1708008 (Refugee)

1708008 (Refugee) [2018] AATA 5002 (15 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708008
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Jane Marquard
DATE:15 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 15 October 2018 at 11:17am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party activist – particular social group – people smugglers – failed asylum seeker – illegal departure – property damage – fear of torture – personal revenge – law of general application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91R, 91S, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAPO v MIBP [2015] FCCA 96
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZSSJ v MIBP [2015] FCAFC 125
SZTAL v Minister for Immigration and Border Protection, SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
Weheliye v MIMA [2001] FCA 1222

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
OVERVIEW

The applicant is a citizen of Sri Lanka. He is of Sinhalese ethnicity and comes from [his home town in] [District 1] Sri Lanka.
He arrived in Australia [in] July 2012 by boat. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 23 July 2013. A delegate of the Department of Immigration (the Department) refused to grant the visa on 21 August 2013.
The applicant applied for a review of that decision by the Refugee Review Tribunal (the RRT). On 18 February 2014 the RRT affirmed the Department’s decision.
The applicant appealed this decision to the Federal Circuit Court of Australia. [In] March 2017 the Federal Circuit Court of Australia quashed the decision of the RRT and remitted it to the Administrative Appeals Tribunal (the Tribunal) for reconsideration, on the basis that: ‘the RRT had failed to consider an integer of the applicant’s claim, namely whether he facilitated the illegal departure of other persons from Sri Lanka by assisting a people smuggler in driving the boat, and whether that may give rise to a fear of harm in the form of cruel and inhuman treatment or punishment because of poor prison conditions in Sri Lanka if the applicant was imprisoned upon his return as a consequence of being found to have facilitated people smuggling. Also the Tribunal committed jurisdictional error because it concluded that the wife’s affidavit was a fabrication without there being anything on the face of the wife’s affidavit to indicate that it was not authentic, and without giving the applicant an opportunity to comment to the Tribunal on whether or not the wife’s affidavit was authentic.’
This is a review of the decision of the Department dated 21 August 2013, by the Tribunal following the decision of the Federal Circuit Court of Australia.
The applicant has a number of claims. He claims that he fears returning to Sri Lanka because he helped his [Relative A] in an election, which had political repercussions. He also claims that he was targeted by a man called [Mr A] who was associated with the opposing political faction and who believed the applicant had insulted his sister. He claims that [Mr A] has continued to harass his family and will harm him if he returns. He also fears that he will be arrested and charged under people smuggling provisions, and be tortured and ill-treated in prison.
On 22 December 2016 the applicant separately applied for a Safe Haven Enterprise Visa (X-E 790) (SHEV), an alternative protection visa category, which requires applicants to satisfy the same statutory requirements under s.36 of the Act (the SHEV review). On the request of the applicant, the same Tribunal member has considered both matters.
In this matter, the Tribunal has significant sympathy for the applicant’s situation as he has been living in Australia away from his family since 2012 and has been in detention for a substantial amount of that time. Since he has been in Australia his wife has left him, which is distressing for him and he has not been in touch with his children. The substantial period in detention has had negative mental health impacts on him. However after considering all of the evidence, the Tribunal is not satisfied that the applicant meets the protection or complementary protection criteria. A summary of the evidence, and findings and reasons for the decision, are set out below.
CLAIMS AND EVIDENCE
Evidence before the Department
In his Irregular Maritime Arrival Entry Interview, conducted when the applicant first arrived in Australia, the applicant said that:
·From [specified year] to [year] he worked as a fisherman, catching [a specified fish] mostly, and was out to sea for up to 6 weeks at a time;
·From 2004 to 2012 he worked for ‘[name]’, the owner of the boat, [in a specified role], fishing [a specified fish];
·His [Relative A] contested the election in 2011 (the year before the Interview), and asked the applicant to help. The applicant helped him put up posters and banners. He was threatened with death because of this. About three to four supporters came to his house and broke his fences. This was three months before he left the country. The other party won the election and so he travelled to Australia to protect himself. He could not remember his [Relative A’s] full name;
·He had no other issues of concern in Sri Lanka;
·One of his friends, a man named [Friend A], told him a boat was leaving and he got [Amount 1] rupees and paid it to [Friend A] and he came on a boat organised by [Smuggler A]. When he came on the boat, [Smuggler A] asked him for [a larger amount, Amount 2] rupees and the applicant said that he did not have that much money. [Smuggler A] then said if he helped drive the boat, he would reduce the amount payable to [Amount 1] rupees. He said that he should get on the boat and help them drive it;
·If he returned ‘those people’ would come and give him trouble. After they left the country, they burnt his nets and equipment and if he returned they would give him trouble.
In a statutory declaration sworn by the applicant on 23 July 2013 submitted as part of his application to the Department, he provided, in summary, the following information:
·He was [an age]-year-old born in [a named town in] [District 1], Sri Lanka. He is ethnic Sinhalese and is a Catholic. He is married and has [number] children in Sri Lanka;
·He left Sri Lanka because of threats to his life because of his political activities in support of the UNP. In 2006 or 2007 his [Relative A, named] contested the local elections for his village of [Village 1] and won as candidate for the UNP. He was at sea fishing during the elections and found out when he came back and he joined his [Relative A] to work for him and the UNP. He did whatever his [Relative A] asked him to do as a supporter, such as canvassing and door knocking, putting up posters and banners and participating in meetings;
·One day he was at a meeting and members of the ruling party arrived and fought with his party and the applicant, and after this, members of the party went to his home and destroyed his fence and windows of his home, because he was blamed for tearing down the posters put up by his political opponents. His mother was home and they said they would kill him;
·His [Relative A] lost the election in 2007 or 2008 and three or four days later some strangers went to his house looking for him, however he was not home at the time. They told his mother he should go to town to meet them. He went to a friend’s house to borrow clothes and then went to [Town 1] where he stayed with a friend for 2–3 days. He had to stay away from his village because [Mr A], who is one of the opposition members, believed that the applicant had insulted his sister in front of others. He denies that he said anything to [Mr A’s] sister;
·About 3–4 months later he returned to his village but not to his home as he was still in hiding. His [Relative A] had also been receiving threats from the opposition party, so his [Relative A] left his village and went fishing in [Town 2]. He went there and fished with his [Relative A] for around 2 years. He would return to his village only for a religious festival and for Christmas. [Mr A] is still ‘after him’. In mid-2010, his elder brother was cycling and [Mr A’s] brother and his associates stopped him and asked him where the applicant was;
·In 2011 he had to return to his village as there were not enough fish in [Town 2]. He was there for around 2 months when a friend informed him of the trip to Australia. His friend organised the trip to Australia;
·He will be harmed and killed because of his political activities and he has lived in hiding for the last few years because of the threats. He will be harmed by [Mr A] and his powerful brother and other members of the ruling party because of his activities in support of the UNP;
·He fears the Sri Lankan authorities because he left that country unlawfully and he believes the authorities will put him in gaol for a long time;
·He cannot relocate to another part of Sri Lanka because members of the opposition party have power and connections and they will find him;
·The authorities in Sri Lanka cannot protect him because the ruling party has threatened that if he reports the threats, then he will be harmed. He also fears the authorities because they are the ones who will persecute and harm him.
The delegate’s decision
The delegate of the Department was not satisfied that the applicant was a credible witness or had a genuine subjective fear of persecution for a Refugee Convention reason in Sri Lanka.
Evidence before the RRT
Additional material provided to the RRT was as follows:
·In 2006/7 the applicant’s [Relative A], [named] contested the local elections in his village of [Village 1]. He won and gained candidacy for the UNP in [District 1] under [Representative A], who was an MP;
·The applicant was away fishing at the time of the election. He helped his [Relative A] on his return. He canvassed, put up posters and banners and participated in meetings. He did not understand ‘the bigger politics’ and he ‘just worked at his level’ for the UNP. He did not know the ideology of the UNP, but knew that they won in his village and that they would do something good;
·While at a meeting, members of the ruling party arrived at the meeting and began fighting with UNP members including the applicant. Following this, they came to his home but he was not there. He was blamed for tearing down posters of the ruling party, and was pursued. The ruling party attacked his home and destroyed his fence and windows. They threatened his mother that they would kill him;
·His [Relative A] lost the elections in 2007/8 and 3 to 4 days later people looked for him at his home, but he was not there. They said he should go to the town to meet them. Instead he stayed with a friend in [Town 1] and then moved between houses;
·One of the ruling party, [Mr A] had personal hatred because he falsely accused the applicant of personally insulting his sister;
·After 3 or 4 months of hiding, he returned to his village but not home. His [Relative A] also had threats and so he joined his [Relative A] fishing in [Town 2] for 2 years, only returning for one religious festival and Christmas. His friends told him the ruling party were still looking for him, particularly [Mr A], who was dangerous;
·In 2010 his brother was riding his cycle when [Mr A’s] brother and others questioned him about the applicant;
·He navigated the people smuggling boat by holding the steering wheel for a short period of time as he was a fisherman and was familiar with boats. The captain navigated and he had no further involvement;
·When asked why anyone would want to harm him now after the years that have passed since the election, the applicant replied that he had a clash with a supporter and he used harsh words to a sister and they have a grudge against him because of this. He went on to say that he did not say anything specific about the sister, however, he is blamed for whatever was claimed to have been said about her. When asked whether he has reported the claimed threat to the police, the applicant replied that he feared he would get in more trouble if he reported it to the police because word might get back to his claimed persecutors;
·Inconsistencies in his application were due to a mental problem for which he is being treated. He would submit a medical certificate after the hearing. He has memory loss and headaches because he is depressed. Medication has affected his memory;
·He is only a fisherman and he does not recall everything and it was only a small election. This was why he could not recall his [Relative A’s] full name. Those that wish to harm him are rich and powerful;
·He fears being gaoled if he returns to Sri Lanka because he left Sri Lanka unlawfully. Near his village, the church was attacked and his relations were involved so the situation is bad for him. People came to the church and asked his whereabouts. They told his brother that if he returned he would be harmed;
·The claimed insult against [Mr A’s] sister occurred during the election in 2008. He could not remember her name. The Tribunal previously constituted put it to the applicant that it found it remarkable that in the intervening 5 years and in the context of claimed threats which he suggests are life-threatening that he would not have ascertained the sister’s name. The Tribunal previously constituted asked the applicant about [Mr A]. He replied that he does not know much about him;
·He has not been harmed because he has been able to leave the area and work away. The Tribunal put it to the applicant that it considered if he was a serious target for harm then his claimed persecutors would have had the means to harm him while he was in Sri Lanka if they were minded to do so;
·He fears for his life and has a fear of torture if he returns to Sri Lanka. He fears he would stay in gaol for a long time;
·The navy has a system of issuing passes (temporary fishing permits) and he believes he will be harmed for that. Permission was given to him to fish and he used that permission to depart Sri Lanka, rather than returning it, and the people smuggler may have used it, so the navy would harm him for this;
·Women in Sri Lankan culture are regarded as being ‘the honour of their family’ and anyone insulting a woman is therefore seen to have committed an offence. [Mr A] would want to seek revenge against the applicant and he therefore faces the risk of being killed, tortured or treated in a cruel and inhuman manner;
·The applicant was known to his community for being involved with the UNP given that his [Relative A] had contested the election and that he assisted as previously claimed;
·In 2013 [Mr A] again harassed the applicant’s brother while he was attending a church function. He was told that if he returned he would be killed;
·An affidavit from the applicant’s wife stated that the applicant was actively engaged in politics and received death threats from members of the ruling party and had to hide;
·A copy of a letter dated [in] March 2013 from [name], Member of Parliament for [District 1] stated that the applicant and his family members supported UNP, the main opposition party which he represented in parliament;
·Medical reports dated from [April] 2013 to [August] 2013 were provided.
Decision of the Tribunal previously constituted
The Tribunal previously constituted found the applicant to be an unreliable witness. The Tribunal found that he was not a person who was politically active or that he would be targeted for harm for this reason. The Tribunal found that laws relating to the return of illegally departed citizens were laws of general application and not applied discriminatorily. The Tribunal did not accept that he could not pay a fine for having departed illegally.
Evidence before this Administrative Appeals Tribunal
In summary, the applicant provided the following evidence to the Tribunal in written submissions and at hearing:
·The information in his Department application and provided to the RRT was true and accurate;
·As set out in various medical reports from 2013 to 2015 he has suffered from depression. He was feeling ‘all right’ at the hearing. He has been in detention for 5 years, and gets really ‘down’ when he thinks of his children. He is seeing a counsellor, and is taking sleeping tablets and Panadol for headaches. He had taken no medication prior to attending the hearing;
·His mother, [Relative A], extended family members, [and siblings] are still living in his hometown, [named, in] [District 1] Sri Lanka. His brother is working as a fisherman. His wife now has a new partner so he is not sure where she is living. He has no other family members in other parts of Sri Lanka;
·He was asked if he still fears harm for reasons of his involvement with the UNP if he returns to the country. He said that he fears returning to Sri Lanka because he was the skipper of the people smuggling boat, and fears going to prison;
·While living in Sri Lanka, he was not fully involved in politics as he was a fisherman, and he went fishing for long periods. But his [Relative A] asked for his support, and that is the only reason he was involved. He said he could not remember when the elections were, but he said it was long before he came to Australia. He said that his [Relative A] contested the elections somewhere around 2006 to 2008. Asked if he remembers what the ideals of his [Relative A’s] party were, he said that he does not know. He handed out brochures and put up posters, and was canvassing. He was asked if he remembered the logo or slogans on the posters, and he said that there was an elephant logo;
·The Tribunal questioned the applicant about why he said at the Entry Interview on [arrival in Australia] that the election was ‘last year in 2011’ but later said it was 2006 to 2008. He said that he tried to recall, but was not very certain when it was. The Tribunal put to him that 2011 was very close in time to when he had arrived in Australia, so that it would have been easy to remember if it had just happened, rather than some years before. He responded that he was not sure about the year as he could not remember exactly when the date was;
·The Tribunal also questioned him about why he said at the Entry Interview that ‘just 3 months before I leave my country this election violence happened, it’s almost now 6 months ago’. He was asked why he told the Department at this interview that the election had taken place 3 months before he came to Australia, when he had told the Tribunal at the hearing that it was a few years before he came to Australia. He said that he could not remember what he said at the Entry Interview, but now he is telling the Tribunal how he remembers it happened;
·He was asked why members of the opposition fought with him and destroyed his home and fence and windows, when he was only involved in the election at a very low level. He said that it was because of a personal grudge, as [Mr A] had said that he had commented on his sister in a derogatory manner. Because of this, ‘they’ came to the house to harm him. Asked if this was the reason they harmed him, not a political reason, he said that previously at the meeting they had an argument and fought, and both parties were drunk, and this was another reason they wanted to harm him;
·After his [Relative A] lost the election, [Mr A] and his associates were looking for the applicant to harm him. He cannot remember the date exactly but he was hiding in the house, when [Mr A] and about seven others came to look for him. They asked his mother where he was, and told her that they would kill him if they found him. He looked through the window and saw them. After that he left the village and hid with his friends in various places. He went to [Town 3], then worked on a small boat in [Town 4], then went to [Town 3] again. He cannot remember how long he stayed there but he worked as a fisherman. After this he went to [Town 2], and cannot remember how long he stayed. Asked if it was 2011 when he returned to his hometown as indicated in his previous evidence, he said that he did return and stayed at a friend’s place in the village. It was Christmas time. For the time he was away in [Town 4], [Town 3] and [Town 2] he had no problems from the ruling party or [Mr A], but most of the time he was at sea. He did not come back and visit his mother during this time but he cannot really remember;
·While in Australia, [Mr A] and his associates have sought him out because of personal grudges. They are concerned that he would have told the Australian government about their involvement due to the data breach by the Department of Immigration. The Tribunal put to him that [Mr A] and his associates wish to harm him for personal revenge, and not for a Convention reason. He said it was a personal reason and was because supposedly [Mr A’s] sister tried to commit suicide;
·Asked why [Mr A] thought he had said something derogatory, he said they were not on good terms. He had seen the sister, who knew him by his name, and she made the allegation. She knew him from seeing him in town, and because he fought with [Mr A]. He had told the RRT he did not know her name, and he confirmed this to the Tribunal. The Tribunal said surely that he would know her name if the brothers made allegations against her. He said her name was not mentioned;
·Asked why [Mr A] and his associates would still have concerns about him, 9 years after the incident occurred in 2008, he said that he still believes that they would harm him as they have money. Otherwise he would not have stayed in detention for 5 years. If he felt that it was safe he would have returned;
·Asked why no threats were carried out between 2007 and 2009, and the time when he left the country, he said that he was aware that they were still looking for him but most of the time he was fishing and out at the high seas, and he hardly stayed on land;
·He first heard about travelling to Australia from his brother, who told him about a man called [Smuggler A]. He went to Negombo and met [Smuggler A]. [Smuggler A] had told his brother that it would cost [Amount 1] rupees to travel to Australia, but his brother bargained with him and got him to agree that the charge would be [a lesser amount, Amount 3] up front, and once in Australia he would pay [the remainder]. He said that he only admitted 5 years later to Australian authorities that he was the skipper of the boat, as he was told by people that he would get into trouble if he admitted this. Later on, he found out that the Department knew and so he decided to admit the truth;
·[Smuggler A] organised the boat and the passengers. He does not know who owned the boat. When he first met [Smuggler A] in Negombo, [Smuggler A] asked if he would skipper the boat, and he said that he would. He agreed even though he would not be paid as he thought he would get protection. He obtained the pass from the navy to leave the port. He knows that if he goes back he will be prosecuted. He shared the skipper job with four other people. He was steering the boat, and he did this most of the time and only took breaks to sleep. The journey took 18 days;
·Information was put to the applicant under s.424A of the Act, pursuant to which applicants are provided with an opportunity to comment on or respond to adverse information. In particular the Tribunal asked the applicant why, in his Entry Interview he said that ‘four of us sailed the boat, changing every two to three hours’ when he said today that he did most of the steering. He had told the Tribunal that he only steered for a few hours. He said that it was true that they changed every few hours, but he steered most of the time. A single person could not bring the boat to Australia so he got help when he went to get a meal, and that is what he meant when he said they changed every two to three hours;
·The Tribunal also put to him that in the Entry Interview he had said that a friend called [Friend A] told him that a boat was leaving for Australia. However he had told the Department and Tribunal that it was his brother. He responded that this boat was going, and at the same time he was the recipient of information from [Friend A];
·The Tribunal put to him that at the Entry Interview he said that [Friend A] told him that the journey normally cost [Amount 1] rupees per person. He then obtained [Amount 1] from his house deed, and he arranged to travel on the boat. However [Smuggler A] then came on his three wheeler to collect the money, and asked him for [a larger amount, Amount 2] rupees, and he said that he did not have that much money. [Smuggler A] then said he could pay [Amount 1] if he helped steer the boat. However he told the Department and Tribunal that [Smuggler A] had told his brother that it cost [Amount 1] but his brother bargained with him and got him to agree for him to pay [a lesser amount, Amount 3] in Sri Lanka, and once in Australia to pay [the remainder]. In response to these inconsistencies the applicant said that the negotiation took place in 2012 and he cannot remember exactly how much he agreed to pay. He said that it might have been because of the difficult mental condition he has been in;
·Asked to confirm if he paid less than the going rate for the boat journey, because he agreed to be the skipper, he said that his brother paid [Smuggler A] [a lesser amount, Amount 3] rupees, and later on [the remainder]. He believes others paid a higher rate;
·He has been in detention for 5 years and has suffered a lot. He has always treated everyone with respect, and there have been no complaints against him;
·The applicant was asked to comment or respond on information before the Tribunal which had been obtained from the Department. The information was subject to a non-disclosure order because of the public interest reasons in not disclosing details of investigative and intelligence methods. At the SHEV review the Tribunal disclosed to the applicant details of what was said in that report. This was information from interviews conducted by the Department when the boat [Boat 1], was rescued by maritime authorities. In these interviews passengers identified two other people on board [Boat 1] as the organisers/bosses/captains but not the applicant. One of the other Sinhalese passengers on board claimed that he and three others including the applicant drove the boat, and he claimed that he was paid. One of the Sinhalese passengers claimed that a person called [Mr B] did most of the driving of the boat, and that he was paid. Another passenger said that [Mr B] was the skipper. Someone else said that [Mr A] was the skipper. None mentioned that the applicant was the skipper or in charge although they mentioned that he helped steer the boat. The Tribunal asked him to comment on this information as it was contrary to information in the SHEV review, in which the applicant claimed that he was in charge. In response the applicant said that he had told the truth that he was the skipper of the boat, and he could not comment on why there are ‘inaccurate statements from other people on the boat noted in the intelligence report’ other than to note they are incorrect. It was submitted that his report should be preferred as there were inconsistencies in the intelligence evidence. It was submitted that the applicant had been consistent in his evidence that he was the skipper of the boat. It was submitted that it would be erroneous to find that he had submitted the evidence to bolster his claims when in fact he had disclosed the evidence to be fully truthful as to the extent of his actions although they could be considered unlawful.
·The applicant was also asked to comment on other inconsistencies in his evidence.
·The applicant was given a further opportunity to comment on why he could not relocate to a safe third area. He was also invited to comment on any matter raised in the SHEV review. The applicant said that it would be inappropriate to live with his [Relative A] or relatives as it is unsafe in Sri Lanka and there is a real risk of being found by people looking for him or by the authorities.
·The applicant also commented on the DFAT Cable Response dated 14 September 2017 which was provided to him by the Tribunal. The applicant noted that DFAT noted that lengthy prison sentences were issued for skippers, organisers and facilitators which the applicant claimed includes him, whether or not it was accepted that he was the skipper. The applicant claimed he participated in ‘transportation of persons by sea’. The applicant argued that when DFAT stated that it did not have information about ill-treatment of people smuggling crews this did not mean that ill-treatment had not occurred. The applicant argued that the cable should be read narrowly.
Evidence of applicant’s mother, [named] provided by telephone to the Tribunal and in a statement dated 8 August 2017 provided to the Tribunal

[The applicant’s mother] said that her family has faced ongoing problems from [Mr A]. Her son was involved in election campaigns. [Mr A] has troubled them for a long time. Before her son left Sri Lanka, he was involved in politics, and [Mr A] came to the house and broke windows and fences. He came to the house twice looking for [Mr A], before he left for Australia. Since her son left Sri Lanka, she has seen [Mr A] five to six times when he came to the house, looking for her son. He wants to know when her son will return to Sri Lanka. She has not told him where her son is, but he knows. She has not told her son everything about [Mr A] as he gets distressed. [Mr A] has harassed the applicant’s brother on three occasions. In August 2017 some people in balaclavas came to the house, but they did not do any damage. She assumed it was [Mr A]. She cannot go to the police, because [Mr A] would get to know, and the harassment would increase.
CONSIDERATION OF CLAIMS AND EVIDENCE
In coming to a decision the Tribunal has taken into account evidence in the Department files, evidence before the RRT, evidence before this Tribunal in this and the SHEV review, and independent country information about Sri Lanka.
A summary of the relevant law is set out in Attachment A.
Nationality
Copies of a birth and marriage certificate have been provided. The applicant gave evidence that he is a citizen of, and was born in Sri Lanka. The Tribunal accepts on the evidence before it that he is a citizen of Sri Lanka, and that Sri Lanka is the receiving country for the purposes of the complementary protection provisions.
Findings of fact
It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, and afford the benefit of the doubt to asylum seekers who are generally credible, but unable to substantiate all of their claims. While the Tribunal is not required to accept uncritically any and all claims made by an applicant, nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998):
… refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions.
In this case, the Tribunal has taken into account the fact that some of these events took place as far back as 2006 to 2008, and that the applicant was in detention for many years in Australia. It is now well accepted that detention often has a detrimental effect on the mental health of detainees. This is the case for the applicant who has said that he has suffered from depression. While there is no medical evidence of diagnosis of any mental health condition, the most recent report provided by the applicant is a report provided by a counsellor at [Welfare Agency 1] dated [in] August 2017. The report states that the applicant presented with ‘poor coping associated with prolonged detention … based on his presentation it is clear that indefinite detention has had a negative effect on his well-being.’ The report said that his mood was ‘sad and upset’, and that he ‘experiences the deterioration in memory and concentration … he experiences sleep difficulty and chronic headaches that adversely affect his daily functioning.’ The report also said that he was in good health, and his cognitive functioning was normal but negatively affected by prolonged detention and the corresponding uncertainty. Earlier reports from [a health service] in 2013 refer variously to sadness, insomnia, mild to moderate depression and low mood with considerable discussion about his family circumstances and detention conditions. The Tribunal has taken into account the fact that the applicant has said that he has experienced deterioration in memory and that detention has had a negative impact on his emotional well-being, and that the counsellor indicated that he presented with ‘poor coping’ and that his mood was sad and upset. The Tribunal notes that on the day of the hearing before the Tribunal, he indicated that he had not taken any medication prior to hearing and was feeling ‘all right’. At the Tribunal hearing he appeared lucid and spoke without hesitation, and was articulate and coherent.
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 an 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
The Tribunal had some concerns about whether the applicant was involved in any political activity at all while he was living in Sri Lanka. This is because his evidence at the Entry Interview conflicted with evidence to the RRT and this Tribunal. At the Entry Interview on [arrival in Australia], he said that the election was ‘last year in 2011’ but later he said it was 2006 to 2008. When the Tribunal asked him about this discrepancy, he said that he tried to recall, but was not very certain when it was. The Tribunal put to him that 2011 was very close in time to when he had arrived in Australia, so that it would have been easy to remember at the time of the Entry Interview, if it had just happened, rather than some years before. He responded that he was not sure about the year as he could not remember exactly when the date was. The Tribunal also questioned him about why he said at the Entry Interview that ‘just 3 months before I leave my country this election violence happened, it’s almost now 6 months ago’. He was asked why he told the Department at this interview that the election had taken place 3 months before he came to Australia, when he had told the Tribunal at the hearing that it was a few years before he came to Australia. He said that he could not remember what he said at the Entry Interview, but he was telling the Tribunal how he remembers it happened.
The Tribunal accepts that it is easy to forget dates and to conflate different events in time. However his explanation is not very satisfactory in that it does not explain why he would think the election happened close to the time he came to Australia, when in fact he states now that it occurred so long before. The Tribunal can only assume that he attempted to embroider his evidence at the time of the Entry Interview. The Tribunal is mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.
The Tribunal is prepared therefore to give the applicant the benefit of the doubt that he assisted his [Relative A] for a short while when his [Relative A] was the candidate for the UNP in an election in his village, [Village 1], around 2006 or 2007, given that he has referred to some political involvement since his arrival, and the fact that he provided a letter from a Member of Parliament and an affidavit from his wife. The Tribunal is satisfied that his involvement amounted to at most canvassing, attending meetings and putting up posters and banners. In his Entry Interview when first arriving in Australia, the applicant was unable to recall his [Relative A’s] name, suggesting that any involvement he had with his [Relative A] was minor. The Tribunal is not satisfied that the applicant had any other political involvement, or any political interest, other than assisting his [Relative A] on that one occasion. He was unaware of the ideals of the UNP or the exact dates of that election, was out at sea most of the time, and confirmed that he has had no other political involvement.
The Tribunal is satisfied therefore on the basis of the applicant’s evidence, that he was at a UNP meeting in around 2006/7 and members of the ruling party arrived and fought with the UNP members, breaking up the meeting. The Tribunal is satisfied that after this incident, some of these ruling party supporters came to his house but he was not at home, as they blamed him for taking down their posters. They destroyed his fence and the windows of his house. This incident has been referred to consistently since the Entry Interview, and was supported by his wife in an affidavit. The Tribunal is satisfied that his mother was at home, and they threatened to kill him. One of these ruling party members was the man called [Mr A]. The Tribunal is also satisfied that his [Relative A] lost the election in 2007 or 2008, and some strangers came to his house looking for him. The Tribunal is satisfied, on his evidence, that although [Mr A] and his associates came from the ruling party and this may have exacerbated the conflict, particularly as they accused him of tearing down posters, the hostility towards the applicant arose as [Mr A] suspected that the applicant had insulted his sister.
The Tribunal is not satisfied that the applicant hid following the incidents with [Mr A]. He has given evidence that he worked as a fisherman and spent long periods of time at sea, from [year] to 2012. In line with this, it appears that after the incident with [Mr A], he went fishing with his [Relative A], returning to his village 3 to 4 months later, then later returning to sea for around 2 years. He returned home for festivals, which is not consistent with hiding and also returned to his village permanently in 2011 although he said he did not live at his house. His pattern of fishing and returning home followed the patterns of his earlier work life, and the Tribunal is not satisfied that at any of this time he was hiding.
The Tribunal has substantial concerns about the veracity of the evidence that [Mr A] or his associates continued to look for the applicant after the incidents in 2006 to 2008, for the following reasons. Firstly, according to the applicant, the incident in which [Mr A] and his associates went to his home and damaged it and threatened him, took place in 2006/7 in the heat of an election and while they were drunk. It followed accusations that he had taken down posters and insulted [Mr A’s] sister. The Tribunal is not satisfied that [Mr A] or his associates would continue to seek out the applicant once he had left the area to go fishing, considering that the election was over and he was no longer present in the region. The Tribunal is not satisfied that [Mr A] and his associates would continue to seek him out while he was fishing, or while he has been in Australia, on the basis that he had allegedly insulted his sister, and in Sri Lankan culture, women must be honoured. The applicant was unable to name the sister despite claiming that [Mr A] and his associates have continued to look for him for 10 years on the basis of an insult of her. This does suggest that the incident of the attack on the house was a one-off event, as, if there had been further contacts it is likely her name would have been mentioned to him or his family or friends. Furthermore, he claimed that he had not in fact insulted the sister. He was also unable to provide the RRT with any details of [Mr A]. Again if it was the case that [Mr A] and his associates had in fact harassed and threatened him and his family in the ways suggested, it would be expected that he would have found out some details about him.
Secondly, if [Mr A] and his associates had in fact harassed, threatened and sought out the applicant and his family after the election incident in the numerous ways alleged by the applicant and his mother, it seems likely that [Mr A] would have been able to locate and harm him, if in fact this was his intention. This is because the applicant said that he returned to the village 3 to 4 months after he left there, although he was in hiding. He then went fishing for 2 years and returned to the village for a festival and Christmas. He then returned to his village in 2011 for 4 months, as there was not enough fish in [Town 2]. If it was the case, as claimed that [Mr A] was seeking him out, as he has suggested that they have made significant efforts to find him over the years since then, it would have been expected that they would have made a more concerted effort to locate him more contemporaneously with the alleged insult. The applicant has said that threats had not been carried out because he was able to leave the area and work away. However, if as claimed, the alleged perpetrators knew of his home address and family members, it would not have been difficult to find him when he returned home from fishing on various occasions or in 2011.
Notwithstanding these concerns about the evidence, the Tribunal is prepared to give the applicant the benefit of the doubt that [Mr A] or his friends have approached and harassed his brother and mother and asked them and his friends where he is. The Tribunal accepts this evidence as his mother has provided evidence of being harassed recently and because the applicant said that they have continued to seek him out because [Mr A’s] sister had attempted suicide, which would provide some motivation if they blamed the insult for this.
As the Tribunal is not satisfied that the applicant was involved in any political activities after the election in 2006/7 or that he had been subject to any harassment or harm since 2006/7 because of his political activities, the Tribunal is also not satisfied that the applicant left Sri Lanka because of threats to his life because of his political activities in support of the UNP.
The Tribunal is satisfied on the applicant’s evidence, that the applicant assisted the captain of the people smuggling boat, [Boat 1] in June and July 2012 by steering the boat while en route. The applicant has referred to his involvement in steering the boat consistently since he arrived in Australia. There was some inconsistency in relation to how he found this boat. In his Entry Interview, he stated that a friend made all the arrangements for travel. He said that this friend, called [Friend A], told him about the boat. This evidence was different to his later evidence, in which he has said that his brother told him about the boat and introduced him to a person called [Smuggler A], who was organising the boat. Notwithstanding these inconsistencies, on balance, the Tribunal is satisfied on his evidence, that a man called [Smuggler A] had prepared the boat for travel, including food and passengers, but that the applicant assisted [Smuggler A] by finding parts for the boat before the journey. The Tribunal is satisfied that [Smuggler A] took five identification cards to the navy, including one in the applicant’s name, in order to get a fishing pass, one in the applicant’s name, to enable the boat to leave Negombo Harbour. The fishing pass system is mentioned in country sources.[1] The Tribunal is satisfied that the applicant assisted steering the boat during the journey.
[1] World Socialist Web Site, SEP Campaigns in a Sri Lankan fishing village, 10 February 2009, >
The Tribunal does not accept that the applicant was the captain, in the sense of being in charge of the boat as he claimed in the SHEV review, given the inconsistency in information provided in this review. Furthermore, there was information before this Tribunal which is subject to a non-disclosure order because of public interest reasons in not disclosing details of investigative and intelligence methods. This information was put to the applicant without disclosing the document itself or details of the investigative matters. In the intelligence document, which related to interviews conducted when the boat was rescued by maritime authorities, passengers identified two other people on board [Boat 1] as the organisers/bosses/captains but not the applicant. One of the other Sinhalese people on board claimed that he and three others, including the applicant drove the boat. This person claimed he was paid. One of the Sinhalese claimed that a person called [Mr B] did most of the driving of the boat, and that he was paid, and another person said [Mr B] was the skipper. However someone else said [Mr A] was the skipper. None of them mentioned the applicant as being the skipper or in charge, but they did mention that he helped steer the boat. This does indicate that the intelligence information is that the applicant helped steer the boat only, rather than being the person in charge. This information was put to the applicant who said that he had told the truth that he was the skipper of the boat, and he could not comment on why there are ‘inaccurate statements from other people on the boat noted in the intelligence report’ other than to note they are incorrect. It was submitted that his claim that he was the captain should be preferred as there were inconsistencies in the intelligence evidence, and he had been consistent in his evidence that he was the skipper of the boat. It was submitted that it would be erroneous to find that he had submitted the evidence to bolster his claims when in fact he had disclosed the evidence to be fully truthful as to the extent of his actions although they could be considered unlawful.
The Tribunal does not accept that the applicant’s evidence has been consistent in this matter, or that he later disclosed the extent of his actions in order to be fully truthful. The applicant did disclose that he steered the boat at his Entry Interview, when he first arrived in Australia, which indicated that he was not trying to conceal the fact that he had assisted in bringing the boat to Australia. In sworn evidence before the RRT he said that he navigated the people smuggling boat by holding the steering wheel for a short period of time as he was a fisherman and was familiar with boats. He said that the captain navigated and he had no further involvement. This is different evidence to that provided in this review where he said that he shared the skipper job with four other people, and in the SHEV review where he stated that he was the captain. Given that he has most consistently said that he helped steer the boat, the Tribunal accepts this evidence. Furthermore, in evidence in the SHEV review, he suggested that he did not check the boat or its fuel, and was uninvolved in other tasks relating to the boat.

Taking into account all the evidence and in particular the intelligence information obtained by the Department close to the time of arrival of the boat, and the applicant’s evidence at the time of arrival, the Tribunal is not satisfied that the applicant was the captain of the boat, but is satisfied that he helped steer the boat.
Well-founded fear of persecution
The Tribunal must consider whether the applicant’s fears of being harmed on return are ‘well-founded’. The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he or she has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[2]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[2] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.
The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’,[3] and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’.[4]
[3] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.
[4] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
There must be a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion (Article 1A(2) of the Refugees Convention).
Claims relating to fear of [Mr A]
The applicant claims to fear harm from [Mr A] or his associates arising out of harassment in the past, due to a personal grudge by [Mr A] as the applicant allegedly insulted his sister. He was asked at the Tribunal hearing why members of the opposition fought with him and destroyed his home and fence and windows, when he was only involved in the election at a very low level. He said that it was because of a personal grudge, as [Mr A] had said that he had commented on his sister in a derogatory manner. Because of this, ‘they’ came to the house to harm him. Asked if this was the reason they harmed him, not a political reason, he said that previously at the meeting they had an argument and fought, and both parties were drunk, and this was another reason they wanted to harm him.
The Tribunal has accepted that the applicant and his family were harassed and threatened by [Mr A] and his associates sometime between 2006 and 2008, as [Mr A] and his associates believed that the applicant had insulted his sister and because of election hostility. The Tribunal has also accepted that [Mr A] has approached and harassed the applicant’s brother and mother on a number of occasions.
The Tribunal is not satisfied that the persecution the applicant fears from [Mr A] is for any of the reasons set out in the Convention. The applicant has confirmed with the Tribunal at hearing, that [Mr A] now seeks revenge from the applicant for insulting his sister. This is a reason of personal animosity, and not persecution for race, religion, nationality, membership of a particular social group, or political opinion. While initially there may have been a political component, in that the hostility arose during elections, the ongoing harassment has been for reasons of revenge.
The Tribunal is not satisfied therefore that there is a real chance that [Mr A] or his associates would harass or otherwise harm the applicant if he returned to Sri Lanka in the reasonably foreseeable future for any of the Convention reasons.
Claims relating to political opinion
The applicant claims to fear harm for reasons of actual or imputed political opinion because of his activities in support of UNP.
While the applicant briefly assisted his [Relative A] in an election for the UNP sometime between 2006 and 2008, he has not claimed to have any further political interest or that he would be politically active if he returned to Sri Lanka. He told the RRT that he did not understand ‘the bigger politics’ and ‘just worked at his level’ and that it was only a small election. He was unaware of the ideals of UNP.
The Tribunal is not satisfied that there is a real chance of persecution for reasons of political opinion were the applicant to return to Sri Lanka in the reasonably foreseeable future.
According to independent sources, UNP has now become part of the government. According to the Department of Foreign Affairs and Trade (DFAT):
Sri Lanka is a democracy. In January 2015 Maithripala Sirisena defeated Mahinda Rajapaksa, who had been president since 2005, with 51.3 percent of the vote and a historically high voter turnout of 81 percent … He appointed Ranil Wickremesinghe, leader of the former opposition United National Party (UNP) as Prime Minister … The United Front of Good Governance, a coalition of parties including the UNP and Sirisena’s Sri Lanka Freedom Party (SLFP) faction, won 106 seats on a ‘good governance’ platform promising economic growth, transparency, anti-corruption, ethnic reconciliation and protection of individual freedoms and rights.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
While there have been incidents of attacks on opposition party members, the DFAT Report indicates that there is a diverse political landscape, with 70 registered political parties and political representation broadly proportional to the overall population. Further, the Report indicates that there are no banned political parties and all parties operate freely, although legislation prevents certain actions by any political party such as causing or intending to cause acts of violence or disharmony.[6]
[6] Ibid.
As the applicant only had a fleeting and minor involvement in politics sometime between 2006 and 2008, the Tribunal is not satisfied that he has any political profile currently. Furthermore, the UNP is now part of the government, and sources indicate that supporters of UNP operate freely. Further the applicant himself said at hearing, when asked if he still feared harm as a supporter of UNP, that he feared going to prison for being a crew member, implying that his fear no longer related to being a UNP supporter. The Tribunal is not satisfied therefore that there is a real chance (anything more than a remote or far-fetched chance) of serious harm, were the applicant to return to Sri Lanka in the reasonably foreseeable future for reasons of political opinion.
Claims relating to particular social group of returnee/asylum seeker who left Sri Lanka unlawfully/person who helped skipper a people smuggler boat or similar group
The applicant claims to fear being arrested, charged and imprisoned as a returnee who left the country unlawfully and for his role in steering the people smuggling boat. He claims that he will be charged under Section 45c of the Immigrants and Emigrants Act, 1949,[7] which makes it an offence to facilitate the transportation of persons by sea in a manner that bypasses immigration controls. He claims that news reports refer to ringleaders and organisers having been convicted. He said that if the authorities cannot find the owner of the boat, they could charge him. His name was used on the fishing pass used to leave the harbour. He claims that the navy will know that he used the fishing pass to depart the country, and he will be punished for this. He submitted that any facilitation of people smuggling, including merely driving the boat, would be sufficient for him to be considered to have been facilitating travel, and therefore still subject to refusal of bail, and inhumane treatment in gaol. He also claimed that [Mr A] would be able to find him by bribing officials to find him in gaol and could pay someone to harm him there.
[7] Immigrants and Emigrants Act, 1949 (Sri Lanka), [Immigrants and Emigrants (Amendment) Act, No 31 of 2006].
The applicant’s representative quoted a ‘PhD candidate’ who had interviewed returnee asylum seekers. A copy of a document written by her called ‘The law enforcement process pertaining to refugees returning from Australia’, undated, was provided. It was not stated if this document has been published. The author states that a specialised unit of the Sri Lankan police department initiates criminal proceedings pertaining to refugees returning from Australia. She referred to the fact that if returnees are charged under Section 45c, the magistrate is precluded from granting bail. She claimed that officers of the Maritime Human Smuggling Investigation Unit (MHSU) of the Criminal Investigations Department (CID) would have a list of names of returnees at the airport. However officers of the State Intelligence Service questioned the returnees who are then referred to the MHSU officers for interview. MHSU would then report the facts to courts through a ‘B-Report’ on the following day, and this would include whether they were people smugglers or mere passengers. Ten returnees who were interviewed complained that the MHSU officers asked for bribes with a threat that they would be charged under Section 45c if they did not pay. She said that those who were interviewed did not fit the stereotype of people smugglers, as most were fishermen who had been offered a subsidised rate or free ride to travel in the boat. Those suspected of being people smugglers would be denied bail. She said that of those interviewed, six were suspected as facilitators and had been in remand for more than 6 months. She claimed to have examined court records in October 2014 and ascertained that 38 out of 99 people investigated as facilitators remained in remand.
Also provided was a copy of a report by the same author called ‘Return to Danger? The evaluation of the safety of the rejected asylum seekers returned to Sri Lanka by Australia’, undated. It was not stated if this document has been published. The author stated her aim was to evaluate safety concerns of returnees to Sri Lanka. She visited Sri Lanka and interviewed 44 returned asylum seekers. She claimed that two returnees who were suspected to be people smugglers were taken to the CID for extensive questioning, and claimed that they were psychologically harassed. One claimed that he was told that unless he revealed information about the navy officers who assisted him, he would be charged under emergency laws. She stated that one of these returnees was now working as a labourer in Colombo and the other had assets frozen. She claimed that people identified as facilitators are denied bail for long periods, their assets are frozen and they face an expensive legal process.
The Tribunal has considered the applicant’s circumstances carefully and has significant doubts as to whether the applicant would be charged in Sri Lanka under Section 45c as an organiser or facilitator of a people smuggling boat, for the reasons set out below.
Firstly, the applicant has not been charged in Australia with any people smuggling offence despite telling maritime authorities at the Entry Interview that he had helped steer the boat. It is likely that it will be known that no charges were instigated against him when he returns to Sri Lanka. Further, information from the Department indicates that intelligence information suggested that he helped steer the boat, but was not the captain. Although the Department had this information, he was not charged with any offence.
Secondly, on a plain reading of Section 45c it does not appear that the applicant organised, or attempted to organise or did anything preparatory to, or aided and abetted organising persons to leave Sri Lanka in contravention of the Act. Section 45c states:
45c. (1) Any person, who—
(a) organizes one or more persons to leave Sri Lanka in contravention of any of the provisions of this Act ; or
(b) attempts or does any act preparatory to, or aids and abets any other person to, so organize under paragraph (a),
shall be guilty of an offence.
(2) Any person guilty of an offence under subsection (1) shall, upon conviction by a Magistrate, be liable to imprisonment of either description for a term not less than one year and not more than five years.
(3) In this section, the expression “organize”, with its grammatical variations, includes—
(a) the recruitment of a person on a promise of securing employment outside Sri Lanka ;
(b) knowingly making false promises of employment in a foreign country or making any false representation or disseminating misleading information with the intention of inducing persons to leave Sri Lanka for foreign employment ;
(c) soliciting pecuniary benefits from persons whether or not any such benefit was realized ;
(d) the transportation of persons by sea, land or any other manner without obtaining valid travel documents ;
(e) receiving and harbouring persons whether in Sri Lanka or in a foreign country.[8]
[8] ‘Immigrants and Emigrants Act, 1949 [Immigrants and Emigrants (Amendment) Act, No. 31 of 2006]’, Section 45c, 1 November 1949 [amendment certified on 26 September 2006].
It is not claimed that he was involved in recruitment, making promises of employment, soliciting pecuniary benefits or harbouring persons. While he did transport persons in the sense that he helped steer the boat, the provision provides ‘the transportation of persons by sea, land or any other manner without obtaining valid travel documents’, implying that organising by transportation under Section 45c involves making a decision to transport people without obtaining their travel documents, however the applicant was not involved in this type of organisation of the travel; he simply steered the boat. Presumably many passengers on the people smuggling boats may have helped steer the boats. Although country sources and media reports are not definitive about which categories of people may be prosecuted under Section 45c, DFAT has advised that ‘facilitators and organisers of people smuggling ventures can be charged under Section 45c … and are not usually released on bail’ and that ‘according to Sri Lankan police information, as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under Section 45c had received prison sentences of one year.’[9] DFAT also 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’.[10] The Tribunal is not satisfied that the applicant was a captain, facilitator or organiser as his evidence to this Tribunal was that he helped steer the boat and paid a fare, and did not organise or facilitate the boat. Further, as discussed with the applicant, other passengers on the boat did not identify the applicant as the captain, instead identifying two other passengers as captain.
[9] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
[10] Ibid.
Thirdly, reports indicate that 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. According to the Department of Immigration and Border Protection in a country report, the Sirisena government granted access to the Special Rapporteur on the Independence of Judges and Lawyers, and in her March 2017 report she commented on the cessation of the political pressure to influence decision-making of judges and lawyers, and that they were confident that they would be adequately protected. She reported that the general environment for lawyers, including their sense of security, had also greatly improved since January 2015. The report also noted that the United States Department of State Country Report for 2016 stated that the Sri Lankan Constitution provides for the right to a fair trial, and an independent judiciary generally enforced this right.[11]
[11] Department of Immigration and Border Protection, Country of Origin Information Services Section, Pre-removal clearance – Sri Lanka, 26 October 2017.
While the Tribunal, on the basis of the considerations set out above, has doubts as to whether the applicant would be charged and convicted under Section 45c, the Tribunal is prepared to give the applicant the benefit of the doubt that he would be so charged and convicted, as the reports are not entirely clear as to whether people who helped steer boats are being charged, particularly in relation to aiding and abetting. For example, a 2016 Daily News article reported that according to Sri Lanka’s Inspector General of Police, ‘Sri Lankan Police have intercepted 89 vessels which had engaged in human smuggling since 2009 with the support of the Australian Federal Police and Sri Lanka Navy. More than 4,500 passengers, 250 crew members and 450 facilitators were arrested along with the vessels’.[12] A Reuters article of 10 July 2014 stated, ‘The 37 Sinhalese and four Tamils on the first boat were returned to Sri Lanka over the weekend and appeared in court in the port city of Galle. Five people suspected of being the ringleaders of a people-smuggling operation were detained and 27 released on bail. Children were released without charge’.[13] On 14 July 2014, an article sourced from Reuters reported that five detained asylum seekers suspected of being ringleaders of a people-smuggling operation had not been charged, but a magistrate in Galle had extended their detention until 28 July 2014, ‘pending a ruling on whether they can be charged’.[14] An article in The Guardian in 2016 reported that the people smuggler organiser had been convicted to 5 and a half years’ imprisonment, with other boat crew sentenced to 5 years.[15]
[12] Daily News, ‘Sri Lankan Police intercepted 89 vessels engaged in human smuggling – IGP’, 9 March 2016.
[13] Aneez, S, Australian minister under fire for not meeting Tamil groups on Sri Lanka trip, Reuters, 10 July 2014, Aneez, S, Sri Lanka court keeps five in Australia asylum case in detention, Reuters, 14 July 2014, The Guardian, Sri Lankan people smuggler sentenced to five and a half years, 4 March 2016, >
These articles do not explain what roles the boat crew had, and it has been difficult to obtain this information from other sources. This is also unclear in the PhD candidate’s work submitted by the applicant. While the Tribunal is unable to comment on the reputability or academic standard of the PhD candidate’s work, the Tribunal has taken into account her suggestions that six of the 44 people she interviewed were charged under Section 45c. This is not a large number of people and nor does she provide information on what their actual involvement was. She said that more were interviewed by the MHSU at the airport, including those who did not fit the stereotype of people smugglers as most were fishermen who had been offered a subsidised rate or free ride. However she does not say whether any of these people were one of the six actually charged under Section 45c. The Tribunal also notes that her data pool was small, and she states that her data was gathered in 2014/15 so is not entirely up to date. Notwithstanding these factors, the Tribunal has taken into account her findings that six people were charged under Section 45c, and that more were interviewed at the airport, and they did not fit the stereotype of smugglers as most were fishermen or had been offered a subsidised rate or free ride.

Given that the available sources are unclear as to whether crew who are involved with steering, but were not paid, would be charged under Section 45c, the Tribunal is prepared to accept that there is a real chance, even though that chance may be less than 50%[16] that the applicant would be charged under Section 45c. If he was not charged under Section 45c, there is a real chance that he would be charged for illegal departure (Sections 34 and 45(1)(b) of the Immigrants and Emigrants Act, 1949 (Sri Lanka)). Penalties for leaving Sri Lanka illegally can include imprisonment of up to 5 years and a fine of up to 200 000 Sri Lankan rupees (around AUD2000). In practice, penalties are applied on a discretionary basis and most cases result in the issuance of a fine and not imprisonment.[17] DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the CID’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be held at a nearby prison. According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards departing illegally in the future. 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.[18]
[16]    Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[17]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 24 January 2017.
[18]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 24 January 2017.
Law of general application
The laws governing departure of citizens unlawfully and people involved in people smuggling apply to all Sri Lankan nationals and are therefore laws of general application. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[19] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[20] As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[21]
[19]    Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.
[20]    Chen Shi Hai v MIMA (2000) 201 CLR 293.
[21]    Applicant A v MIEA (1997) 190 CLR 225 at 233.
Consistently with Australian law, the UN High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:
Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[22]
[22] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued 2011) (Handbook) at [56].
In the case of MZAPO v MIBP [2015] FCCA 96 (Judge Street, 13 January 2015), the court held that temporary detention pursuant to Sri Lanka’s Immigrants and Emigrants Act based upon unlawful departure, was a law of general application.[23] This would apply, on the same principles, to those charged under the people smuggling provisions.
[23] MZAPO v MIBP [2015] FCCA 96 (Judge Street, 13 January 2015).
Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[24] In some circumstances, it may be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention.
[24] Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001).
Even if a law or its application results in discriminatory treatment, such treatment will not necessarily constitute persecution. It is settled law in Australia that where a law or policy results in discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group, the question of whether the discriminatory treatment constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[25]
[25] Applicant A v MIEA (1997) 190 CLR 225 at 258 per McHugh J.
Whether a law or its enforcement is ‘appropriate and adapted’ to achieving a legitimate object involves consideration of proportionality of the means used to achieve that object.[26] A legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. Thus, enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the State, would not ordinarily constitute persecution.[27]
[26] Applicant S v MIMA (2004) 217 CLR 387 at [44], [48].
[27] Applicant A v MIEA (1997) 190 CLR 225 at 258.
Taking all these factors and decisions into account, the Tribunal is satisfied that the Immigrants and Emigrants Act, 1949 is a law of general application. The Tribunal notes that the applicant through his representative has accepted that the Immigrants and Emigrants Act, 1949 is a law of general application. The representative has said that there may be cases where this law is applied discriminatorily, although it was not suggested that it was applied discriminatorily in this case. The Tribunal is satisfied that the law is not discriminatory in intent, nor is it selectively enforced or discriminatorily applied. It applies to all Sri Lankans, regardless of ethnicity, religion or political opinion or membership of a particular social group. The laws are not discriminatorily applied or selectively enforced against a particular group of returnees, or a particular group of people involved in people smuggling. Although the laws impact on persons who left Sri Lanka illegally, or were involved in people smuggling, the laws are appropriate and adapted to achieving a legitimate object of Sri Lanka, regulating the exit of citizens leaving the country and preventing people smuggling. Australia also has laws for people smugglers. The evidence before the Tribunal does not indicate that the law is being applied selectively or in a discriminatory manner for a refugee reason; rather the DFAT Report indicates that all returnees are being treated the same way.[28] The Tribunal is satisfied that any questioning, charge, conviction or penalty to which the applicant may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way. As such the Tribunal is satisfied that any period the applicant may be required to spend in gaol 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.
[28] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution on the basis of any charge and conviction under the illegal departure or people smuggling provisions of the Immigrants and Emigrants Act, 1949, as this is a law of general application.
Summary of findings in relation to refugee criteria
Upon consideration of the evidence as a whole, including the applicant’s individual circumstances singularly and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of his political opinion, or because of the grudge by [Mr A], or as a failed asylum seeker, or because he was involved in steering the boat, or for any other claimed reason. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
Complementary protection
As the Tribunal is not satisfied that the applicant meets the refugee criteria the Tribunal has considered 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.
Claims to fear harm from the government or ruling party members because of his involvement with UNP
For reasons discussed in detail earlier in this decision, the Tribunal is not satisfied that the applicant has had any more than a brief involvement with politics in Sri Lanka somewhere between 2006 and 2008. The Tribunal is satisfied that the applicant is not interested in politics and will not get involved in the future. He was involved with the UNP, which is now part of the government, and most sources indicate that supporters of political parties operate freely.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[29]
[29] MIAC v SZQRB [2013] FCAFC 33.
The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he or she has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[30]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[30] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.
Given the factors set out above, the applicant’s low level of involvement, lack of profile and current political conditions, the Tribunal is not satisfied there is a real risk of significant harm from the government or ruling party if the applicant was removed from Australia to Sri Lanka. The Tribunal is satisfied that any such risk is far-fetched and speculative only.
Claims to fear harm from [Mr A] or his associates
The Tribunal has accepted that the applicant was threatened and harassed by [Mr A] and his associates at a time between 2006 and 2008, and that since then [Mr A] has harassed and threatened his mother and brother on a number of occasions.
The Tribunal is not satisfied that there is a real risk of significant harm, were the applicant to return to his home area, from [Mr A] or his associates. ‘Significant harm’ is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.
The Tribunal is not satisfied that there is a real risk that the applicant will suffer any of these kinds of harm. While [Mr A] and his associates have harassed his brother and mother in the past, the Tribunal does not accept that any harm he will suffer would amount to more than insults or verbal threats, and even then, these are unlikely to occur. This is because the Tribunal is not satisfied that [Mr A] and his associates harmed the applicant while he was in Sri Lanka and was accessible to [Mr A], when he returned from time to time to his village, and was living there prior to coming to Australia. The Tribunal is not satisfied, given the time that has passed, and the fact that he was not significantly harmed in the past, that he will be significantly harmed if he was removed from Australia to Sri Lanka.
The Tribunal has accepted that there has been some harassment of members of his family by [Mr A]. The Tribunal is satisfied that [Mr A] may insult or verbally threaten the applicant although the likelihood of this is not strong, given the factors set out above. The Tribunal is not satisfied that personal insults or verbal threats he may suffer from [Mr A] reach the level of ‘significant’ harm. Cruel or inhuman treatment or punishment is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The Tribunal is not satisfied that the kind of verbal insults or threats which the applicant may be subjected to, although they may be unpleasant, would amount to ‘severe mental pain or suffering’ which is cruel or inhuman. Degrading treatment or punishment is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that the insults and verbal threats, if in fact they were made by [Mr A], would cause ‘extreme humiliation which is unreasonable’.
In any event, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
The Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm, for the reasons set out below.
The applicant has claimed that he cannot relocate as members of the ruling party have power and connections and they will find him. The Tribunal has not accepted that there is a real risk of significant harm from members of the ruling party anywhere in the country. The applicant has also said that [Mr A] could find him wherever he was. The Tribunal is not satisfied that [Mr A] would seek him out in other parts of Sri Lanka, given that he did not find him between the time of the incident, from 2006 to 2008, and when the applicant left the country in 2012. As set out earlier, the Tribunal is not satisfied that the applicant was in hiding during these periods, and as he came and went from his region during this period, it is evident that [Mr A] was not seeking him out to harm him. The applicant has not suggested that he was sought out in these regions.
According to the DFAT Report, Sri Lanka’s Constitution provides for freedom of movement for all citizens and there are no official restrictions to internal relocation. According to the 2012 census, 19% of the total population had relocated to their current district after being born in another district.[31] The applicant is Sinhalese so would face no problems with being a minority. Furthermore, he is a fisherman who has experience in relocating to different regions, as well as having shown the resilience to relocate to Australia.
[31] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
The applicant has submitted that [Mr A] would find him if he visited his mother or siblings, or if they visited him elsewhere in Sri Lanka. The Tribunal is not satisfied that relocation would be unreasonable on this basis. [Mr A] did not find him when he was living in Sri Lanka between 2006/8 and 2012 despite the fact that he came and went from his home town and lived there for 4 months before coming to Australia. The Tribunal is not satisfied that [Mr A] would seek out the applicant in other regions or that he would harm him if he visited his family, considering that he did not do so in the past. Further, it would be open to him to have his family visit him in other regions.
The applicant has also submitted that it was likely that he would not reasonably be able to work, given his serious difficulties with memory. The Tribunal does not accept that he would be unable to work, as the medical evidence provided does not suggest that this is the case. The medical evidence does not indicate diagnosis of any mental health condition which would make work impossible. The most recent report provided by the applicant is a report provided by a counsellor at [Welfare Agency 1] dated [in] August 2017. The report states that the applicant presented with ‘poor coping associated with prolonged detention … based on his presentation it is clear that indefinite detention has had a negative effect on his well-being.’ The report said that his mood was ‘sad and upset’, and that he ‘experiences the deterioration in memory and concentration … he experiences sleep difficulty and chronic headaches that adversely affect his daily functioning.’ The report also said that he was in good health, and his cognitive functioning was normal but negatively affected by prolonged detention and the corresponding uncertainty. Earlier reports from [a health service] in 2013 refer variously to sadness, insomnia, mild to moderate depression and low mood with considerable discussion about his family circumstances and detention conditions. The Tribunal notes that he has said that he has experienced deterioration in memory and that detention has had a negative impact on his emotional well-being. The Tribunal also notes that at the Tribunal hearings he appeared lucid and spoke without hesitation, and was articulate and coherent. The report indicates that he was in good health and his cognitive functioning was normal but negatively affected by prolonged detention and corresponding uncertainty. Given that his cognitive functioning was found to be normal, and that he would no longer be in detention, and there is no diagnosis of a medical condition, the Tribunal does not accept that he would not be able to work, even given his feelings of sadness, sleep difficulties and headaches. He has always worked as a fisherman and the evidence does not indicate that he would not be able to continue in this field. Furthermore the applicant is a young man who has shown resilience in living in different regions as a fisherman, being away from home for long periods, and relocating to a new country. The applicant has also submitted that if he returned he would need the care and support of his mother and siblings and would need to live with them. The Tribunal accepts that he would like to have their support, but does not accept that he could not get this support in other parts of the country. Further, he provided evidence in his SHEV review that he had relatives in other parts of the country. These relatives could presumably provide him with some support. When asked about this, he said that it was inappropriate for him to live with them given that he could be found by people looking for him. The Tribunal is not satisfied that [Mr A] would look for him in other parts of the country and it may therefore be possible for him to stay with or get support from his relatives.

[44]    UN Special Rapporteur on Human Rights and Counter-Terrorism, Full statement by Ben Emmerson, UN Special Rapporteur on human rights and counter-terrorism, at the conclusion of his official visit, 14 July 2017, The Special Rapporteur in his July 2018 report referred specifically to the routine use of torture in relation to people charged under the terrorism legislation:
The evidence collected by the Special Rapporteur points to the conclusion that the use of torture has been, and remains today, endemic and systematic for those arrested and detained on national security grounds under the PTA. Following his visit to Sri Lanka in 2016, the UN Special Rapporteur on torture had concluded that “the use of torture and ill-treatment to obtain a confession from detainees under the PTA is routine practice.” He observed that, in these cases, a causal link seems to exist between the level of real or perceived threat to national security and the severity of the physical suffering inflicted.[45]
[45]    UN Special Rapporteur on Human Rights and Counter-Terrorism, Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mission to Sri Lanka, 23 July 2018, The reports set out above indicate that the use of torture is still prevalent in relation to people charged under criminal or terrorism legislation. The reports indicate that although the government has taken steps to prohibit torture and it is not state sanctioned, they have not effectively prosecuted those police who have tortured inmates.
104. Notwithstanding these reports which indicate that torture is still endemic in relation to people charged with criminal and terrorist offences, the Tribunal is not satisfied that there is a real risk of significant harm, amounting to torture, were the applicant to be imprisoned for up to a year, for reasons discussed below.
105. Firstly, the Tribunal gives weight to DFAT’s advice in a September 2017 Report which states that there are ‘no reports of ill-treatment of people smuggling crews upon return to Sri Lanka’.[46] The Tribunal appreciates that, as raised by the applicant, DFAT may not monitor court processes or follow up on what happens to persons charged under the legislation. However given the extensive media and non-government organisation interest in this issue, if in fact returnees including crew from Australia were being tortured, the Tribunal is of the view that some credible evidence would have been revealed by media, or human rights organisations in Sri Lanka or Australia. Human Rights Watch in its World Report 2017 has stated that ‘the general openness for media and civil society groups that emerged after the electoral defeat of the Mahinda Rajapaksa government in 2015 continued in 2017’.[47]
[46]    UN Special Rapporteur on Human Rights and Counter-Terrorism, Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Mission to Sri Lanka, 23 July 2018, Human Rights Watch, World Report 2017, 2018, Secondly, DFAT considered the issue of torture specifically in relation to returnees in its 2017 Report and indicated that there was a low risk of torture:
DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.[48]
[48]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 24 January 2017.
107. In regard to treatment of returnees generally, the Sri Lankan Prime Minister in 2017 promised that asylum seekers would be safe on return and would not be punished. While it is not clear how this statement has been implemented, it does indicate public commitment on his behalf to returnees’ safety. Such a commitment would be inconsistent with allowing torture of returnees:
The Sri Lankan prime minister has urged his nationals held in Australian-run immigration detention centres to come home, saying his country is healing.
The Prime Minister of Sri Lanka has urged compatriots who are being held in Australian-run immigration detention centres to come home.
“Come back. All is forgiven,” Prime Minister Ranil Wickremesinghe said as he stood beside Australian Prime Minister Malcolm Turnbull on an official visit to Canberra on Wednesday.
He told reporters that the asylum seekers committed a crime by trying to reach Australia but would not be punished if they returned.
“They can come back to Sri Lanka and we will help them,” he said.
“But remember, they broke the law by attempting to come to Australia.”
SBS asked Prime Minister Wickremesinghe if it is safe for Sri Lankan nationals to return, which he replied: “Yes, it is quite safe.”[49]
[49]    SBS News, ‘Come back, all is forgiven’, Sri Lankan PM tells asylum seekers, 15 February 2017, Given this public commitment in Australia it is less likely that the government would permit torture against returnees given the reaction this may receive in Australia.
109. Thirdly other reports also indicate that there is a low risk of torture for returnee asylum seekers. The applicant referred to the comments of Justice Kirby about diplomatic reports such as the DFAT Report: ‘diplomatic officials have sometimes been known to be unduly optimistic about political conditions in a country to which they are accredited. Applicants for refugee status may be able to call upon testimony from recent refugees or members of civil society organisations who are in closer touch with the realities as they affect marginal or dissident groups’.[50] The Tribunal has considered whether, as raised by the applicant, DFAT has been unduly optimistic in reaching these conclusions, by reviewing other reports as well. These reports do not indicate that there is a real chance or a real risk that returnee asylum seekers and/or people charged with being crew of people smuggler boats are being subject to torture. The report of the UK Home Office fact-finding mission to Sri Lanka published in March 2017 contains comments from a wide variety of individuals and organisations, most of which do not suggest that returnees are being tortured.[51] The International Organisation for Migration (IOM), which has had a strong role in assisting voluntary returns, noted that there were thousands of former LTTE members, and as some had left the country on forged identities, the issues of civil security, terrorism and the immigration laws were the focus of the government on return.[52] The fact-finding mission also found that there were some allegations of ill-treatment after arrival, but these were not substantiated.[53] A UN Senior Human Rights Advisor in Sri Lanka said that civil society groups on the ground had not reported recent issues of ill-treatment on return, although some cases had been raised by the non-governmental organisation Freedom from Torture.[54]
[50]    Re Minister for Immigration and Cultural Affairs: Ex parte “A” (2001) 185 CLR 489.
[51]    UK Home Office, Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE), 31 March 2017.
[52]    Ibid.
[53]    Ibid.
[54]    Ibid.
110. Fourthly, in regards to the reasonably foreseeable future, there does appear in recent times to be government commitment to both the elimination of torture, and to ensuring the safety of returnees. In December 2017 the government acceded to the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Additionally since January 2018 the government has ceased making arrests using the Prevention of Terrorism Act[55] which implicitly encouraged police to obtain confessions through torture, and has made public statements criticising the culture of torture.[56] The Human Rights Committee of Sri Lanka has established a Custodial Violations Unit to expedite investigations and a Rapid Response Unit to help prevent torture by mandating visits to police stations and detention centres immediately after representatives filed complaints. The Human Rights Commission actively visited and monitored prisons and places of detention through 2017.[57] The government had also adopted a zero tolerance policy to the use of torture.[58] The Universal Periodic Review (UPR) Report on Sri Lanka was adopted on 18 March 2018 at the 37th session of the OHCHR in Geneva. Speaking at the adoption of the UPR Report on Sri Lanka, Ambassador Ravinatha Aryasinha said out of the 230 recommendations received during the constructive dialogue in November 2017, Sri Lanka had accepted 177 recommendations along with 12 voluntary pledges. This included, on 5 December 2017, Sri Lanka acceding to the Optional Protocol to the Convention Against Torture, and designating the Human Rights Commission of Sri Lanka as the National Preventive Mechanism. The government had requested the Human Rights Commission of Sri Lanka to liaise with the UNHCR Subcommittee to obtain the advice and technical expertise required for the effective and efficient operationalisation of the National Preventive Mechanism.[59]
[55]    United Nations Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/37/23), 26 February to 23 March 2018, Ibid.
[57]    Human Rights Watch, World Report 2017, 2018, Human Rights Watch, World Report 2017, 2018, Daily Mirror, UNHRC adopts Sri Lanka’s UPR report, 19 March 2018, Fifthly, the Tribunal notes that, taking into consideration the various reports on this topic, DFAT assesses that torture generally, perpetrated by either military, intelligence or police forces, is not presently systemic or state sponsored, and that the risk has decreased since the end of the civil conflict. DFAT goes on to say that it is difficult to determine the prevalence of torture but assesses that irrespective of religion, ethnicity, geographic location or other identity, Sri Lankans face a low risk of mistreatment amounting to torture.[60]
[60]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
112. Sixthly, while some reports indicate that in 2018, torture is a serious concern, notwithstanding some important changes and government commitment to its eradication, torture appears to be used primarily against Tamils, people with former LTTE connections, criminals and people who pose a threat to national security, rather than people convicted of people smuggling. Information regarding prevalence of torture is somewhat inconsistent in the various reports and made more difficult to assess by the fact that many of the allegations of torture are made anonymously. The Tribunal accepts on the basis of many human rights reports that torture has been routinely used as a means of interrogation in the past. However the Tribunal also notes that most of these instances as reported have related to the aftermath of the civil conflict, and to LTTE supporters and/or Tamils, or to criminal offenders. The applicant does not fall into these categories. This is reflected in the report in July 2017 in which the UN Special Rapporteur spoke negatively of progress in a number of human rights areas. In regard to torture, he noted that the continued existence of the Prevention of Terrorism Act allowed officials to torture suspects to obtain confessions. He also noted that it was the Tamil community which bore the brunt of torture in the country. He did note some positive developments, in particular the government’s recent adoption of a ‘zero tolerance policy’ towards the use of torture; and by the appointment in July 2016 of a Committee to Eradicate Torture by the Police. He noted however that in Sri Lanka, such practices are very deeply ingrained in the security sector and all of the evidence points to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.[61] The Tribunal is not satisfied that the applicant’s case would be regarded as one of national security as suggested by the applicant, given that people smuggling is no longer a prevalent issue for the government of Sri Lanka and the applicant’s role was not one of organisation but simply one of steering the boat.
[61]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
113. The Tribunal is not satisfied, considering all this information cumulatively, that there is a real risk of torture, if the applicant were to be removed from Australia to Sri Lanka and charged under the illegal departure or people smuggling provisions.
114. The Tribunal is also not satisfied that the applicant would be imputed with LTTE connections simply by being on a boat with Tamil crew and passengers. The applicant has had no other connections or associations with LTTE which would lead to such an imputation. Country sources do not indicate that simply by knowing or travelling with Tamils, an LTTE imputation is made.[62] The UK Upper Tribunal found, after considering claims and evidence relating to Tamil returnees to Sri Lanka, that living in an area previously controlled by the LTTE would not bring a person to the adverse attention of authorities,[63] thus it is unlikely that just by travelling on a boat with Tamils, the applicant would be imputed with LTTE association.
[62]    See for example, Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018; Human Rights Watch, World Report 2017, 2018, GJ & Others (post-civil war: returnees Sri Lanka CG [2013] UKUT 00319 (IAC) (5 July 2013).
115. The Tribunal is also not satisfied that [Mr A] could torture the applicant in prison or bribe someone to do so. The Tribunal is not satisfied, for reasons provided earlier, that [Mr A] would trace the applicant in regions outside his home area, or be permitted to enter the prison or be pay an official to harm him.
116. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk of torture.
Cruel or inhuman treatment or punishment, degrading treatment or punishment
117. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted.
118. ‘Degrading treatment or punishment’ is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
119. The Tribunal has considered whether there would be a real risk to the applicant of ill-treatment in remand or prison, which would amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment.
120. The evidence set out above in relation to torture does not reveal that returnees are being ill-treated when questioned at the airport, or taken to court for charges, or fined under the Immigrants and Emigrants Act, 1949.[64] There does appear to be some government commitment to ensure that returnees are not ill-treated.[65] Given this country information, the Tribunal is not satisfied that there is a real risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment, were the applicant to be questioned and charged under the illegal departure provisions of the Immigrants and Emigrants Act, 1949. As set out earlier, in DFAT’s advice in a September 2017 Report there are ‘no reports of ill-treatment of people smuggling crews upon return to Sri Lanka’.[66] As discussed earlier, the Tribunal appreciates that, as raised by the applicant, DFAT may not monitor court processes or follow up on what happens to persons charged under the legislation. However given the extensive media and non-government organisation interest in this issue, if in fact returnees including crew from Australia were being ill-treated intentionally in prison, the Tribunal is of the view that some credible evidence would have been revealed by media, or human rights organisations in Sri Lanka or Australia. As discussed earlier, Human Rights Watch in its World Report 2017 has stated that ‘the general openness for media and civil society groups that emerged after the electoral defeat of the Mahinda Rajapaksa government in 2015 continued in 2017’.[67]
[64]    UK Home Office, Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE), 31 March 2017; Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 24 January 2017.
[65]    SBS News, ‘Come back, all is forgiven’, Sri Lankan PM tells asylum seekers, 15 February 2017, Ibid.
[67]    Human Rights Watch, World Report 2017, 2018, 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 overcrowding and poor sanitary and other conditions.[68] It goes on to say that:
[68]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
The US Department of State reported in 2017 that only some of the larger prisons had hospitals; prisoners who could not be treated in prison medical units were typically transferred to the nearest local hospital. … In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation. … The number of prisoners (approximately 17 500 convicted and remand detainees exceeds prison capacity by around 49 per cent. In 2016 the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment punishment estimated prisons were up to 300 per cent over capacity.[69]
[69]    Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
122. While the conditions are poor and unsanitary with problems of overcrowding, the Tribunal is not satisfied that being subjected to these conditions amounts to cruel or inhuman treatment or punishment, or degrading treatment or punishment. Section 5(1) of the Act requires that, in relation to cruel or inhuman treatment or punishment the pain or suffering be intentionally inflicted. In regards to degrading treatment or punishment, s.5(1) requires that there must be an act or omission which causes, and is intended to cause, extreme humiliation. There does not appear to be a subjective intention on the part of the Sri Lankan authorities to inflict harm or suffering on people in remand or prison. Poor conditions are due to a lack of resources, rather than an intention to inflict cruel or inhuman treatment, punishment or humiliation.
123. In 2017 the High Court dismissed two appeals against a decision of the Full Federal Court in which the Federal Court held that intention required an actual subjective intention to cause the relevant harm.[70] The applicant has submitted that in the case of SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the Tribunal had found that the applicant would be remanded for up to two weeks for having departed illegally, and that a relatively short period of remand would not amount to cruel or inhuman treatment. The applicant in this case has submitted that he would be charged under Section 45c and could face imprisonment for one year or longer, such that he would face a real risk of significant harm. As set out earlier, the Tribunal is not satisfied that the applicant would face a prison sentence for more than a year, if at all. The Tribunal is not satisfied that the applicant would be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment if charged under the illegal departure or people smuggling provisions and held in remand or prison, because problems with remand facilities are a product of underfunding, and there is no actual subjective intention to harm.
[70]    SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34.
124. The applicant has submitted that the lack of action to improve prison conditions demonstrates an unwillingness to reform, and a subjective intention on the part of the Sri Lankan authorities to cause significant harm. However reports do indicate that steps are being taken by the Sri Lankan government to overcome these problems. For example, the National Human Rights Commission actively visited and monitored prisons and places of detention throughout 2017, and despite occasional difficulties the commission experienced no obstacles securing access to detainees.[71] In 2015 the government established a taskforce to analyse the legal and judicial causes of overcrowding in prisons. Following Cabinet approval in February 2017 the taskforce is functioning as a central body for prison reform, including reviewing the Prisons Act. The government commenced a process to relocate several large urban prisons to rural areas in 2016 to address overcrowding and improve prison facilities.[72] The evidence does not indicate that there is an intention to cause significant harm, rather the government is making some attempts to improve conditions.
[71]    Human Rights Watch, World Report 2017, 2018, Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 May 2018.
125. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer cruel or inhuman treatment or punishment or degrading treatment or punishment.
126. As referred to earlier in this decision, the Tribunal is also not satisfied that the applicant would be imputed with LTTE connections simply by being on a boat with Tamil crew and passengers. The applicant has had no other connections or associations with LTTE which would lead to such an imputation. Many thousands of Tamils and other returnees have returned to Sri Lanka and have not suffered any harm on their return.
Data breach
127. The Tribunal is not satisfied that there would be a real risk of significant harm to the applicant resulting from the ‘data breach’ in which the Department mistakenly published information on its website revealing the personal details of people in detention for a period of approximately 14 days in February 2014. The Tribunal accepts that this occurred. The facts before the Full Federal Court in SZSSJ[73] are that the document was accessed 123 times, and in its report to the Department following the data breach, KPMG stated it was not possible to discount the possibility authorities in another country may have accessed the information in the data breach. The Tribunal therefore accepts that, whilst unlikely, it is possible that Sri Lankan authorities have accessed the information that the applicant was in detention. However, the Tribunal notes the information released by the Department did not disclose the nature of applicants’ claims. The Tribunal notes that the Sri Lankan government will already be aware of the illegal nature of the applicant’s departure and is satisfied that the fact that he was in detention in Australia will not lead to a real risk of significant harm to him. The applicant also suggested that because of the data breach, [Mr A] would believe that the applicant had disclosed information about [Mr A] and his associates to the Australian government, which would lead to them seeking the applicant out and harming him. While there is no evidence before it to suggest that [Mr A] had in fact found out about the applicant’s protection claim through the data breach, the Tribunal accepts that [Mr A] may have found out about it. The Tribunal is not satisfied that this data breach would result in a real risk of significant harm to the applicant, as the Tribunal is not satisfied that any harm [Mr A] may inflict would reach the level of significant harm, for reasons set out earlier. Further, as discussed earlier, it would also be open to the applicant to safely relocate to another part of Sri Lanka.
[73]    SZSSJ v MIBP [2015] FCAFC 125.
Summary of findings in relation to the complementary protection criteria
128. Having considered the applicant’s claims individually and cumulatively, on the basis of the evidence and country information set out above, 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) of the Act.
CONCLUDING PARAGRAPHS
129. 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) of the Act.
130. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, 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).
131. There is no suggestion that the applicant satisfies s.36(2) of the Act 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
132. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Jane Marquard
Member

ATTACHMENT A
RELEVANT LAW
133. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
134. 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).
135. 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.
136. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
137. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
138. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
139. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
140. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
141. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
142. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
143. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
144. 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’).
145. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
146. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
147. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Jurisdiction
Statutory Construction
Natural Justice
Standing

[2018] AATA 5002

15 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing