1712222 (Refugee)

[2019] AATA 5771

1712222 (Refugee) [2019] AATA 5771 (1 May 2019)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712222

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Nicole Burns

DATE OF DECISION:  1 May 2019

DATE CORRIGENDUM

SIGNED:6 May 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. In paragraph 15 on page 3 of the Decision record, for ‘9 October 2015’ read ‘9 October 2013’.

   Nicole Burns
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1712222

   COUNTRY OF REFERENCE:                   Sri Lanka

   MEMBER:Nicole Burns

   DATE:1 May 2019

   PLACE OF DECISION:  Melbourne

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

   Statement made on 01 May 2019 at 5:10pm

   CATCHWORDS
   REFUGEE – protection visa – Sri Lanka – fears harm from authorities – imputed support of LTTE – criminal proceedings – imputed political opinion – failed asylum seeker – illegal departure – credibility concerns – decision under review affirmed

   LEGISLATION
   Migration Act 1958 (Cth), ss 36, 65, 424, 438, 499
   Migration Regulations 1994, Schedule 2

   CASES
   MIAC v SZQRB [2013] FCAFC 33
   MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

   SZTGM v MIBP [2017] HCA 34

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

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. 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).

3. The applicant arrived on Christmas Island by boat [in] June 2012 and provided a copy of his Sri Lankan passport, national identity card, birth certificate and school records to the Department of Immigration (the Department). The delegate had no concerns as to his claimed nationality. The Tribunal is satisfied the applicant is a national of Sri Lanka.

4. The applicant applied for the visa on 30 August 2012 and the delegate refused to grant the visa on 1 March 2013.

5. The Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a Protection visa on 26 May 2015. The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by the Federal Circuit Court [in] June 2017.

6. The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father in Sri Lanka via the telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, 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.

10. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations 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).

11. 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.

12. 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’).

13. 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.

    Claims and evidence

14. The applicant is a [age]-year-old Tamil man from Udappu, Puttalam district, North Western Province of Sri Lanka. He left Sri Lanka [in] May 2012 by boat with his brother, [Mr A], who also claimed protection in Australia. The applicant claims to fear serious harm on return to Sri Lanka from the authorities who suspect [Mr A] supported the Liberation Tigers of Tamil Eelam (LTTE) in the past. He claims his father, who remained in Sri Lanka, has been arrested and subjected to ongoing criminal proceedings in lieu of [Mr A]. The applicant also fears returning to Sri Lanka as a failed asylum seeker who departed the country illegally.

15. Initially the applicant set out his protection claims in a written statement provided to the Department with the visa application dated 30 August 2012. A written submission was provided by his then representative dated 10 September 2012 which sets out the applicant’s claims, the protection grounds, and referenced country information to support the contention that his claims were well founded where relevant.

16. Before the first Tribunal the applicant provided a further statutory declaration dated 9 October 2015 in response to concerns raised by the first Tribunal at hearing as well as a number of supporting documents as follows:

    ·A copy of a ‘Sri Lanka police message form’ in Sinhalese and a copy of its English translation which shows a message from the Terrorism Investigation Unit to [a named] station [in] February 2012 to arrest the applicant in relation to ‘terrorist activities’.

    ·A copy of a letter from the applicant’s father ([Mr B]) dated [November] 2012 outlining his court matters and detention history, certified by the Grama Niladhari (village elder).

    ·A letter from [the] applicant’s father’s lawyer who confirms that [Mr B] was to appear in court [in] February 2013, and the previous date was [date] September 2012.

    ·A diagnosis ticket for [Mr B] dated [December] 2012 indicating that he was admitted to hospital [in] December 2012 and discharged [in] December 2012 to have a [procedure].

    ·A document, said to be a ‘warrant’ for the applicant’s father and an unaccredited English translation of the warrant dated ‘2011.01.[date]’.

    ·Cover – court file and English translation of case no. [deleted] (allegedly the applicant’s father’s case), stamped with the District/Magistrate Court, [Town 1] [in] December 2012.

    ·A copy of a document titled detention attestation issued by the International Committee of the Red Cross (ICRC) [in] April 2009. It states that [Mr B] was first visited by delegates on [date].10.2008 and again visited in [Camp 1] ([named] district) between [October] 2008 and [January] 2009 and that he was released [in] March 2009 from [Prison 1], Colombo.

    ·A document in English purportedly a detention order issued under regulation 19(1) of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 200 by [an official]. It states that the [official] considers there are reasons to suspect that [Mr B] of Udappu is involved in preparing forged documents to establish the identity of terrorist members and orders that he be detained for 90 days from the date of this order ([October] 2008) at the CID, Colombo.

17. The first Tribunal forwarded a copy of the ‘Sri Lanka police message form’ to the Department’s document examination unit, as requested by the applicant’s then representative. However the result of the examination was inconclusive, as set out in a report from the document examiner to the first Tribunal dated 25 November 2013. This finding, among other things, was communicated to the applicant by the first Tribunal in a letter pursuant to s.424A of the Act, dated 9 January 2014. The applicant provided a further statutory declaration in response, dated 24 January 2014 in which he reiterates that the document is genuine.

18. Detailed written submissions setting out and expanding upon the applicant’s claims, clarifying some matters, addressing some issues and referencing relevant country information was provided to the first Tribunal dated 15 May 2013 and 30 January 2015.

19. Before the current Tribunal the applicant has provided copies of documents already submitted as well as a translated document from Sinhala to English titled ‘Extract from the Information book of [Police Station 1]’ dated [April] 2017. It records a complaint made by the applicant’s father about persons attending his home – on foot and in a white van – asking about the applicant and the applicant’s brother, assaulting the applicant’s father and threatening to abduct him if his son (it was unclear which one) was not present the next time. Also submitted[1] was an undated written statement by the applicant in which he reiterates his claims and confirms that the authorities in Sri Lanka still continue to enquire about him, evidenced by the extract from the [Police Station 1] station, detailed above.

    [1] On 4 March 2019.

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

21. The applicant said in 2008 when he was living at home with his parents and [brother] ([Mr A]) in Udappu (and attending high school) some CID members came to their home looking for his brother, who they suspected of supporting the LTTE. This was because earlier [Mr A] had told a friend – [Mr C] – where he needed to go to obtain a new national identity card (NIC). Later they found out [Mr C] was connected to the LTTE and therefore the authorities suspected [Mr A] of assisting the LTTE obtain NICs. When the CID first visited the applicant’s home in 2008 his brother was not there and they arrested the applicant’s father because they suspected he was also involved. The applicant said when he came home from school that day his mother told him that his father had been arrested and taken away. His father was jailed for six months somewhere in Negombo before being released on bail. He attended court many times thereafter but the matter was always adjourned and the court case continues.

22. The applicant said in 2011 the CID came to his home, took down his details and told him he was unable to leave Udappu and may be required to attend an ‘enquiry’ (in relation to his brother’s matter). They visited his parents’ house four or five times in the period from shortly after his father’s release from prison (early 2009) to the time the applicant left Sri Lanka in late May 2012: the applicant was at home on two of those occasions, in 2010. The first time was about three or four months after his father was released from prison.

23. The applicant said that when they visited his parents in February 2012 the CID (and two people dressed in civilian clothes) accused them of hiding their sons, told them they could finish off the matter by getting their second son (the applicant), threatened his parents, and then left. Afterwards the applicant – who was not home at the time of that visit – went and stayed at a friend’s [farm] which was located around five kilometres away until he left Sri Lanka. The applicant said the CID harmed his parents during this visit however when asked how, he said they used bad language. The applicant said the CID told his parents that they had come to arrest the applicant. They also accused his parents of hiding him, and said they would come again. The applicant explained that because from 2008 the authorities had come to his parents’ house to arrest [Mr A], but could not find him, they lost patience and wanted to arrest him instead.

24. The applicant said he completed his O-levels at high school around this time but could not concentrate due to the almost daily visits to his house by the CID. He dropped out of studying for his A-levels after around five months. He had been working part time on a [farm] whilst at school and continued to do so. His father was a fisherman before he went to prison but due to his health issues stopped working after being released from prison. His mother did some odd jobs such as tailoring and they received some financial assistance from the applicant’s father’s siblings. Nowadays his parents do not work: they receive money from the applicant (who works [in] Australia) and his father’s siblings.

25. The applicant said the CID has continued to visit his parents’ house looking for him since he left Sri Lanka. His father told him initially they visited around every three months, then every year ‘officially’, however unofficially they think it is more often, noting unidentified people have been hanging around their house. The applicant said he thinks the last time was in around October 2017 when they asked about the applicant and [Mr A]. The CID told his parents that until they find their sons, their problems will not end.

26. The applicant said that [Mr A] left home shortly after their father was arrested (in 2008) and he never heard from him until he arrived in Australia, nor did his family. [Mr A] left Sri Lanka by boat a few months before the applicant did, in early 2012. The applicant said that [Mr A] had applied for protection in Australia but was unsuccessful and was sent back to Sri Lanka in around March or April 2017. The applicant said [Mr A] had visited their parents briefly – for around 10 minutes – around a week after he returned to Sri Lanka. The applicant’s father told [Mr A] that the CID had been looking for him (and the applicant) and advised him to live somewhere else. Neither the applicant nor his parents have heard from him since. The applicant said his father lodged a complaint with both the [named] police stations about a month after [Mr A] visited, but they have not done anything. His parents have also asked friends and look for news items, in a bid to try and locate his whereabouts.

27. The applicant’s father also gave oral evidence to the Tribunal, summarised as follows. He said the applicant left Sri Lanka (in 2012) because the CID used to come and look for him because [Mr A] had helped a boy in their village make an ID, who later was found to be with the LTTE. The authorities thought the applicant had something to do with it as well. In around 2007 or 2008 the CID came to their house and accused [Mr A] of helping the LTTE. [Mr A] was not at home at the time but the applicant was: they assaulted him and asked him where his [brother] was. They then took the applicant’s father to the fourth floor of the CID in Colombo where he was assaulted, tortured and questioned about the (LTTE) boy. Around five days later he was taken to [Camp 1] for six months before being released on bail (around [amount] Sri Lankan rupees). He had to appear at court in [Town 1] four or five times and the matter lasted for a few years. When asked what the charge was, the applicant’s father said that [Mr A]’s case was on him (he did not elaborate). However there was no proof and they could not get [Mr A] or the (LTTE) boy so the case ended. The last time he attended court was in around 2011.

28. The applicant’s father said in 2011 [Mr A] visited and he told him the CID had been looking for him so he ‘scooted’ overseas. He returned in 2017, spent a short time at their house and then went away after the applicant’s father told him that the CID were still looking for him. He does not know his current whereabouts. The applicant’s father made a complaint to the [police] but they did not take it seriously. He also searched the Udappu area but has not been able to find him.

29. The applicant’s father said after the applicant left Sri Lanka in 2012 the CID visited their home looking for him three times: the first time two years prior (to the hearing). They told the CID that he had gone overseas. One time they assaulted the applicant’s mother. They have visited in 2017, 2018 and 2019. They asked where the applicant was and said if they get him they will not return him alive.

30. The Tribunal asked the applicant’s father if he reported the CID visits to the police. He replied ‘no’. He was then asked about the police memo from February 2012. He explained that was because the CID gave a message to the [police] station to arrest the applicant if they came across him. When asked how he found that out, the applicant’s father said normally they do not give such information (he did not elaborate or answer further). When asked why the police want to arrest the applicant, the applicant’s father said he does not know why the police have become more interested in the applicant than [Mr A].

31. The applicant’s father said once unidentified people came to their house and asked about his sons, he thinks in 2017. They assaulted and harassed them.  He said he reported the incident to the [Police Station 1]. When asked why, particularly if they suspected they were CID (or linked to them) the applicant’s father said they did not know who they were so had to make an entry for their safety.

    Findings about past experiences in Sri Lanka

32. The Tribunal accepts the applicant is a young Tamil male who originates from Udappu and lived there all his life before coming to Australia in May 2012. It accepts his parents continue to live there and are retired. It accepts he has a brother who came to Australia a few months prior to the applicant, and returned to Sri Lanka in 2017.

33. Central to the applicant’s protection claims is that his brother, [Mr A], was of adverse interest to the Sri Lankan authorities, as a suspected LTTE supporter. When the authorities were unable to locate [Mr A], they arrested the applicant’s father instead, and later shifted their attention to the applicant, prompting him to leave the country. However the Tribunal notes there are a number of credibility concerns with the applicant’s evidence in this respect, including his claims that he (and [Mr A]) continue to be of ongoing adverse interest to the CID in Sri Lanka due to [Mr A]’s alleged links to the LTTE for the reasons that follow.

1. First, the applicant’s oral evidence to the Tribunal was vague and confusing at times in relation to key events and matters, for example about his father’s arrest, imprisonment and court case. At hearing the applicant was unsure whether his father was in a prison or detention, which prison (or detention centre), what he was charged with specifically – apart from saying it was the ID matter – or which court he allegedly appeared at in relation to the case against him. He told the Tribunal that his father was found guilty and jailed (he thought by a judge), but then that he was also released on bail and his court matters are outstanding. To explain his limited knowledge of these matters the applicant said that his parents excluded him given he was young. Also that he never visited his father in prison, only his mother did, but he thought it was located in Negombo somewhere. Whilst this may have explained the applicant’s limited knowledge of such events at the time, when the applicant was younger, it does not explain his limited knowledge of such events now, given he has had the chance to talk to his father about such matters that are fundamental to his protection claims and fears of returning to Sri Lanka.

2. Second, the applicant’s evidence has shifted in a significant respect over the course of the visa application and review. For example, when asked at hearing why the CID changed their focus from his brother to his father and then the applicant (stemming from their initial suspicion because [Mr A] helped [Mr C] obtain a new NIC), the applicant said the main problem the authorities had was with his brother but his father was arrested because they thought he was also involved (producing NICs for the LTTE).  He said that had they thought the applicant was too, they would have arrested him. However later in the hearing the applicant claims the authorities did try to arrest him: it remains unclear to the Tribunal why if the authorities wanted [Mr A], they first arrested his father, and since 2017 have allegedly been determined to find and arrest the applicant. In his statutory declaration provided to the Department the applicant states that in 2008 the CID arrested his father in place of his brother (who was suspected of making NICs for LTTE members) however the applicant said at hearing that although the authorities were looking for his brother, they also thought his father was involved and he was arrested on that basis.

3. Third, there are some inconsistencies between the applicant’s oral evidence to the Tribunal and written claims to the Department. For instance at hearing the applicant said that after his father was released from prison the CID came to his parents’ home four or five times, beginning from a few months after his father was released in early 2009 until he left Sri Lanka in May 2012. However in his written statement provided to the Department he only mentions the authorities visiting twice: in December 2011 and February/March 2012. As well, whilst the applicant mentions the February 2012 visit in his written statement of claims he states they visited and asked after him because he was not supposed to leave the house, not that they had come to arrest him. At hearing the applicant said that was because when he initially talked to his parents they were not aware of the details, and with time he found out more. However when the Tribunal then asked the applicant when he found out the authorities wanted to arrest him, he said it was in February 2012 when they visited: he was unable to adequately explain why he omitted to say as such in his written statement provided to the Department at the visa application stage.

4. Fourth, the applicant failed to mention that the CID were looking for his brother and had arrested their father instead because they suspected his brother of assisting an LTTE member obtain an NIC at his entry interview held not long after he arrived in Australia, as acknowledged in his written statement provided to the Department dated 30 August 2012. In that statement the applicant explains that he was not able to give this information at his entry interview because he only found out the details a day after the entry interview. At the current Tribunal hearing the applicant said he did not know at the time and was only given the details from his parents bit by bit. He said he knew that the CID was looking for him but not all the details. However he also told the Tribunal that in 2008 when he returned home from school his mother told him that his father had been arrested and taken away. The Tribunal finds it implausible that the applicant would not know why, even if he did not know the specific details, particularly given this allegedly was the basis he fled Sri Lanka.

5. Fifth, there are inconsistencies between the applicant’s oral evidence and his father’s oral evidence to the Tribunal in significant respects, as set out in a post hearing letter to the applicant inviting his comments or response to the inconsistencies, pursuant to s.424A of the Act. They are as follows:

   a.The applicant told the Tribunal that his father was arrested in 2008, accused of assisting the LTTE, imprisoned for six months, released on bail, that his court hearings were regularly postponed and that his court case continues. However the applicant’s father told the Tribunal that he attended court hearings four or five times, that the matter lasted a few years, and that the case has ended.

   b.The applicant said that he was not at home when the CID came to his parents’ house in 2008 and arrested his father when they could not locate [Mr A], and that his mother told him when he came home from school that the CID had visited. However his father said that the applicant was at home when they came and they threatened and assaulted the applicant.

   c.The applicant said after his father was arrested in 2008 [Mr A] left the family home in Udappu and that neither the applicant nor his family were in contact with him in the period from then until the applicant left Sri Lanka in mid-2012. However the applicant’s father told the Tribunal that he told [Mr A] that the CID had come looking for him in 2011 and two or three months later [Mr A] went overseas.

   d.The applicant said the CID visited his parents’ house looking for him a number of times after he left Sri Lanka in mid-2012 and the last time they visited was in 2017. However the applicant’s father said the CID have visited them three times since the applicant left Sri Lanka, the first time in 2017, and that they have visited in 2018 and 2019.

6. In his written response to the Tribunal’s letter setting out these concerns, the applicant stated that he believes his father was confused and gave some wrong answers, attributable to his age (almost 60) and illness (diabetes). The fact the questioning was done over the phone and with an interpreter whose dialect[2] was different to his father’s added to his father’s confusion and panic (at times), he submits. With respect to the specific inconsistences as set out above, the applicant stated as follows:

   ·With respect to (a) to the applicant’s knowledge is that the case is ongoing. His father did not understand the question correctly and responded incorrectly.

   ·Regarding (b) again his father was confused, and thought this question was related to the 2011 incident. The applicant clarifies that he was at home in 2011 when the CID came, but not at home when the CID visited in 2008.

   ·Regarding (c), the applicant states that according to his knowledge his family members did not have any contact with [Mr A] after 2008. When the CID came to their home to enquire about [Mr A] his father had to tell them he went overseas and thought at the time they would not come again and make trouble for their family: because of that he gave the same answer to the Tribunal. The applicant added that most of the time when the CID came to look for his brother, his father’s answer was that he did not know, which made them angry.

   ·Regarding (d) the applicant states that after he left Sri Lanka in 2012 the CID looked for him once a year and ‘Document was submitted on 2017’. Therefore his father understood incorrectly, thinking the question related to the 2017 incident.

   [2] The applicant states ‘dialogue’ however the Tribunal has proceeded under the assumption that he meant ‘dialect’.

7. The applicant provided copies of diagnosis tickets and medical records in relation to his father’s health problems, which had previously been provided. As well he provided to the Tribunal a handwritten certificate from [a named person], Puttalam, dated [March] 2019 who states that ‘[Mr B] [age] years old suffering from severe lost [sic] of MEMORIES, Diabetes and Heart DISSeas [sic], last SIX YEARS’.

8. At hearing after his father had given evidence to the Tribunal the applicant said the court case against his father is ongoing and said given his father is old he may not have given the correct answer; when asking some questions in a discrete way he was disturbed; the Tamil he speaks is a bit different to the interpreter’s Tamil; and he was giving evidence over the phone, so there may have been a misunderstanding. He said his father misunderstood the Tribunal’s questions regarding his court case, which he understands is ongoing.

9. The Tribunal accepts the applicant’s father is [age] and diabetic and this may have had some bearing on his recollection of events at hearing, for example, combined with giving evidence over the phone with an interpreter who may have a slightly different dialect. However the claim that the applicant’s father has severe memory loss is new, and was only made in response to the Tribunal’s letter setting out the inconsistencies. At hearing the applicant’s father was reasonably cogent and did not indicate that he was panicked, confused or had trouble understanding questions. Nonetheless, it is possible he may have been somewhat confused in relation to (b) and (d) given the evidence relates to events that allegedly occurred some time ago, and also in relation to (c) about the timing of their family’s contact with [Mr A]. As such the Tribunal is willing to give the applicant the benefit of the doubt in this instance and does not draw adverse inference from the inconsistences between his and his father’s oral evidence in those respects.

10. However as to whether the court case allegedly involving the applicant’s father is ongoing or not (regarding (a)), the Tribunal notes it asked the applicant’s father this question more than once at hearing and he always answered the same: that it was over.  For these reasons the Tribunal does not accept the applicant’s claims that the court case against his father continues.

11. The Tribunal has considered the applicant’s new claims that his brother has disappeared, shortly after his return from Australia to Sri Lanka in 2017. He described the circumstances of [Mr A]’s return to Sri Lanka and purported disappearance at hearing, as did his father, as set out earlier. However the Tribunal has a number of concerns about his claims in this respect, as follows:

    a.[Mr A] was able to return to Sri Lanka via the Colombo airport on a passport issued in his own name with no apparent problems. This indicates that he was not of any adverse interest to the authorities at the time. If there was an outstanding arrest warrant for him or he was of interest in relation to any criminal matters (including his father’s), the Tribunal is of the view that this would become known on arrival, noting DFAT’s advice that different agencies at the airport check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters when processing returnees, including those on charter flights from Australia.[3]

    b.[Mr A]’s visit to his parents’ home in Udappu shortly after his return to Sri Lanka undermines, to some extent, his purported fear of the authorities who have continued to monitor and harass the applicant’s parents in relation to trying to locate him. The fact that the applicant’s parents have not moved or changed address despite claiming a long history of harassment and surveillance by the CID also casts doubt on these claims.

    c.The applicant’s oral evidence about his and his parents’ efforts to find [Mr A] was vague, unconvincing and at times illogical. For example the applicant said his father reported his brother missing to the [named] police stations which appears odd given they suspected the CID (who are a specialised branch of the police) were behind his alleged disappearance. In terms of other efforts to locate [Mr A], the applicant said his father has asked friends and family. In his oral evidence to the Tribunal the applicant’s father said he has looked around Udappu. The applicant said he himself has not done anything and when asked why not, he said because his father had told him not to do anything. Yet the applicant has not contacted any of his brother’s friends, including in Australia, and such lack of effort casts doubt on whether his brother has gone missing at all. At hearing the applicant said his father has already contacted all these people and his father knows more of his friends than he does. The Tribunal is not persuaded by his oral evidence in this respect.

    d.The Tribunal finds it odd that the applicant’s parents lodged a police complaint that [Mr A] had gone missing only a month after he had purportedly visited them at their home in Udappu, especially given the applicant’s claims that his father told [Mr A] to go away and find somewhere else to live. The applicant’s father told the Tribunal that he made the complaint a few days after his son visited and it is unclear why he went to the police at that time. At hearing the applicant said although they knew who the people are behind it (that is the government) his parents made the complaint for safety.

    e.There are aspects of the applicant’s oral evidence to the Tribunal about his brother which are internally inconsistent. For example the applicant said if he goes missing the Tribunal will see his parents protesting along with other family members of missing persons. However when asked if they have done so with regard to [Mr A]’s alleged disappearance, the applicant said ‘no’ because they are still looking for him.

    f.In his statutory declaration provided to the first Tribunal the applicant states that the case will be open against his father until his brother returns. However [Mr A] did return and nothing appears to have happened (with respect to the applicant’s father’s alleged outstanding court case).

    [3] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.28.

12. The Tribunal notes that at hearing it agreed to hold off making the decision until 27 March 2019 for the applicant to provide copies of the police extracts/reports about his missing brother. However the Tribunal has not received these documents.

13. Given these concerns and for the reasons above, the Tribunal does not accept the applicant’s claims that his brother was suspected of supporting the LTTE because he helped a friend (and suspected LTTE member) obtain an NIC or that his father was arrested and detained by the authorities when they could not find the applicant’s brother in relation to this matter. The Tribunal does not accept the applicant’s father was detained for six months then released on bail, or that he appeared in court a number of times and his court case is ongoing. The Tribunal does not accept that the authorities – including the CID – visited the applicant’s family home a number of times from 2008 enquiring about [Mr A] and from 2011 the applicant. The Tribunal also does not accept that [Mr A] has gone missing since his return to Sri Lanka in 2017.

14. In reaching this conclusion the Tribunal has had regard to the applicant’s father’s oral evidence. However there were other concerns it had with his evidence, including vague oral evidence about his own alleged arrest, detention and court matter. He was vague about what he was charged with specifically, and unable to clarify what the ruling was specifically in his case, for example. His oral evidence to the Tribunal does not overcome the significant credibility concerns the Tribunal has with this case.

15. As well, in reaching this conclusion the Tribunal has had regard to the various documents the applicant has provided to the Department and the Tribunal in support of his claims, as set out earlier. This includes the ‘Sri Lanka police message form’ from the ‘Terrorism Investigation Unit’ which purports to direct local authorities to arrest the applicant, issued [in] February 2012. The applicant’s father sent the document to the applicant in Australia around the time of the first Tribunal review. The applicant told the Tribunal that his father had obtained information that the CID had told local police if they find the applicant to arrest him/hand him over. It is unclear how the applicant’s father was able to obtain the document, which appears to be an internal Sri Lankan police document and it found the applicant’s and his father’s evidence at hearing vague in this regard. For instance the applicant’s father said he knew people but did not elaborate. The applicant said although his father did not tell him how he obtained the document, he suspects his father’s friend who was the Grama Niladhari had obtained it for him.

16. As mentioned earlier, the first Tribunal sent this document to the Department’s document examination unit (DEU) who reached an inconclusive finding about whether it was genuine or not in large part because they did not have enough material to compare it with. The applicant was advised of these findings in a letter[4] pursuant to s.424A of the Act by the first Tribunal and invited to comment on the findings. A copy of the DEU’s report dated 25 November 2013 is contained on the first Tribunal’s file and is subject to a non-disclosure certificate, issued under s.438 of the Act on 10 December 2013 on the basis that disclosure would be contrary to the public interest because it contains internal working documents. The Tribunal is not satisfied that the certificate is valid because the fact that the folios contain information relating to an internal working document is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.[5] At hearing the Tribunal discussed the DEU’s findings and read out some of the observations in the report. The Tribunal has had regard to the contents of the report, which supports the examiner’s inconclusive conclusion, and is satisfied it does not contain anything adverse because it does not show one way or the other that the document is genuine or non-genuine. Accordingly the Tribunal puts no weight on the DEU’s findings because they are inconclusive.

    [4] Dated 9 January 2014.

    [5] See MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [37] per Beach J.

17. Furthermore, the existence of such a document does not overcome the serious credibility concerns the Tribunal has with the applicant’s core claims to be of ongoing adverse interest to the Sri Lankan authorities because of his brother’s (and father’s) suspected support of the LTTE.

18. The other documents the applicant has provided in support of his claims include an ICRC detention attestation in relation to the applicant’s father. The information contained in the attestation differs in some respects to the applicant’s father’s oral evidence to the Tribunal, which casts doubt on its authenticity. For example, the applicant’s father said he was only ever detained at [Camp 1] detention camp (after being held at the CID’s ‘fourth floor’ for five days) in 2008. However it states in the attestation allegedly from the ICRC that he was detained at [Camp 1] then [Prison 1]. This is also what the applicant’s father states in his letter to the first Tribunal: that he was in [Camp 1] until [January] 2009 and then brought to the [Prison 1], Colombo until [March] 2009. The Tribunal would expect the applicant’s father to remember if he was detained at [Prison 1] for around two months.

1. Another concern the Tribunal has with these documents included the fact that they were only provided to the first Tribunal, not the Department. The applicant told the current Tribunal that his father sent all these documents to him during the time of his first review and the reason he was late in doing so was because his father had been in and out of hospital. He was emphatic that they are genuine documents and that they were late because he was relying on his father to send them, who is old and diabetic, in his statutory declaration provided to the first Tribunal. The Tribunal accepts that the applicant’s father was in and out of hospital with complications related to his diabetes as reflected in the medical documents provided. However this does not explain why his mother could not have sent the documents to the applicant sooner, particularly those he claimed were already in his possession from before he left Sri Lanka, such as the ICRC attestation.

2. For these reasons, the Tribunal gives these documents (that is the ICRC attestation, detention order, warrant, court order cover page, letter from the applicant’s father’s lawyer and letter from the applicant’s father) little weight. They do not overcome the serious credibility concerns the Tribunal has with the applicant’s core claims to be of ongoing adverse interest to the Sri Lankan authorities because of his brother’s (and father’s) suspected support of the LTTE in the past.

3. The Tribunal has also considered the ‘Extract from the Information book of [Police Station 1] station’ dated [April] 2017 provided to the current Tribunal. It records a complaint made by the applicant’s father about persons attending his home – on foot and in a white van – asking about the applicant and the applicant’s brother, assaulting the applicant’s father and threatening to abduct him if his son (it was unclear which one) was not present the next time. When asked about this extract and the related incident at hearing, the applicant said that his father told him that around two years ago people came to their house and assaulted them. When he made a complaint with the police they told him they had additional information (about instructions to arrest the applicant). The applicant said his father did not tell him the details of the incident, apart from stating that someone tried to hold his father’s neck and assault him, and he did not want to ask further. In his oral evidence to the Tribunal the applicant’s father said some unidentified people came to his house in 2017 and asked about his sons: he told them [Mr A] was in Sri Lanka but he did not know where and that the applicant was in Australia. They then harassed and assaulted him. He then reported the matter to the [Police Station 1]. As the Tribunal has not accepted the applicant’s claims that he and his brother were (or are) of adverse interest to the authorities (and possibly others linked to the authorities) for the reasons above, and given the prevalence of document fraud in Sri Lanka[6] (as set out in the first Tribunal’s decision record[7]), the Tribunal gives this police extract little weight. It does not overcome the serious concerns the Tribunal has with the applicant’s claims, as discussed.

   [6] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.54–5.57.

   [7] The country information referenced in the first Tribunal’s decision record about document fraud in Sri Lanka is from a variety of sources, including a 2000 DFAT report which states that document fraud is widely and well-practised in Sri Lanka. The new DFAT report confirms the prevalence of document fraud in Sri Lanka.

4. Accordingly, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Sri Lanka from the authorities on imputed or actual (pro-LTTE/anti-government) political opinion grounds on account of his brother, father or for any other reason, or as a member of a particular social group of his family (because of his brother and/or father). His fears of persecution for these reasons are not well founded.

   Tamil ethnicity

5. The Tribunal has considered if the applicant faces a well-founded fear of persecution on the basis of his Tamil ethnicity, including his membership of a particular social group of ‘young Tamil men from Udappu, North-West Province from an area with a history of LTTE presence and/or LTTE recruitment’ and ‘young Tamil men from the militarised North-Western Province’ as submitted.[8]

   [8] In the applicant’s former representative’s submission to the Department dated 10 September 2012.

6. In her written submission to the first Tribunal (dated 15 May 2013) the applicant’s then representative submits that the applicant fears persecution from the authorities on return to Sri Lanka for a number of reasons, including his Tamil race (and related imputed anti-government political opinion). She references the risk profiles identified in UNHCR’s 2012 guidelines include former LTTE supporters and persons with family links to persons with certain profiles. She also references country information from a variety of sources (most of which is dated in the period 2010 to 2012) about human rights abuses against Tamils, the targeting of Tamils by the Sri Lankan security forces and government treatment of suspected LTTE members.

7. The Tribunal accepts the applicant is [age] and may still be considered a young Tamil male. It accepts he originates from Udappu from the North Western Province. It accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government. However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection,[9] including being from the north and/or an area previously controlled by the LTTE. Neither, as discussed at hearing, in general would a person who evidences past membership or connection with the LTTE warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state.[10] The Tribunal does not accept the applicant experienced any problems from the authorities in Sri Lanka in the past as a suspected LTTE supporter (or for any other reason), nor did his brother or father, and he has not indicated that he has been active in the diaspora community since leaving Sri Lanka. At hearing, when asked if he or any of his family members supported the LTTE, the applicant said ‘no’. Taking into account country information as set out above and discussed at hearing that in general a person who evidences past membership or connection with the LTTE does not warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities on imputed (pro-LTTE) political opinion grounds as a Tamil, and/or young Tamil male from the North Western Province from an area with a history of LTTE presence and/or LTTE recruitment and/or young Tamil man from the militarised North Western Province.

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

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

8. The Tribunal acknowledges that military and security forces remain in the Northern Province (which is different to the North Western Province where the applicant originates from) of Sri Lanka and parts of the east, and operate a number of commercial businesses as well as continue to occupy some fertile farming land in the north and restrict access to some fishing areas.[11] Nonetheless as discussed at hearing, DFAT report that the security situation in the north and east has improved significantly since the end of the conflict in May 2009, with greater freedom of movement and a reduction in the military’s involvement in civilian life, and that most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula or smaller surrounding military camps.[12] Further, DFAT note that the government has publicly claimed that military involvement in civilian activities has ceased.[13]

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

   [12] Ibid at 2.32 and 2.36.

   [13] Ibid at 5.4.

9. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assess that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the current government.[14] They do state, however, that surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues, ‘including missing persons, land release and memorial events’.[15] The Tribunal notes this advice refers to the north and east of Sri Lanka, not the North Western Province where the applicant is from. As well, for the reasons above the Tribunal is not satisfied that the applicant is (or would be) associated with such politically sensitive issues. He claims his brother has gone missing, and he fears the same fate; however the Tribunal has not accepted his claims in this regard.

   [14] Ibid at 3.11.

   [15] Ibid at 3.9 and 3.11.

10. At hearing the applicant said such country information deals with general problems in Sri Lanka but he has personal problems, reiterating what happened to his brother when he returned. He added that if a hundred people go missing it makes the news, but not if only one does.

11. Having had regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and in the immediate aftermath of the war on account of their ethnicity. However, in light of the end of the war in May 2009 and the country information cited above that assesses being of Tamil ethnicity does not on its own warrant international protection, and the overall improved security situation, the Tribunal finds the applicant does not face a real chance of suffering serious harm on account of being a Tamil, or a member of a particular social group of ‘young Tamil men from Udappu, North-West Province from an area with a history of LTTE presence and/or LTTE recruitment’, and ‘young Tamil men from the militarised North-Western Province’ alone or in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed above and below.

    Failed asylum seeker

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

13. In her written submissions[16] to the first Tribunal the applicant’s then representative argues that the applicant faces a well-founded fear of persecution on return to Sri Lanka from the authorities for a number of reasons (considered independently and cumulatively) including because of his failed asylum claim in Australia and illegal departure from Sri Lanka. She references country information from a variety of sources (including information cited in former Refugee Review Tribunal decisions) to support her contention that the applicant’s fears are well founded in this regard. She submits that the applicant faces ill treatment during the screening process on return given a number of cumulative risk factors including his Tamil race, illegal departure, non-voluntary return to Sri Lanka and failed asylum claim in Australia, which would lead to disclosure that he is wanted by the CID and in such circumstances lead to indefinite detention, torture and other forms of serious harm by the authorities.

    [16] Dated 15 May 2013 and 30 January 2015.

14. At hearing, the Tribunal discussed the standard procedures for processing involuntary returnees as set out in the DFAT Country Information Report on Sri Lanka. In that report, it is stated as follows:

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

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records.[17]

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

15. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of ethnicity and religion. DFAT further state that they understand that detainees are not subjected to mistreatment during processing at the airport.[18]

    [18] Ibid at 5.29.

16. Also as discussed, DFAT state that during 2008–2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka, and many others returned from the USA, Canada, the UK and other European countries, and most returnees are Tamil. DFAT state further that although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links or because of the relatively lower cost of living compared to the south.[19]

    [19] Ibid at 5.37.

17. As discussed at hearing and previously mentioned, the UK Home Office reports that in the UK country guidance case of GJ & Others, the UK Upper Tribunal identified as one of four risk categories individuals who are or perceived to be a threat to the integrity of Sri Lanka as a single state because they have or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[20] Such country information indicates that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk. The applicant has not indicated that he has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism, and the Tribunal finds that he is not such a person.

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

18. At hearing, the applicant reiterated that the news does not record if one person goes missing or is sent to jail, only if there are 100. He fears facing the same problems as his brother. He said the (Sri Lankan) government tell the world everything is fine but illegal things are happening which do not come out. As well he said that Tamils will always be treated differently because they are classified as belonging to the LTTE.

19. For the reasons above, the Tribunal does not accept the applicant (or his brother or father) faces a real chance of serious harm from the CID or anyone else in Sri Lanka and has not accepted his claims that his brother went missing.

20. While the Tribunal accepts that the applicant, as a Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he is not of any adverse interest in respect of his brother, father, suspected LTTE links and has had no involvement in diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker. The Tribunal is not satisfied that the process of questioning itself would lead to serious harm given these considerations.

21. The Tribunal accepts that when the applicant returns to his home area of Udappu, his arrival may be noted and he may be questioned by the Sri Lankan authorities. The latest DFAT report confirms that monitoring and surveillance of some returnees in the north and east continues and they may face some societal discrimination.[21] As mentioned, the applicant comes from the North Western Province. Also, given the Tribunal’s findings above, it does not accept there to be a real chance that such monitoring or surveillance would result in the applicant being targeted for serious harm by the Sri Lankan authorities or anyone else in his home area on the basis that he is a (young) Tamil male who has sought asylum in Australia, or for any other reason. His fear of persecution on membership of the particular social group of ‘failed asylum seekers’ and (related) imputed political opinion grounds because he sought asylum in Australia is not well founded.

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

    Illegal departure

22. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka on account of his illegal departure.

23. In his statutory declaration provided to the first Tribunal the applicant states that he is not afraid of facing a fine for departing illegally, as ordinary people who do so might face, but is afraid of being persecuted. He is afraid of being deported, questioned on return, detained indefinitely and once background checks are done with the authorities in Udappu, being detained or arrested, denied bail and tortured in custody. He states that this happens to Tamils in his situation and even if he is released the authorities will continue to monitor him and can subject him to serious harm including arrest and torture in the future. He believes this will happen because he is a Tamil who is suspected of supporting the LTTE and because of what happened to his brother and father, noting they are still of interest to the authorities. He states further that he does not accept he will be given bail or will spend a short time on remand, believing that once the authorities confirm his identity and background on return he will be denied bail on the basis that he is wanted by the authorities on suspicion of supporting the LTTE, like his brother.

24. In her written submissions to the first Tribunal, in addition to her contentions made with respect to failed asylum seeker grounds (set out earlier) the representative submits that the applicant’s offence (of departing illegally) cannot be treated in isolation from his other risk factors including his race, origins and family links to an LTTE supporter. She submits that the penalties for departing Sri Lanka illegally are serious, and that in the applicant’s case bail is not assured because he has been of interest to the CID in the past on account of his links to his father and brother. As a consequence, she argues, he may be held under the Prevention of Terrorism Act (PTA) or denied bail and remanded in custody indefinitely. If so, she submits that there is more than a remote chance that he would face serious harm given appalling prison conditions as well as differential treatment he would face as a Tamil. She adds that there are reports of Tamils being processed on return and being allowed to leave the airport, only to be targeted once they return home, citing an Immigration and Refugee Board of Canada February 2013 publication about treatment of Tamil returnees.

1. The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so. At the hearing, the Tribunal discussed with the applicant DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. Also, in practice, most penalties (which can include imprisonment of up to five years) are almost always a fine, and fine amounts vary on a case by case basis (but can be up to LKR200,000/AUD2,000) and can be paid by instalments. Further, DFAT advises that if a person pleads guilty, they will be fined and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[22]

   [22] DFAT, Country Information Report Sri Lanka, 23 May 2018 at 5.21–5.26.

2. At hearing, when asked if his family members in Sri Lanka can help him pay the fine or act as a guarantor if required, the applicant said he would not be able to afford to pay at once, but may be able to pay in instalments, provided ‘they’ allow him to live. He said his parents could act as guarantor if required. On this basis the Tribunal is satisfied that the applicant has family members who can act as a guarantor if needed, and he has the capacity to pay any fine that may be imposed because of his illegal departure, if required.

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

4. The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general, prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions.[23] However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short-term period of being detained, given its findings that he is not of any adverse interest to anyone. As mentioned, the Tribunal is satisfied the applicant’s parents can act as guarantor if needed and he has the capacity to pay a fine if required. The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return. There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison. However, as the Tribunal does not accept the applicant is of adverse interest to the authorities for any reason, or his brother or father, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population. The Tribunal is not satisfied, therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required, nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm as defined in s.91R(2).

   [23] DFAT, Country Information Report Sri Lanka, 24 January 2017 at 4.25.

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

   Complementary protection

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

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

8. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual (anti-government/pro-LTTE) political opinion grounds, as a Tamil, as a young Tamil, or as a member of the particular social groups of ‘young Tamil men from Udappu, North-West Province from an area with a history of LTTE presence and/or LTTE recruitment’ and ‘young Tamil men from the militarised North-Western Province’. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[24] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

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

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

10. The Tribunal accepts that when the applicant returns to his home area of Udappu, his arrival may be noted and he may be questioned by the Sri Lankan authorities. The latest DFAT report confirms that monitoring and surveillance of some returnees in the north and east continues and they may face some societal discrimination.[25] However, given the Tribunal’s findings above, it does not accept there to be a real risk that such monitoring or surveillance would result in the applicant being targeted for significant harm by the Sri Lankan authorities, or anyone else in his home area on the basis that he is a (young) Tamil male who has sought asylum in Australia, or for any other reason.

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

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

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

13. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him, and he would have the option of paying by instalments, as he indicated at hearing.

14. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards. However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention by the Sri Lankan government to inflict such harm,[26] and therefore do not amount to significant harm.

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

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

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

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

    CONCLUSION

18. 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).

19. 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).

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

    DECISION

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

    Nicole Burns
    Member