1709273 (Refugee)

1709273 (Refugee) [2018] AATA 584 (28 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709273
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Louise Nicholls
DATE:28 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 February 2018 at 11:29am

CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Imputed political opinion – Support of Liberation Tigers of Tamil Eelam – Support of Tamil paramilitary groups – Witness to misconduct by Sri Lankan Army – Witness credibility – Claim to have witnessed misconduct not previously submitted – Limited and inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 35A, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZSSJ v MIBP [2015] FCAFC 125
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims he is a citizen of Sri Lanka and is [age]. He departed Sri Lanka by boat in May/June 2012 and arrived in [Australia] as an unauthorised maritime arrival [in] June 2012.
The applicant made an application for a protection visa [in] September 2012. His application was refused by a delegate of the Minister for Immigration and affirmed by the Refugee Review Tribunal on 26 June 2013. The decision was upheld in the Federal Circuit Court [in] June 2015 and then later upheld in the full Federal Court [in] November 2015.
As a person potentially affected by the “data breach”[1], the applicant was later invited to make submissions on how the data breach had affected him. Notwithstanding the outcome of his 2012 application, [in] April 2016 the Minister invited the applicant to make an application for either a Temporary Protection Visa (subclass 785) or a Safe Haven Enterprise Visa (subclass 790) (SHEV).
[1] During February 2014 personal information concerning numerous individuals held in detention on 31 January 2014 was inadvertently made available through the Department’s website.
[In] December 2016 the applicant made an application for a Safe Haven Enterprise Visa (SHEV) (Subclass 790). Section 35A of the Act establishes the classes of visas known as protection visas, which include permanent protection visas, temporary protection visas and safe haven enterprise visas.[2].
[2] Section 31 of the Act provides that there are to be prescribed classes of visas, as well as the classes provided for in sections of the Act, including s.35A(2) and (3). Section 35A, inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No.135 of 2014), which from 16 December 2014 established permanent protection visas in subsection (2) and temporary protection visas in subsection (3) and, from 18 April 2015, safe haven enterprise visas in subsection (3A) (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation dated 16 April 2015 (FRLI F2015L00543)). The definition of protection visa in section 5(1), introduced from 16 December 2014, provides that ‘protection visa’ has the meaning given in s.35A.
[In] April 2017 the delegate refused to grant the applicant a SHEV visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that she was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm if he returned to Sri Lanka.
This is an application for review of that decision and it was made on 27 April 2017.
The Tribunal has before it the Department’s file which contains the first application for protection and related materials and the application for the SHEV visa made on [in] December 2016. Those materials include:
·Irregular Maritime Arrival Entry Interview - [July] 2012.
·Educational and other identity documents relating to the applicant.
·Statement made by applicant [in] September 2012.
·Submissions made by the applicant’s representative on 5 October 2012.
·Delegate’s decision record of [February] 2013.
·Decision of Refugee Review Tribunal made on 26 June 2013.
·Invitation to comment on information relevant to the applicant’s International Treaties Obligations Assessment (ITOA) 10 August 2015.
·Applicant’s handwritten statement and copy of his uncle’s death certificate received [in] December 2015.
·Statement of applicant made [in] December 2016.
·Submissions made by the applicant’s representative dated 30 March 2017.
·Photocopy of a letter from [a] JP dated [in] March 2016.
There are no certificates issued pursuant to s.438 of the Act restricting the disclosure of any documents held on the Departmental file.
The Tribunal also has Tribunal file 1302650 which contains the applicant’s first application for review and related documents. This file contains submissions made by the applicant’s representative dated 8 April 2013, the applicant’s identity card, the applicant’s General Certificate of Education (2012) and a letter from the Grama Officer confirming that the applicant’s father [died in 2004].
As the applicant was being held in detention in [a detention centre] at the time of constitution to the current Tribunal, he was invited to attend a hearing at the Tribunal on 28 July 2017 and the [detention centre] was advised of the date and confirmed the arrangements. Despite receiving confirmation of the applicant’s transport arrangements on the date of the scheduled hearing there was no appearance by the applicant. Registry staff checked Departmental records and discovered that the Department had moved the applicant to [another detention centre] without advising the Tribunal.
The hearing was rescheduled for 6 November 2017 for hearing by video conference and the applicant appeared by video conference before the Tribunal on that date to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The applicant gave evidence about his background, his claims for protection and his current circumstances.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
What is the country of reference?
The applicant claims he was born in Sri Lanka and is a citizen of Sri Lanka. He came to Australia without a passport but provided other identity documents to the Department when he first arrived. He provided copies of his Sri Lankan national identity card and school reports.
The applicant has consistently claimed that he is a citizen of Sri Lanka, he spoke the Tamil language fluently and appeared to be familiar with the geography and culture of Sri Lanka.
Taking into account all the available evidence the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purposes of s.36(2)(aa).
What are the applicant’s claims?
The applicant’s claims are set out in his application for a Safe Haven Enterprise Visa (SHEV). He stated that he relied on his statutory declaration of [September] 2012 as well as a later statement of [December] 2016. The applicant attended an interview with the delegate [in] March 2017 where he discussed his claims and [in] March 2017 his representative made written submissions. The applicant discussed, and elaborated on, his claims in oral evidence given at a hearing held on 6 November 2018.
Essentially the applicant claims he faces a real chance of serious and significant harm from Sri Lankan authorities if he returns to Sri Lanka because he witnessed a sexual assault on his mother by Sri Lanka Army personnel in 2012. He claimed that he attacked the persons involved who then ran away.
He also claims he faces a real chance of serious and significant harm from Sri Lanka authorities because he is a Tamil and because be imputed with pro Liberation Tigers of Tamil Eelam (LTTE) and anti-government political opinions due to; his Tamil ethnicity, because he is a young Tamil male from [District 1], his stepfather’s links with some Tamil political groups and to his attendance at a Martyr’s Day event in [Australian City 1] in 2014. The applicant claims that authorities will be aware that he was held in detention due to the data privacy breach and will conclude that he has applied for protection in Australia. He claims he faces serious and significant harm as a failed asylum seeker and also as an illegal departee from Sri Lanka.
Background
The applicant stated at hearing he was [age] years old and was born in [District 1] in the Northern Province of Sri Lanka. His father has passed away but his mother is still alive and living in [District 1] in her own home in a rural area. She remarried after her first husband’s death but is now separated from her second husband (the applicant’s stepfather and paternal uncle).
The applicant was the only child of his parents but has [stepsiblings] from his mother’s second marriage and a half-[sibling] from that marriage. His half-[sibling] is about [age] and is living with the applicant’s stepfather. He stated that his two step [siblings] were living in Australia but claimed he had no contact with them and did not know where they lived or their current circumstances.
He has a cousin living in [Australian City 1] and he spent some time with her when he was living in [Australian City 1].
The applicant stated that his mother lives [in] [District 1] and does casual work in the fishing industry. She has [siblings] living in [District 1]. She also has relatives living in Colombo.
The applicant was born in [District 1] but the family moved to the Colombo-Negombo area when he was quite young. After his father passed away, he and his mother moved back to [District 1]. The applicant attended [school] in [District 1] before he came to Australia.
He agreed that he had just turned [age] years old when the Sri Lankan conflict ended in May 2009. He arrived in Australia by boat when he was [age]; he had no passport. His “cousin’s” father arranged for his departure from Sri Lanka. He explained that this person was a distant relative and not closely related to his father or mother.
Is the applicant an ethnic Tamil from [District 1]?
The applicant has consistently claimed that he is an ethnic Tamil male from [District 1] and the Tribunal accepts this evidence. At the Tribunal hearing the Tribunal put it to the applicant that he had previously made a claim that he feared harm as a Tamil male and as a Tamil male from [District 1].
He stated that [District 1] was located near to LTTE controlled areas and persons living in that area are perceived to be pro LTTE.
The Tribunal discussed country information with the applicant and put it to him that the situation in Sri Lanka had significantly improved for young males of Tamil ethnicity and for Tamils from [District 1]. The Tribunal referred to country information in the latest DFAT report[3] and country guidance from the UK Home Office[4]. That information indicated that being of Tamil ethnicity would not warrant international protection. In the past Tamils experienced discrimination and Tamils had suffered during the civil conflict but things had changed when the new government came into power in 2015. Security has improved, military checkpoints have been removed, the military presence reduced; there are no official laws or policies that discriminate against Tamils. Tamils have been included in the political dialogue and there are many Tamil politicians in national and provincial governments.
[3] DFAT Country Report on Sri Lanka 24 January 2017
[4] UK Home Office Country policy and information note: Tamil separatism June 2017
The applicant stated that although many Tamils had entered politics, there were still many small instances of discrimination which affected the Tamil community. For example, there were no Tamils in the national cricket team.
Had the applicant intervened in the attempted sexual assault of his mother by Army personnel?
In the statement made [in] September 2012 the applicant claimed that he left Sri Lanka because he feared harm from Sri Lankan authorities because he was a young Tamil male from the north and would be imputed with pro LTTE opinions.
[In] December 2016 the applicant provided a later statement which introduced a further claim. He stated that about one month before he fled Sri Lanka he arrived home from school and found two Sri Lanka Army (SLA) officers sexually assaulting his mother. He shouted, tried to hit them and threw a stone at them. They ran away when neighbours heard the shouting. The incident was not reported to police. He claimed the Army put his house under surveillance and he thought he might be harmed because he had seen what the officers were doing. He did not raise this incident in his initial statement because it made him distressed.
The delegate conducted an interview with the applicant [in] March 2017 where the applicant recounted the details of the attempted sexual assault. The delegate’s decision notes that the applicant did not disclose this incident in his earlier application for protection or his application for review to the Refugee Review Tribunal.
The applicant’s representative’s submissions of 30 March 2017 refer to the additional claims made concerning his mother and the fact that he had not previously mentioned those claims. The representative submitted that the applicant’s forthright demeanour at the interview and his relative youth at the time of his incident should be taken into account when assessing his credibility regarding this later claim.
At the Tribunal hearing the applicant claimed he left Sri Lanka because he had observed two members of the Sri Lankan Army trying to assault his mother when he returned home from school one day. He shouted at the army personnel and bent down to throw rocks; neighbours came to help him but the soldiers ran away.
He stated he was cycling home from school and parked his bicycle outside the home and saw one of them closing his mother’s mouth. He shouted and threw a stone at them. He never saw the perpetrators after this incident. His mother did not go to the police because the soldiers were Sinhalese and they decided not to disclose this to anyone as the Army and police often worked together and were not supportive of the Tamil community.
The following day whilst he was away from the home his mother told him that the Army came looking for him and she told him to go and stay at his uncle’s home. He was at his uncle’s home and they heard that boats were leaving Sri Lanka and he took a boat and came to Australia.
The Tribunal put it to him if the Army were looking for him they would have found him at his uncle’s house in [District 1]. He stated that they would not know he was at his uncle’s home. He stated he did not want to be arrested by the Sinhalese because there was a high risk for persons arrested by the Sinhalese.
He told the Tribunal this was the main reason he had left Sri Lanka in 2012.
The Tribunal asked him why he had not mentioned this incident when he made his first application for protection in 2012. He stated that at that time the incident did not come into his mind and “his head was about to break”.
The Tribunal put it to him that he claimed that he left Sri Lanka fearing for his safety as a result of this incident but when he arrived he did not tell make this claim or tell his representative that this was one of the important reasons he had left Sri Lanka.
He stated he has previously explained that he did not mention this incident because he was not told that he had to tell everything. The Tribunal put it to him that it may form the view that he made this claim in 2016 to strengthen his claims for protection and that it had not occurred as stated. He stated the incident caused him mental upset.The Tribunal told him it found it difficult to accept this explanation. It appeared that he only mentioned this claim when it was clear that he would have to return to Sri Lanka. He stated he never thought of returning to Sri Lanka and he is now telling the full story to avoid harm.
He stated that if he returned he would be harmed by the Army because of the incident involving his mother. The Tribunal put it to him that his evidence was that in 2012 there was an attempted sexual assault on his mother by 2 members of the Sri Lankan Army and when he returned home he threw a stone and shouted at them. He was [age] years old at the time. Despite this, his mother was still living in [District 1] and it appeared that she had not been harmed in the last five years. He stated that the Army had knocked at her door but she had not told him about this visit at the time it occurred.
The Tribunal noted that this was the first occasion he had made this claim. The Tribunal put it to him that he appeared to change his evidence at each stage to strengthen his claims for protection. He claimed his mother had not told him about the Army’s visit until recently because she was mentally upset about this incident.
The Tribunal put it to the applicant that it was unlikely that the two SLA soldiers would still be in the area because the country information indicated that troops are rotated through different parts of Sri Lanka. He posed the question to the Tribunal as to what he was expected to do if he came across these men again somewhere else.
The Tribunal noted the country information in the latest DFAT[5] report which indicated that the current government has reduced the military presence in the north in the last two years and there were no checkpoints and that troops are kept in barracks. He stated that things were the same as they were before and disputed the country information. He stated his mother told him that the Army were still in the local area.
[5] DFAT Country Report on Sri Lanka 24 January 2017
He stated that he was concerned that he would face harm if he returned because officers of the Criminal Investigation Department of the Sri Lankan Police (CID) visited his home in [District 1] in May 2017 and asked his mother about his whereabouts. She became scared and asked why they were asking about her son. She told them her son was in Australia and they asked her why he was in Australia. They asked her how he came to Australia, what he was doing there and whether he kept in touch by telephone. She told them he went to Australia by boat with his cousin. They checked his mother’s telephone. She told them he was in a camp waiting for a visa to be granted.
They told her they would return if they needed further information. They also told her that they were going to all the houses but she believed that they only came to see her. She was relieved when the applicant called her and told her he was safe and well in Australia.
The Tribunal put it to him there did not appear to be any reason for the visit in May 2017 and that it would not have been difficult for Sri Lankan authorities to find out that he had left the country many years earlier.
In response he claimed that his mother had approached a JP and explained the applicant’s difficulties. The applicant referred to the letter from the JP provided to the Department and Tribunal and stated that the JP may have told the authorities about his difficulties and that is why they visited his mother. The Tribunal pointed out the date of that letter [in] March 2016; he stated that date must have been a mistake. He claimed the visit took place in 2017 not 2016. He stated that these type of errors are common in Sri Lanka.

The Tribunal notes the letter stated that the applicant’s mother had told the JP that the applicant and mother were living alone after the death of the applicant’s uncle. During this time she was threatened by the Army in an attempt to attack her in a sexual manner in the presence of the applicant. The Tribunal put it to him that there was nothing in the letter about his stepfather and [siblings] whereas the evidence indicated that by this time the applicant’s mother had re-married his stepfather.
The applicant claimed that his mother and stepfather had separated after he came to Australia. However, this did not adequately explain why the letter did not mention the applicant’s stepfather as according to the applicant the separation took place after he arrived in Australia and not at the time of the attempted assault.
The Tribunal asked the applicant why the CID would still be interested in him in 2017. He stated they would be concerned that he had disclosed all the bad things that had happened to him and his mother in Sri Lanka. If he returned he would be persecuted about the incident that happened to his mother. He pointed to the visit from CID in 2017.
Having considered all the material before it, the Tribunal does not accept the applicant’s claim that he fled Sri Lanka in 2012 because soldiers had attempted to sexually assault his mother and he feared serious harm from Sri Lankan authorities because he had observed the attempted assault and had intervened.
The applicant first made this claim in 2016 after his first application for protection had been refused and he had been permitted to make a further application. He did not raise this claim when he first arrived, it was not included in his first statement which had been prepared with the assistance of a representative and it was not raised in the application for review before the Refugee Review Tribunal in 2013. Whilst the Tribunal accepts that at the entry interview the applicant may not have had the opportunity to outline specific aspects of his claims, he had many opportunities to raise this claim before 2016. Further he had the assistance of a representative throughout the initial application and review process. His initial statement was prepared in 2012 and he also had the opportunity to make this claim during the process of review. The Tribunal considers that his failure to mention this claim during the initial application and review process, particularly when he became aware that his claims may not be successful, indicates that he did not leave Sri Lanka for the reason now claimed.
In his current application the applicant claims his main concern with returning to Sri Lanka is that he will face serious harm because the Sri Lankan authorities believe he will disclose what happened to his mother and also because he threw a stone at Army personnel during the alleged attack. However, if this was the main reason for the applicant’s decision to leave Sri Lanka and for his fear of return, the Tribunal would have expected the applicant to mention this claim at an earlier stage. It accepts that the nature of the incident may have caused him some embarrassment and that he was relatively young when he arrived in Australia but the Tribunal does not accept that this would prevent him from mentioning the claim at an earlier stage as he now claims the event was critical in his decision to leave in 2012 and for his fear of return.
The Tribunal does not accept this claim and considers it was made in 2016 to strengthen his claims for protection. In 2016 he was aware that his initial application had not been successful on the basis of the claims made in 2012.
The applicant provided a letter from a person in Sri Lanka who is said to be a JP from [District 1]. The letter is dated [in] March 2016 and the author stated that he had been given a report by the applicant’s mother about an attempted assault on her by Sri Lankan Army soldiers in the presence of the applicant. He stated that he was told that the applicant attacked the soldiers and escaped from the house and the Army has been searching for him and due to his fear he left the country in 2012. The letter was given to the Department in 2017. The applicant claimed the date of the letter was an error and it should have been dated March 2017.
The letter appears to have been based on the instructions of the applicant’s mother and given the date of the letter (either 2016 or 2017), the Tribunal considers the letter has been prepared on the mother’s instructions to support the applicant’s new claim. The letter does not disclose any personal knowledge or observation of the alleged incident by the author and in these circumstances and considering the Tribunal’s concerns with the timing of the claim; the Tribunal has not given the letter any weight.
In any event, even if the Tribunal accepted that this event took place as claimed in 2012, which it does not; it does not accept the Army, CID or other Sri Lankan authorities would pursue the applicant for his actions in shouting and throwing a stone at two soldiers at that time. When it was put to the applicant that his mother continued to live in [District 1] and she had not been harmed or harassed the applicant claimed that the Army had visited his mother.
Later in the hearing he claimed the CID had visited his mother in 2017 and asked about his whereabouts. He stated that this supported his claim that the authorities continue to have an adverse interest in him. However, the Tribunal does not accept this evidence. The applicant did not mention this visit from authorities at any earlier stage in the current application or review process and when this was put to him he stated his mother did not tell him about the visit until quite recently. However, the Tribunal does not accept this explanation and considers that this evidence was fabricated at the Tribunal hearing to further strengthen the claims.
The applicant claimed in his statement of December 2016 that he noticed his home had been kept under surveillance but in his evidence to the Tribunal he stated that the Army came to his home after the attempted assault looking for him and as a result his mother told him to go and live with his uncle before he departed Sri Lanka. As the Tribunal does not accept that the applicant intervened in an attempted sexual assault it does not accept that his home was kept under surveillance until he left Sri Lanka. The inconsistency in the applicant’s evidence as to what happened after the attempted assault supports this finding.
Accordingly the Tribunal does not accept the applicant’s claim that he fled Sri Lanka in 2012 due to his intervention in an attempted sexual assault on his mother in 2012 and does not accept that he fears he will be harmed by authorities for this reason if he returns.
Claims of imputed LTTE opinions or links.
In submissions made on 30 March 2017 the applicant’s representative submitted that the applicant would be imputed with pro LTTE opinions or links.
The representative noted that the applicant made claims he would be imputed with LTTE links in both his statements of 2012 and 2016. The applicant’s representative noted that the applicant claimed he evaded conscription by the LTTE, was forced to provide assistance to the LTTE and was questioned by Sri Lankan authorities about whether he had any LTTE connections. In addition he submitted that he would be imputed with a pro LTTE opinion because; he is seeking asylum in Australia, he was affected by the data privacy breach, the applicant’s stepfather’s involvement in Tamil political parties, his violent interaction with Sri Lankan authorities on the cusp of his departure to Australia, the subsequent surveillance of his home and his participation in a Martyr’s Day event in Australia.
In the applicant’s statement of [September] 2012 the applicant claimed that [District 1] was a Tamil area of Sri Lanka and the stronghold of the LTTE for almost two decades. He claimed that he spent a lot of time in bunkers when the government shelled the area and the LTTE also put pressure on them and would try and recruit young boys to fight with them once they turned 15 years of age. He claimed that as he was tall for his age he had pressure when he was not even 15 years of age. His mother hid him from the LTTE. If there was an LTTE celebration they would be forced to provide extra food for the LTTE and loan their vehicles. He also claimed they had to pay taxes to the LTTE.
The applicant claimed that after the end of the civil conflict in 2009 government officials came and questioned him at his home about any ties he had to the LTTE. He claimed they made him sign a document he could not read and were trying to get information from them and threatened and intimidated them. He claimed the government was particularly harassing young men because they believed they were most likely to become part of a resurgent LTTE.
In his statement of December 2016 he reiterated claims he would be imputed with pro LTTE opinions or links because he had grown up in an LTTE controlled area. He also pointed to family links to the EDPD and Tamil National Alliance. He stated that his mother claimed that persons returning to their homes in Sri Lanka after an absence overseas were still being abducted and disappearing.
At the Tribunal hearing the Tribunal referred to previous claims that the applicant would face harm because he would be perceived to be a member of the LTTE.
He stated that during the war [District 1] was an LTTE controlled area and the authorities were concerned that residents had LTTE connections. To avoid any adverse attention the applicant came to Australia.
The applicant stated that in 2012 the Army had been checking houses and asking if he was involved with the LTTE. He stated his life would have been at risk if he had stayed in Sri Lanka for this reason.
The Tribunal put it to him that he would have been [a minor] when the conflict ended and there would be no reason why he would be suspected of having LTTE connections if he returned. He claimed he lived in an LTTE controlled area. He stated that when the war was ending the LTTE were taking young boys and giving them training for one to two weeks and sending them to the conflict zone. The Tribunal put it to him that he was very young during the civil conflict, he was not a member of the LTTE and there is no reason as to why authorities would suspect him of LTTE involvement. He reiterated that he had lived in an area where the LTTE was active and would be under suspicion for this reason.
The Tribunal put it to the applicant that everyone who lived in the north was affected in this way and by 2012 the Sri Lankan Army was mainly interested in those who had real connections with the LTTE. The country information indicates that the government did not want a resurgence of the LTTE but there was nothing about him or his family which would bring them to the adverse attention of the authorities.
As discussed with the applicant, the country information now indicates that the current focus of Sri Lankan government has changed since the end of the conflict in 2009 and immediate post conflict period. It put it to the applicant information reported by the UK Home Office that the LTTE in Sri Lanka is a spent force and there have been no LTTE incidents in Sri Lanka since the end of the conflict. The government is aware that many Sri Lankans travelled overseas for economic reasons and that everyone living in the Northern Province had some level of involvement with the LTTE. Post conflict, an individual’s past history will only be relevant to the extent it poses a present risk to the unitary Sri Lankan state. Government authorities were only interested in advocacy of separate Tamil state.
The Tribunal put it to him that simply coming from an area controlled by the LTTE will not bring him to the attention of Sri Lanka authorities. He stated it is different for those living in Sri Lanka than for those returning from overseas; he claimed returnees would face harm. The Tribunal put it to him this was not consistent with current country information.
The Tribunal asked the applicant why authorities would consider that he either was a member or supporter of the LTTE if he returned to Sri Lanka. He stated that police might check his telephone and find songs on his telephone which could cause them to suspect him of being a member or supporter of the LTTE. Further, even though he was not a member of the LTTE his personal information was disclosed in the data breach. He feared that the Sri Lankan government authorities would be aware that he had claimed asylum. From this they would assume that he was a member or supporter of the LTTE.
He claimed that if he returned the CID would infer that he had disclosed bad things about the Army and Sri Lankan authorities and that he might have disclosed what happened to his mother in 2012. The Tribunal put it to him that he was speculating on what might happen; he had no substantial basis for such a fear. As outlined earlier in this decision (but not accepted by the Tribunal) he claimed that the CID visited his home in May 2017 and questioned his mother and as a result he believed they were still interested in him.
The Tribunal pointed to country information produced by the UK Home Office and the 2013 UK country guidance case dealing with returnees to Sri Lanka. 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[6]. Many thousands of Tamils have returned to Sri Lanka and have not suffered any harm on their return.
[6] GJ & Others (post –civil war: returnees Sri Lanka CG [2013] UKUT 00319 (IAC) (5 July 2013)
During the Tribunal hearing the applicant was invited to comment on/or respond to information which would be the reason or part of the reason for affirming the decision under review.
He was advised that when he first arrived in Australia he was interviewed by an officer of the Department of Immigration [in] July 2012 and in that interview, stated his father was deceased and he had a mother and stepfather, step siblings at the time he arrived in Australia.
When was asked why he left Sri Lanka and he said he could not stay in [District 1] because the LTTE were coming to the house and his mother told him to leave with his [sibling]. He could not go to school as it was dangerous to stay as she did not know what the LTTE would do. When the LTTE came to catch him his mother put him in a bunker and the last time he went into a bunker was just before he left Sri Lanka. He said if he was caught he would be trained and have to go into battle for the LTTE.
This was relevant because it appeared that his mother and stepfather were still in a family relationship when he said they were separated. However, more significantly he claimed he left Sri Lanka because he feared the LTTE would take him away, train him and make him go into battle. His claims were quite different to the claims he has made since then and this might suggest that his current claims are not truthful.
The applicant elected to respond at the hearing. Firstly he stated his mother and stepfather separated after he came to Australia.
Secondly he was told that LTTE was still operating at the time of his departure in 2012. Also, he did not tell the true reasons he came to Australia because he did not wish to be disturbed for telling all this at that time. The Tribunal considers that the applicant meant “disturbed” in the sense of distressed not in the sense of bothered.
Does the applicant’s stepfather have links to the Tamil National Alliance (TNA) or the EDPD?
In the applicant’s statement of [September] 2012 he stated his father [died] in 2004 at the time the applicant was with his mother in Colombo. His mother later remarried his father’s brother. He made no mention of his stepfather’s political connections in that statement.
In his statement of [December] 2016 he stated that he fears the authorities in Sri Lanka because they will believe he is a supporter of pro-Tamil political parties. He claimed his stepfather had been imprisoned in the past because of his involvement with EPDP.
In a 2016 report, International Crisis Group describes the EPDP as a "former Tamil militant group" that is part of the United People's Freedom Alliance, a "diverse coalition of parties"[7] It is reported as having had close ties to the Sri Lankan government[8]. The group has also been described a pro government party which was also involved in threats and intimidation against Tamil civilians and other Tamil nationalist parties.[9]
[7] International Crisis Group 18 May 2016, 35
[8] Sri Lanka COI Compilation Austrian Centre for Country of Origin & Asylum Research and Documentation (ACCORD) pp51-52
[9] Sri Lanka: Treatment of Tamils in society and by authorities; the Eelam People's Democratic Party (EPDP), including relationship with the Tamil population (2014-February 2017)Research Directorate, Immigration and Refugee Board of Canada, Ottawa LKA105756.E 17 March 2017
The applicant claimed his stepfather also stood for election for the Tamil National Alliance (TNA) and his step [sibling] helped in that campaign. If the applicant was returned to Sri Lanka he claimed he would be expected to support those pro-Tamil political parties. As a supporter of those parties he fears he will be harmed by Sri Lankan authorities. He explained that he did not mention this in his statement of September 2012 because he did not know about it until his step [sibling] (cousin) told him prior to the making of his 2016 statement.
With respect to the TNA the DFAT country report[10] notes
3.6 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015. There are a number of Tamil political parties, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council. The TNA leader, Rajavarothiam Sampanthan, is leader of the National Opposition.
[10] DFAT Country Report on Sri Lanka p.3.6
The Economist Intelligence Unit provides the following information regarding the TNA:
“The Tamil National Alliance (TNA) is the largest opposition party but will, in practice, side with the government on many policy issues. The TNA will be keen to maintain its political capital and focus on the demands of the Tamil community. This means that a left-wing party, the Janatha Vimukthi Peramuna, may take over the role of the main opposition party.” [11](EIU, 12 July 2016)
[11] EIU, 12 July 2016
At the hearing the Tribunal put it to the applicant that he had previously claimed his stepfather had links with the Tamil National Alliance and the EDPD but country information also indicated that these two parties appeared to be opposed to each other and it was unlikely that his stepfather would have been involved with both groups. He did not respond to this apparent contradiction but claimed that he would be compelled to support the TNA if he returned. The Tribunal put it to him that the TNA has a role in government; it is part of the national legislature and plays an important part in the northern provincial government. He stated that his cousin told him his stepfather had contested the election for the TNA and had to go to gaol. If he returns he will be expected to support the TNA and it would be a problem.
The Tribunal put it to him that his mother and stepfather are separated so his stepfather’s political activities would not be a problem in the future and in any event support for the TNA would not cause the applicant any problems if he returned to Sri Lanka as the party appears to have a legitimate role in government.

The applicant’s evidence regarding his stepfather’s political connections was vague and he admitted that he did not have any personal knowledge of these events or connections; they were conveyed by his step [sibling] (cousin).
The Tribunal does not accept that the applicant will be pressured or forced to support or join any Tamil political parties. His mother and stepfather have separated and he now has no contact with his step [siblings] and there is no plausible reason why he would now feel he had to support the TNA for family reasons. In any event, the TNA is a mainstream Tamil party with a significant level of involvement in national and provincial government.
Did the applicant attend Martyr’s Day in 2014 with his step [sibling]?
The applicant claimed that he attended Martyr’s Day commemoration with his step [sibling] (cousin) in 2014. The Tribunal put it to him that he had given evidence that he had no current contact with his step [sibling] and did not know his whereabouts. He stated this was correct but they had contact in 2014.
The applicant stated the Martyrs Day commemoration in 2014 was held in [one of two suburbs of Australian City 1] but he could not remember as it was some time ago and he only went once. When asked to describe what happened he had some difficulty giving a first-hand account. He stated that he went with his step [sibling] (cousin) and they lit candles, prayed and sang songs. He stated that he attended because he wanted to pay his respects to the LTTE martyrs because they had fought for the Tamils.
The Tribunal does not accept that the applicant attended a Martyrs Day commemoration in 2014. As discussed with the applicant he did not appear to have a clear recollection of the Martyrs Day commemoration, he could not provide a detailed description of the event and he did not know where it was held. The Tribunal concludes that he did not attend this event as claimed.
Did the applicant leave Sri Lanka illegally?
The applicant gave evidence which the Tribunal accepts that he left Sri Lanka without a passport and did not leave from an authorised departure point. He claimed he was concerned about his illegal departure. He was also concerned about returning as a failed asylum seeker.
The Tribunal discussed the country information relating to the consequences of illegal departure. It also noted that the law applied to all citizens of Sri Lanka and that compliance was not enforced in a discriminatory manner. The applicant stated he had heard that some returnees had been tortured and some have disappeared and that the media does not cover this issue.
Was the applicant affected by the data privacy breach?
The evidence before the Tribunal indicates that the applicant’s details may have been made available through the Department of Immigration website in February 2014. The Tribunal asked the applicant how this may have affected him. He stated that he might be persecuted because of the data breach because authorities will have his name, they will be aware he applied for protection and they will question him.
The Tribunal put it to him that the Sri Lanka authorities would be probably be aware that he had applied for a protection visa if he returns to Sri Lanka as he had left without a passport. If the applicant returns to Sri Lanka he would have to return using a travel document.
The information indicates that a large number of Sri Lankan Tamils are returning to Sri Lanka and economic conditions have improved for Tamils. The political situation is improving and reconciliation mechanisms have been established or proposed. The main concern of the Sri Lankan government is focused on those who continue to advocate for a separate Tamil state. The applicant claimed that people were being tortured but this does not come out in reports.
Would the applicant be imputed with holding pro LTTE opinions or having links with the LTTE?
The Tribunal does not accept the applicant will be imputed with pro LTTE or anti-government opinions if he returns to Sri Lanka.
The applicant has consistently stated that neither he nor any family members were members of the LTTE and the Tribunal accepts this evidence.
The Tribunal accepts that [District 1] is located near a former LTTE stronghold and that during and immediately after the civil conflict, the Sri Lankan authorities may have held suspicions about young Tamil males based on ethnicity and residence. It accepts that some persons suspected of links to the LTTE were questioned and harassed and in some instances subject to serious mistreatment.
However, the current country information indicates that simply being a Tamil male residing, or previously residing in, or near [District 1], or other northern LTTE strongholds will not, on its own, result in the authorities imputing those persons with pro LTTE connections. The Tribunal does not accept that the applicant will be imputed with LTTE connections for reasons of his residence in [District 1] as a young male Tamil.
The applicant claimed that during the civil conflict his family were forced to provide money, food and vehicles to the LTTE, and the LTTE tried to pressure him to join the LTTE. His mother hid him from recruiters. His representative submitted that this level of contact would result in him being perceived to have LTTE links. The country information indicates and the Tribunal accepts that most civilian Tamils in the norther areas had some contact and involvement with the LTTE during the period of conflict up to May 2009 when the LTTE was defeated by the SLA[12]. Current country information suggests that the current focus of the Sri Lankan government is on those persons who advocate against a unitary Sri Lankan state rather than those who were pressured to provide low level support to the LTTE during the conflict.
[12] DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam p.2.4
The most recent UK Home Office report on Tamil separatism[13] notes in its policy summary:
3.1.1 The LTTE in Sri Lanka itself has not held any military power or political authority since the end of the civil war in 2009.
3.1.2 A person being of Tamil ethnicity would not in itself warrant international protection.
3.1.3 Neither, in general, would a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have had a significant role in it; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state.
[13] UK Home Office Country policy and information note: Tamil separatism June 2017
There are some reports which indicate that there is a continued level of interest in persons with LTTE links, particularly high profile members. However, the applicant has never been a member of the LTTE or had any real links with the group.
Taking into account the current country information the Tribunal does not accept that the applicant will be imputed with pro LTTE opinions or would be perceived as a supporter just because he and his family lived in LTTE controlled areas or had been pressured to provide the LTTE with food, money or property during the civil conflict.
The representative submits that the applicant has a profile which would give rise to a perception that he had links to the LTTE and would be at risk for this reason. He refers to the applicant’s questioning by Sri Lankan authorities; however, the Tribunal considers such questioning was widespread immediately following the end of the conflict in the northern and eastern provinces.
The representative submits that there are other matters which increase his imputed pro LTTE profile. However, the Tribunal does not accept that the applicant had a violent interaction with the SLA before he left Sri Lanka or that his house was subject to surveillance. It does not accept that the applicant would be affected by his stepfather’s political involvement in Tamil parties. The Tribunal does not accept he participated in a Martyr’s Day commemoration in [Australian City 1] in 2014.
The Tribunal does not consider the data privacy breach, the claim of failed asylum seeker and illegal returnee have raised the pro LTTE profile of the applicant. Taking those findings into account, the Tribunal does not accept that they increase the applicant’s imputed pro LTTE profile or links and does not accept that they would put the applicant at risk of serious harm if he returned to Sri Lanka.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above, the Tribunal does not accept that there is a real chance the applicant will face serious harm for reasons of his Tamil ethnicity or any imputed pro LTTE and anti-government opinion.
By way of background, the most recent DFAT report on Sri Lanka[14] report refers to long standing tensions between the Sinhalese ethnic majority and the minority Tamil community of Sri Lanka and a history of discrimination and marginalisation of the Tamil community following independence in 1948. This culminated in calls for a separate Tamil state in the north of Sri Lanka from the 1950’s and the rise of a separatist group, the Liberation Tigers of Tamil Eelam (LTTE) in the north and east of Sri Lanka. The report notes
2.2 In July 1983, conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE). In May 2009, the Sri Lankan Government announced its military victory over the LTTE and complete territorial control over Sri Lanka. During the course of the long civil conflict, hundreds of thousands of people were displaced and tens of thousands of people were killed on both sides of the conflict.
2.3 Under the leadership of current President Maithripala Sirisena, who was democratically elected in January 2015, the Sri Lankan Government is focused on post-conflict reconciliation, transitional justice, and governance and economic reform.
[14] DFAT Country Report on Sri Lanka 24 January 2017
The Tribunal accepts that the applicant is a young ethnic Tamil male from [District 1] and it accepts that he left Sri Lanka illegally in 2012 when he was [age]. The applicant stated, and the Tribunal accepts, that neither he nor members of his family were members of the LTTE during the civil conflict and that he was [a minor] when the conflict ended.
When the applicant first made claims for protection he claimed and the Tribunal accepts that he and his family faced pressure and coercion from the LTTE in [District 1] and that his mother would hide him from the LTTE when they tried to recruit young boys prior to the end of the civil conflict.
He claimed that following the end of the conflict the Sri Lankan government encouraged Sinhalese relocation in the north and provided no assistance to rehabilitate the Tamil community in the north. He referred to army checkpoints in the area and discriminatory treatment by the Army towards Tamil civilians. He also claimed he had been questioned at his home by Sri Lankan authorities about whether he had ties to the LTTE.
The Tribunal notes that at the time the applicant made his first statement in 2012 with the assistance of a representative he did not advance any other specific claims pointing to previous mistreatment or any incidents which could give rise to a fear of future harm.
His claims have developed since that first statement in 2012. He now claims that shortly before he departed Sri Lanka he witnessed an attempted sexual assault on his mother which resulted in him attacking Army personnel and as a result was subject to surveillance and monitoring. He also claimed that his stepfather was involved in two opposing Tamil political groups; the EDPD and the Tamil National Alliance and that he had a family connection to these pro Tamil groups. He also claimed he attended a Martyr’s Day event in [Australian City 1] in 2014 with his step [sibling].
He claims that these factors raised or increased his profile as a person who would be imputed with pro LTTE or anti-government opinions but for reasons set out above the Tribunal has not accepted these claims and thus does not accept that these have raised his profile.
The Tribunal accepts that at the time the applicant left Sri Lanka in 2012 that Tamils still faced significant discrimination and harassment from government authorities in, and near, the northern areas which had been formerly controlled by the LTTE. In 2012 the applicant was [age] and as a young male from [District 1] the Tribunal accepts that he observed and experienced incidents of questioning and harassment by Sri Lankan authorities who were concerned that the LTTE could recover and regroup amongst the Tamil community in the northern areas.
The Tribunal accepts that the applicant and his mother may have been pressured to provide a low level of support to the LTTE before the end of the conflict in May 2009. However, at the end of the conflict the applicant was turning [age] and during the conflict he would have been a young child.
DFAT reports that
2.27 Because of the pervasiveness of LTTE control in the north and east during the civil conflict, most Tamils from these areas are likely to have paid taxes to or provided a low-level of material support to the LTTE. DFAT assesses that those Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted. [15]
[15] DFAT Country Report on Sri Lanka 24 January 2017
As discussed with the applicant the focus is on the future and whether he faces a real chance of serious harm if he returns to Sri Lanka now or in the foreseeable future.
With respect to his claim to fear harm because of his Tamil ethnicity the most recent DFAT report notes that:
2.26 According to the UN High Commissioner for Refugees’ eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’ (see also ‘Tamils’ in the October 2014 Country Report on Sri Lanka).
….2.29 The Sirisena Government has prioritised human rights and reconciliation and has made significant progress, including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era back to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA; and engaging constructively with the United Nations. The Government also established an Office of National Unity and Reconciliation (ONUR) to develop a national policy on reconciliation.
2.30 Symbolic changes have also contributed to a more positive outlook for reconciliation. The 2015 Independence Day ceremony was attended by Tamil National Alliance (TNA) leaders for the first time since 1972 and President Sirisena delivered a trilingual Declaration for Peace in Sinhala, Tamil and English, paying respect to all victims who had lost their lives during the civil conflict (a significant step toward acknowledging losses on both sides). At the 2016 Independence Day ceremony the national anthem was sung in Tamil, as well as Sinhala. In 2015, the Government changed the name of the day commemorating the end of the conflict (held in May) from ‘Victory Day’ to ‘War Heroes Remembrance Day’ and for the first time gave official approval for memorial events to take place in the north and east.
2.31 In September 2015, the report of the UN’s Office of the High Commissioner for Human Rights investigation into Sri Lanka (OISL) found that grave violations, including possible war crimes and crimes against humanity, were likely committed by both sides during the civil conflict. In response, the Sri Lankan Government co-sponsored a resolution in the UN Human Rights Council which, while recognising the progress Sri Lanka had made on reconciliation, committed Sri Lanka to implementing a range of transitional justice mechanisms and reconciliation projects.[16]
[16] DFAT Country Report on Sri Lanka 24 January 2017
The UK Home Office report on Tamil separatism also notes that being of Tamil ethnicity on its own no longer warrants international protection and has not for a number of years.[17]
[17] UK Home Office Country policy and information note: Tamil separatism June 2017
The Tribunal notes that the country information indicates that the northern areas suffered significantly during the civil conflict and that there is a continued military presence in the area. Further some land has been appropriated by the military and that rural industries have suffered some economic disadvantage. However on the other hand, security has improved, military checkpoints have been removed, the military presence reduced, there are no official laws or policies that discriminate against Tamils, Tamils have been included in the political dialogue and there are many Tamil politicians in the national government and the northern provincial government.[18]
[18] DFAT Country Report on Sri Lanka 24 January 2017 p 3.6
Whilst the country information[19] indicates that Tamils continue to face some low level social discrimination the Tribunal does not accept that the level of discrimination amounts to serious harm.
[19] DFAT Country Report on Sri Lanka 24 January 2017 pp 3.5-3.7
Taking into account the findings set out above and relevant country information, the Tribunal does not accept that there is a real chance that the applicant will face serious harm amounting to persecution for reasons of his Tamil ethnicity or that he will face serious harm as a young Tamil male from [District 1] if he returns to Sri Lanka now or in the foreseeable future.
The Tribunal also does not accept that Sri Lankan authorities will consider he is a pro LTTE supporter or has anti-government political opinions because he is a young Tamil male from the Northern Province of Sri Lanka.
The Tribunal does not accept that the Sri Lankan authorities would have any reason to suspect he had been involved with the LTTE at an earlier time. Further, taking into account the evidence that he is not a member of the LTTE, has no connections with the LTTE and has not engaged in any conduct which might cause Sri Lankan authorities to suspect he is advocating for a separate Tamil state, the Tribunal does not accept Sri Lankan authorities would have any adverse interest in the applicant on his return for reasons of imputed LTTE or anti-government opinions.
The Tribunal notes that members of the Tamil community in the north have been monitored and that monitoring continues but at a much reduced level[20]. Even if the applicant faced some monitoring after his return to his home the Tribunal does not accept that this would amount to serious harm.
[20] DFAT Country Report on Sri Lanka 24 January 2017 3.9
The applicant has claimed that his inclusion in the data privacy breach, his status as failed asylum seeker and an illegal departee would raise his pro LTTE profile or lead the authorities to conclude he is a pro LTTE member or supporter with anti-government opinions.
The 'data breach' relates to the Department mistakenly publishing 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[21] are that the document was accessed 123 times, and in its report to the department following the data breach, KMPG 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 the applicant's claims.
[21] SZSSJ v MIBP [2015] FCAFC 125

In any event, as discussed with the applicant, if he returned to Sri Lanka he would be identified as a failed asylum-seeker because he would be returning involuntarily from Australia with a travel document. Therefore the Tribunal has considered the significance of the data privacy breach as part of the applicant’s claim that he will be harmed, or his pro LTTE profile will be raised, because he is a failed asylum seeker.
DFAT assesses that returnees are treated according to standard procedures, regardless of their race or religion, and that returnees are not mistreated during their processing at the airport.
Exit and Entry Procedures
5.19 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department. These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.
5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.[22]
[22] DFAT Country Report on Sri Lanka 24 January 2017
The current country information indicates that many thousands of asylum seekers have been returned to Sri Lanka since 2009 from Europe, Australia, Canada and the United States.[23] There is no information before the Tribunal which indicates that applying for protection overseas, on its own, puts an applicant at risk on return to Sri Lanka. While returnees may be questioned on return, the focus of the questioning appears to be in relation to whether the returnee poses a credible and ongoing threat to the national security of Sri Lanka.[24].
[23] DFAT Country Report on Sri Lanka 24 January 2017 p 4.21-22
[24] DFAT Country Report on Sri Lanka 24 January 2017 p.3.29
The Tribunal does not accept that the applicant will be imputed with pro LTTE opinions on the basis that he is a failed asylum seeker or that it will raise his profile as a person who has pro LTTE opinions or links.
The applicant claims that his return as an illegal departee will also increase the risk he will be perceived to be a pro LTTE supporter or a person with anti-government opinions. The most recent DFAT report notes in relation to illegal departure from Sri Lanka:
Offences under the Immigrants and Emigrants Act
5.21 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. 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 Criminal Investigation Department’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.
5.22 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. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a people smuggling venture. There is no general requirement to report to police or police stations between hearings.
5.23 The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT has been advised by the Sri Lankan Government that no returnee from Australia to Sri Lanka has been charged under the PTA. While credible, DFAT cannot verify this claim.
5.24 Some returnees from Australia have been charged with immigration offences and other criminal offences which issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling.
5.25 The Sri Lankan Attorney-General’s Department distinguishes between those suspected of being passengers and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.
5.26 DFAT assesses that ordinary passengers on a people smuggling venture are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. The Sri Lankan Government plans to review the I&E Act and produce new legislation in 2017 that better reflects this approach.
The Tribunal accepts that if the applicant was returned to Sri Lanka he may be charged under the Immigrants and Emigrants Act of Sri Lanka with offences relating to his illegal departure. The Tribunal considers there is nothing to suggest he will be treated differently from anyone else who may be charged with such an offence and this will be the application of the law which applies generally to everyone Sri Lanka. There is no evidence to suggest that there is a real chance that the law will be applied to him in a manner which discriminates on the basis of one of the reasons set out in s.5J of the Migration Act.
The Tribunal also does not accept that the applicant will be imputed with pro LTTE opinions or links or that it will raise his profile because of his illegal departure.
Having regard to findings made on his claims and the country information, the Tribunal does not accept that there is a real chance the applicant will face serious harm or be treated any differently than any other person returning to Sri Lanka because he is a Tamil or a young Tamil male from [District 1]. It also does not accept that there is a real chance he will face serious harm because of any pro LTTE or anti-government political opinions imputed to him because he is a Tamil, a Tamil male from [District 1], a failed asylum seeker or because he left Sri Lanka illegally.
Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis the Tribunal does not accept that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real chance of persecution. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.
As set out above the Tribunal accepts that; the applicant is a young Tamil male from [District 1], his father is deceased and his mother is separated from the applicant’s stepfather. The evidence indicates that the applicant’s mother currently lives in [District 1]. The Tribunal accepts that if the applicant returns to Sri Lanka he will be returning as a failed asylum seeker and that he may be charged under the Immigrants and Emigrants Act of Sri Lanka with offences relating to his illegal departure.
For reasons set out earlier in this decision the Tribunal does not accept that the applicant witnessed an attempted sexual assault on his mother in 2012 or that he attacked Army personnel after witnessing the attack. It does not accept that he will be pressured to join the TNA or that he has any family connections with the EDPD. It does not accept he attended Martyr’s Day in [Australian City 1] in 2014.
The Tribunal has considered the country information relating to the current situation for Tamils in Sri Lanka, in particular those of Tamil ethnicity returning to the Northern Province.
The current DFAT report notes that all Sri Lankans irrespective of their background have a low risk of experiencing official discrimination on the basis of ethnicity including access to education, employment or housing. However, the report notes that monolingual Tamil speakers may have difficulty communicating with government authorities. Economic conditions in the north and east have improved since the end of the civil conflict, however, some industries have struggled, especially the agriculture sector. Further local communities have complained about military involvement in commercial enterprises and the control of agricultural land. President Sirisena has overseen the return of some land occupied by Sri Lankan Army but it continues to occupy some farming land in the north.[25]
[25] DFAT Country Report Sri Lanka 24 January 2017 p 2.12
The report also noted that government had approved of a number of mechanisms for advancing truth, justice and reconciliation in Sri Lanka. The report notes that monitoring and harassment of Tamils in day to day life has decreased significantly under the Sirisena government and Tamils feel able to question the monitoring and observation activities of authorities. The Tribunal does not accept that the level of social discrimination or the low levels of monitoring amount to significant harm in the relevant sense.
With respect to his claim that he faces a significant risk of harm because he departed Sri Lanka illegally the country information indicates that the law relating to illegal departure is not applied in a discriminatory manner and applies generally to the population of Sri Lanka and not to him personally and is excluded from the complementary protection criterion.
In any event, the Tribunal does not accept that being questioned, charged, taken into custody for a short period and fined for illegally departing Sri Lanka amounts to significant harm in the relevant sense. It accepts that if he is charged this may cause some financial hardship for the applicant and his family; however, there is provision for payment of any fine by instalments.
The Tribunal has considered the country information on the conditions he might face during any short period of detention if he is detained pending a bail hearing. The country information evidence indicates that there is overcrowding and poor sanitary conditions in detention but the Tribunal does not accept that a short detention in these conditions amounts to significant harm. Furthermore there is no evidence which suggests that the authorities would intend to cause suffering by virtue of these conditions. The Tribunal does not accept that there is a real risk he will suffer significant harm as a consequence of poor conditions of detention during any period he might be held on remand waiting for a bail hearing.
The Tribunal does not accept the claim that the applicant will face a risk of significant harm because Sri Lankan authorities will consider his inclusion in the data privacy breach, his status as failed asylum seeker and an illegal departee will suggest that he is a pro LTTE supporter with anti-government opinions.
Having considered the applicant’s circumstances singularly, and on a cumulative basis, and for all the reasons 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 being removed from Australia to Sri Lanka that there is a real risk that he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT A – Criteria for Protection and Extract from Migration Act 1958
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 584

28 February 2018

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