1709305 (Refugee)

[2017] AATA 2080

1709305 (Refugee) [2017] AATA 2080 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709305

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Gabrielle Cullen

DATE:10 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2017 at 10:09am

CATCHWORDS

Refugee – Protection visa – Sri Lankan – Ethnicity – Tamil – Imputed political opinion – Brother’s membership of Liberation Tigers of Tamil Eelam (LTTE) – Perceived Links to the LTTE – Social group – Failed asylum seeker – Returnee from West – Credibility issues – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5H(1)(a)-(b), 5J(1), 36, 36(2)(a)-(c), 36(2A), 36(2B), 36(2B)(c) 65, 424AA, 438 499

Migration Regulations 1994 Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a Sri Lankan citizen of Tamil ethnicity from [Town 1] in Jaffna District, claims to fear return to Sri Lanka on the basis of his Tamil race and imputed political opinion of being with the LTTE and opposed to the Sri Lankan Government. He claims he will be harmed on return as he is a failed asylum seeker, returning from Australia and/or the West.

3. The applicant arrived in Australia [in] July 2015 using a [foreign] passport in [another name]. On arrival he provided a Sri Lankan passport in the [applicant’s name] and a number of other identity documents bearing his photo. An identity Assessment report conducted by the Department supported the applicant’s claimed identity. The passport indicated he left Sri Lanka legally [in] July 2015.

4. [In] May 2016 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

5. The delegate refused to grant the visa [in] January 2017. While he accepted that the applicant is a Tamil from the North, was arrested by the TID, detained and tortured in 2008/2009 he did not accept the applicant is a credible witness as to the applicant drawing adverse interest due to a family association with the LTTE or as there has been general interested by the TID in the applicant since 2014. The delegate outlined independent information as to the treatment of Tamils from the North and failed asylum seekers on return to Sri Lanka and did not accept that there was a real chance of persecution or a real risk that the applicant would suffer serious or significant harm, as defined by the Migration Act, on return to Sri Lanka on these bases and due to any claimed association with the LTTE.

6. The applicant appeared before the Tribunal by video on 7 August 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Tamil and English languages.

7. The applicant was given until 14 August 2017 to provide comments to the s.424AA matters raised and to provide any further evidence he may wish to. He was advised that if he needed more time to respond, to request it from the Tribunal.

8. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Sri Lanka and meet the refugee protection provisions of the Migration Act?

   ·Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The protection visa application of the applicant [dated] August 2015, including the applicant’s statutory declaration as to his claims and identity documents as to his identity disclosed on arrival in Australia. His Sri Lankan passport indicates he departed legally [in] July 2015.

    ·Oral evidence of the applicant provided at the Department interview [in] May 2016 and at the Tribunal hearing on 7 August 2017.

    ·Documents relating to his marriage to [Ms A] [in] September 2011 and court documents relating to the applicant’s parents-in-law trying to prevent the marriage in 2011. It notes that the applicant’s wife refused to return to her parents.

    ·Family ration card from 2012 confirming [the] oldest brother, was born in [year].

    ·Detention Attestation from the ICRC indicating the applicant was visited by them [in] March 2009 and [in] September 2009. It indicates he was released from [Prison] [in] September 2009.

    ·Letter from the [Prison] dated [September] 2009 indicating that [in] May 2009 the applicant was in remand custody for the case [No]. and was retained in custody from [May] 2009 to [September] 2009.

    ·Letter from the Grama Niladhari in the applicant’s area dated [August ] 2015 indicating the applicant was arrested in late 2008 and released from [prison] in September 2009. The letter indicates that ever since his release he was continuously shadowed by officers of the law and that a week previously the TID appeared at their office enquiring about his whereabouts.

    ·Another letter from the Grama Niladhari’s Office dated [July] 2015. It notes the applicant was arrested in 2008 in [Town 2] and released in September 2009. It notes that after his release on his return home he appeared at their office and reported his release. He noted that the Officers of the CID were shadowing him after his release and return. It notes they appeared at his Office frequently and were making enquiries as to the applicant’s movements. He notes the NIB were frequenting his home and always subjecting his family to interrogation.

    ·Detention Order dated [April] 2009 referring to the applicant being detained as he was acting in a manner prejudicial to national security on the basis that there are reasons to suspect that he is planning to attack the [Town 2] area and aiding and abetting the LTTE to commit unlawful activity.

    ·Sri Lankan police document, relating to information supplied to the Magistrate as to his continued detention as a suspect, with case number [from] [2009]

    ·Translation of a newspaper article dated 8 July 2015 stating that a former militant who was rehabilitated was arrested in Alaveddy South. His name is Sakthivel Rajakumaran (aged 41).

    ·Letter from [Mr B] dated [July] 2015 indicating the applicant was taken into custody while in [Town 2] and after many hearings released in September 2009. It notes in the recent past that officers of the CID and NIB have started frequenting his home, making enquiries about him and his family was subjected to intimidation and threats. He notes there are still incident of arrests and apprehension of youth who have been kept in detention in the past.

    ·Article from the Colombo Mirror titled “The Walk of Shame” date 18 May 2015

    ·Letter from the Home for Human Rights, Sri Lanka as to the applicant’s detention and release in 2009 dated [October] 2009. It notes that after initial detention at TID in Colombo the applicant was arrested by [Police] on suspicion and handed to the TID, the applicant was transferred to the TID detention centre in [Town 3], thereafter detained in [Prison]. It notes that consequent to the Fundamental Rights application [number] filed in [a] Court for his release he was released by the Colombo [another] Court on [date] September 2009 without being charged for any offence. The letter notes that Tamils are being arrested simply on suspicion. It notes the applicant wishes to seek asylum in another country and is afraid of living in Sri Lanka.

    ·[Organisation 1] Torture and Trauma Assessment Report dated July 2015.

    ·Submission to the Department title Supporting Country Information as to general and sexual violence, torture and enforced disappearances in Sri Lanka, election violence, the targeting of perceived or actual LTTE Members, difficulties faced by failed asylum seekers and the right to protection.

    ·Post hearing independent country information including an article relating to the US denying resettlement to Tamils on Nauru and Manus and that Tamil asylum seeker could face torture in Sri Lanka if the US rejects them. Also included was the report from the International Truth and Justice Project “A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009 to 2015” dated July 2015 and an article from the Colombo Telegraph dated April 2017 titled “Deliver Promises First and then Welcome Refugees Back”.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

    ·Country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes including DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014 and the DFAT Country Information Reports on Sri Lanka dated 24 January 2017, 16 February 2015, 3 October 2014 and 31 July 2013.

16. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Section 438

17. The Department’s file relating to the applicant’s protection visa application contained a purported s.438 certificate. The certificate stated that disclosure of information contained in on the file would be contrary to the public interest because the information related to an internal working document and business affairs. The document relates to assessing the applicant’s true identity as contained at folios 75 to 85 in the Department file. The Tribunal advised the applicant at hearing that it considered the documents to be irrelevant to its assessment of the applicant’s identity as it accepted he is as he claimed on arrival in Australia. In any event, as raised with the applicant, the Tribunal considers the certificate to be invalid.

18. Notwithstanding, it raised with the applicant via the process outlined in s.424AA that information within the document refers to the Facebook account of [name][1] (the applicant’s Facebook account) and shows the applicant wearing an official looking uniform. It raised with him that the photo was referred to the Colombo overseas post [in] July 2016 to verify which agency would wear the uniform and that the Colombo post advised that “the uniform appears to be a standard uniform a guard would wear. Guards in Sri Lanka wear uniforms regardless of who they work for.” It outlined the relevance of the information that the applicant may not be a credible witness as to his claims as he had indicated he had only worked as a [occupation] in Sri Lanka. This is discussed further below.

    [1] [Source deleted].

    The Applicant’s Claims

19. The applicant claims he was born in [Town 1] which is situated in the Jaffna district in the Northern part of Sri Lanka.

20. The applicant claims he fears he may be abducted, detained, tortured and his life may be in danger on return to Sri Lanka at the hands of the authorities. He claims this will occur as they suspect he was a member of the Liberation Tigers of Tamil Eelam (LTTE). He claims his brother [Mr C] was a member of the LTTE and killed while in action against the Sri Lankan Army (SLA) in 1995. Following several round ups of Tamils by the SLA, he claims his other siblings left Sri Lanka. He claims one brother [went] to [Country 1] where he successfully sought recognition as a refugee and his sister [entered] [Country 2] on a spouse visa. Both are now citizens of those respective countries.

21. He claims between 2006 and 2007, he lived in Colombo with his mother. He claims Colombo became increasingly unsafe for Tamils, with the authorities targeting them for arrest. Fearing for his safety the applicant claims he moved to stay with friends in [Town 2] [at] the end of 2008.

22. He claims one day in 2008 when he went to [Town 2], he was arrested by the Sri Lanka TID (Terrorism Investigation Unit). He believes he was arrested on suspicion that he was an LTTE member. He claims he was detained in a house in an unknown location for [a number of] days in [Town 2] by TID.

23. The applicant claims he was tortured during this period, that during this detention he was kept naked and handcuffed except for when using the toilet or eating. He claims he was subjected to attempted suffocation by placing a bag full of petrol over his head; his fingers being tied and being hung by his fingers; shoelaces tied around his penis and pulled; and being severely beaten. The applicant claims that he was subject to this treatment in order to force him to confess to LTTE involvement.

24. He claims after [a number of] days the applicant was then taken to a court in [Town 2]. He claims not to know what happed at the court. He was not provided with a lawyer or told why he had been detained. The applicant was then transferred to [a location] where he was again beaten.

25. He claims from the end of 2008 to September 2009 he was transferred between the detention centres [and] [Prison]. He claims to have also been tortured while at [Town 3] jail. The applicant believes a Human Rights Group intervened on his behalf and he was released [in] September 2009.

26. He claims since July 2014, the TID frequently visited his home or contacted him by telephone asking him to report to the [Town 1] Police Station. He claims they came at the end of each month since July 2014 and it was due to the frequent visit of the TID that he departed in July 2015. He said he believes wherever he goes in Sri Lanka the authorities would find him and he does not know how the authorities got hold of his mobile number and contacted him.

27. At the Department interview he claims as to his questioning from July 2014 that the contact occurred towards the end of each month, except for a couple of months. He claims on arrival at the police station, the same two TID officers [would] take the applicant to a room and ask him to identify people in photographs, ask whether they were LTTE members or associates and asked for their whereabouts. The applicant claims as he was unable to identify any person, he was beaten and told to tell the truth. He claims mistreatment including being punched in the face, being made to stand facing a wall while being beaten with a baton on the back and legs and having books placed on his head and being hit. He was released on the same day of his attendance. He claims the last beating occurred [in] May 2015, when the applicant was burnt with cigarettes and his leg cut with a blade. The interrogation on this day lasted about three hours where the previous incidents lasted one to one and a half hours. Fearing further harm, the applicant claims he called his uncle in [Country 1] who made arrangements with an agent to assist with the applicant’s departure from Sri Lanka. Due to the frequent visits by the TID, the applicant fled Sri Lanka in July 2015.

28. The applicant fears he will again receive adverse attention on return to Sri Lanka because he is a Tamil; as he has been detained by the authorities for a long period in the past on accusation of LTTE involvement; and on account of his brother’s past membership of the LTTE as a fighter. He also claims he will attract adverse attention due to the scarring on his body, which will implicate him as a person of previous concern to the authorities.

29. He indicates that he was never involved in the LTTE. He claims that despite the war having ended in 2009, Tamil returnees and failed Tamil asylum seeker returnees continue to be targeted by the authorities on return to Sri Lanka by the Terrorism Investigation Department (TID) operating on behalf of the government.

30. Credibility issues were raised and were relevant these have been raised below. Further, as outlined in the Department decision, independent country information was raised as regards to the treatment of Tamils, returnees and failed asylum seekers and treatment of those suspected of links to the LTTE at the time of the end of the war in 2009 and at the time of the decision.

1. At the Tribunal hearing, the applicant reiterated his claims to fear protection. He however stated and confirmed that he had never been questioned about his older brother’s involvement with the LTTE and did not fear return on this basis. The Tribunal raised concerns as to the credibility of the applicant’s claims and independent information as to the treatment of returnees from the west, failed asylum seekers and treatment of Tamils and Tamils from the North. Where relevant these have been outlined below.

   Assessment of Claims

   Is the applicant credible as to his claims?

2. On the basis of the applicant’s identity documents, and evidence provided at hearing the Tribunal accepts that the applicant is a national of Sri Lanka. It accepts his identity as claimed on arrival at the airport in Australia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Sri Lanka is the applicant’s country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Sri Lanka is the receiving country.

3. As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Sri Lanka, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts the following:

   ·The applicant [was] born on [date] in [Town 1]. He is the holder of a Sri Lankan passport who departed Sri Lanka legally on a passport in his name. He confirmed that he departed legally using his Sri Lankan passport in his own name at the Tribunal hearing.

   ·The applicant is a Tamil from the North of Sri Lanka.

   ·His parents have lived and worked [around] [Town 1] since the end of the war in 2009 to date and have not faced any difficulties from the authorities.

   ·He has received education up to the year [grade] level.

   ·The applicant lived [around] [Town 1] from his release from detention in September 2009 up until his departure in July 2015. He travelled from [his home] [to] Colombo and departed Sri Lanka the following day as was his evidence at the Tribunal hearing.

   ·His sister lives in [Country 2] as a citizen of [Country 2] and his brother lives in [Country 1] as a citizen of that country. They have both returned to Sri Lanka since the end of the war. His sister returned in 2011 and while the applicant could not exactly remember when, his brother returned to get married and it was after the war ended. Neither faced any difficulties from the authorities on return to Sri Lanka.

   ·His brother, [Mr C], died while fighting with the LTTE in 1995 against the Sri Lankan Army. While the Tribunal has some concerns as to the truth of the applicant’s evidence, as discussed below, it is prepared to accept his claims in this regard for the reasons that follow.

   oIn his statement, it is his evidence that his brother was a member of the LTTE and killed in action fighting against the Sri Lankan Army in 1995. He claimed at the Department interview that his brother, [Mr C], had been involved for approximately 6/7 months before he was killed and said at the hearing he was involved for less than a year. He said he did not know what he did for the LTTE and answered in the affirmative when asked at that time whether a son from each family had to join the LTTE.

   oWhen asked how old his brother, [Mr C] was when he died in 1995 he said he was about [age]. However, as raised with him, his evidence at hearing was that [Mr C] was the second brother and the evidence indicates his oldest brother was born in [date][2]. He said there was about two years between the brothers. The Tribunal therefore raised with him that at the most [Mr C] could only have been [age] or [age] year of age at the time of his death in [date] as he would have been born in [date] if he was 2 years younger than his older brother. When the Tribunal raised with him its concerns that he could not recall the age of his brother when he died and therefore may find he is not credible as to having a brother who was killed in 1995 in the circumstances claimed; he indicated that he was only small at the time, being [age] or [age] years of age. While the Tribunal accepts that as the applicant was young at the time of the death he may not have been able to recall the age of his older brother at that time, it is also of the view that it is likely that the death of his brother would have been talked about subsequently on numerous occasions by the family and his age at the time of his death referred to. Notwithstanding, the Tribunal is prepared to give the applicant the benefit of the doubt due to his young age at the time of his brother’s death and accept that the applicant was not certain of the age of his brother when he died. The Tribunal therefore accepts that the applicant’s brother was killed when he was [age] or [age] by the Sri Lankan army while with the LTTE in 1995, having been with them for less than a year.

   ·The applicant was married to [Ms A] [in] September 2011 and her parents tried to prevent the marriage by way of court action as indicated in the submitted documents. It notes that the applicant’s wife refused to return to her parents. The applicant has since divorced his wife and the court case has been resolved. No claim of a fear of return has been made on this basis and the evidence at hearing, which the Tribunal accepts, was that he does not fear return on this basis.

   ·The applicant has never personally been involved, a supporter or member of the LTTE. His father has not been involved with the LTTE

   ·The applicant  would be viewed on return to Sri Lanka as a failed asylum seeker and returnee from Australia and/or the West

   [2] The applicant’s evidence and as evidenced by the submitted Family Ration Card

4. The Tribunal also accepts the applicant faced the difficulties he claims as a Tamil, up until his release from detention in September 2009 as outlined in the claims above. In this regard there is sufficient information[3] to indicate that, at least up to the time of the end of the civil war in May 2009, and soon after, Sri Lankan citizens who were Tamils in the North were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. The Tribunal accepts as per the 2009 UNHCR Guidelines[4] that Tamils, prior to 2009,were frequently suspected as being associated with the LTTE, and that the applicant up to that time may have been so suspected and suffered the difficulties as claimed prior to or soon after the end of the war in 2009. The Tribunal therefore accepts that he was arrested and detained by the Sri Lanka TID (Terrorism Investigation Unit) in an unknown location for [a number of] days in [Town 2], he was taken to Court and then from the end of 2008 to September 2009 he was transferred between the detention centres [and] [Prison] . The Tribunal accepts a lawyer and Human Rights Group intervened on his behalf and he was released [in] September 2009. It accepts he was repeatedly questioned, beaten and tortured while in detention in 2008/9 in the manner claimed.

   [3] 2009 UNHCR Eligibility Guidelines for Assessing the International protection Needs of Asylum Seekers in Sri Lanka.

   [4] The submitted Family Ration Card also indicates his older brother was born in [year].

5. It also accepts that his brother and sisters as Tamils of the North left Sri Lanka prior to the end of the war as a result of the difficulties faced by Tamils at that time.

   Adverse Interest in the Applicant post September 2009

6. Notwithstanding the above, for the reasons outlined below the Tribunal has significant concerns as to the applicant’s credibility with regard to the difficulties he claims he faced after his release in September 2009, in particular his claim of being questioned or of interest to the authorities specifically in 2014/2015 due to a suspected involvement in the LTTE. The Tribunal also has significant concerns as to whether he has been a witness of truth as to his employment after the end of the war. For the reasons outlined below it does not accept the applicant has been of any interest to the authorities, including the TID, CID and NIB, since his release in September 2009 for any of the reasons he claims.

7. The applicant states that while he faced no difficulty after his release in the period from September 2009 to July 2014, he claims that from July 2014 to May 2015 he was repeatedly questioned and harmed by the authorities, specifically the TID. He claims the contact occurred towards the end of each month, except for a couple of months. He claims he was questioned by the same two TID officers [and] they would take him to a room and ask him to identify people in photographs and ask whether they were LTTE members or associates and asked for their whereabouts. The applicant claims as he was unable to identify any person, he was beaten and told to tell the truth. He claims mistreatment including being punched in the face, being made to stand facing a wall while being beaten with a baton on the back and legs, and having books placed on his head and being hit. He claims he was released on the same day of his attendance. He claims the last beating occurred [in] May 2015, when the applicant was burnt with cigarettes and his leg cut with a blade. He referred to scars on his body as evidence of the encounter. The interrogation on this day he claims lasted about three hours where the previous incidents lasted one to one and a half hours. He claims fearing further harm and further interrogation he fled Sri Lanka in July 2015. He claims that after his departure the authorities came looking for him again on two occasions and his mother told them he had gone to Australia.

8. He claims he will be harmed if he returns to Sri Lanka as the questioning by the TID is not over and they will continue to suspect he is involved with the LTTE. He claims to fear arrest and abduction as he left before the enquiry by the TID was over. He said his file is not closed and he is suspected of being with the LTTE due to his previous detention in 2008/9, on account of his ethnicity and where he is from in Sri Lanka.

9. For the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to these claims and that he has been of any interest to the authorities since his release from detention in September 2009.

10. Firstly, the applicant has provided inconsistent evidence as to the interest in him by the authorities after being questioned in May 2015. At the Tribunal hearing he indicated that the authorities came again in July 2015 after he had departed and his mother told them he was not there. He said the authorities then came again in August 2015 whereupon his mother told them he had gone to Australia. He said the TID then called his mobile phone. However as raised with him at the hearing there is no mention in the applicant’s statement attached to his protection visa application of any further visits by the authorities after his departure. While the statement/telephone interview was made in August 2015 the Tribunal expects if the applicant continued to be of interest and the police or TID visited his home, even if at that time of making the statement they had only visited in July 2015 and had called him, he would have referred to it in his statement due to its significance. This is particularly so as he was assisted by a representative to prepare his statement and the statement was made soon after he claims they visited in July 2015 and the phone call. The statement is also very detailed as to his detention in 2008/9 and how he was released and therefore expects he would include similar detail and further interest by the authorities with regard to this incident if true. Further, at the Department interview, in contrast to his evidence at the hearing, as raised with him, he indicated that the last time he was picked up and called by the authorities was [in] May 2015 and did not refer to an ongoing interest or the authorities coming to his home again despite being asked if he had anything to add. When directly asked whether he had faced any difficulties on release, he said he did not.  He was also assisted by a representative at the time. His evidence was that at that time he was speaking to his family on a weekly basis. When raised with the applicant, he said he did not raise it in his statement and at the Department interview as he did not have any documents to prove that they came in July 2015 and August 2015 after he departed. The Tribunal does not accept the applicant’s responses as explaining its concerns as he has given evidence of other visits and calls by the authorities with no documentary evidence, such as the visit in May 2015. Further he submitted a letter from [Mr B] dated [July] 2015 with his application indicating his family had been subjected to intimidation and threats by the NIB and CID as he is not at home. While the Tribunal has concerns as to the genuine nature of this letter as considered below and places no weight on it as evidence of the applicant’s claims, its existence does not support his claim he did not refer to the visits after he departed as there was no documentary evidence. The applicant’s inconsistent evidence in this regard adds to the finding the applicant is not a credible witness as to these claims.

11. The applicant has also provided inconsistent evidence as to who he told about the interrogations in 2014/2015 and from whom he sought help. At the hearing the applicant indicated that he told the village headman, the Grama Niladhari and his family that he was in fear of his life and told him it started in 2014. He said he and his mother went to the office of the headman (Grama Niladhari) after it started in July 2014. However as raised with him at the Department interview he indicated he only spoke to his family about it, including his uncle who lives in [Country 1]. When asked a number of questions as to whether he told a Tamil politician he answered in the negative. At no time did he indicate he or his mother went to the Grama Niladhari’s Office.

12. While he did submit two reports form the Grama Niladhari’s Office as evidence he approached them, the evidence within these letters is inconsistent with his own evidence as follows, further undermining his credibility. It is the applicant’s repeated claim at the Department interview and Tribunal hearing that he did not receive any interest from the authorities after his release in 2009 until 2014. However, as raised with him in the letter from the Grama Niladhari’s Office dated [July] 2015 it discusses that after his release in 2009 the applicant came to the office and reported to him. It notes that the letter states that the officers of the CID were shadowing him after his release and appeared at the office frequently making enquiries about the applicant’s movement. The letter from the Grama Niadhari’s Office dated [August] 2015 also indicates that ever since his release he has been continuously shadowed by officers of the law.

13. When the concerns were raised with the applicant he said he was not asked about that and that it did not come into his mind. He also responded that his claims are true and the documentary evidence shows his claims of harassment from 2014 are true. The Tribunal does not accept the applicant’s responses and is of the view if true he approached the office of the Grama Niadhari’s he would be consistent throughout the process, and his evidence and the documentary evidence would be consistent as to the difficulties he was facing. The Tribunal has further considered these documents below and places no weight on them as evidence of the truth of the applicant’s claims. The applicant’s internal inconsistent evidence and inconsistent evidence with the documentary evidence he has submitted further adds to the finding he is not a credible witness as to these claims.

14. The applicant has also provided inconsistent evidence as to when he sought help following the questioning and interrogation in 2014/2015. At the hearing the applicant indicated that his uncle in [Country 1] helped him to depart. He said from July 2014 after he was first questioned he sought help from his uncle to leave Sri Lanka and he confirmed it took about a year. However, in contrast he indicated at the Department interview about three to four months before he departed he sought help from his uncle in [Country 1] who organized for him to depart. When raised with him he said he took the final decision to depart after he was cut with a blade in May 2015. While not determinative the applicant’s inconsistent evidence as to when he first made arrangements to depart adds to the finding he is not a credible witness as to these claims and departing for the reasons he claims.

15. Further, the applicant has provided inconsistent evidence as to the difficulties faced by his family. The applicant stated to both the Department and the Tribunal that his family faced no difficulties from the authorities after the end of the war. While he indicated at the Tribunal hearing that on two occasions the authorities enquired as to his whereabouts when he was not there in July 2015 and his mother told them he was away and later on the second occasions that he had travelled to Australia, he did not refer to any threats or intimidation faced by his family. Rather he gave evidence they had faced no difficulties. However, the letter from [Mr B] dated [July] 2015 he submitted in support of his claims indicates that on finding the applicant not at home his family were subjected to intimidation and threats. The applicant responded that he is speaking the truth The Tribunal does not accept this response as it is of the view that he would be consistent with documentary evidence he submitted as to the difficulties faced by his family. The Tribunal has further considered this document below and placed no weight on it as evidence of the truth of the applicant’s claims. It has also considered approaching the JP directly. The inconsistent evidence adds to the finding the applicant is not a credible witness.

16. The Tribunal also views as of concern that despite his claim of repeated questioning and being physically harmed by the authorities on a monthly basis from July 2014 to May 2015 the applicant remained living at his home, working [for] the [family business] until his departure in July 2015 and made no attempt to go elsewhere in Sri Lanka to avoid the harm he was facing until his departure in July 2015 for Australia. In this regard, he said at hearing that the police would come or call and inform him to attend the station for questioning, which he did. When asked why he did not go elsewhere or into hiding in Colombo, particularly as he had lived there before, he responded that he could not go into hiding as he was making arrangements to depart and later said that when he was in Colombo in 2008 previously he was arrested. He said in his application that he could not relocate as the authorities would find him. The Tribunal has difficulty accepting that if the applicant was repeatedly questioned and harmed by the authorities, specifically the TID, on a monthly basis and was planning to depart with the help of others he would not have sought to avoid the harm by going elsewhere in Sri Lanka as he had done before. While it accepts he faced difficulty in Colombo previously, 6 years on the situation in Sri Lanka after the end of the war was very different. This adds to the Tribunal finding the applicant is not a credible witness as to these claims.

17. Further, it is the applicant’s claim that he was of interest to the TID and authorities in 2014/2015 on account of his earlier detention in 2008/9 and as the case against him of being suspected as being with the LTTE was not closed. He claims he was released by the Courts but was still of interest to the TID.  The applicant’s evidence is that together a Human Rights Organization and a lawyer were able to secure his release in September 2009. He said at the Department interview that he was released as there was no evidence to prove his LTTE association. As raised with the applicant, information indicates that at that time in 2009 and afterwards if the authorities had continued to suspect him of involvement in the LTTE he would not have been released and would have continued to be questioned.[5] The information indicates that those perceived of being with the LTTE, even if low profile members were detained and arrested and sent to rehabilitation camps. The information indicates that those perceived of being LTTE members and actual members were detained and systematically abused by the Sri Lankan Government in the aftermath of the war, which ended in May 2009. The information indicates that the Tamils suspected of links to the LTTE were arrested and detained under the Prevention of Terrorism Act (PTA) which permits extended administrative detention, and shifts the burden of proof onto a detainee alleging torture or other ill-treatment.[6] The Human Rights Watch (HRW) annual report 2016, Sri Lanka, observed that: ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years’.[7] On the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released, particularly around the end of the war in September 2009. The information therefore does not support the applicant’s claim that having been released from detention in 2009, he would be questioned again in 2014, approximately 5 years later as being suspected of links with the LTTE due to his former detention, particularly as there is no evidence he had done anything else to raise the suspicion of the authorities. His evidence was that he had lived and worked [for] the [family business] and was not involved in the LTTE.  In response the applicant submitted reports of the arrest and later re-arrest of persons in Sri Lanka. In particular, one report refers to Sakthivel Rajakumaran, the only translated report, which indicates that he was arrested as he was involved in the return of the LTTE into the country. The Tribunal accepts that re-arrest happens but as in the case of Sakthivel Rajakumaran, with new evidence of involvement in supporting the LTTE or a separatist organization. In making this findings, it has also considered the letter from the Home for Human Rights indicating that the pattern In Sri Lanka is if a person is arrested once there is a great likelihood he would be re-arrested but notes it is dated [October] 2009 soon after the end of the war, when the situation was very different to 2014. The independent information further undermines the credibility of his claim to have been interrogated in 2014/5 for the reasons he claims.

    [5] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26; DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014

    [6] Amnesty International Report 2015/16 - The State of the World's Human Rights - Sri Lanka, published 24 February 2016, (Arbitrary arrests and detentions), date accessed 5 April 2016

    [7] The Human Rights Watch (HRW), annual report 2016, Sri Lanka, 27 January 2016, (Prevention of Terrorism Act and Politically Motivated Torture, – p. 530), date accessed 5 April 2016

1. Adding to the concern that the applicant is a witness of truth as to difficulties faced in 2014/2015 after the end of the war is his claim to have only worked [for] the family [business] from September 2009 until his departure for Australia in July 2014. However as raised with him via s.424AA, and noted above, evidence on his Facebook shows him dressed up as a guard which the Post in Colombo indicates is a typical guards uniform in Sri Lanka. When the concern was raised with him as to the credibility of his employment claim and general credibility as to the difficulties he faced after the end of the war, he said he was not employed as a guard and was wearing the uniform belonging to a friend. He said it was taken for the purposes of a photo and if one looks closely at the picture it is not his name on the uniform. He said it happened when a friend who is a guard visited. The Tribunal has difficulty accepting his response as it can see no name on the uniform and has difficulty accepting the applicant would post a photo on his Facebook in a guard’s uniform belonging to another person. While not determinative this adds to the find the applicant is not credible as to these claims.

2. For the above reasons and inconsistencies in evidence the Tribunal does not accept that the applicant is a credible witness as to his claims of being arrested, interrogated, detained, questioned, harmed or to have faced any of the difficulties he claims as being a suspect of the LTTE following his release in September 2009 at the hands of the authorities, specifically the TID, CID or NIB. It follows it does not accept he was shadowed, questioned monthly from July 2014 to May 2015. It follows it does not accept he was questioned by the same two TID officers [who] would take him to a room and ask him to identify people in photographs and ask whether they were LTTE members or associates and asked for their whereabouts which he was unable to do. It follows it does not accept as true he suffered mistreatment including being punched in the face, being made to stand facing a wall while being beaten with a baton on the back and legs, and having books placed on his head, being hit, burnt with cigarettes and his leg cut with a blade. It follows it does not accept fearing further harm and further interrogation he fled Sri Lanka in July 2015 with the help of his uncle or that at any time he visited the Office of the Grama Niladhari’s seeking help. It follows it does not accept the authorities enquired as to the applicant with the Grama Niladhari’s Office or that his family were at any time threatened or intimidated. It follows it does not accept he was ever shadowed by the authorities. It follows it does not accept that after his departure the authorities came looking for him again on two occasions and his mother told them he had gone to Australia.

3. It rejects in their entirety his claims as to difficulties faced at the hands of the authorities after his release in September 2009 as he was suspected of being with the LTTE. It follows that the Tribunal does not accept that at the time the applicant departed Sri Lanka he was of any interest to the authorities, including the NIB, CID, TID and Sinhalese army as being perceived or suspected as being involved in the LTTE. As noted above the Tribunal is of the view if they had continued to suspect him of involvement in the LTTE for any of the reasons claimed he would not have been released in 2009 and would have continued to be questioned. The latter which the Tribunal has rejected as true.[8]

   [8] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26. CHECK

4. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal has also considered the matters submitted by the representative in the written submissions. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

5. In making these findings the Tribunal has considered [Organisation 1’s] Torture and Trauma Assessment Report dated [May] 2017. He also referred to attending ongoing counselling in detention. He said he didn’t seek mental health treatment in Sri Lanka, as he did not know about these issues. He said after he arrived he attended counselling which is confirmed in the report. The report indicates that the on-going detention affects his mood. It notes his thoughts were coherent and logical although his cognitive functioning was adversely impacted by past trauma and prolonged detention with uncertainty. It submitted that the applicant reported impairment of memory and recall caused by his traumatic experiences and poor mental state. It reports that the client outlined symptoms associated with PTSD. It recommended he be released from detention as continued detention will place him at high risk. It indicates high anxiety and depression scores.

6. On the basis of these reports and his evidence the Tribunal has considered whether the applicant might have been hindered in presenting his claims to the Tribunal.  Having had the opportunity to observe the applicant at hearing, listen to the Department interview and read his statement, the Tribunal is satisfied that he was able to participate effectively and articulate his claims.  His answers to questions put to him were generally responsive and coherent and he retained his composure at the hearings. While the report refers to difficulty with memory this is based on the applicant’s reported symptoms. The Tribunal notes the report from the counsellor makes no diagnostic finding in this regard, merely indicates that the applicant experiences these symptoms. Further the reports are unclear as to whether the applicant suffered from memory loss and loss of concentration to inhibit him providing evidence or being consistent at the Tribunal hearing. The Tribunal is therefore not satisfied on the evidence before it that the difficulties he describes caused him to forget or to provide inconsistent evidence throughout the process, to both the Department and the Tribunal.

7. In making these findings the Tribunal has also considered that some information the applicant has provided has been consistent over time, such as he was questioned monthly from July 2014 to May 2015, the names of the Officers he was questioned by, that they showed him photos and asked him to identify LTTE members, he was harmed and his leg was cut with a blade and scarred following the detention in May 2015. However, the Tribunal considers that these consistent matters are relatively easy matters to recall and his consistency in these matters does not outweigh the credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims.

8. In making these findings it has considered the documents submitted supporting that the applicant was the subject of adverse interest after his release in September 2009. In particular it has considered the letters from the Grama Niladhari Office located in the applicant’s home area dated [August] 2015 and [July] 2015 and the letter from [Mr B] dated [July] 2015. It has raised its concern above as to the inconsistencies in these letters with the evidence of the applicant. On these bases, on account of the prevalence of document fraud in Sri Lanka[9], as raised with the applicant and the applicant’s lack of credibility as to these claims, it places no weight on these documents as evidence of the truth of the applicant’s claims. It therefore does not accept that these documents outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims.

   [9] DFAT DFAT Country Information Report Sri Lanka 24 January 2017 at 5.38 and 5.39

9. In making these findings it has considered the scarring as evidence he was detained in May 2015 [in] the manner claimed for the reasons claimed. The Tribunal has considered his scarring but is of the view, based on its other concerns as to the credibility of these claims that it could be caused by any injury. Further, there is no independent evidence to indicate the scarring was as a result of the arrest and interrogation in May 2015. The Tribunal therefore does not accept that this outweighs the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims.

   Does the applicant meet the refugee protection and complementary provisions of the Migration Act?

   Applicant’s Brother’s Association with the LTTE

10. The Tribunal has accepted that the applicant’s brother was killed fighting with the LTTE in 1995 against the Sri Lankan Army. It has accepted that his brother was only [age] at the time and had only been with the LTTE for less than a year. The applicant claims in his statement attached to his application for a protection visa that he fears return on account of his brother’s past membership and involvement with the LTTE as a fighter.

11. However, for the reasons that follow the Tribunal is of the view that there is no evidence to suggest the authorities now know this information or will do so in the future or have at any time been concerned about this involvement. While the Tribunal has considered the independent information concerning the difficulties faced by Tamils with suspected links to the LTTE[10], the Tribunal is of the view that this association is not known by the authorities or they are not concerned about it as if they were the applicant would have been questioned about it when detained for a lengthy period in 2009. It therefore finds that the authorities have not and will not associate the applicant with being inked to the LTTE on account of his brother’s involvement and death in 1995.

    [10] DFAT DFAT Country Information Report Sri Lanka 24 January 2017 and UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: >

    Firstly, the evidence of the applicant at the Department interview and the Tribunal hearing was that despite being questioned on numerous occasions while detained he was never asked on any occasion about his brother [Mr C], and his connection to the LTTE or fighting against the Sri Lankan Army in 1995. Further, when the Tribunal raised with him that it appears that the authorities have no knowledge of his brother being connected with the LTTE in the manner claimed, he repeated that they never mentioned his brother when questioning him. When asked whether he thinks he was or will be targeted because of his brother’s involvement with the LTTE in 1995 he responded in the negative. The Tribunal is of the view if the authorities were concerned about it and or knew about it, the applicant would have been questioned about it when detained in 2008/2009.

12. Secondly, the Tribunal is of the view that the link is tenuous with the applicant’s brother having a very low profile. In this regard the evidence of the applicant is that he was very young at the time, his brother was young, being only [age] or [age], had only been involved for less than a year in the LTTE and his involvement occurred over twenty years ago.

13. Thirdly, the evidence that his parents have not faced any difficulties as being LTTE suspects supports the Tribunal’s finding. The Tribunal expects the authorities would have suspected them of being with the LTTE on account of their son’s involvement (applicant’s brother) if they knew about it or were concerned about it. The applicant’s evidence is that his parents live [in their home] and have done so from 2009 facing no difficulties. His evidence is that his brother and sister have also returned to Sri Lanka since the end of the war and faced no difficulty.

14. Based on the above findings and the applicant’s evidence at the Tribunal that he will not be targeted on return for this reason, the Tribunal is therefore not satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonable foreseeable future at the hands of the authorities, including the army, police, TID, CID or anyone else as he is perceived to be involved with the LTTE as his brother was involved with and a member of the LTTE in 1995 and fought against the Sri Lankan army.

15. It follows, the Tribunal does not accept 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 will suffer significant harm as defined in subsection 36(2A) of the Migration Act at the hands at the hands of the authorities, including the army, police, TID, CID or anyone else as he is perceived to be involved with the LTTE as his brother was involved with and a member of the LTTE in 1995 and fought against the Sri Lankan army.

    Perceived Links to the LTTE due to his past detention to September 2009 and subsequent questioning in 2014/2015

16. The Tribunal has also considered his claims he will be targeted on return as an LTTE suspect because he was arrested, questioned and detained on this basis in 2008/9, rearrested and questioned by the authorizes in 2014/2015, left before his case was closed and the authorizes had not finished questioning him.

17. The Tribunal has considered the country information submitted as to the treatment of Tamils who are suspected of LTTE involvement in Sri Lanka. The Tribunal has considered the relevant country information set out in the delegate’s decision record and in the submissions to the Department and the Tribunal and that submitted by the applicant.

18. The Tribunal has considered that there is independent information that the human rights situation in Sri Lanka, while improving continues to be problematic for Tamils. The key catalyst in the human rights abuses and difficulties for Tamils is most often certain perceived or actual links to the LTTE and involvement in Tamil separatism. The Tribunal accepts there is evidence of continuing atrocities against some Tamils even since the end of the war as reported by Human Rights Watch which has discussed continuing assaults against some Tamils, particularly those who were members of the LTTE.[11] A November 2013 BBC report also refers to Human Rights Watch reports of cases of sexual violence involving the security forces following the end of the civil war and to allegations of rape and torture of Tamils suspected of links to the LTTE.[12] A July 2014 report also indicates that persistent surveillance, intimidation and monitoring of former LTTE members by the security forces continues to restrict their freedom of movement and association.[13] The Statement of the UN Special Rapporteur on Human Rights also refers to the torture and ill treatment of Tamils suspected of association with the LTTE, however indirect and that the cruel and unjust PTA system has overwhelmingly impacted on Tamils.[14]

    [11] See Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January 2013. (Harrison F.2013, ‘Tamils still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November.

    [12] Harrison F. 2013, ‘Tamils still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November.

    [13] Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA 37/011/2014, September, p. 11.

    [14] >

    The UNHCR Guidelines indicate that certain persons have “risk profiles” which generally refer to those who have reasonably substantial LTTE links.[15] Similarly, DFAT refers to high risks for high profile former members of the LTTE who may be detained, arrested and prosecuted, and rehabilitated and intensely monitored after their release.[16] The recent DFAT Country Information Report Sri Lanka report provides the following advice on the treatment of low profile members.

    Since the end of the conflict, thousands of LTTE members have been arrested and detained in rehabilitation centres. Generally, this includes former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict.

    DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their rehabilitation, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted [17]

    [15] Those persons include persons suspected of certain links with the LTTE, including persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of the northern and eastern provinces of  Sri Lanka; former LTTE combatants or cadres; former LTTE supporters who may have never undergone military training who were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; LTTE fundraisers and propaganda activists and those with, or perceived as having had links to the Sri Lankan diaspora that provided funding and other support to the LTTE; Persons with family or who are dependent on or otherwise closely related to persons with those profiles. The UNHCR Guidelines also indicate that other persons who may be at risk include certain opposition politicians and political activists; certain journalists and other media professionals; certain human rights activists; certain witnesses of human rights violations; women in certain circumstances; lesbian; gay, bisexual, transgender individuals.

    [16] DFAT Thematic Report, 2014, People with Links to the Liberation Tigers of Tamil Eelam, 3 October. Lower risks are associated with former low profile LTTE members or former LTTE members living outside of Sri Lanka whom the Sri Lankan authorities may monitor depending on their risk profile; close relatives of the LTTE who are wanted by the Sri Lankan authorities may be subject to monitoring. DFAT also indicates that people with “conflict related scarring” are more likely to be the subject of adverse attention by the Sri Lankan authorities, but the cases raised from the end of the war until October 2014 do not indicate that people have been detained due to conflict related scarring.

    [17] DFAT DFAT Country Information Report Sri Lanka, 24 January 2017 at 3,41 and 3.42

19. The Tribunal also notes that the Upper Tribunal on Immigration and Asylum[18] report indicates that the Sri Lankan government’s objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan State. Its focus is on preventing both the resurgence of the LTTE or any similar Tamil separatist group and the revival of the civil war in Sri Lanka. The Upper Tribunal identifies persons at risk to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have significant role in relation to post conflict Tamil separatism. Such persons will be handed over to the appropriate Sri Lankan authorities. The decision of the Upper Tribunal also indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants and everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. Further, the decision of the United Kingdom Upper Tribunal indicates that simply because a Tamil has had LTTE connections or sympathies will not now of itself cause the Sri Lankan government to consider that that person is a destabilising threat.  The risk is limited to those who have or are perceived to have a significant role in relation to post-conflict separatism.

    [18] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

1. In considering whether the applicant himself faces a real chance of suffering serious harm due to a perceived link with the LTTE his own particular circumstances need to be considered. 

2. In this regard, the Tribunal has accepted he was detained in 2009 as being perceived to be involved with the LTTE. It has also rejected as true that he was of any interest to the authorities after his release in 2009 as being involved with the LTTE and was at the time of his departure. It has rejected he was questioned for any of the reasons he claims and detained in 2014/15 which led to his departure. It has found he was of no interest to the authorities as being perceived to be with the LTTE at the time of his departure and does not accept his family have been questioned since his departure. Further, the applicant does not claim to be a member of the LTTE. He does not claim that he is, or has ever been, a LTTE member, supporter or sympathiser or involved in any way in a separatist organisation in Sri Lanka or Australia.

3. As he was not suspected of being involved with the LTTE at the time of his departure and he has not been involved while in Australia in any separatist organisation the Tribunal does not accept he will on his return be suspected or perceived to be involved in the LTTE as he left before the enquiry by the TID was over, his file is not closed and he is suspected of being with the LTTE due to his previous detention in 2008/9 or for any of the reasons he claims. It follows it does not accept he or his family will be arrested, detained, questioned, tortured, intimidated, beaten, harassed, abducted, killed, threatened, tortured, verbally or physically abused, or face any of the difficulties he claims.

4. It follows, the Tribunal is therefore not satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonable foreseeable future at the hands of the authorities, including the army, police, TID, CID, NIB or anyone else as he is perceived to be involved with the LTTE as he was previously suspected and detained in 2008/9, as his case is not closed, as he was suspected and questioned in 2014/5 and as he left before the authorities could finish questioning him,.

5. It follows, the Tribunal does not accept 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 will suffer significant harm as defined in subsection 36(2A) of the Migration Act at the hands of the authorities, including the army, police, TID, CID, NIB or anyone else as he is perceived to be involved with the LTTE as he was previously suspected and detained in 2008/9, as his case is not closed, as he was suspected and questioned in 2014/5 and as he left before the authorities could finish questioning him,.

   Tamil and Tamil from the North

6. The Tribunal accepts due to the applicant’s appearance and consistent evidence that the applicant is a Tamil from the North of Sri Lanka and is a Tamil male. Throughout the process to both the Department and the Tribunal the applicant has been consistent as to his race/ethnicity and where he is from and born in Sri Lanka. In this regard, the Tribunal has considered his claim that he will be targeted and tortured if he returns to Sri Lanka as a Tamil and a Tamil from the North and as a member of this ethnicity and groups he will be perceived as being with the LTTE or having a political opinion opposed to the government. The Tribunal has rejected his claim that were he to return he would be suspected of being involved with the LTTE on account of other factors other than his ethnicity and where he is from in Sri Lanka.

7. The Tribunal has considered the country information submitted as to the treatment of Tamils in Sri Lanka. It has considered the submission and country information submitted to support the claim that the Tamil population of Sri Lanka continues to suffer discrimination and ill-treatment, including torture and that as result should the applicant be returned, there is a real chance he will be subjected to serious harm on the basis of his. The Tribunal has considered the claim that the applicant is from an area that has a history of LTTE presence and/or recruitment. The Tribunal has considered the relevant country information set out in the delegate’s decision record and in the submissions to the Department and the Tribunal and that submitted by the applicant.

8. The Tribunal, however, considers that the information as outlined below removes any presumption of international protection being needed on a collective basis for reason of being a Tamil, or being a Tamil from an area formerly under LTTE control or influence or a Tamil from the North. The information[19]  indicates that, at least up to the time of the end of the civil war in May 2009, and soon after, Sri Lankan citizens who were Tamils in the North were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. The Tribunal accepts as per the 2009 UNHCR Guidelines[20] that Tamils, prior to 2009,were frequently suspected as being associated with the LTTE, and that the applicant up to that time may have been so suspected and suffered the difficulties as claimed prior to or soon after the end of the war in 2009. However, information before the Tribunal indicates that, after the defeat of the LTTE and the end of the fighting, the security situation in Sri Lanka changed and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity have been substantially reduced.  This view is adopted in the UNHCR ‘Eligibility Guidelines’ in 2010 which, in contrast to the 2009 version of the document, no longer refers to a presumption of eligibility for protection for Sri Lankans simply on the grounds that they are Tamils originating from the north of the country and suspected of being with the LTTE.  UNHCR states in its 2012 Guidelines that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection[21]. Further, the Department of Foreign Affairs and Trade (DFAT) has reported that since the civil war ended in May 2009 there has been considerable change in the security situation such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.[22]

   [19] 2009 UNHCR Eligibility Guidelines for Assessing the International protection Needs of Asylum Seekers in Sri Lanka.

   [20]

   [21] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26. DFAT, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

   [22] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; DFAT 3 October, Country Report on Sri Lanka, 2014 and DFAT Country Report – Sri Lanka, 16 February 2015 and DFAT Country Report Sir Lanka, 18 December 2015.

9. When the issues and information outlined above was raised at hearing, the applicant responded that they are being abducted by white vans. When raised with him why his parents as Tamils from the North were able to live without difficulty and why his siblings returned for a visit each after the cessation of the war and did not face difficulty[23]. He said his parents are old. He indicated that they have decided he is with the LTTE because of his past detention and difficulties. He said it is not about his brother who was with the LTTE. The latter which the Tribunal has rejected as true.

   [23] He said at hearing his family were not questioned by the authorities after the end of the war.

10. Based on the information that the situation has changed since 2009 and that the risk is limited to those who have or are perceived to have a significant role in relation to post-conflict separatism or are suspected of involvement in the LTTE, the Tribunal does not accept as true that were he to return he would face any difficulty as he will be perceived or suspected to be with the LTTE as a Tamil and/or a Tamil from the North. The Tribunal has formed the view that the applicant does not have the profile of a Tamil person who is at risk of being targeted by the authorities or paramilitaries or anyone else in Sri Lanka. The Tribunal finds that the applicant is not at risk of harm by the government, authorities, police, army, military, CID, TID, NIB in Sri Lanka or officers of the law for being a Tamil or a Tamil from the North

11. For all the above reasons, the Tribunal does not accept that were the applicant to return to Sri Lanka in the reasonably foreseeable future, he will face a real chance of persecution involving serious harm because he is of Tamil race or a Tamil from the North. Further it does not accept he faces a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonable foreseeable future because of any imputed political opinion as a LTTE supporter on account of his Tamil ethnicity or as he is a Tamil from the North.

12. Based on its findings of fact and country information above the Tribunal does not accept 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 will suffer significant harm because he is of Tamil race or a Tamil from the North. Further it does not accept that there is a real risk that he will suffer significant harm were he to return to Sri Lanka because of any imputed political opinion as a LTTE supporter on account of his Tamil ethnicity or as he is a Tamil from the North

    Failed Asylum Seeker, Returnee from a Western Country

13. The Tribunal accepts that the applicant may be considered as a failed asylum seeker and accepts he may be a forced returnee from a Western country and it would be know he has travelled to and is a returnee from Australia. The Tribunal notes the evidence indicates he departed Sri Lanka legally using his won passport.

14. As discussed with the applicant during his Tribunal appearance, the situation faced by returned failed asylum seekers to Sri Lanka has been considered in detail by a range of entities including DFAT[24] and the Immigration and Refugee Board of Canada (IRBC). The IRBC reported, in August 2011, on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers, citing information from the Canadian High Commission in Colombo to the effect that “[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity”[25]. The Canadian High Commissioner was also quoted in respect of the process involving persons removed to Sri Lanka, to the effect:

    The process for persons removed to Sri Lanka begins with verification of the person’s citizenship by Sri Lankan Immigration. Once a person’s right to enter has been established, clients are then interviewed at the airport by Criminal Investigations Division (CID), followed by an interview by the State Intelligence Service (SIS). Sri Lankan State Intelligence Service’s questions are often in regards to how a client departed the country. They are seeking information about human trafficking and smuggling from the country.

    The CID conducts criminal background check[s] of returnees by contacting police stations in all districts that a client may have lived. As criminal records are not accessible through a national databank, the final criminal checks may take 24-48 hours to complete depending on the day of the week a person arrives in Colombo. Generally, police record checks may be completed in a few hours, but if a client arrives on a Saturday or Sunday it may take a bit longer to contact appropriate offices. Following this admission process deported Sri Lankan Nationals are free to enter the country.[26]

    [24] Most recently in the DFAT Country Information Report: Sri Lanka, 24 January 2017 and DFAT Country Information Report: Sri Lanka, 18 December 2015

    [25] Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August

    [26] ibid

15. Recent advice from DFAT has provided a consistent account of the process involving returnees, including failed asylum seekers, to Sri Lanka.[27]

    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. 

    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.

    [27] DFAT Country Information Report Sri Lanka, 24 January 2017 at 5.19 and 5.20; DFAT Country Information Reports: Sri Lanka, 18 December 2015, 16 February 2015 and 31 July 2013; CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012, CX299951 of 29 November 2012, CX304258 of 27 February 2013 and DFAT report 1479 of 4 March 2013

16. The IRBC also cited information jointly provided by various human rights organisations and lawyers to the effect that: Sri Lankan immigration authorities are alerted about the impending arrival of failed returned asylum seekers; such people are also identifiable by the fact that they travel on temporary travel documents; these individuals are taken out of immigration queues and subjected to special questioning by the Police and members of the Terrorist Investigation Department [TID] and are almost always detained, sometimes for a few hours, and sometimes for months, until security clearance is obtained.[28] However, additional information from the Canadian High Commission in August 2011 noted that:

    [t]here have been only four cases of persons having been detained upon arrival of which the Canadian High Commission is aware. Each of these cases involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity. Persons of all ethnic backgrounds are returned either under escort or voluntarily to Sri Lanka daily, and the screening and admission process for all these persons remains the same.[29]

    [28] ibid

    [29] Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport, LKA103815.E, 22 August

17. The Tribunal is mindful that a number of human rights groups including Amnesty International, Human Rights Watch (HRW) and Freedom From Torture[30] have provided alternative information regarding the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers, suggesting that they are at risk of serious or significant harm on their return for reason of having sought asylum abroad[31].

    [30] Of particular note, see Amnesty International 2011, Sri Lanka: Briefing to Committee against Torture, October, p.9 < Accessed 18 September 2012 , Human Rights Watch 2012, Sri Lanka: UK: Halt Deportations of Tamils to Sri Lanka, 25 February < Accessed 10 August 2012; [30] Human Rights Watch 2012, United Kingdom: Document containing cases of Sri Lankan deportees allegedly tortured on return, 15 September < Accessed 17 September 2012; Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 < Accessed 17 September 2012

    [31] According to Tamils Against Genocide, “failed asylum seekers are at risk of persecution upon return simply by virtue of the fact that they sought asylum abroad and also because of imputed political opinion regarding involvement with or sympathy for the LTTE” The group’s May 2012 report on the treatment of failed asylum seekers cited reports from Human Rights Watch, the UK Home Office, Amnesty International, as well as media and other reporting, purportedly providing evidence that “failed asylum seekers are at a heightened risk of torture and arbitrary detention immediately upon return simply on the basis of their status as failed asylum seekers”: Tamils Against Genocide 2012, Treatment of Failed Asylum Seekers: An Overview of the Persecution Faced by Failed Asylum Seekers Returning to Sri Lanka, TamilNet, May <

18. Of significance, however, is an October 2012 report by the UK Home Office which contests the findings of those reports, noting in particular concerns to the effect that: the allegations in the HRW report were anonymous and provided insufficient evidence; the Immigration and Asylum Chamber, Upper Tribunal noted that the details of the Freedom from Torture, Amnesty International and HRW allegations “leaves much to be desired” and “raise even more unanswered questions about their own efficacy”; upon receipt of further information from HRW, the UK Home Office concluded that “only two of the 13 individuals alleged that they suffered mistreatment following return from the UK and in one of these cases, the alleged mistreatment did not occur until six months after return when the individual was stopped at a checkpoint”; in response to a series of Amnesty International reports claiming that failed Sri Lankan asylum seekers faced harm upon return, the Upper Tribunal concluded that “they lacked substance”; the report noted an April 2012 UNHCR press release which stated that they “had assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012”;  an earlier UNHCR press release noted that “UNHCR carries out regular monitoring in these areas and seeks to ensure that returnees receive mine risk education and are included in the food ration lists and become considered as beneficiaries to the many government, UN and other projects taking place to re-establish the lives of Sri Lankans in the North and East of the country”.[32] The concerns of the UK Border Policy Bulletin of October 2012 are also referred to in the more recent report of the IRBC dated 12 February 2013.[33]

    [32] UK Home Office 2012, Country Policy Bulletin – Sri Lanka, October, pp1-8  

    [33] [33] Immigration and Refugee Board of Canada, Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; information on specific asylum cases, including the Tamil asylum-seeker boat that stopped in Togo, the return of Sri Lankan asylum seekers from Australia in 2012, and any cases of voluntary repatriation (August 2011-January 2013), 12 February 2013, LKA104245.E, available at: 9 May 2013]

1. The Tribunal notes the absence of systematic monitoring by the UNHCR of involuntary returnees to Sri Lanka, and is mindful of the limitations on press freedom in Sri Lanka. The Tribunal acknowledges that these factors and others limit transparency and accountability. However, that this can be said to support the existence of a real chance of serious harm for a particular reason or a real risk of significant harm for any reason impresses the Tribunal as highly speculative.

2. On balance, while the Tribunal accepts that the applicant will, as a Tamil returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities, including screening and questioning on arrival, however the Tribunal is not satisfied, on the evidence before it, that being a returned Tamil failed asylum seeker, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka, would give rise to differential treatment for a reason outlined in s.5J(1). Information indicates standardised procedures apply to all cases, regardless of a persons’ ethnicity or circumstances in which they left the country.

3. It further, does not accept that the process he faces on returning to Sri Lanka as a failed asylum seeker, including screening, questioning at the airport and on his return to his home, involves, amounts to, reveals or gives rise to a real chance of serious harm or a real risk of significant harm, either at the airport in Sri Lanka or on the applicant’s return to his home, or at any point in the reasonably foreseeable future in Sri Lanka.

4. Based on the totality of the evidence before it, the Tribunal is not satisfied that the evidence reveals a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum and/or his protracted stay in Australia and as a returnee from Australia and a Western Country, either singularly or cumulatively with what is accepted of the balance of his circumstances, in Sri Lanka in the reasonably foreseeable future. Nor is the Tribunal satisfied, on the evidence before it, that the applicant, a person with no demonstrated involvement in any political activities at any time in Australia, will be imputed with any political opinions opposed to the Sri Lankan authorities in connection with having sought asylum in Australia.

5. Based on the findings of fact above regarding the treatment of persons returned to Sri Lanka who are known or suspected to have sought asylum abroad, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in Sri Lanka in connection with his return as a person suspected or known to have sought Asylum in Australia, despite his protracted stay in Australia or as a returnee from Australia and a Western Country or will be imputed with any political opinions opposed to the Sri Lankan authorities in connection with having sought asylum in Australia.

   Scarring

6. The Tribunal accepts that the applicant has the scars as claimed but has rejected that they were caused as a result of interrogation in May 2015 or in 2014/2015. The DFAT Thematic Report on People with Links to the Liberation Tugers of Tamil Eelam dated 3 October 2014 refers to the issue of scarring and notes that reports that people with conflict related scarring are more likely to be the subject of adverse attention relate to reports from the immediate end of the conflict, and notes that there is no more recent evidence to indicate that people have been detained due to conflict related scarring.

7. In addition, the Tribunal has considered the following reporting:

   3.9.16 As regards ―scarring - the British High Commission (BHC), Colombo observed in the letter of 5 January 2012:―There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. Contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.[34]

   [34] UK Home Office, Operational Guidance Note: Sri Lanka, July 2013.

8. On the evidence before it the Tribunal is not satisfied that the applicant’s scars increase his profile or his risk of coming to the adverse attention of the Sri Lankan government or authorities or the army or CID or TID or NIB. The Tribunal is of the view, for the reasons outlined above, that the applicant is no longer of interest to the authorities as a supporter or because of any suspected involvement in the LTTE. The Tribunal is therefore not satisfied that the evidence before it reveals a real chance of persecution involving serious harm as a result of the applicant’s scarring or that he will be perceived or suspected of being involved in the LTTE on account of his scarring in the reasonably foreseeable future.

9. It follows based on the information before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in Sri Lanka in connection with his return as a result of the applicant’s scarring or that he will be perceived or suspected of being involved in the LTTE on account of his scarring.

   Mental Health Treatment

10. The applicant submitted a report from July 2017 from [Organisation 1] which refers to the retriggering of past memories which has resulted in him at the time having post-traumatic stress disorder. The Tribunal has accepted he faced the difficulties he claims while detained in 2008/9. It appears the aim of this reports was to urge the Government to review his detention as a survivor of torture and trauma. While the applicant said he did not receive any treatment in Sri Lanka he indicated that he is receiving treatment in Australia every two weeks. Although not directly raised by the applicant, as it has accepted he faced the difficulties he claims while detained in 2008/9 it has considered the impact of mental health treatment in Sri Lanka were the applicant to return.

11. As raised with the applicant universal free health care is available through the public sector health system although facilities vary. While the information indicates health outcomes tend to be worse in the North and East as a result of the war, destruction of infrastructure and diminution of human capital during the conflict, the evidence does not suggest that is as a result of ethnicity or any of the reasons outlined in s.5J(1)(a)[35]. With regard to mental health the DFAT report indicates mental health facilities are rare and there is a general lack of institutional capacity to respond to mental health care need. It notes that mental health is not widely discussed in Sri Lankan society and there is a prevalence of trauma related illnesses following the civil conflict, especially in the North as that is where the conflict was.[36]

    [35] DFAT DFAT Country Information Report Sri Lanka, 24 January 2017

    [36] Ibid

12. On the basis of the information, the Tribunal is not satisfied, on the evidence before it, that the lack of mental health care and facilities in Sri Lanka, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka, would give rise to differential treatment for a reason outlined in s.5J(1).

13. On the basis of the information, the Tribunal considers that the problems he faces upon return as a result of the lack of mental health treatment does not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Sri Lanka generally and is not faced by the applicant personally.

    Conclusions regarding the Refugees Convention

14. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real chance of him being subjected to serious harm in Sri Lanka in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 

15. Based on all the evidence before it, including the applicant’s claimed past circumstances and what is accepted of his current personal and family circumstances and profile in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a reason outlined in s.5J(1)(a), in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution in Sri Lanka for a reason outlined in s.5J(1) in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2) (a) of the Act.

    Complementary Protection

16. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent (at the Department) would together create a real risk of him being subjected to significant harm on return to Sri Lanka. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept 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 will suffer significant harm as defined in subsection 36(2A).

    CONCLUSION

17. 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).

18. 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).

19. 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

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

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

    …
    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.

    …