.  The applicant has not indicated that he has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism, and the Tribunal finds that he is not such a person.

    [22] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil separatism, Version 5.0 June 2017 at 2.3.9

18. At hearing, the applicant said even if it is only ‘0.3 percent’ categories of persons at risk of coming to the Sri Lankan authorities’ attention, he is one of them.  Even if he manages to get through such processes at the airport, he said he cannot live at home and see those same STF members who gave him problems in the past.  He reiterated that his sister identified the person who kidnapped his brother-in-law and all these problems remain.  He is not sure if his name is on a CID list at the airport but stated that even if not he cannot go home and live peacefully.  For the reasons above, the Tribunal does not accept the applicant faces a real chance of serious harm from the STF or anyone else.

19. While the Tribunal accepts that the applicant, as a Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he is not of ongoing adverse interest in respect of his missing brother-in-law, suspected LTTE links and has had no involvement in diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker from the west.  The Tribunal is not satisfied that the process of questioning itself would lead to serious harm given these considerations.  The Tribunal accepts that his brother-in-law has been missing since 2009. However it does not accept that the applicant experienced problems from the authorities as a result, nor would on return, for these reasons. The Tribunal finds remote the chance that the applicant would be imputed with an anti-government political opinion on these bases and seriously harmed by the authorities or groups working with the government (as submitted) as a result on return, even when combined with other aspects of his profile, such as his Tamil ethnicity and origin in the east.  

20. The Tribunal accepts that when the applicant returns to his home area of Batticaloa, his arrival may be noted and he may be questioned by the Sri Lankan authorities.  The latest DFAT report confirms that monitoring and surveillance of some returnees in the north and east continues and they may face some societal discrimination.[23]  However, given the Tribunal’s findings above, it does not accept there to be a real chance that such monitoring or surveillance would result in the applicant being targeted for serious harm by the Sri Lankan authorities, paramilitaries or anyone else in his home area on the basis that he is a (young) Tamil male who has sought asylum in Australia, or for any other reason.  His fear of persecution on membership of a particular social group (‘failed asylum seekers from the west’) and (related) imputed political opinion grounds because he sought asylum in Australia is not well founded.

    [23] DFAT Country Information Report Sri Lanka 23 May 2018 at 5.40–5.42.

    Illegal departure 

21. The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing, the Tribunal discussed with the applicant DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.  Also, in practice, most penalties (which can include imprisonment of up to five years) are almost always a fine, and fine amounts vary on a case by case basis (but can be up to LKR200,000/AUD2000) and can be paid by instalments.  Further, DFAT advises that if a person pleads guilty, they will be fined and are then free to go.  In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[24]

    [24] Ibid at 5.21 – 5.26

22. At hearing, when asked if his family members in Sri Lanka can help him pay the fine or act as a guarantor if required, the applicant said no one will come forward, because he has a lot of problems as he has raised his voice about his brother-in-law.  He added that no one can appear on his behalf except his wife.  For the reasons above the Tribunal does not accept the applicant has experienced a lot of problems because he raised his voice about his brother-in-law.  Even if it accepts other family members are reluctant to help him out, on the applicant’s own evidence, his wife will be able to.  As well, the applicant told the Tribunal that although his wife does not work, she is financially supported by her brother who he said is wealthy.  The Tribunal is therefore satisfied that the applicant’s wife has the means and capacity to act as guarantor and help him pay any fine if required. 

23. As discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application, and as mentioned above, they advised that detainees are not subject to mistreatment during their processing at the airport. The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  For the reasons set out above, the Tribunal does not accept that the applicant has an anti-government profile or is of ongoing adverse interest to the authorities for any reason, including in relation to his brother-in-law’s disappearance.  The evidence before the Tribunal does not indicate that the I&E law is being applied selectively or in a discriminatory manner for a Convention reason; rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen. As such, the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of the non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and discriminatory conduct.

1. The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general, prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions.[25] However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short term period of being detained, given its findings that he is not of any adverse interest to anyone.  As mentioned, the Tribunal is satisfied the applicant’s wife is in a position to act as guarantor or help him pay a fine if required.  The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return.  There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison.  However, as the Tribunal does not accept the applicant is of adverse interest to the authorities for any reason, including in relation to the disappearance of his brother-in-law, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm.  The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population.  The Tribunal is not satisfied, therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required, nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm as defined in s.91R(2).

   [25] DFAT 2017 Country Information Report Sri Lanka 24 January 2017 at 4.25

2. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant, who has departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when he is later dealt with by the courts, or when he returns to his home area, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.  The Tribunal does not accept that the applicant faces a real chance of serious harm on return to Sri Lanka because he departed the country illegally as submitted. 

   Christian religion

3. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka as a Christian.

4. In his statutory declaration dated May 2014, the applicant states that he fears harm as a result of being a practising Christian; the Sri Lankan Army (SLA) follows Buddhism; and the SLA seeks to undermine Christianity by attacking church buildings in the eastern provinces of Sri Lanka.  In the representative’s submission to the first Tribunal dated 6 August 2014, country information is referred to about the escalation of attacks by extremist Buddhist groups and decrease in respect for religious freedom. 

5. At hearing, the applicant said he is a Christian and was a brother who assisted a pastor in [a] Church in [Village 1], Batticaloa district from 1995 until he married in 2006.  He used to take the sermons when the pastor was away.  After he married, he no longer preached, but continued to attend church up until he was kidnapped in 2009.  When asked why he did not go after then, or when he moved to Colombo, the applicant said because he was in hiding ‘more or less’.  The Tribunal accepts the applicant is a Christian and was a Christian brother from 1995 until he was married in 2006.  A letter from [a], dated [January] 2016, provided to the first Tribunal, confirms that the applicant was assistant preacher [in a church], Batticaloa from 2000 to 2005. 

6. As the Tribunal does not accept the applicant was kidnapped in June 2009 or experienced problems from the authorities or others following his brother-in-law’s disappearance, the Tribunal does not accept his claims that he stopped attending church in 2009 because he was in hiding.

7. At hearing when asked if he experienced any problems as a Christian, including as a Christian brother in the past in Sri Lanka, the applicant replied ‘yes’.  He explained that in around 2003, when he and the pastor were conducting a home meeting at [Village 1], someone threw a stone at the house from outside then barged in, hit the applicant and the pastor with a pole, and then ran away.  He was not sure why, but speculated maybe because the villagers did not like Christian things.  Although a new claim, the Tribunal is willing to accept this occurred, given the applicant’s oral evidence at hearing that he was not asked questions about such matters before.  However given this incident occurred 15 years ago and the applicant has not claimed any problems that followed, the Tribunal finds remote the chance the applicant would face serious harm from an individual who attacked him and a pastor in 2003 on return.

8. The applicant told the Tribunal that his wife and children are Christians and attend church in Batticaloa and do not experience any problems.  Neither do his family members who remain in Sri Lanka, including his sister who is married to a pastor. The applicant said the problem is more, in general, churches and Hindu sites of worship are being attacked, Buddhist monks in areas such as Batticaloa are erecting statues and claiming land as their own, and in Kandy four or so months prior to the hearing, a mob burnt down 20 mosques.  He said when higher positions are held by the Sinhalese and they are out to suppress other religions, the general trend is that minority religions will be suppressed and marginalised. 

9. As discussed with the applicant at hearing, DFAT, in their latest report on Sri Lanka, states that:

   DFAT assesses that Christians in Sri Lanka face a low risk of official and societal discrimination. The number of incidents targeting Christians has remained largely static over recent years, and is highest in Buddhist majority regions in the North Central, South and Western Provinces. DFAT is not aware of any specific incidents in 2017 attributed to the BBS.[26]

   [26] DFAT, Country Information Report Sri Lanka 23 May 2018 at 3.28

10. When this country information was discussed at hearing, the applicant said there are problems happening now: with Buddhist temples being erected even in Batticaloa and priests going to Tamil areas claiming land that belongs to Buddhists.  He gave examples of churches and mosques being attacked and damaged, noting that Buddhist monks are behind perpetrating these kinds of atrocities, mobilising people, and the government does not prevent it.  The applicant said there is still killing and rape going on in Sri Lanka; atrocities are hidden away; the main reason is still to destroy Tamils whatever way they can.

11. The Tribunal accepts the applicant is a Christian and was a Christian brother in the past.  It accepts on return he would practise his Christian religion and even though he has not claimed to be interested in becoming a brother again, the Tribunal is willing to accept he might.  The Tribunal has considered his concerns about Buddhists taking over land and targeting religious minorities.  Country information indicates that nationalist Buddhist groups such as the Bodu Bala Sena (BBS) have stoked religious tension and conflict in Sri Lanka, in particular against Muslims but also other minority groups. [27] 

    [27] Ibid at 3.20 – 3.22; and 3.24.

12. Nonetheless, on the basis of the country information set out above that assesses that Christians in Sri Lanka face a low risk of official and societal discrimination, and that DFAT are not aware of specific incidents in 2017 attributable to the BBS, and the applicant’s evidence that he was able to practice his Christian religion without problems in the past (apart from the one incident where he and a pastor were attacked in 2003), the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka from the authorities or anyone else as a Christian.  The Tribunal is also satisfied that he would be able to practise his Christian religion freely on return, as he has in the past.  

13. Accordingly the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Sri Lanka on the basis of his Christian religion. 

    Other matters

14. At hearing, the applicant said he was hospitalised for high blood pressure four months prior.  When asked about his blood pressure at the time of the hearing, the applicant said he does not check and he is not required to take medication.  Given this, the Tribunal finds he does not face a real chance of serious harm on return to Sri Lanka on the basis of his (previously) high blood pressure.

    COMPLEMENTARY PROTECTION

15. On the basis of the applicant’s claim to be a national of Sri Lanka and earlier findings about his nationality with regard to his refugee assessment, the Tribunal finds that Sri Lanka is the applicant’s receiving country of the purposes of s.36(2)(aa).

16. As the Tribunal does not accept that the applicant has a well-founded fear of persecution, the Tribunal has considered the alternative criterion in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.

17. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, including as a relative of a missing person, or as a Tamil, or young Tamil, or young Tamil male or a young Tamil male from the Eastern Province of Sri Lanka, or on the basis of his Christian religion.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[28] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities, paramilitaries or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

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

18. Furthermore, the Tribunal is not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka or on return to his home area as a person who has failed to obtain protection in Australia.  The Tribunal accepts that the applicant, as a Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka.  However, as discussed above, taking into consideration the applicant’s particular profile as someone who has no criminal record and the findings above that he was never suspected of having any involvement with the diaspora activities, and is not of ongoing adverse interest to the authorities as a suspected LTTE supporter (or for any other reason including as a relative of a missing person), the Tribunal is satisfied that the applicant would be released and he would not face a real risk of significant harm as a Tamil failed asylum seeker. 

19. The Tribunal accepts that when the applicant returns to his home area of Batticaloa, his arrival may be noted and he may be questioned by the Sri Lankan authorities.  The latest DFAT report confirms that monitoring and surveillance of some returnees in the north and east continues and they may face some societal discrimination.[29]  However, given the Tribunal’s findings above, it does not accept there to be a real risk that such monitoring or surveillance would result in the applicant being targeted for significant harm by the Sri Lankan authorities, paramilitaries or anyone else in his home area on the basis that he is a (young) Tamil male who has sought asylum in Australia, or for any other reason. 

    [29] DFAT Country Information Report Sri Lanka 23 May 2018 at 5.40–5.42.

20. Furthermore, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.   The Tribunal also is not satisfied the process of questioning itself would constitute significant harm, even when taking into account the applicant’s blood pressure issues.  The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka, there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject.

21. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing.  The Tribunal does not accept that the applicant is of ongoing adverse interest to the authorities. Based on the Tribunal’s earlier reasoning on this matter, it does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand.  The Tribunal considers, if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine and if a family member is required to act as a guarantor, accepts on his evidence that his wife will be able to help him out in this regard. The Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing, or when he returns to his home area. 

22. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of his wife – who is financially supported by her wealthy brother – in Sri Lanka to meet such a financial penalty.

23. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards. However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention on the Sri Lankan government to inflict such harm,[30] and therefore do not amount to significant harm.

    [30] As held in SZTGM v MIBP [2017] HCA 34.

100.   Similarly the Tribunal is not satisfied on the evidence before it that the process of questioning, the imposition of a fine as punishment and the applicant’s charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters, but to provide a modest punishment and possible deterrence for departing the country illegally. 

101.   For the reasons above, the Tribunal does not accept that the applicant was of any adverse interest to the Sri Lankan authorities in the past for any reason and would not be on return.  Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including questioning, a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

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

CONCLUSION

103.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

104.   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).

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

DECISION

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

Nicole Burns
Member