1710548 (Refugee)

[2019] AATA 6768

1710548 (Refugee) [2019] AATA 6768 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710548

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Brendan Darcy

DATE:28 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2019 at 12:17pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – race – Tamil – religion – Hindu – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) – People’s Liberation Organisation of Tamil Eelam (PLOTE) – particular social group – failed asylum seeker – family extorted by PLOTE – fears harm from paramilitary groups – perceived to be wealthy – victim of crime – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 424A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo & Anor (1997) 191 CLR 559

MIMA v Prathapan (1998) 86 FCR 95

MIMA v Respondents S152/2003 (2004) 222 CLR 1

MIMA v Thiyagarajah (1998) 80 FCR 543

MZRAJ v MIMIA [2004] FCA 1261

Nagalingam v MILGEA (1992) 38 FCR 191

NAGV & NAGW v MIMIA (2005) 222 CLR 161

Osman v United Kingdom (1998) 29 EHRR 245

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

S1573 of 2003 v MIMIA [2005] FMCA 47

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 2 September 2013.

3. On 13 April 2015, the Tribunal, differently constituted, made a decision to affirm the delegate’s refusal decision.

4. On 5 May 2015, the applicant applied to have the Tribunal’s decision (1313608) judicially reviewed. The matter returned to the Tribunal on 15 May 2017 on the basis of a lack of evidence relevant to its finding that the applicant did not face a real risk of significant harm because of his illegal departure: AQU15 v MIBP FCCA MLG974/2015.

5. The applicant appeared before the Tribunal on 29 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [a person], claiming to be the applicant’s sister.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention-stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

22. The applicant claimed to be born in [Kilinochchi] in northern Sri Lanka and to be a citizen of Sri Lanka. On the departmental file [is] a copy of the applicant’s birth certificate and temporary driving licence.

23. The applicant departed Sri Lanka in July 2012 and was located by the Australian authorities at the Australian overseas territory of [Location 1] by boat [in] August 2012. He was allocated with the Boat ID: [specified] by the Australian authorities.

24. He was granted a bridging visa and travelled to [City 1] where he has remained.

    Claims at the time of application

25. The applicant applied for a Class XA Subclass 866 protection visa on 18 December 2012. He was interviewed by the Department with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages on 19 August 2013.

26. In his 866 Form, the applicant claimed to be a Tamil by ethnicity and a Hindu by religion. He also visited [Country 1] in 2007 for a period of one month with his mother and aunt to visit his [sibling] who was visiting from [Country 2]. The applicant and his mother then returned to Sri Lanka by air.

27. It was claimed by the applicant to the Department that he has [numerous] siblings, all of whom are residing outside of Sri Lanka. He had [a number of siblings] living in [Country 3] and [Country 2]. In 1996 he was displaced from his home town of Kilinochchi to [City 2], due to the civil war. In [City 2], the applicant’s family was extorted by the People’s Liberation Organisation of Tamil Eelam (PLOTE) between 2004 and 2006 and paid [an amount of] lakhs of Sri Lankan rupees to the PLOTE on one occasion in 2006. Between 2009 and 2010 in [City 2], the applicant was forced to [undertake a task] for the PLOTE and [undertake another task] during election time. The applicant feared being imputed as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) for these activities.

28. When the applicant returned to Kilinochchi in 2010, he was repeatedly questioned by the Sri Lankan Army (SLA).

29. The applicant departed illegally from Sri Lanka and fears being returned as a failed asylum seeker. The applicant’s eldest brother briefly assisted the LTTE by [performing a specific duty] in 1983. The applicant also claimed that the Sri Lankan authorities will assume the applicant supports the LTTE due to the number of siblings living outside of Sri Lanka.

30. A delegate on behalf of the Minister refused to grant the applicant a protection visa on 2 September 2013.

31. On 13 September 2013, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal, differently constituted.

    First review by the Tribunal

32. The applicant appeared before the Tribunal on 11 March 2015 at the scheduled hearing to provide further evidence and present arguments as to the reasons he was owed Australia’s protection obligations.

33. According to the Tribunal’s decision record (Refugee Review Tribunal case number 1313608), the applicant’s claims at the hearing were somewhat different to his previous claims. Prior to the hearing, the applicant claimed to fear harm from the SLA and from paramilitary groups including PLOTE on suspicion of a past association with the LTTE. He claimed he was questioned by the army every two or three weeks when he returned to Kilinochchi in 2010 and that the authorities would raise with him whether he or his siblings had assisted the LTTE during the conflict. He claimed he feared being arrested and harmed by the authorities because he worked with the PLOTE when he lived in [City 2] and that the army arrested many members of the PLOTE since the end of the war for criminal activities.

34. He did not claim to have ever been a member of the LTTE or any Tamil paramilitary or separatist organisation.

    Second review by the Tribunal

35. The applicant appeared before the Tribunal on 29 November 2018, to provide evidence and present arguments. His sister living in Australia also provided evidence as a witness. The applicant’s representative was not in attendance at the hearing and no submissions were received prior to on the day of the hearing.

36. At the end of the hearing, the Tribunal undertook to write to the applicant in the new year seeking comment on country information due to Sri Lanka undergoing a constitutional crisis at the time of the hearing.

    Information put to the applicant under s.424A

37. On 17 July 2019, the Tribunal wrote to the applicant’s representative to invite the applicant to comment on or to respond to information and to do so by 31 July 2019. The Tribunal undertook this invitation under the Act’s s.424A provisions. The information outlined pertained to offences under Sri Lanka’s Immigrants and Emigrants Act, Sri Lanka’s 2018 constitutional crisis and to the 2019 Easter Sunday bombings. The letter provided details about these events and it stated that the information is relevant to this review as the information appeared not to support the applicant’s claims of facing a real chance of serious harm or a real risk of significant harm based on the applicant’s ethnicity and political opinion.

38. However, neither the applicant nor anyone on his behalf responded to the invitation to comment at any time right up to the time of making this decision.  

    Non-disclosure notices

39. There were no non-disclosure notices attached to the applicant’s departmental file.

    Country information

40. In these claims, the applicant has advanced claims of fears being imputed as belonging to or having supported the pro-Tamil separatist Liberation Tigers of Tamil Eelam (LTTE).

41. In the most recent DFAT report, it states that in July 1983, conflict broke out between the Sri Lankan military and the separatist LTTE – formed in the 1970s. In May 2009, the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka. The long civil conflict displaced hundreds of thousands of people and killed tens of thousands of people on both sides.[1] It further states:

    3.35 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.

    3.36 Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.

    3.37 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.

    3.38 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.

    3.39 DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.

    [1] DFAT Country Information Report: Sri Lanka, 23 May 2018, p.6.

42. The applicant also advanced the claim that he had been compelled to conduct supportive activities for the People’s Liberation Organisation of Tamil Eelam (PLOTE). PLOTE is a former Tamil militant group that had become a pro-government paramilitary group and political party. The PLOTE is also a constituent of the Tamil National Alliance (TNA). The TNA is a coalition of four parties: PLOTE, the Illankai Tamil Arasu Kachchi (ITAK), Eelam People’s Revolutionary Liberation Front (EPRLF) and the Tamil Eelam Liberation Organisation (TELO), and ‘supports a political solution under a federal system in a united Sri Lanka’.[2]

    [2] Sri Lanka: CI160125173903802 – People’s Liberation Organisation of Tamil Eelam (PLOTE) – Sri Lanka Army – Forced labour, Country of Origin Information Services Section (COISS), 15 February 2016, CR0D9DEFA52, p.1.

43. In a report prepared for the Department of Immigration and Border Protection (CI160125173903802),[3] it states:

    2. Is PLOTE still active as a paramilitary force in Sri Lanka generally, and in northern areas in particular?

    No information was found to indicate that PLOTE is still active as a paramilitary force, however a number of sources indicate that PLOTE was active as a paramilitary force in the north, including Vavuniya, as recently as 2012.

    The UK Home Office has cited advice sourced from Jane’s Sentinel in February 2012, according to which PLOTE remained one of ‘a number of non-state, pro-government paramilitary groups operating in the country’. PLOTE ‘renounced its armed rebellion against the Sri Lankan government [in 1987], but maintains armed cadres to this day’, according to the advice cited from Jane’s. As reported by the UK Home Office:

    Jane’s Sentinel Country Risk Assessments, Country Report, Sri Lanka (accessed on 3 February 2012) observed that “The security forces preferred to outsource much of the work of controlling major Tamil towns such as Jaffna, Vavuniya, Batticaloa and Trincomalee to non- LTTE paramilitary groups such as the People’s Liberation Organisation of Tamil Eelam (PLOTE), Eelam People’s Democratic Party (EPDP), Tamil Eelam Liberation Organisation (TELO) and latterly the People's National Liberation Tigers (TMVP).”

    [3] Sri Lanka: CI160125173903802 – People’s Liberation Organisation of Tamil Eelam (PLOTE) – Sri Lanka Army – Forced labour, Country of Origin Information Services Section (COISS), 15 February 2016, CR0D9DEFA52, p.2.

    ASSESSMENT OF CLAIMS AND FINDINGS

1. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

2. For the reasons outlined below, the Tribunal has concluded that the decision under review should be affirmed.

   Country of reference

3. The applicant claims to be a national of Sri Lanka. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. Based on the copy of his birth certificate, national identification card and driver’s licence, all of which are on file and with no evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.[4]

   [4] DIBP Folios 2–7

   Third country protection

4. The applicant does not have permission to enter and reside in any other country. The Act’s third country protection provisions are accordingly not relevant in this decision.

   Credibility findings

5. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

6. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169 70.) In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

7. Overall the Tribunal found the applicant to have provided consistent written and oral claims. It is also found the witness at the hearing to be mostly credible. There is a significant adverse credibility finding about a specific late claim advanced by the applicant which is outlined below.

   Accepted personal circumstances

8. The Tribunal accepts the applicant was born [in] Kilinochchi in Sri Lanka’s Northern Province and that he resided in the Northern Province throughout the period of time he lived in Sri Lanka.

9. The Tribunal also accepts the applicant is ethnically Tamil, that he speaks, reads and writes Tamil and that his religion is Hindu. It is also accepted the applicant completed his A-levels in Sri Lanka [and] that he undertook work in his father’s farms after completing school.

10. With regard to his family composition, the Tribunal accepts that the applicant’s father and mother continue to reside in Kilinochchi where they grow [specified crops] and that they have two properties: one in Kilinochchi and the other in [City 2]. The applicant also has [a number of siblings], all of which whom live outside of Sri Lanka.

11. The Tribunal notes that the applicant had originally claimed his sister who appeared as a witness at the 2018 hearing was a resident in [Country 3]. However, he and the witness admitted that they did not reveal this as the witness’ husband arrived in Australia as an unauthorised arrival and they did not want this to be a problem for his or his relative’s visa applications.

12. The Tribunal also accepts that the applicant had previously travelled to [Country 1] in or around 2009 to visit [another sibling] and that he did so by travelling on a passport through [an] International Airport and by returning through the same airport.

13. It is also accepted the applicant departed Sri Lanka without a passport or lawful permission from the authorities in 2012 at the age of [specified], as claimed.

14. The Tribunal also accepts the applicant has not been engaged or married in the past or currently; although he mentioned he has a long-time romantic relationship since arriving in Australia.

    Events and incidents prior to the applicant’s departure

15. In his written and oral claims, the applicant did not claim to have any actual memberships, connections or associations with the LTTE or other Tamil separatist group. He said that his brothers had not been involved with the LTTE, although one of his brothers [performed a task] for the Tamil militants in 1983. The Tribunal accepts this.

16. The Tribunal accepts the applicant’s claim that when he was in [City 2] he had been compelled to support the PLOTE candidates in an election campaign in 2009 and/or 2010 and that he did so by [undertaking certains tasks] throughout this predominately Tamil area. It accepts that the applicant feared refusing the PLOTE as he and his family lived under their control and he and others were afraid of the PLOTE.   

17. The applicant also claimed that his family members had provided protection money to both the PLOTE and the LTTE in the past to protect them and their land during the civil war. This is also accepted by the Tribunal to be credible.

18. The applicant claimed that his family returned to Kilinochchi in early 2010 after the LTTE were defeated. The applicant claimed that he and his family were held in suspicion by the authorities, namely the Sri Lankan Army, as suspected LTTE members or supporters and by locals for coming from [City 2] that had been controlled by PLOTE, the LTTE’s bitter rivals. The applicant elaborated that because he was not well known to the SLA they visited his house on a number of occasions. He also said that because his family had reclaimed their land from the LTTE, there was additional suspicion among local Tamils in Kilinochchi. The Tribunal accepts these plausible claims.

19. The applicant did not claim, either in his written or oral claims that he or his father had been harmed, threatened or harassed by anyone in authority while he was in Sri Lanka. However the applicant personally felt he was under surveillance and suspicion and found the enquiries by the authorities about him to be intimidating and foreboding. The applicant also felt the atmosphere in Kilinochchi to be menacing due to the kidnappings or disappearances and the extraction of money through such activities. This is accepted by the Tribunal to be credible, not least because the authorities did continue to monitor Tamils, especially young Tamil males in the early post-conflict period following the end of the civil war in May 2009 and because reports of abductions were common during the same period.

20. The applicant claimed that he spent his time shuttling between Kilinochchi and [City 2] because his parents owned property in both towns. He claimed to have been stopped at checkpoints in the past but was not interrogated or harmed. He also said he had friends in [City 2] who went missing and had been killed but he did not have any family members who were killed or abducted. The Tribunal accepts this to be credible.

21. The Tribunal enquired whether there had been any triggering event leading to the applicant departing Sri Lanka for Australia. The applicant responded that he wanted to leave because of the overall menacing environment as a Tamil; that he did not feel safe in either PLOTE or SLA-controlled areas and because his mother and others feared he would face problems. The Tribunal enquired into the reasons he did not relocate to other parts of Sri Lanka such as Tamil-dominated Jaffna or Colombo where there is a large Tamil population. The applicant said that he feared kidnappings and he did not have family support in those areas.

    Incidents since the applicant departed Sri Lanka

22. During the scheduled hearing, the Tribunal enquired if his parents had been harmed or seriously harassed since his departure. The applicant stated he was not aware of any further incidents against his father but the authorities have continued to make enquiries about his own whereabouts. He also said his parents originally denied knowing anything about his whereabouts but later told the authorities that the applicant was in Australia.

23. With regard to the applicant being a failed asylum seeker, the applicant claimed that he will definitely be suspected of being an LTTE activist due to being Tamil and ‘they’ may ask for money. He further added that he was not involved in any people smuggling activities as an illegal departee; however when his brother visited in 2012 or 2013, he was arrested and charged for illegally departing and accused of being an organiser. The applicant further stated that his brother who had helped organise the applicant’s departure was still able to visit his mother and father in the Northern Province but the arrest occurred while he was in the community, which required him to be [detained] and to appear before a court. He claimed he had been released because he had a [medical incident] which [affected] him while detained. The applicant claimed his brother remained in Sri Lanka for a year and a half before returning to [Country 3]. The applicant claimed that he did not know any more details about what happened in prison because his brother had been detained for organising his departure and that he felt it was his fault. The applicant said he was not sure who alerted the authorities about his brother’s people smuggling activities but speculated that other villagers were jealous of his family’s wealth and the authorities noticed that other siblings had left. The applicant feared that he would be falsely accused of being an organiser of illegal departures.

24. When the Tribunal asked the witness about any knowledge about one of her brother’s being harmed when returning to Sri Lanka, the witness said [the] brother was able to visit his parents and there were no problems with the authorities and no knowledge of being arrested or charged, although he had a [medical incident]while he was there. Towards the end of the hearing, the witness claimed she was not aware of difficulties her brother had with the authorities because her family did not tell her due to her [medical] problems.

25. The Tribunal finds the credibility of this late claim about the applicant’s brother forwarded by the applicant had been fundamentally undermined and it does not accept the applicant’s sister would not be aware of such a significant development or it would not be disclosed to her even if she had a health reason. Accordingly, the Tribunal does not accept the applicant’s late claim that his brother returned to Sri Lanka in 2012 or 2013 during which he had been accused of illicit trafficking of persons or for breaching any relevant national laws or that he had been charged or arrested or held in custody or punished for any accusations of breaching laws while he was in Sri Lanka; nor does it accept he had been hospitalised due to any actions of the authorities. The Tribunal finds that the applicant fabricated this specific claim to augment his otherwise credible claims about past incidents of intimidation and harm.

26. Notwithstanding this particular adverse credibility finding and the applicant’s admission that he had not been physically harmed by the authorities or the LTTE in the past, the Tribunal accepts the applicant departed Sri Lanka because he did hold genuine and deep personally held fears of persecution based on his race and his imputed political opinion in the immediate post-conflict environment of Sri Lanka which was the time of his departure and his protection visa application. The Tribunal also accepts that he continues to hold these subjectively held fears of persecution for the claimed reason, now and into the future.

    Does the applicant have a well-founded fear of persecution?

    Tamil ethnicity, LTTE political opinion and related claims

27. The Tribunal accepts that the applicant as a young Tamil from the Northern Province had been imputed with LTTE sympathies and support in the past, including as being a young Tamil who intermediately resided in former LTTE-controlled Kilinochchi. It also accepts that he has been a young male Tamil residents who belongs to both Kilinochchi and [District 1] where similar young males have been significantly physically ill-treated in the past, and that these and many other parts of Tamil-dominated Northern Province have been and continue to be subject to official monitoring and surveillance. It accepts that abductions and kidnappings have occurred in the past. When the applicant departed Sri Lanka, the Northern Province was subject to a great deal of post-conflict suspicion by the authorities through checkpoints and close and regular monitoring as the authorities remained vigilant against the reappearance of Tamil separatist violence, even though the LTTE has been defeated and disbanded in 2009.

28. However, the applicant has never claimed to be a member or supporter of LTTE or any other political organisation or to have supported any Tamil separatist movements while in Australia. Nor has he claimed that any of his immediate family members have supported the LTTE, except for a very old incident when his eldest brother [performed a task] for the separatists in 1983. Nor has he claimed to have been arrested or detained on suspicion of being a LTTE member or supporter.

29. He does, nevertheless, credibly claim that he has been known to assist PLOTE in the past when he has resided in [District 1] and that his family have provided protection money to both the LTTE and PLOTE prior to the end of the civil war. The applicant has argued that not only does he face a chance of serious harm for a Convention reason from the authorities but also from those who had supported the LTTE, especially in Kilinochchi district.

30. In this decision, the Tribunal has considered whether the applicant faces a real chance of serious harm based on his ethnicity as a Tamil and his imputed political opinion in favour of the disbanded LTTE or a real risk of significant harm for the same reasons, if he were to return to his home areas of Kilinochchi and [District 1] where his parents reside and own properties. In this regard, the Tribunal acknowledged that there are associated personal circumstances which it is claimed will heighten the applicant’s profile, including being from the Northern Province, being a forced returnee from a Western country and being single and relatively young, in the light of country information discussed below.

31. In relation to Tamils, DFAT in its report, DFAT Country Information Report: Sri Lanka, 23 May 2018, discusses the situation in relation to Tamils. The Report refers to Tamils being the second largest ethnic group in Sri Lanka and that according to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. The Report notes that Tamils live throughout Sri Lanka concentrating in the Northern Province where they comprise 93% of the population and the Eastern Province where they comprise 39% of the population. Relevantly, the report indicates the following:

    3.5 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.

    3.6 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.

    3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.

32. In relation to monitoring, harassment, arrest and detention of the Tamil community, the Report notes the following:

    3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).

    3.9 Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.

    3.10 Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.

    3.11 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.

    3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.

1. DFAT has assessed in the abovementioned report that the ‘LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list’.

2. DFAT’s Report refers to the identification in 2012 by UNHCR of a range of people with real or perceived links to the LTTE, namely:

   ·persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;

   ·former LTTE combatants or ‘cadres’;

   ·former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);

   ·former LTTE supporters who may never have undergone military training, but 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; and

   ·persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

3. There have been reports of some Tamils with imputed LTTE links being monitored by the police and harassed in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.

4. The applicant is not claiming that he or any member of his immediate family has been recently associated with the LTTE, or any other political organisation. While it is accepted his eldest brother assisted the LTTE in 1983, it has also found that he has returned to Sri Lanka in about 2012 and 2013 and was not a person of interest to the authorities.

5. The Tribunal is satisfied that on balance, credible independent country information indicates that Tamils from the Northern Province who have perceived strong LTTE links/sympathies or who are imputed with having an LTTE political opinion do have a real chance and a real risk of being targeted by the authorities through ongoing monitoring and surveillance and by being requested to report to the authorities on a regular basis which, in turn, can lead to serious harm during interrogation or detention.

6. However, the applicant has not credibly demonstrated that he is a person of interest for any other reasons than the authorities wish to know about his whereabouts, which has been disclosed to the authorities by the applicant’s parents. The Tribunal finds that the applicant does not have a real chance of being seriously harmed or a real risk of being significantly harmed due to his being an actual or past member of the LTTE or any Tamil separatist movement or due to any sur place activities in favour of Tamil separatism in Australia, if he were to return to anywhere within Sri Lanka, including his home area of Kilinochchi and [District 1].

7. Should the applicant return to his home areas of Kilinochchi and [District 1], he will return to a part of Sri Lanka where the conflict between the LTTE and the Sri Lankan authorities had been vigorously and militarily contested. They remain districts where the military maintains a strong presence. In this regard, the Tribunal does not discount the applicant having a chance of serious harm or risk of significant harm based on being a Tamil from the Northern Province, being associated with extended members of his family with associations with the LTTE, having been detained, interrogated and tortured in the past; being from the Northern Province; or having been a person of interest in the past.

8. As discussed in the hearing, the applicant departed Sri Lanka in the immediate post-conflict period and he would be returning to his home area after a considerable passage of time during which the region has substantially and progressively de-militarised. The 2018 Report from DFAT reports that the government no longer restricts travel to the north and east of Sri Lanka. It removed military checkpoints on major roads in 2015. Military involvement in civilian life has diminished, although military involvement in some civilian activities continues in the north. In 2017, the government reported it had released 24,336 acres of private land in the north and east since the end of the conflict, while the military continued to occupy 6,051 acres. Slow progress on land return and missing persons is driving continuing protests in the north, over ongoing military occupation of private land, and conflicting claims over private land by displaced people. Although in the applicant’s case, the [City 2] property belonging to his family was maintained during the civil war while the property in Kilinochchi had been returned soon after the war ended in 2009. In October 2017, the UN Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence recommended relieving the security forces of the sole decision-making authority on the location and timing of land releases. The government has committed to paying compensation where security forces retain private land. Most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or smaller surrounding military camps. The government has released most land from the High Security Zones in the Northern Province. DFAT further assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.

9. The Tribunal notes that the applicant has a personally held fear of being abducted by the authorities. This is understandable. Systematic abductions using white vans, often leading to enforced disappearances, occurred during the conflict and post-conflict periods. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 referred to incidents where police did not follow protocol during arrest. DFAT understands that disappearances are no longer common. Based on this country information, the Tribunal assesses that the applicant only has a remote and not a real chance of being abducted or involved in an enforced disappearance based on his Tamil ethnicity and political opinion or any other related Convention or non-Convention reason, should he return to Sri Lanka in the foreseeable future.

10. The Tribunal has also considered the country information from 2017 in which Brigadier Fernando, Sri Lanka High Commissioner’s defence attaché, made a threatening throat-slitting gesture towards chanting Tamil protesters in London. Brigadier Fernando has been accused of human rights abuses for his action during the civil war. The Brigadier was suspended for this intimidating and threatening behaviour and it accepts the former defence attaché has impunity from prosecution in Sri Lanka for any human rights abuses or war crimes. However, President Sirisena himself who is closely associated with the improving reconciliation process since his 2015 election had been the acting Defence Minister during the last two weeks of the civil war when the worst alleged war crimes were committed. Furthermore, on 18 December 2015, the Sri Lankan Cabinet approved the formation of the Secretariat for Coordinating Reconciliation Mechanisms within the prime minister’s office to oversee mechanisms for advancing truth, justice and reconciliation in Sri Lanka: an Office of Missing Persons (OMP); an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a special counsel. The Secretariat’s mandate ran until March 2019. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms (CTF) to conduct public consultations on the design of the four mechanisms, but at the time of publication neither the government nor parliament had endorsed the report published by the CTF in January 2017. DFAT assesses that, if implemented effectively, these mechanisms can facilitate genuine reconciliation. While international observers have expressed frustration with the pace of these reforms and the reconciliation process, the Tribunal does not accept the behaviour of a former defence attaché representative in the context of the ongoing reconciliation environment within Sri Lanka amounts to a real chance of serious harm or a real risk of significant harm to the applicant or that it indicates any deterioration in ethnic relations between Tamils and the Sri Lankan authorities that amount to a real chance of serious harm or a real risk of significant harm to the applicant based on his ethnicity, his political opinion or any other related Convention reasons, if he were to return to his country of nationality and reference.

11. Based on the country information with particular emphasis on de-militarisation of the Northern Province for the last 10 years, the Tribunal finds that the chances of the applicant facing serious harm as a person of interest for being involved or associated with, or suspected of being involved with the LTTE, including imputed and actual links due to extended family links, to be remote and insubstantial and do not amount to being a real chance of serious harm. Accordingly, the Tribunal does not accept the applicant has a well-founded fear of persecution based on his LTTE association, imputed or otherwise, his accepted past encounters with the authorities arising from his resemblance or relationship to a deceased LTTE combatant, his imputed political opinion, as a Tamil or a Tamil from the Northern Province, any other related Convention reason or a combination of these Convention reasons based on his age or marital status.

12. Noting that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition: MIAC v SZQRB [2013] FCAFC 33, based on this ‘real chance’ assessment of the country information and the applicant’s accepted circumstances, the Tribunal finds that the applicant does not face a real risk of significant harm based on the same considerations of the applicant’s ethnicity, imputed political opinion and other accepted personal circumstances, if he were to return, should there be a foreseeable change of government in Sri Lanka.

    Discrimination towards Tamils and Tamil Hindus

13. The 2018 DFAT Country Information Report states some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. DFAT further assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.

14. Clearly the applicant’s formative years, including as a young Tamil adult, were negatively impacted upon by discrimination as well as conflict. The Tribunal reasonably anticipates that the applicant will return to his [home area] where he will experience discrimination in many aspects of his economic life based on his ethnicity and his language as a Tamil speaker. However the Tribunal does not assess that the applicant will face a real chance of serious harm based on his ethnicity or for the related reasons pertaining to his language or for any other related Convention reason arising from discrimination. That is because the Tribunal does not accept the harm to be faced amounts to being serious harm or persecution given the applicant who is able-bodied will be returning to where his parents reside who own property, generate an income and receive remittances from relatives abroad. Based on his own circumstances and the available country information, he does not have a real chance of encountering significant economic hardship or the denial of access to basic services or the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist or any other serious harm non-exhaustively listed in s.91R(2); nor will the applicant suffer a real chance of any level or degree of harm based on his ethnicity or in combination of his ethnicity or his language as required by s.91R(1)(b).

15. Furthermore, the Tribunal does not accept there is to be a real risk of significant harm to the applicant based on his ethnicity as a Tamil or being a Tamil speaker or any other related claim due to his ethnicity on the basis that the harm does not amount to any significant harm listed under s.36(2A), including being subjected to degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, including his home area.

16. The applicant and his representative have made claims that the applicant faces a real chance of serious harm based on the applicant being a Hindu of Tamil ethnicity. The following from the 2018 DFAT country information is noted:

    Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information.

17. The Tribunal accepts the applicant will be returning to the Northern Province which will be undergoing some of the negative effects of Sinhalisation (Sinhalese migration into predominately Tamil communities) in post-conflict areas traditionally dominated by Tamils, Hindu Tamils and Tamils who are not Buddhist. It accepts some destruction of Hindu temples by chauvinistic or nationalistic Buddhist and Sinhalese Sri Lankans has occurred in the past and may in the future. It further accepts that there are levels of religious discrimination towards Hindu Tamils by Sinhalese Sri Lankans in employment and housing. However the applicant will be returning with the support of his family and he does not have any dependants and he will be able to openly practise his religion as a Hindu. The Tribunal nonetheless does not accept the applicant will suffer a real chance of serious harm based on his religion because the harm arising from religious discrimination and Sinhalisation does not amount to serious harm. He will not have a real chance of being significantly physically harassed or significantly ill-treated or face significant economic hardship that threatens his capacity to subsist or any other serious harm non-exhaustively listed in s.91R(2); nor will the applicant suffer a real chance of any level or degree of harm based on his religion or in combination of his ethnicity or his language as required by s.91R(1)(b).

18. Furthermore, the Tribunal does not accept there is to be a real risk of significant harm to the applicant based on his religion or as a Tamil Hindu who is Tamil speaking or any other related claim due to his religion on the basis that the harm does not amount to any significant harm listed under s.36(2A), including being subjected to degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, including his home area.

    Returnee or failed asylum seeker

19. As stated above and based on adverse credibility findings, the applicant departed Sri Lanka without a valid passport with his name which, in turn, means he breached Sri Lanka’s Immigrants and Emigrants Act due to the unlawful manner of his departure. This is the first time the applicant had done so. When he previously departed Sri Lanka he had used a valid passport and had not been subjected to any official interference or interrogation for this international travel that prevented him from leaving or returning to his community in the Northern Province. During the hearing, the applicant claimed he feared that someone may have accused him of LTTE activities or people smuggling activities in his absence or on return, as had happened to one of his brothers.

20. The Tribunal also notes that it corresponded with the applicant in July 2019 in a s.424A letter to invite comment the country information about offences under the Immigrants and Emigrants Act from the most recent DFAT report. However the applicant did not respond at all.

21. Nonetheless, the Tribunal accepts that as a returnee or a failed asylum seeker he will come into contact with the authorities on arrival and he has a real chance of failing under the authorities’ suspicions as a young Tamil suspected of LTTE sympathies and activities. This will also be heightened as the applicant has spent considerable time in a Western country where the authorities suspect members of the Tamil diaspora contribute to Tamil separatist movements. The Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee or as a returning Tamil male from the Northern Province or someone who had been suspected of LTTE activities in the past has a real chance and risk of being subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. Once discovered, the Tribunal finds that the authorities will not assess the applicant to be a person of any further interest to them in the context of the considerable passage of time since his departure in 2012. As mentioned above, given the passage of time since his brother departed in the 1980s and that the applicant contrived a specific claim about his returnee brother being harmed for illicit people smuggling, the Tribunal finds that the applicant does not have a particular profile as he is someone who has no criminal record or outstanding summonses or any record of him or any recent record of close family members being involved with the LTTE or assisting them in any way.

22. The Tribunal has considered whether the applicant, based on his oral evidence, will face persecution as a result of his illegal departure from the country, if returned to Sri Lanka. The Tribunal accepts on the basis of the information before it, including the DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining his identity, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assesses that detainees are not subjected to mistreatment during their processing at the airport. The Tribunal notes that the more recent DFAT country information report from 24 January 2017 does not substantially differ from its earlier assessment.

1. The information in the s.424A letter to which the applicant did not provide a response, suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The applicant has parents in Sri Lanka with whom he is in regular ongoing contact. They are in a position to stand as guarantors for him. The Tribunal therefore does not accept looking at the applicant’s particular circumstances and the country information and based on the Tribunal’s earlier findings about his ethnicity and related Convention claims, he would face extended administrative detention on his return. Furthermore the Tribunal does not accept on the information before it that the applicant would face mistreatment from the authorities whilst he is held in remand given that he does not have an adverse profile, based on the findings above.

2. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of Sri Lanka’s Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5,000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

100.   Even if he were not detained after his foreseeable arrival, the applicant has expressed his fear of being subjected to interrogation by the CID in his home areas and that he will be subjected to the Prevention of Terrorism Act (PTA) which will lead to the applicant being disappeared and tortured. Tamils returning to the Northern Province are subjected to surveillance. This is based on the country information in the most recent DFAT report which further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.

101.   With regard to the authorities asking the applicant’s whereabouts, the Tribunal finds there is nothing extraordinary or unusual in this. However, such enquiries by the authorities do not amount to the applicant being a person of ongoing and adverse interest to the authorities. The Tribunal accepts the local authorities will have awareness that the applicant departed Sri Lanka unlawfully and would expect the authorities to continue to monitor him as a returnee to his home areas, along with the general Tamil population in the Northern Province and other failed asylum seekers like him. As outlined above, the Tribunal finds that the applicant will not face a real chance of harm for just being a Tamil, Tamil speaker or based on his imputed political opinion claims for a combination of these reasons. While the Tribunal accepts that the applicant holds a genuine personally held fear he will be harmed in the wider community as a failed asylum seeker of Tamil ethnicity and related reasons, based on the passage of time since the end of the war and the improving political environment between Tamil Sri Lankans under the Sirisena presidency, the Tribunal does not accept that the applicant will have a heightened or adverse profile among the authorities. This is even when taking into account his having been in a Western country for a long period of time. It is not accepted that he has a real chance of being subjected to any arbitrary detention, including under the PTA or other counterterrorism laws. Accordingly the applicant will not face a real chance of serious harm as a failed asylum seeker from a Western country who is of Tamil ethnicity or had been suspected and detained for LTTE sympathies or activities in the past or any related Convention reasons; or face a real risk of significant harm based on the same accepted personal circumstances by way of arrest, detention or interrogation, if the applicant returns to the applicant’s home areas of the Kilinochchi and [District 1] districts or anywhere else within Sri Lanka, now or in the reasonably foreseeable future.

Former PLOTE activities and hostility from other Tamils

102.   The Tribunal notes that the applicant was not a member of PLOTE but had been compelled out of fear to participate in PLOTE’s election activities as a young man while residing in [City 2]. The applicant never advanced that he supported their military activities but that his family were extorted for money by PLOTE in the past. The applicant also claimed he fears that on return he will be imputed with pro-government sympathies by Tamils who had supported the now defunct LTTE and continue to oppose or resist Sri Lanka’s Sinhala-dominated government and he will be imputed as a supporter of PLOTE for its collaboration with the Sri Lankan authorities during the civil war. The applicant said this had been particularly problematic when living in Kilinochchi where villagers were also jealous of his family’s relative wealth. It is also noted the applicant said that he would not vote for the Tamil National Alliance, of which PLOTE is a constituent member, as he has no faith in the political situation for Tamils at all.

103.   While these past incidents associated with PLOTE are accepted to be credible, the Tribunal notes that the applicant has never been seriously or significantly harmed by leaders, members or supporters of PLOTE or for any imputed pro-government opinions or activities prior to his departure. Furthermore, the applicant did not advance that his family had been subjected to any further incident by PLOTE members involving harm or harassment. Should the applicant return to his home areas, the Tribunal accepts the applicant and his family will be subjected to some petty jealousies and suspicions about holding PLOTE or pro-government sympathies and for being perceived to be relatively affluent. The Tribunal does not accept he has a real chance or real risk will not compelled to participation in any political activities or participate through his own violation according to his own admission about his disillusionment with political movements in Sri Lankan. While the applicant has a real chance or a real of being subjected to the kind of rumour-mongering spurred on by jealous neighbours, it does not accept the chances of serious harm for a Convention reason or risk of significant harm for a non-Convention reason will be real or substantial if he were to return to Sri Lanka in the reasonably foreseeable future.  Neither does the Tribunal accept that suspicions of pro-government sympathies will foreseeably lead to a real chance or a real risk of reprisals against the applicant or his family by the now defunct LTTE or its sympathizers, given none has happened in the past and the passage of time since the end of the civil war. Accordingly the Tribunal does not accept the applicant has a real chance of serious harm based on his imputed political opinion as supportive of the PLOTE or for being imputed as pro-government or any other related Convention or non-Convention reason, if the applicant were to return to his home areas of Kilinochchi and [City 2] in the Northern Province, or anywhere else in Sri Lanka.

104.   It therefore follows that the Tribunal does not accept there is to be a real risk of significant harm to the applicant based on same imputed political opinion claims or any other related claims due to the applicant’s and his family’s past associations with the PLOTE or perceived affluence or a combination of these reasons, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, including his home areas.

Sri Lanka’s 2018 constitutional crisis and the 2019 Easter bombings

Constitutional crisis

105.   The Tribunal notes the applicant did not respond to the s.424A letter seeking comment from the applicant about the chances of serious harm and the risks of significant harm to the applicant due to Sri Lanka’s constitutional crisis that occurred in the second half of 2018.

106.   The constitutional crisis had been triggered with the President sacking Prime Minister Wickremesinghe in favour of Mahinda Rajapaksa, the parliamentary leader of the Sri Lankan Freedom Party (and his Sri Lanka Podujana Peramuna (SLPP) faction), which is one of the parties making up the United People’s Freedom Alliance (UPFA). Rajapaksa had been president of Sri Lanka and presided over the end of the civil war in 2009. It has been argued that the likely elevation of Rajapaksa and the UPFA will lead to a deterioration of protections for Tamils or those with LTTE or Tamil separatist sympathies, imputed or otherwise.

107.   The Tribunal acknowledges that this is a foreseeable event within the next 12 months. Indeed Mahinda Rajapaksa was briefly, albeit unconstitutionally, appointed by President Sirisena as prime minister on 26 October 2018. Amid reports that Rajapaksa lacked majority support in parliament, on 28 October 2018 Sirisena suspended parliament and, on 9 November 2018, abruptly dissolved parliament and declared a snap election on 5 January 2019. On 13 November 2018, Sri Lanka’s Supreme Court temporarily suspended the dissolution of parliament ahead of a final decision. Following the suspension of the dissolution order, Sri Lanka’s parliament reconvened, where two no-confidence motions against Rajapaksa were passed despite the efforts of his supporters to disrupt proceedings. However, the results of these motions were not recognised by either Rajapaksa or Sirisena, both of whom claimed that they took place in violation of parliamentary procedure. In an interim judgement on Monday 3 December 2018, Sri Lanka’s Court of Appeal temporarily barred Rajapaksa from acting as prime minister while it hears a petition challenging his refusal to step down. Following an extension of the interim injunction, Sri Lanka’s Supreme Court has subsequently ruled that the President’s decision to dissolve parliament was unconstitutional and illegal on 13 December 2018. Having lost the constitutional argument, the President reinstated Wickremesinghe as prime minister when he and his Cabinet Ministers took their oaths before the President on 20 December 2018.[5] Since this time (more than six months), the Tribunal has not noticed any reports about a notable deterioration of political violence between the major parties, despite the arousal of tensions that the constitutional crisis triggered.

[5] New Cabinet Ministers sworn-in before President, Official government website, 20 December 2019, <  At some point in the next months, Sri Lanka will undergo both a presidential and a parliamentary election. While the Tribunal is unable to make a firm prediction about the outcome of these elections, it accepts there is a real chance or a real risk of Mahinda Rajapaksa and the coalition of parties led by the Freedom Party achieving control of parliament.

109.   When considering the available country information, the Tribunal does not accept there will be a real chance or a real risk of any serious political deterioration between the Sinhala and Tamil Sri Lankans including a re-ignition of the civil war and renewed security crackdown on Tamils throughout Sri Lanka, including the Northern Province. According to the situational update prepared by the Department of Home Affairs about Sri Lanka’s political crisis (CR239EC81237), while analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three-decade long civil war, there is only limited evidence to date to support this. Similarly, there are few reports at present of political violence stemming from the political crisis, or of related violence towards minorities, with the possible exception of Sri Lankan Muslims facing some reprisals for their perceived association with Islam. The report further states that there have been few reports to date of threats of political violence stemming from Sri Lanka’s political crisis, or of related violence towards minorities. On 19 November 2018 – in the midst of this political and constitutional crisis – police used tear gas and water cannons on monks from the Sinhalese nationalist Bodu Bala Sena (BBS) organisation protesting in front of the Presidential Secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently serving a six-year prison sentence for contempt of court. President Sirisena expressed his regret over the incident.[6] At the time of issuing this decision, no general election has been called and the President, who supported Rajapaksa as prime minister, has been careful to continue post-conflict reconciliations, albeit at a pace considered too slow for some international observers. The President has notably resisted providing support for Sinhalese and/or Buddhist extremists. In the context of the civil war ending now more than 10 years ago and based on this country information, there appears to be insufficient and highly speculative country information for the Tribunal to accept that the political situation will significantly deteriorate due to a change in government in favour of Mahinda Rajapaksa and the coalition he leads. Based on this assessment, the Tribunal does not accept there is a real chance of serious harm for any Convention reason relating to the applicant’s ethnicity or imputed political opinion or as a failed asylum seeker arising from the foreseeable change of government whereby there will be a sudden deterioration towards widespread political, religious and ethnic violence.

[6] ‘President Sirisena Expresses Regret Over Tear Gas And Water Cannon Attack On Bodu Bala Sena Monks; Says He Was Unaware of Protest’, Asian Mirror, 19 November 2018, CXBB8A1DA39190.

110.   With MIAC v SZQRB [2013] FCAFC 33 in mind when considering the Act’s complementary protection provisions, the Tribunal finds that the applicant does not face a real risk of significant harm, if he were to return, should there be a foreseeable change of government in Sri Lanka based on the same assessment of the available country information.

Levels of security/insecurity in Sri Lanka

111.   The Tribunal has also considered the chances of serious harm and risks of significant harm to the applicant in the wake of the Easter 2019 terror outrages targeting Catholic worshippers and hotel clientele which have created a level of fear from further terrorist attacks and triggered a higher degree of internal security in Sri Lanka by the authorities. Again, the applicant was invited to comment on this information provided to him in a s.424A letter but he did not respond.

112.   The recent level of heightened security in Sri Lanka needs to be considered in the context of substantial and significant advancements over the last 10 years, since the end of the war. As noted by DFAT, the security situation in Sri Lanka, particularly in the north and east, has ‘significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country’.[7]

[7] DFAT Country Information Report: Sri Lanka, 23 May 2018, p.11.

113.   It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[8] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[9] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[10]

[8] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566–7; MIMA v Prathapan (1998) 86 FCR 95 at 104–5 per Lindgren J, Burchett and Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.

[9] (2004) 222 CLR 1 at [26].

[10] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

114.   What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens.[11] The appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[12] The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[13] The obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.[14]

[11] Ibid, at [26].

[12] Ibid, at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.

[13] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]–[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]–[34].

[14] Osman v United Kingdom (1998) 29 EHRR 245 at [116].

115.   It may be noted that, regardless of the content of the relevant ‘international standards’, where the issue of state protection is considered in relation to whether a fear of persecution is well-founded, what is relevant is whether the protection that is available is sufficient to remove a real chance of persecution. However, on the majority view in S152/2003, even where state protection is not sufficient to remove a real chance of serious harm from non-state actors, Convention protection might not be engaged if the level of protection provided meets international standards.[15]

[15] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28]. As noted above, McHugh J at [83] disagreed; however the difference between his Honour’s approach and the majority view will be significant to the outcome only where there remains a well-founded fear of serious harm notwithstanding that the country in question provides the level of protection required by international standards.

116.   Authorities in Sri Lanka have stated that the attacks were carried out by two little-known Muslim organisations, the National Thowheeth Jama’ath (NTJ) and Jammiyathul Millathu Ibrahim, with help from international militants.[16] Sri Lankan security forces have killed or arrested most of those linked to the Easter suicide bombings,[17] including 15 suspects in a shoot-out on the following Friday.[18] More than 10,000 troops have been deployed across the island in an effort to uproot NTJ’s countrywide network, with Islamic religious groups reported to be lending their support to authorities.[19] While NTJ’s leader has been killed, and scores of further arrests have weakened the group,[20] US officials have warned that the terrorist threat is ongoing, with members of NTJ still active.[21]

[16] ‘What We Know and Don’t Know About the Sri Lanka Attacks’, The New York Times, 22 April 2019, 20190423102213; ‘Sri Lanka bombings: All the latest updates’, Al Jazeera, 30 April 2019, 20190501142357.

[17] ‘Sri Lanka bombings: All the latest updates’, Al Jazeera, 30 April 2019, 20190501142357.

[18] ‘Sri Lanka bombings: All the latest updates’, Al Jazeera, 30 April 2019, 20190501142357; ‘US warns of more attacks in Sri Lanka by active members of terror group still at large’, The Economic Times, 30 April 2019, 20190501140918; ‘Sri Lanka lifts social media ban imposed after Easter attacks’, Al Jazeera, 30 April 2019, 20190501145953.

[19] ‘Five things to know a week after the Sri Lanka bombings’, Nikkei Asian Review, 28 April 2019, 20190429105125.

[20] ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.

[21] ‘Sri Lanka: 15 killed as police raid militant house’, Deutsche Welle, 27 April 2019, 20190429173222.

117.   Although Sri Lankan government officials have acknowledged that foreign intelligence agencies provided domestic security officials with a detailed warning of possible threats to churches by the NTJ at least 10 days prior to the attacks,[22] President Sirisena and Prime Minister Wickremesinghe claim not to have been informed of the warnings prior to the attacks.[23]

[22] ‘What We Know and Don’t Know About the Sri Lanka Attacks’, The New York Times, 22 April 2019, 20190423102213; ‘“These Attacks Could Target Catholic Churches”: The Warning That Sri Lankan Officials Failed to Heed’, The New York Times, 22 April 2019, 20190501103309; ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.

[23] ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.

118.   The fallout from the attacks may also have further political and legal ramifications. Prime Minister Wickremesinghe has pledged to enact new counterterrorism laws, calling for the speedy presentation of the proposed Counter-Terrorism Act (CTA) to Parliament, itself designed to replace the Prevention of Terrorism Act (PTA).[24]

[24] ‘New counter terrorism laws to be enacted’, News.lk, 29 April 2019, 20190429171626; ‘Premier wants Counter-Terrorism Act fast-tracked’, Daily FT, 29 April 2019, 20190430132741.

119.   In any event, the Tribunal is satisfied that the current level of insecurity from Islamic terrorism does not mean that the applicant would not receive a level of protection commensurate with international standards. The level of insecurity appears to be due to external forces and the Tribunal is satisfied that the Sri Lankan authorities have taken reasonable measures that accord with international standards.

120.   Noting that it is accepted that he is a Hindu, as claimed, and not a Catholic or Muslim Sri Lankan and that he does not have a profile, either historically or contemporaneously, with these attacks, the Tribunal does not accept the applicant has a real chance of being targeted for investigation in relation to these attacks by the authorities, including Sri Lanka’s security and intelligence agencies, either on arrival or in the community. Furthermore the Tribunal finds that the applicant only has a remote and far-fetched chance for a Convention reason or a remote and far-fetched risk of being killed or maimed or otherwise seriously or significantly harmed by any future attack to be perpetuated by radicalised violent Islamists within Sri Lanka.

121.   The Tribunal similarly assesses there not to be a real risk that the applicant will suffer significant harm in his country of reference as it is satisfied the applicant could obtain protection from further Islamic attacks, by the authorities, such that there would not be a real risk as required by s.36(2B). For these reasons, the Tribunal does not have any substantial reasons for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, will suffer a real risk of significant harm of any kind arising from further terrorism outrages of the kind endured in the Easter 2019 incidents.

122.   Furthermore, the Tribunal does not accept the heightened security environment in Sri Lanka in the wake of these incidents, including the authorities’ current use of the PTA are in any way targeted against the Tamils, Tamils from the Northern Province, Hindu Tamils, Tamils with imputed political opinions in favour of Tamil separatism or any other related Convention reasons pertaining to the applicant’s personal circumstances. Based on the same considerations, nor does the Tribunal have any substantial reasons for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, will suffer a real risk of significant harm of any kind arising from heightened levels of security laws.

Residual claim

123.   Towards the end of the hearing, the applicant stated he feared being harmed as a victim of crime, including kidnapping and theft, if he returned to Sri Lanka. According to the most recent DFAT report, the security situation in Sri Lanka, particularly in the north and east, has significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country. Crime rates across Sri Lanka vary but are highest in Colombo District. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. UNODC estimated a murder rate of 2.9 per 100,000 in 2013. DFAT is aware of increased reports of gender-based violence in the north and east in recent years. The number of incidents of extrajudicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members, has significantly reduced since the end of the conflict.

124.   The country information indicates to the Tribunal that the crime rates in Sri Lanka are not significantly terrible and have significantly improved since the end of the civil war. The Tribunal accepts that the applicant has a real chance or real risk of being robbed by thieves, but it does not accept he has a real chance or a real risk of being kidnapped for ransom or being severely physically attacked or killed, either for a Convention or a non-Convention reason if he were to return anywhere within Sri Lanka in the reasonably foreseeable future.

125.   There are no more residual claims to be considered in this review application.

Cumulative findings

126.   In considering the applicant’s written and oral evidence and the country information put to the applicant over two hearings and in writing, the Tribunal accepts the applicant has experienced difficulties in the past and faces challenges in the future. But the applicant will not be returning to a country that is in a civil war or in an immediate post-conflict environment and whereby the available country information strongly indicates that a number of significant improvements to the security environment and reconciliation process between Tamil and Sinhalese Sri Lankans have occurred, despite the recent setbacks with regards to Sri Lanka’s 2018 constitutional crisis and the 2019 Easter Sunday bombings.

127.   Having considered all the applicant’s claims both individually and cumulatively, the Tribunal does not accept that the applicant will face a real chance of serious harm as an actual LTTE member, sympathiser or facilitator or as an imputed LTTE member, sympathiser or facilitator; as a close family associate of an LTTE member or sympathiser; as an actual or imputed supporter of any Tamil separatist movement; as a person who opposes the Sri Lankan government, imputed or otherwise; as a Tamil with pro-government or PLOTE sympathies, imputed or otherwise; as a young Tamil male; as a Tamil who has lived in the Northern Province or who usually resides in a Tamil-dominated area; as a Tamil who has fled Sri Lanka as a failed asylum seeker; as a Tamil who has illegally departed Sri Lanka and breached that country’s laws of emigration; as a forced returnee; as a member of the Tamil diaspora; as a Tamil person who is perceived to be wealthy or belongs to a relatively wealthy family; as a Tamil belonging to the Hindu faith or who is not a Buddhist; because of generalised crime or any combination of these Convention or non-Convention reasons, if he were to return to the Kilinochchi and [District 1] districts specifically or anywhere within Sri Lanka more generally, now and into the foreseeable future. Neither does the Tribunal accept that the applicant will face a real chance of serious harm either on arrival or in the wider community for the same Convention and non-Convention reasons, both individually and cumulatively considered, now or into the reasonably foreseeable future, if the applicant were to return to his country of nationality.

128.   For the reasons provided above, the Tribunal finds the applicant’s fear of persecution for a Refugees Convention reason is not well-founded, pursuant to s.36(2)(a).

129.   Having regard to the Act’s complementary protection provisions and its findings above, the Tribunal has considered all the dispositive and residual claims both individually and cumulatively. Accordingly, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to anywhere within Sri Lanka, that he will face a real risk of significant harm of any kind, as required by s.36(2)(aa) of the Act.

Conclusion

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

131.   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).

132.   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

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

Brendan Darcy
Member