1715199 (Refugee)

[2022] AATA 2421

1715199 (Refugee) [2022] AATA 2421 (20 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1715199

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Amanda Paxton

DATE:20 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 20 May 2022 at 4:07pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race –Tamil – applicant was not an LTTE member, combatant or LTTE supporter – applicant was not of a significant/extremely high level of interest, or of any ongoing interest to the Sri Lankan authorities –– failed asylum-seeker – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 5AAA, 36, 46A, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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.    The applicant who claims to be a citizen of Sri Lanka arrived in Australia on [date] December 2011 by boat vessel.

2.    The applicant applied for the XE-790 Safe Haven Enterprise visa (SHEV), on 22 October 2015. In a decision dated 28 June 2017, the Department’s delegate found that the applicant was not owed Australia’s protection obligations and refused to grant the applicant a visa.

3.    On 14 August 2017, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the Department of Home Affairs’ decision to the review application.   

4.    The applicant appeared before the Tribunal on 10 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick.

5.    The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant, his representative and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. The Tribunal was satisfied the applicant was given a fair opportunity to give evidence and present arguments.

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

7.    The applicant was represented at hearing.

CRITERIA FOR A PROTECTION VISA

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

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

10.          A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

11.          Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

13.          In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments 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 and migration history

14.          The applicant declared the following in Form 866C Application for a protection visa:[1]

[1] [file number deleted], pp. 103 – 157.

• Prior to arriving in Australia, the applicant had travelled to [Country 1] to work. After 11 months, he returned to Sri Lanka before departing to [Country 2] on a one-month tourist visa. He travelled to [Country 3] illegally, and travelled by boat to Australia from [Country 3] and has not departed Australia since arrival.

• He states his ethnicity as Tamil and lists his religion as Hindu. He states he was not a member of any political party or group. The applicant claims to have never married. He listed his father, mother, two sisters and brother who reside in Sri Lanka as family members in his application. He stated in his application that he can speak, write, and read in Tamil and English (very limited).

  15.          The following is a summary of the applicant’s migration history since his arrival in Australia contained in the delegate’s decision provided to the Tribunal by the applicant:[2]

  [2] AAT 1715199, Doc Id 3581187.

• The applicant arrived in Australia on [date] December 2011 by a boat vessel [that] was intercepted by Australian authorities in Australian territorial waters. The applicant and passengers were taken to Christmas Island.

• The applicant made a request for a Protection Obligations Determination (POD) on [date] December 2011.

• The POD was refused on 14 March 2012, however the decision was referred for an Independent Protection Assessment (IPA).

• On 5 December 2012 the IPA found the applicant to be a refugee.

• On 28 August 2015, the Minister lifted the bar at s 46A to allow for the applicant to lodge a valid application for a visa.

• The applicant applied for the XE-790 Safe Haven Enterprise visa (SHEV) on 22 October 2015.

• The applicant’s visa application was refused by the delegate on 28 June 2017.

Claims for protection

16.          The applicant’s claims for protection were first submitted in his Statutory Declaration when he applied for a POD on [date] December 2011.[3] He also provided his claims at interview on 8 February 2012 at [an] Immigration Detention Centre. His claims are summarised as follows:

[3] [file number deleted], AAT 1715199, Doc Id 7111978, pp. 28 – 31.

• After the war was over, the applicant and his family were moved to a refugee camp. Those who were unmarried males were separated from their families and moved to another camp. He was put in detention not because he himself was a Liberation Tigers of Tamil Eelem (LTTE) member but because he had lived in the LTTE-controlled area and the para-military group wanted him to identify LTTE members. The applicant was kept in isolation for one month. After this time, he was taken for interrogation. As the applicant was from an LTTE stronghold, his interrogators assumed he knew about their activities. He was also threatened that his family would be killed if he did not cooperate. He was interrogated by the Sri Lankan Army (SLA), police, Eelam People’s Democratic Party (EPDP) and Karuna group.

• The applicant informed his interrogators that he underwent compulsory basic training with the LTTE so that he would be issued with a card which allowed him to obtain food. He also made bunkers for the LTTE. The applicant was forced to divulge names of LTTE members. As he did not know any, he made up some names and after it was established by the SLA that he was telling lies, he was beaten. The people he identified as LTTE members were also subjected to the same treatment. Out of 10 people that were taken initially only three remained. The applicant was questioned over a five-month period.

• Due to the brutal treatment meted out on the applicant, he required medical treatment and was transferred to hospital. While in hospital, he told a Muslim man of the torture he had experienced. This person asked the applicant whether he knew anyone in the area and the applicant gave him details of his uncle. His uncle paid the man to help the applicant escape from the hospital and he went from the hospital to his uncle’s house. Being wary of the SLA searching for the applicant, his uncle took him to his farmhouse where the applicant stayed for two months. During this time the SLA searched for the applicant. The Muslim man kept in contact with the applicant’s uncle and informed him of this. This same man told the SLA that the applicant had escaped.

• The applicant then went to stay in a hut in the jungle. His uncle organised his escape from Sri Lanka, enlisting the help of an agent and arrangements were made for him to go to [Country 1]. The applicant hid in the back of a vegetable truck which took him to the airport. Upon his return from [Country 1], the applicant stayed in Colombo with the agent and his journey to Australia was organised. 

  17.          The applicant provided the same claims in his entry interview, and the IPA and SHEV application.

  18.          The applicant’s representative provided a post-interview submission dated 23 June 2017, addressing credibility concerns put to the applicant during the interview. This submission also contains country of origin information about the situation of Tamils and people who were being imputed as LTTE supporters in Sri Lanka.

  19.          The applicant provided the following documents to the Department in support of his application:

• Request for POD and statement of claims application.[4] 

  [4][file number deleted], pp. 103 – 157.

• Signed form agreeing to the release and sharing of information to UNHCR dated 4 February 2012. [5]

  [5][file number deleted], p. 101.

• Applicant’s signed statement dated 4 February 2012 summarising his protection claims. [6]

  [6][file number deleted], p. 99.

• Signed authority to seek personal information from countries visited by the applicant dated 4 February 2012. [7]

  [7][file number deleted], p. 97.

• Character assessment form. [8]

  [8][file number deleted], pp 80 – 96.

• Education record sheet dated 1 May 2012. [9]

  [9] [file number deleted], pp. 77 – 79.

• Relief assistance card dated 12 December 2009. [10]

  [10][file number deleted], p. 75.

• Parents’ Sri Lankan ID cards. [11]

  [11][file number deleted], pp. 67- 70.

• Letter from local Sri Lankan government dated 28 December 2011. [12]

  [12] [file number deleted], p. 65.

• Applicant’s birth certificate. [13]

• Applicant’s Sri Lankan national ID card. [14]

• Bio page of the applicant’s passport. [15]

• Applicant’s health undertaking form dated 4 December 2012. [16]

• Submission in support of application from Florin Burhala Lawyers. [17]

  [13][file number deleted], pp. 62 – 63.

  [14][file number deleted], p. 60.

  [15] [file number deleted], p. 57.

  [16][file number deleted], pp. 53 – 55.

  [17] [file number deleted], p. 36 – 52.

• Statutory declaration from the applicant.[18]

  [18] [file number deleted], p. 30 – 33.

  20.          On 4 March 2022, the applicant’s representative provided a submission updating the applicant’s claims, highlighting issues of concern to the applicant and providing country information research. [19]  It is submitted the applicant fears that he would be subjected to serious harm upon return to Sri Lanka. He is fearful that he would either be killed or subjected to torture and serious harm, based on his Tamil race, imputed political opinion from race, area of origin, time abroad, previous work and issues in Sri Lanka, and membership of a particular social group, a returnee from the West/failed asylum seeker.

  [19] AAT 1715199, Doc Id. 9506443, 4 March 2022.

  21.          On 24 March 2022, the applicant’s representative submitted a post-hearing submission, responding to the Tribunal’s invitation of 10 March to comment on or respond to DFAT country information concerning treatment of returnees and to issues raised at hearing.[20]

  [20] AAT 1715199, Doc Id. 9577331, 24 March 2022.

  22.          On 5 April 2022, the applicant’s representative submitted the following:

• A brief medical report from the applicant’s General Practitioner (GP), [dated] 4 April 2022. This report states that the applicant was treated for depression, post-traumatic stress disorder (PTSD) from 20 June 2012 to January 2021. The applicant has not been reviewed because his psychiatrist, [is] now retired but he continues to take medication for depression.[21]

  [21] AAT 1715199, Doc Id. 9614186, 5 April 2022.

• A Certificate of Integration issued by the Commissioner General of Rehabilitation stating that the applicant’s brother and providing his details has been integrated [in] July 2011.[22]

  [22] AAT 1715199, Doc Id. 9615483, 5 April 2022.

  23.          Following receipt of the medical report, The Tribunal invited the applicant to respond to DFAT country information relevant to the applicant’s health/mental health. As discussed below, the applicant’s representative provided a response on 16 May 2022.[23]

  [23] AAT 1715199, Doc Id. 9771138, 16 May 2022.

Evidence at hearing

24.          At hearing, the applicant confirmed he is a [age] year old man born in [Central] Province, Sri Lanka, that he is Tamil and Hindu. He gave evidence that he is not married and has no children. He stated his parents, one brother and one sister live in [District 1], Sri Lanka and one sister resides in [Country 4].

25.          The applicant told the Tribunal his parents support themselves on a small family farm and his brother is working in an organisation with schools in a job the army gave him after his rehabilitation.

26.          At hearing the applicant confirmed information provided in his Request for POD, [24] that after school in [District 1], he worked from 2000 to 2003 at [Company 1], and that he worked from 2003 to 2005 on the family farm, doing everything needed to help his father in growing rice. As indicated on his employment statement he confirmed that in 2005 he was appointed as a [Occupation 1], but that in 2008 he was displaced when the Sri Lankan Army announced that everyone must move to a secure place before the army moved into the area.

[24] [file number deleted], p. 131.

27.          The applicant told the Tribunal that [Company 1] was owned by the LTTE. He stated that he started his job as a salesman, then once he had built up some trust, he was given the role of cashier where he dealt with money, using it to purchase [things] for the factory. He stated that in this role, he had contact with LTTE people responsible for the trade from the factory who would call him about purchasing requirements. He re-iterated earlier statements that in this role he used an LTTE-plated motorbike.

28.          The applicant stated that during the period from 2000 to 2008, the LTTE who controlled the area, required them to undergo training or face arrest. He said they were taught how to use rifles using sticks. He stated that in 2003 he was required to do this for two days a week for six months. Noting that the applicant told the Department that he undertook training of one hour every day for three months, the Tribunal sought clarification. He said that they were required to come whenever they called them.

29.          The applicant said he had not taken part in the war but that he had been called to assist the LTTE three or four times clearing land and helping injured people. When the Tribunal observed that the applicant had not previously mentioned this kind of activity, the applicant suggested that memory issues accounted for the discrepancy and that the details in is application are correct. However, he told the Tribunal that it is correct that he was not an LTTE combatant, or part of the administrative system, but that he had assisted the LTTE when they called.

30.          The applicant told the Tribunal that at the end of the war, he and his family moved, passing the dead and injured people on the road. He stated they surrendered to the SLA and were registered and separated men with men (he was [age] at the time), women with children. He was bussed to the camp at [named] Refugee Camp, [City 1], where he remained from May to November 2009.

31.          The applicant stated the LTTE required that one person from each family join the LTTE and in their case, his brother went because he was not working. They were not aware what happened to his brother at the time they went to the camp.

32.          The Tribunal asked the applicant for information about the camp, and he stated that the SLA ran the camp at [location], that it was a big camp of thousands of people who had surrendered. He stated he was held there and that after two or three months, people from Karuna group came and wanted to investigate him. The army had taken the names and details of detainees and passed these on to the Karuna group who would identify if they wanted to investigate them. He told the Tribunal that they were interested in him, not because his brother was in the LTTE but because the army had passed on information that he had worked at the [factory] owned by the LTTE. In interrogation, they hit him and forced him to give information about how the LTTE got money from the factory and the people involved.

33.          The applicant told the Tribunal that he developed a [Medical condition 1] as a result of the torture and that he was taken to the [City 1] hospital for treatment. In response to the Tribunal’s suggestion that providing the applicant with hospital treatment did not appear consistent with mistreating the applicant, he said that the Karuna group was responsible for returning people to the SLA so they were concerned to bring him back alive. He told the Tribunal that his medical condition was cured in hospital.

34.          He stated that he met the warden of the hospital, a Muslim man, who had sympathy for the applicant and agreed to help him escape. The warden contacted the applicant’s uncle, a businessman, and provided the applicant with details to enable him to escape. He waited for a quiet time during a shift change, went outside through a bathroom where his uncle collected him and took him to a farmhouse on part of his farm in the jungle. He stated that the authorities looked for him at his uncle’s home, but they did not find him because his uncle’s residence was different from the farmhouse where he stayed. He stayed there for two or three months before going to Colombo.

35.          The applicant gave evidence that his uncle paid an agent to make arrangements for the applicant to go to [Country 1] to work. He gave evidence that the agent assisted him to obtain a passport from the Passport Office under his own name and photograph and made arrangements for the applicant to depart Sri Lanka. He stated that he departed Sri Lanka using his own passport. He stated that he did not encounter any difficulties going through exit processes.

36.          The applicant told the Tribunal that in [Country 1] he worked for a company who organised for him to work as a [Occupation 2]. The Sri Lankan agent organised this work. The applicant stated that he had difficulty working there because it was very hot, and the [Medical condition 1] problem recurred. He received treatment in hospital in [Country 1] but they could not afford to spend more money on him and he had to return to Sri Lanka. He told the Tribunal that his uncle made arrangements for his return with the same agent who undertook to get the applicant out of the airport in the same way as he had departed, and an officer was waiting for his arrival and asked him to follow him. He presented his passport and was cleared for entry. 

37.          The applicant gave evidence that on return to Colombo from [Country 1] in May 2011, his agent provided assistance such that he did not go out but stayed somewhere near the airport for two or three months before departing for [Country 2]. His uncle again paid the agent to obtain the visa and facilitate departure. He departed Sri Lanka without any difficulties although it took longer because the agent couldn’t find an officer to assist. The applicant stated he did not know if there would be a record that he had entered and departed because the agent made all the arrangements with airport officers.

38.          In response to the Tribunal’s suggestion that as he departed Sri Lanka legally (twice) there would be nothing to identify the applicant as a person of interest on arrival in Colombo, the applicant put that it would be easy for the authorities involved in Sri Lanka’s administration to recognise him and that he might be identified as having left illegally. He was unable to be more specific saying that he does not know how the agent prepared the passport and his departure so he does not know if it was illegal or not. If the authorities investigated and noted his escape from hospital, they would be angry and look for him.

39.          The Tribunal asked the applicant about his life in Australia. The applicant stated that he has been working [for] the same employer since 2011. He said he has attended some Tamil community functions, but not many because he is shy and they [Tamils] are looked down upon by people, and more recently due to Covid. He attended [Event 1] the year before last in [Suburb 1] wearing a face mask, where he offered flowers in the name of the dead.

40.          He is not aware of any court order, arrest warrant or order to impound his passport.

41.          At hearing, the applicant stated he fears that if he is returned to Sri Lanka, he will be handed over to the authorities who will collect information about him afresh and discover how he escaped from the camp via the hospital, and his activities in Australia. They will pay attention to his information and his life will be in danger.

42.          The applicant told the Tribunal that after 10 years in Australia he has adapted to life in this country where he can move freely and safely and that he couldn’t adapt to Sri Lanka again. He has been working, paying taxes, and he is not a threat to the community. He has told the truth. If it was safe for him to return, he would return to see his aging parents.

FINDINGS AND REASONS

Identity and country of reference

43.          The applicant advised the Department that he was born on [date] in [Sri Lanka] and acquired Sri Lankan citizenship at birth.[25]

[25][file number deleted], pp 103 – 157.

44.          At his Protection Obligations Evaluation (POE) interview he submitted copies of the biodata page of his passport, national identity card and Tamil language birth certificate translated by an interpreter, to confirm the applicant’s claimed identity.[26]

[26] AAT1715199, Doc Id 3581187.

45.          The documents provided by the applicant are consistent with his evidence to the Department and the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Sri Lanka and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

Issues

46.          The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Sri Lanka and if not, 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

47.          The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible for or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[27] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[28]

[27]Section 5AAA of the Act.

[28]MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

48.          A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[29] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[30] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

[29]Guo Wei Rong and Pan Run Juan vMinister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445 at 482 per Foster J.

[30]The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

49.          In this case, the Tribunal notes that the applicant has provided broadly consistent evidence over the lengthy period of his migration processes but his testimony at hearing includes a range of discrepancies about details. In discussion about Tribunal concerns about these discrepancies the applicant told the Tribunal he had been attending mental health services and his memory was affected by medication to help him sleep and to relax the mind. The Tribunal acknowledges that many of the matters under discussion occurred over 15 years ago and also notes that the applicant has provided evidence that he takes medication for depression/PTSD. The Tribunal acknowledges that lapses of memory of detail in these circumstances may occur.   

Relevant country information

50.          The Tribunal has had regard to the DFAT Country Information Report for Sri Lanka, dated 23 December 2021 (the DFAT Report).[31]

[31] DFAT Country Information Report on Sri Lanka, 23 December 2021.

51.          The Tribunal has considered the applicant’s representative’s submission that in assessing country information from DFAT, it should be considered that in the last two years many foreign diplomats and officials returned to Australia rather than worked abroad. Referencing the US Department of State: 2021 Country Report on Human Rights Practices: Sri Lanka, 12 April 2022,[32] it is submitted that current issues cannot be fully understood by the international community as given the pandemic it is likely that individuals on-the-ground in Sri Lanka would have had to adhere to COVID-19 restrictions, which is likely to impede their ability to monitor the situation in Sri Lanka and to conduct on the ground discussions throughout the country, and particularly investigating the situation of Tamils in the north. It is further submitted that there are reports of harassment of journalists and activists which may limit accurate reporting of the situation for Tamils in Sri Lanka.

[32] AAT 1715199, 9577331, 24 March 2022; and AAT 1715199, Doc Id 9771138; USDOS – US Department of State: 2021 Country Report on Human Rights Practices: Sri Lanka, 12 April 2022,         As noted above, Ministerial Direction No. 84, requires that a decision maker takes into account DFAT’s assessment where relevant in making their decision, but does not preclude the decision maker from considering other relevant information about the country. The Tribunal notes that DFAT’s report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, including those produced by: the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM); leading human rights organisations such as Human Rights Watch, Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

53.          Considering the wide range of sources used including local sources consulted in the preparation of this report, the Tribunal does not accept the contention that DFAT’s assessments have been impeded by COVID-19 restrictions such that they are not soundly based. In making this decision the Tribunal has taken into account the extensive country information provided by the applicant but gives weight to DFAT’s independent assessments.  

Assessment of claims

54.          The current DFAT Report reports that after Sri Lanka’s independence a number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the LTTE (commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The OHCHR, in its report of January 2021, said that human rights advances have been reversed since November 2019. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.[33]

[33] DFAT Country Information Report on Sri Lanka, 23 December 2021 [2.2].

55.          The DFAT Report also indicates that the security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks.[34]

[34] DFAT Country Information Report on Sri Lanka, 23 December 2021 [2.49].

56.          DFAT also reports that in 2021, Sri Lanka’s economy, already affected by the impact of the COVID-19 pandemic has been troubled by the country’s low foreign-exchange reserves and high and rising government debt.[35] National protests in response to the developing economic crisis are gaining momentum with protesters demanding the resignation of President Gotabaya Rajapaksa and removal of the Rajapaksa family from politics.[36]

[35] DFAT Country Information Report on Sri Lanka, 23 December 2021 [2.10].

[36] Sri Lanka’s Economic Meltdown Triggers Popular Uprising and Political Turmoil | Crisis Group, 18 April 2022.

Assessment

57.          The applicant fears that he would be subjected to serious harm upon return to Sri Lanka. He is fearful that he would either be killed or subjected to torture and serious harm. The applicant fears harm based on his Tamil race, imputed political opinion from race, area of origin, time abroad, previous work and issues in Sri Lanka, and membership of a particular social group, as a returnee from the West/failed asylum seeker. The Tribunal has considered his claims separately and cumulatively.

The applicant’s subjective fear

58.          In Chan v MIEA[37] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[38]

[37] (1989) 169 CLR 379 at 396.

[38] Ibid. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

59.          Having considered the applicant’s evidence to the Tribunal essentially consistent over more than 10 years, the Tribunal accepts that the applicant’s experiences through the period of the civil war in Sri Lanka were extremely difficult. The Tribunal accepts the applicant’s submission that his fear of returning to Sri Lanka is ongoing and that he has a subjective fear of being persecuted if he returns to Sri Lanka. The Tribunal also acknowledges that the applicant was found to be owed Australia’s protection in October 2012. However, the Tribunal notes that protection visa criteria are forward looking and makes this assessment accordingly.

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

60.          On the documentation before it and the consistent evidence of the applicant, the Tribunal finds the applicant is a [age]-year-old man born in [Central] Province, Sri Lanka. On the same basis, the Tribunal finds he is Tamil, and his religion is Hindu, that he is not married and has no children. The Tribunal accepts he has one brother, one sister and his parents in Sri Lanka and one sister residing in [Country 4]. The Tribunal accepts the applicant and his family lived in the [District 1] district, and that his parents and siblings still live in this district of the Northern Province of Sri Lanka.

61.          On the same basis, the Tribunal finds the applicant’s parents support themselves on a small family farm in [District 1] and that his brother is working in an organisation with schools in a position the army gave him after his rehabilitation.

Political opinion

62.          On the consistent evidence of the applicant, the Tribunal accepts the applicant grew up [in District 1], Northern Province of Sri Lanka.

63.          On the same basis, the Tribunal accepts that the applicant worked from 2000 to 2003 in [Company 1], a company owned by the LTTE. The Tribunal considered the applicant’s description of his role at the [factory] which shifted from being “just a worker” to being cashier in the Finance Department of the factory, a role which required contact with LTTE personnel at LTTE Head Office to provide assistance with transfer of funds. The Tribunal accepts as plausible the applicant’s explanation in his pre-hearing submission that he had a range of roles at the factory but did not explain them all as they were at the same workplace. The Tribunal accepts his statement that he started as a trainee, then became a salesman and over time was given more duties and responsibilities including a supervisory role.[39] The Tribunal accepts that his final role at the factory included that of a cashier and that in this role he was required to engage with LTTE personnel.

[39] AAT 1715199, Doc Id. 9506443, 4 March 2022.

64.          At hearing, country information supporting the applicant’s claim that in the period from 2000 to 2008, the LTTE controlled and administered the area was discussed with the applicant.  As set out in the delegate’s decision provided to the Tribunal by the applicant, the UNHCR prepared eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka, last issued on 21 December 2012.[40] These indicate that at the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76 per cent of what are now the northern and eastern provinces of Sri Lanka and consequently all persons living in those areas and at the fringes of areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives, which included registration of vehicles with LTTE number plates. On this basis, the Tribunal accepts the applicant had dealings with LTTE personnel as an employee at [Company 1] around 2003, and that in the role of a cashier that he had some knowledge of the factory’s operations, and that he used an LTTE-registered motor bike from the factory.

[40] UN High Commissioner for Refugees, UNHCR Eligibility guidelines for assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

65.          The Tribunal has considered whether this role could be considered a senior position with considerable authority in the LTTE civilian administration below, or whether this role elevated the applicant’s profile as a person of interest as an LTTE member or affiliate. The applicant’s evidence at hearing was that the role extended to him making calls to LTTE personnel about purchasing. Post-hearing, he stated he also had to go to LTTE administrative officers to provide assistance with money transfers from the factory. The Tribunal notes the applicant’s evidence in respect of his role has been elevated as his application has progressed, leading to doubts about its credibility. However, the Tribunal will accept that the applicant, in the role of a cashier at the factory, undertook these functions. The Tribunal has considered these roles and is satisfied that they are those of a supportive role but not those of a senior position with authority in the LTTE civilian administration. The Tribunal has also considered that his employment at the factory finished in 2003 and that his limited engagement with LTTE personnel was some years in the past at the end of the war in 2009. The Tribunal finds that the applicant’s role in the factory did not elevated his profile to that of LTTE member or affiliate of interest to the Sri Lankan authorities.    

66.          On the consistent evidence of the applicant, the Tribunal accepts that he worked from 2003 to 2005 on the family farm, later being appointed to a position as a [Occupation 1] at a [workplace] where he worked until 2008. The Tribunal accepts the applicant was displaced from his home in 2008 when the Sri Lankan Army moved into the area.

67.          The Tribunal has considered the applicant’s involvement with the LTTE and considers the applicant’s evidence in this regard vague and inconsistent, noting that according to the delegate’s decision record provided to the Tribunal by the applicant the applicant told the Department that he undertook training of one hour every day for three months, but gave evidence to the Tribunal that in 2003 he was required to do this for two days a week for six months and added that they were required to come whenever they called them. The Tribunal also notes that the applicant had not previously mentioned that he had been called to assist the LTTE three or four times by clearing land and helping injured people. The Tribunal considers these discrepancies are significant but takes into account that some of these events occurred more than 15 years ago and accepts that memory can lapse over time and as discussed above that the applicant’s memory may be affected by medication. For this reason, the Tribunal accepts that, while details of his involvement with the LTTE are somewhat unclear, the applicant was required to undergo compulsory training with the LTTE and provide occasional practical assistance.

68.          The applicant has consistently stated that he did not take part in the war and at hearing he re-iterated that he was not an LTTE combatant or member. On the consistent evidence of the applicant the Tribunal finds the applicant was not an LTTE member, combatant or LTTE supporter, but an ordinary person who was required to engage in compulsory military training on an occasional basis and provide low-level non-military support.

69.          The Tribunal accepts the applicant’s consistent evidence, in line with DFAT country information discussed with the applicant at hearing, that he and his family were among the thousands of people displaced at the end of the war. The Tribunal accepts they moved to [District 1] and surrendered to the SLA. The applicant described passing dead and injured people on the road and the Tribunal acknowledges the trauma associated with these circumstances. The Tribunal accepts that he and his family were registered for camps by the SLA who separated men with men (he was [age] at the time), and women with children. On the basis of the applicant’s consistent evidence the Tribunal accepts the applicant was bussed to [named] Refugee Camp, [City 1], where he remained from May to November 2009.

70.          The applicant claims that one of the multi-faceted elements of his profile as a person imputed with an LTTE political profile from which there is a real chance he would suffer persecution involving serious harm is his origin from the north of Sri Lanka. The Tribunal accepts he is from the north of Sri Lanka and that he was displaced as a result of the civil war. As discussed with the applicant at hearing, given that the LTTE had administrative control of the north and east, involvement with the LTTE was an inevitable part of life, and the UNHCR guidelines indicate that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.[41] The Tribunal finds the applicant does not face persecution from the SLA or any other authorities as a person from the north of Sri Lanka.   

Questioning by the authorities in 2009

[41] UN High Commissioner for Refugees, UNHCR Eligibility guidelines for assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

71.          In considering whether the applicant would suffer persecution involving serious harm on return to Sri Lanka because he is imputed with an LTTE political profile of interest to the authorities, the Tribunal has considered the submission that the nature of the applicant’s questioning by the authorities in 2009 is indicative that he was of a very high level of interest to the authorities and that it is plausible that he would continue to be on return to Sri Lanka.

72.          The Tribunal considers that details of the applicant’s evidence in respect of his questioning by security forces in 2009 has shifted over time. For example, he stated in his declaration that he was questioned over a period of five months, while he told the Tribunal he was moved from the camp to another location for about a month over which time he was questioned. At hearing the applicant stated that he was taken by the Karuna group for questioning, but he made no reference to interrogation by the SLA, the police or members of the EPDP as previously stated. However, the Tribunal finds that the applicant has been broadly consistent in his testimony and, noting the issues discussed above concerning the applicant’s evidence and taking into account country information discussed at hearing that security forces questioned many civilians for possible LTTE activity,[42] the Tribunal accepts he was questioned by Sri Lankan authorities. The Tribunal also accepts the applicant’s evidence that he was hit and mistreated in the course of this questioning.

[42] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.40].

73.          The applicant has been consistent in his statements over the course of his application that he was questioned because the authorities wished to obtain information from him about LTTE personnel, and that he was not personally of interest to the authorities because of his links to LTTE, or his link to his brother who had been forced to assist the LTTE. At hearing, the applicant also stated that the authorities were aware that he had received training and provided some low-level assistance to the LTTE, so they wanted to gather more information from him and check what he knew. He said he told them whatever he knew, e.g., about important people he knew, but they tortured him to extract more information. In later discussion at hearing the applicant stated that he was not a member of the LTTE and he was only wanted for information about the people he worked with at the factory, what had happened to those LTTE members and those who had not surrendered to the army.

74.          However, at hearing, the applicant also stated that he may have been suspected as a member of the LTTE because he worked at the [factory]. The Tribunal noted his wavering evidence and put to the applicant that in his Statutory Declaration he had declared that he was not personally of interest to the authorities, and that according to the delegate’s decision record provided to the Tribunal by the applicant,[43] he had told the Department that he was put in detention not because he himself was an LTTE member but because he had lived in the LTTE-controlled area and the Karuna group wanted him to identify LTTE members. He stated that the discrepancy was the result of memory problems and that his earlier statement was correct.

[43] AAT 1715199, Doc Id 3581187.

75.          Considering the evidence before it, including the UNHCR assessment above, indicating that the authorities were aware that the applicant as a resident in an area controlled by the LTTE was forced to have involvement with the LTTE in daily life, the Tribunal finds that his questioning, and mistreatment at questioning, was to establish what the applicant’s links to the LTTE were and that the applicant’s information would have confirmed for the authorities, that he was, as he has frequently and consistently stated, not a member of the LTTE, and that his affiliation was limited to awareness of some LTTE personnel from his time at the factory, and participation in compulsory training and provision of occasional practical assistance. The Tribunal finds that the applicant’s questioning does not indicate that the authorities believed the applicant had a high level of involvement with the LTTE, but instead that he may have information useful to them in identifying key members of the LTTE and some of their processes. The Tribunal is not satisfied that the applicant’s employment for a period as cashier at a [company] run by the LTTE led him to be suspected as an LTTE member/sympathiser, or that it elevated his profile as an LTTE affiliate to a significant extent. Having considered the evidence before it, the Tribunal further finds the applicant is not a former combatant or suspected by the authorities as having a combat function.  

Unauthorised departure from hospital

76.          On the consistent evidence of the applicant, the Tribunal accepts that the applicant suffered a [Medical condition 1] and that he obtained (successful) medical treatment for this condition in hospital in [City 1]. The Tribunal notes that as discussed in the Departmental decision record provided to the Tribunal by the applicant, the medical evidence available to the Department does not appear to offer a reason for this condition. However, the Tribunal accepts that this may have resulted from his detention and mistreatment by the Karuna group at questioning. The Tribunal has considered whether such mistreatment was indicative that the applicant was of interest to the authorities as an LTTE member or sympathiser but finds as above that the questioning and ill treatment associated with this questioning arose to establish what he knew about the LTTE involvement in the [business] and in control of the area in which he lived. The Tribunal does not accept the submission that this treatment indicated a high level of interest in the applicant. 

77.          The Tribunal has considered the applicant’s claims that he departed the hospital without permission and that he will be wanted by the authorities for this reason. The applicant has consistently stated that his uncle bribed the warden of the hospital to facilitate his release into his uncle’s care. On the consistent evidence of the applicant, the Tribunal accepts that the applicant’s uncle may have provided money to the warden for facilitating the applicant’s departure unsupervised into his care.  The Tribunal accepts the applicant’s consistent evidence that he stayed in a farmhouse of his uncle away from his uncle’s own residence until he went to Colombo two or three months later.

78.          Taking into account country information discussed with the applicant that monitoring and home visits to Tamil families in the north are reported to have occurred in the years after the war,[44] the Tribunal accepts that the authorities may have followed up the applicant’s departure from hospital with the applicant’s uncle as claimed. However, the Tribunal considers that had the authorities had any further interest in the applicant, they would have followed up his whereabouts diligently with his uncle in [City 1] and located the applicant staying in a residence on his property over the two-to-three-month period he stayed there. The Tribunal considers this would have been as part of routine monitoring checks and does not accept that it reflects an ongoing concern by the authorities that the applicant was an LTTE supporter. For this reason, the Tribunal finds that the applicant was not of on-going interest to the army or other authorities because he departed the hospital without authorisation from the army. The Tribunal does not accept that the applicant is at heightened risk of harm on return to Sri Lanka because he was not formally released from hospital, or that the authorities have any ongoing interest in this matter.  The Tribunal does not accept the authorities will seek to question the applicant about his motives for departing the hospital unsupervised on return to Sri Lanka.

Duration in detention

[44] DFAT Country Information Report Sri Lanka, 31 July 2013

79.          The Tribunal has considered the submission that the length of time the applicant was held in detention, five months, before he departed the hospital in [City 1] is indicative that the authorities had an extremely high level of interest in the applicant. In this respect, the Tribunal takes into account country information discussed with the applicant at hearing indicating that displaced people from the north were held in camps including Kadiragama for many months after the war, with release of significant numbers from the camps commencing only in November 2009. Country information indicates that by the time the majority of the displaced were released they had been confined to camps for more than six months.[45] The Tribunal also takes into account the applicant’s frequent explanation to the Department and the Tribunal that he was detained for five months not because he was of interest to the authorities but because they used detention to reduce the number of Tamils in the community. The Tribunal concludes that the applicant’s detention of five months does not indicate the applicant was of a significant/extremely high level of interest, or of any ongoing interest to the Sri Lankan authorities as submitted.

The applicant’s entry and exit from Sri Lanka

[45] Human Rights Watch, 2 February 2010, Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, pp.2-3

80.          On the consistent evidence of the applicant across his application process, and country information discussed with the applicant at hearing that use of agents, including recruitment agents, to organise travel arrangements for the large number of Sri Lankans travelling overseas for temporary labour, was and remains commonplace in Sri Lanka,[46] the Tribunal accepts the applicant’s uncle engaged the services of an agent to make passport, visa and employment arrangements for the applicant in [Country 1]. The Tribunal accepts the agent assisted in obtaining a passport from the Passport Office in the applicant’s own identity, made visa and employment arrangements for the applicant to work as a [Occupation 2] in [Country 1] and provided him with information about departure. The Tribunal accepts the applicant’s evidence that he departed Sri Lanka using his own passport.  

[46] International Migration Outlook – Sri Lanka 2008, Institute of Policy Studies of Sri Lanka, May 2009.

81.          As set out above, the applicant gave evidence that he went through departure processes without difficulty. The applicant stated that on departure an officer asked him to follow him, and he was taken to the boarding area. The applicant was invited to provide more detail about his departure process such as the manner in which his passport details were recorded as he departed but he indicated that he did not know anything more, stating only that there were arrangements between the agent and the officer.

82.          At hearing, the Tribunal sought the applicant’s response to country information indicating that systems were in place to identify people of interest to the authorities applying for a passport and when exiting Sri Lanka at the airport.[47] As discussed with the applicant at hearing, DFAT country information indicates that Sri Lanka had thorough electronic ‘stop’ and ‘watch’ lists of former LTTE members, supporters and other separatists and that individuals on these lists would not be able to avoid adverse attention from security forces.[48]  The Tribunal put to the applicant that on this basis, he could have expected to be questioned if identified in this way on departure or arrival if he was of interest to the authorities because he left the hospital or for any other reason. In response the applicant suggested the authorities would have thought he had gone into hiding in Sri Lanka so he would not be on an airport watch list. The Tribunal has considered this suggestion but does not find this a persuasive reason why the authorities would fail to place his name on security systems if he was of interest for any reason. The applicant also added that he was not such a famous person to have been placed on the system. Given the assessment that this was a thorough system, the Tribunal is satisfied the applicant would have been placed on security systems by authorities had he been identified as of interest for any reason, regardless of whether he was well known.

[47] Report of information gathering visit to Colombo, Sri Lanka 23-29 August 2009, UK Home Office, August 2009.

[48] DFAT Country Information Report Sri Lanka, 31 July 2013.

83.          The Tribunal put to the applicant that had he been of interest to the authorities for any reason he would have been identified and stopped as he departed. The applicant indicated that he did not know anything about the agent’s processes because his uncle took care of the arrangements but that the agent was comfortable making the arrangements. The applicant indicated he had no knowledge if normal systems checks or processes were overlooked. On the information before it, the Tribunal is satisfied that normal systems checks and processes were applied to the applicant on his departure from Sri Lanka in 2010. The Tribunal finds that the applicant cleared necessary checks and departed Sri Lanka legally for [Country 1]. Given that the applicant encountered no difficulties on departure, the Tribunal further concludes that the applicant was not of any security interest to the authorities at that time.

84.          The Tribunal accepts the applicant’s consistent evidence that he worked as a [Occupation 2] in [Country 1], as arranged by his Sri Lankan agent. The Tribunal accepts the applicant’s open and clear evidence that he had to return to Sri Lanka after 11 months because his [medical condition] returned in the hot conditions of [Country 1]. The Tribunal accepts the applicant’s evidence that his uncle made arrangements for his return with the same agent, and on arrival an officer guided him through arrival processes, where he presented his passport in his own identity and was cleared for entry. 

85.          On the consistent evidence of the applicant, the Tribunal accepts that with the assistance of the same agent (again engaged by his uncle), the applicant remained in Colombo on return from [Country 1] until the agent could make further arrangements for the applicant to travel to [Country 2] two or three months after his return. The Tribunal accepts the applicant’s evidence that he again proceeded through airport formalities and departed Colombo without difficulties. Again, the applicant told the Tribunal that he did not know if there would be a record that he had entered and departed because the agent made all the arrangements with airport officers.

86.          The Tribunal notes that the applicant stated that he provided his passport to the officers in his exits from and entry to Sri Lanka and the Tribunal put to the applicant that immigration records will show that he departed legally on two occasions since his detention and entered Sri Lanka legally on one occasion. In response at hearing, the applicant stated that it would be easy for the authorities involved in Sri Lanka’s administration to recognise him and that he might be identified as having left illegally. The applicant was unable to be more specific saying that he does not know how the agent prepared the passport and his departure, so he does not know if it was illegal or not. The Tribunal considered the applicant’s evidence in this respect was vague and speculative and does not accord with the country information before it. On the evidence before it, the Tribunal finds that on return to Sri Lanka, Sri Lankan immigration records will show that the applicant departed Sri Lanka legally.

87.          The applicant commented that it took the agent longer to make arrangements on this occasion because he could not find an officer to assist impying that this was required to enable him to pass through exit procedures. In post-hearing submission, it was submitted that the applicant was only able to exit and enter the country due to the assistance and intervention of the agent, and that it is therefore conceivable he was of interest to the authorities at the time of his departure and previous re-entry.[49]  However, as discussed above, the Tribunal is satisfied on the basis of the country information before it that thorough systems checks were in place to identify people of security interest to the authorities. The Tribunal does not accept that the agent could have provided assistance such that the applicant evaded checks on three separate occasions. The Tribunal finds that the applicant departed Sri Lanka legally, having been processed through the formal channels, when he departed Sri Lanka for [Country 1] in 2010, and that he returned to Sri Lanka legally, and that he departed Sri Lanka again legally in June 2011 to [Country 2]. The Tribunal finds he will not, therefore be subject to any penalties for illegal departure from Sri Lanka. The Tribunal further finds the applicant could not have departed Sri Lanka, re-entered and again departed Sri Lanka without being stopped for questioning if he was of adverse interest to the authorities.

[49] AAT 1715199, Doc Id. 9577331, 24 March 2022.

88.          In relation to his departure, it is claimed that the applicant’s actions upon re-entry to Sri Lanka in May 2011 to keep a low profile and remain in his accommodation close to the airport indicate that he was genuinely fearful of harm and believed he must take precautions to avoid detection from the authorities. The Tribunal accepts the applicant may have felt uncertain about his situation given his past experiences as accepted above but considers that in the circumstance where he was making arrangements to travel to another destination and may have needed to ensure he was available to travel at short notice, remaining in his accommodation close to the airport and keeping a low profile does not provide evidence there was a real chance that the applicant was at risk of serious harm in Sri Lanka.

Association with his brother

89.          The Tribunal has considered the claim that the applicant’s association with his younger brother who assisted the LTTE may result in the authorities believing the applicant was also an LTTE affiliate. The Tribunal notes that the applicant’s evidence in relation to association with his brother has developed over time. He does not mention his brother in his Statutory Declaration, but in his written evidence to the IPA he stated that his brother was compelled to join the LTTE during the last phase of the war to provide first aid to injured people. As discussed with the applicant, country information supports the applicant’s claim that the LTTE required that one person from each family join the LTTE and the Tribunal accepts the applicant’s claim that in their case, his younger brother who was not working went. The Tribunal accepts the applicant’s evidence that his brother was compelled to join the LTTE in the last days of the war to provide first aid assistance. 

90.          The Tribunal has considered recently provided evidence of a Certificate of Integration issued by the Commissioner General of Rehabilitation stating that the applicant’s brother was integrated [in] July 2011,[50]  and country information discussed with the applicant at hearing that towards the end of the war in 2009 government security forces arrested and detained a large number of LTTE members. The Tribunal also notes country information that most were sent to government-run rehabilitation centres and that DFAT report that since the end of the war, successive Sri Lankan governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. [51] The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation.[52]  On the information before it, the Tribunal accepts the applicant’s brother undertook rehabilitation and was integrated into the community in 2011.

[50] AAT 1715199, Doc Id. 9615483, 5 April 2022.

[51] DFAT Country Information Report, Sri Lanka, December 2021, [3.40].

[52] DFAT Country Information Report, Sri Lanka, December 2021, [3.41].

91.          The Tribunal has considered the information before it and takes into account the oral evidence of the applicant to the Tribunal that the authorities were not interested in him because his brother was in the LTTE and the country information before it that the authorities were aware of forced participation in the LTTE. The Tribunal also takes into account that the applicant was not of adverse interest to the authorities on his departure from Sri Lanka in 2010, his re-entry and second departure in 2011. On this basis, the Tribunal finds that the applicant’s affiliation with his brother did not elevate the applicant’s profile as an LTTE affiliate of security interest to the authorities.

Political activities in Australia

92.          In Australia, the applicant has been working [for] the same employer since 2011. The applicant’s response to Tribunal enquiry about his claimed attendance of Tamil functions was limited and vague, but with prompting, he said he had not attended many Tamil functions since his arrival in Australia because he is shy and they are looked down upon by people, and more recently due to COVID-19. He said he attended [Event 1] celebrations the year before last in [Suburb 1] where all wore face masks due to COVID-19, where people offered flowers in remembrance of the dead, especially those who died in the final war. Given the nature of the evidence of the applicant at hearing, the Tribunal has serious doubts that he has attended any Tamil functions except one [Event 1] celebration in 2020, since his arrival in Australia in 2011. The Tribunal accepts he attended this function in a mask for COVID-19 reasons.

93.          The Tribunal has considered the applicant’s claim that his attendance at this event may be known by the Sri Lankan authorities, and this may further result in him being imputed with pro-LTTE sentiments. The Tribunal has considered that the applicant attended this function in a mask, and in these circumstances the Tribunal does not accept the applicant will be recognised by the Sri Lankan authorities as a participant at this function.

94.          As discussed with the applicant at hearing, DFAT assesses that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.[53] In the assessment of the Tribunal the applicant does not have a profile as a member of the Tamil diaspora with a security profile of interest to the authorities. The Tribunal finds the applicant’s minimal and unknown involvement in the Tamil diaspora, will not lead Tamil authorities to impute him with an LTTE political opinion or that it is involvement such that the authorities will have any interest in him on return to Sri Lanka.

Period abroad/ returnee from the West/failed asylum seeker

[53] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.57].

95.          In the applicant’s representative’s submission of 4 March 2022, the Tribunal is advised that the applicant instructs that the fact he has sought asylum in Australia will increase his chances of being detained by the Sri Lankan authorities upon his return because they are likely to be concerned that the applicant has spoken out about the mistreatment he suffered in Sri Lanka while living in Australia and therefore may want to punish him for doing so. The Tribunal has also considered the submission that the chance the applicant would face serious harm would be exacerbated by the fact he has lived outside his country for a prolonged period.

96.          The Tribunal has found above that the applicant departed Sri Lanka legally and will not be subject to any penalties for illegal departure from Sri Lanka. However, the Tribunal accepts he will be returning to Sri Lanka as a failed asylum seeker.  The Tribunal accepts that the applicant is likely to be easily identifiable upon return to Sri Lanka as a failed asylum seeker especially given the prolonged period he has spent in Australia (as set out above, the applicant arrived in Australia [in] December 2011 by boat vessel and he has now been in Australia for over 10 years) and given he would return on a travel document. The Tribunal has considered whether this would give rise to a real chance of persecution or a real risk of significant harm on return to Sri Lanka.

97.          As discussed with the applicant, DFAT advises that unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights.[54] In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released. DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE).

[54] DFAT Country Information Report, Sri Lanka, 23 December 2021, [5.17 - 5.20], [5.26] and [5.27-5.32].

98.          The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

99.          For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This 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 police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

100.        Between 2010 -11 and 2018 -19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

101.        DFAT is not aware of returnees from Australia to Sri Lanka being charged under the Prevention of Terrorism Act (PTA). Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

102.        Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.  Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

103.        On the country information before it, and taking into account the Tribunal’s finding that the applicant does not have an actual or imputed LTTE political profile such that he has suspected LTTE links, the Tribunal finds that the applicant will not be subject to monitoring or societal discrimination on return to Sri Lanka.

104.        Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds the evidence before it does not support the conclusion that the applicant’s profile as a person of security interest is elevated by his status as a failed asylum seeker who has spent a prolonged period in the West because he may have spoken out about the mistreatment he suffered in Sri Lanka while living in Australia, or that the authorities may want to punish him for doing so. The Tribunal finds that there is not a real chance that he will be persecuted because of any political opinion imputed to him because he is a failed asylum-seeker. The Tribunal further finds that there is not a real chance that the applicant will be treated differently from anyone else returning to Sri Lanka because he is a Sri Lankan failed asylum seeker. The Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm due to his status as a failed Tamil asylum seeker who has lived in the West for a long period should he return to Sri Lanka now or in the reasonably foreseeable future.  

The applicant’s profile (actual or imputed) as an LTTE affiliate

105.        Having carefully considered the applicant’s particular circumstances individually and in total and relevant country information, discussed with the applicant, the Tribunal finds there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm, due to his being imputed with a pro-LTTE political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

106.        The Tribunal has found above that the applicant is not a former LTTE combatant or imputed as such. The Tribunal has found that he was not an LTTE member or affiliate but was of interest for questioning to elicit information he may have about LTTE personnel arising from his role at the [factory] between 2000 – 2003. The Tribunal has found that the applicant’s imputed affiliation with the LTTE was not significantly elevated for this reason, or as a consequence of his brother’s LTTE affiliation, or as a result of links to the LTTE through compulsory training and occasional practical assistance. The Tribunal has found that the applicant’s unauthorised departure from hospital did not elevate him as a person of on-going security interest to the Sri Lankan authorities and that the authorities did not consider the applicant a security risk when he left Sri Lanka in 2010, or when he returned and again departed in 2011. The Tribunal also finds that the applicant is not imputed with LTTE political opinion on the basis of his status as a failed asylum seeker, or his activities in Australia.

107.        The Tribunal notes that the last issued UNHCR guidelines discussed in the delegate’s decision provided to the applicant by the Tribunal indicate that more elaborate links to the LTTE  than residency in an area controlled by the LTTE that may expose individuals to treatment which may give rise to a need for international refugee protection, include 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.[55]  As discussed with the applicant at hearing, DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans.[56] Current DFAT advice discussed with the applicant at hearing indicates that those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. The Tribunal has considered the applicant’s profile and on the basis of the country information before it, finds that he will not be of significant interest to Sri Lankan security forces.

[55] UN High Commissioner for Refugees, UNHCR Eligibility guidelines for assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

[56]DFAT Country Information Report, Sri Lanka, December 2021, [3.49].

108.        In this regard, the Tribunal has considered the applicant’s claim that he may be detained for rehabilitation because unlike his brother he has not been rehabilitated. As discussed with the applicant at hearing, DFAT indicate that former LTTE members who were former combatants, and those particularly if suspected of having a combat function during the war, those employed in LTTE administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war, coming to the attention of the Sri Lankan authorities may be subject to detention and rehabilitation.[57] The Tribunal has considered the applicant’s circumstances and its findings that the applicant is not a former combatant or suspected as having a combat function, or a role to provide high-level support to the LTTE during the war. On the evidence before it, the Tribunal is satisfied the applicant will not be subject to detention or rehabilitation on return to Sri Lanka on account of an LTTE profile of concern to the Sri Lankan authorities or any other reason.

[57]DFAT Country Information Report, Sri Lanka, December 2021.

109.        In light of these findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual of imputed political opinion.

Treatment on return to Sri Lanka

110.        In submissions, the applicant claims he will be detained on re-entry and interrogated by the authorities upon his arrival and either killed, imprisoned indefinitely or seriously harmed, in post arrival screening or subsequent to it, because he is deemed to be an LTTE member/affiliate on the basis of his profile. [58]

[58] AAT 1715199, Doc Id. 957731, 24 March 2022.

111.        On the basis of the country information before it put to the applicant, the Tribunal accepts the applicant will be returning to Sri Lanka on a travel document and will be interviewed by relevant authorities upon his return to Sri Lanka causing him to have dealings with the Sri Lankan authorities.

112.        The Tribunal has carefully considered the applicant’s personal circumstances, noting that he departed Sri Lanka legally in his own identity and has told the Tribunal he has not been involved in any criminal matters, and taking into account findings above that the applicant was not of interest to the Sri Lankan authorities for any reason on his departure. The Tribunal finds the evidence that the applicant departed Sri Lanka legally indicates that he was not regarded by authorities as fleeing Sri Lanka to avoid an investigation or rehabilitation process, as claimed. On this basis, the Tribunal finds the authorities will not have ongoing interest in the applicant and seek to obtain information about his past dealings with the LTTE and activities within the Tamil community while in Australia. The Tribunal concludes it will be a relatively straightforward process for the Sri Lankan authorities to verify his identity and establish that he is not wanted in relation to any criminal matters. The Tribunal does not accept the applicant’s claim the authorities will wish to further investigate his background.

138.        The Tribunal has found above that the applicant departed Sri Lanka legally in June 2011 and therefore finds that he could not be detained under the Immigrants and Emigrants Act (1948) for illegal departure on his return to Sri Lanka.[73] As discussed above, the Tribunal acknowledges that in the circumstances where the applicant returns on a travel document, the country information indicates that he would be interviewed upon return. However, on the basis of country information noted above, the Tribunal is satisfied the applicant will not be subjected to harm during this interview and given the finding above that the applicant does not have a profile of interest to the authorities, the Tribunal does not accept he will be detained for any length of time on arrival in Sri Lanka. It follows the applicant will not be subject to significant harm in detention.

Mental health

[73] DFAT Country Information report, Sri Lanka, 23 December 2021, [5.17-5.24].

139.        In reaching this conclusion, the Tribunal has also considered the applicant’s claim that if he is forced to return to Sri Lanka, it is likely he would not be afforded the appropriate care and therefore his health would deteriorate, and he would be vulnerable to exploitation and harm.

140.        On 5 April 2022 the applicant’s representative submitted a medical report from the applicant’s GP to the Tribunal indicating that the applicant had been treated for depression, post-traumatic stress disorder over in the nine years to January 2021 and that he had been prescribed [Medication 1]. The report states that the applicant has not been reviewed by a psychiatrist since that time because his psychiatrist has retired, but that he continues to take medication for depression.

141.        The Tribunal invited the applicant to comment on information from various open sources indicating that [Medication 1] is available in Sri Lanka and widely used.[74]

[74] [Source deleted]

142.        The Tribunal also invited the applicant to comment on country information from DFAT that Sri Lanka inherited a well-developed health care system at independence. The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Health outcomes are lower in the north and east. According to the World Health Organisation (WHO), the health system provides access to all ‘required medicines’ prescribed in the state system in Sri Lanka free of charge. However, the WHO also notes that the overall system ‘has not evolved and transformed appropriately to meet the changing demands of the demographic and epidemiological transitions.’ It notes that 26 per cent of out-of-pocket expenses for patients in the health system are for medicines. A local source reported that this leaves considerable expense for medicines acquired privately.[75]

[75] DFAT Country Information Report, Sri Lanka, 23 December 2021.

143.        In respect of mental health, DFAT report that Sri Lanka offers some mental health services but there are gaps. Local sources suggest the health system has a strong mental health focus with a good cohort of trained counsellors, and a number of NGOs active in the sector. However, there are limited numbers of qualified psychologists and psychiatrists. The Ministry of Health operates the National Institute of Mental Health in Colombo which is the only state-run hospital dedicated to treating mental illness with 1,200 full-time staff and 1,500 beds. The National Institute of Mental Health admits over 8,000 patients annually.

144.        DFAT further reports that according to local sources, there is significant, ongoing need for psychosocial support in the north and east, particularly for former combatants, the families of missing persons and those affected by the 2004 Indian Ocean tsunami (which also affected people in the south and west). A local NGO reports that, among those being treated for mental illness, 37 per cent have depression, 17 per cent have psychosis, and more than 40 per cent have pre- or post-natal depression.

145.        Local sources report that mental illness still carries a stigma and elicits a strong sense of pity in Sri Lankan society. Such stigma deters sufferers from revealing and seeking treatment for mental illness and is likely worse the more a mental illness is ‘visible’ to outsiders. Stigma can have a strong impact upon families in particular. Additionally, according to a local NGO, a family unit may bear primary responsibility for caring for those with mental health problems, due to the lack of adequate services in most parts of the country. Families reportedly fear mental illness will mean their daughter is not able to get married or that children may be bullied in school. Such social estrangement is reportedly even worse in the case of suicide. Understanding of the causes of mental illness can be limited. Mental illness is sometimes attributed to black magic and curses. Some families seek traditional methods to ‘cure’ mental illness, including through use of local healers. Despite this context, overall, stigma has declined considerably in the last fifteen years and Sri Lankans now access counselling services more freely, where available.

146.        In response to country information, the applicant reiterated that it is likely he will be detained by the Sri Lankan authorities on return to Sri Lanka given his race and imputed political opinion, and that he fears interrogation, harm and torture. He states that if this does occur it would greatly exacerbate his current health issues which stem from the trauma he faced in the past. As above, the Tribunal finds the applicant will not be detained by Sri Lankan authorities for any reason. The Tribunal is satisfied the applicant’s current health issues, his depression/PTSD, will not be exacerbated for his reason.[76]

[76] AAT 1715199, Doc Id. 9771138, 16 May 2022.

147.        The applicant also claims that he would return to his family home in the north of Sri Lanka, an area which lacks infrastructure and services including health care, and that he would need to travel to obtain treatment during which he would face difficulties from the authorities and lack of transport would impede his ability to obtain relevant care. It is further submitted that DFAT country information in relation to health care is contradictory and indicates that it is unlikely the applicant will be able to access appropriate care.[77]

[77] AAT 1715199, Doc Id. 9771138, 16 May 2022.

148.        The Tribunal has considered the applicant’s circumstances and takes into account the applicant’s evidence at hearing, that he takes medication for depression and to help him sleep, and the medical report provided by his GP. On this evidence, the Tribunal finds that since January 2021, the applicant’s mental health care has been limited to taking the medication [Medication 1]  and that he has not been receiving counselling or other psychiatric interventions. The Tribunal acknowledges that his psychiatrist has retired but would expect that if he required a higher level of treatment than prescription of [Medication 1] from his GP he would have received a referral for further consultations with a psychiatrist. The Tribunal concludes that the applicant’s mental health is managed by medication prescribed by his GP and on this basis the Tribunal considers that this management regime will continue to be appropriate. The Tribunal finds the applicant’s mental health will be managed by prescription of [Medication 1] and that he will not require more intense psychological or psychiatric treatment in future, such as the regular treatment of qualified psychologists and psychiatrists, or the services of the National Institute of Mental Health in Colombo.

149.        In this consideration, the Tribunal also takes into account DFAT advice put, to the applicant, that the Sri Lankan health system offers universal free health care. The Tribunal notes some qualifications to this advice which indicate that health outcomes are lower in regional areas such as the north and east. The Tribunal has also considered that the DFAT country information indicates that medication is provided free although the system is having some difficulties meeting the demands of changing demography and patterns of population distributions in relation to disease. In the case of the medication required by the applicant, as put to the applicant, the Tribunal is satisfied that it is widely available in Sri Lanka and is a medication of established use in Sri Lanka. The Tribunal is satisfied that this medication is not affected by the demographic and epidemiological changes identified by the WHO. The Tribunal finds the medication required by the applicant will be provided free under the health system and that it is not a drug he will be required to obtain privately.

150.        The DFAT Report indicates that treatment for depression is well established in Sri Lanka and while there are pressures on services in the north and east, on this basis, the Tribunal is satisfied he will be able to obtain his medication through locally available services. The Tribunal does not accept the applicant will need to travel from his family home in the north of Sri Lanka to obtain the health care he requires, or that he would have to travel to obtain treatment during which he would face difficulties from the authorities. On the basis of the country information above, the Tribunal finds that the applicant will have access to appropriate care to manage his health.

151.        The Tribunal has considered the applicant’s representative’s argument that current economic and political issues in Sri Lanka may cause instability in Sri Lanka and impact the state’s ability to provide services such as medical and mental health services. While the Tribunal notes DFAT advice that Sri Lanka’s economy has been troubled by the country’s low foreign-exchange reserves and high and rising government debt, and recent reports of economic crisis, the Tribunal considers the applicant’s suggestion that he will not be able to obtain medication for his treatment upon return to Sri Lanka to be entirely speculative.[78]  

[78] DFAT Country Information report, Sri Lanka, 23 December 2021 [2.10]; Sri Lanka’s Economic Meltdown Triggers Popular Uprising and Political Turmoil | Crisis Group

152.        The Tribunal further finds that any hardship or harm the applicant might experience if removed to Sri Lanka, including feelings of depression, due to his past experiences, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.

Economic factors/ adapted to life in Australia

153.        The applicant told the Tribunal that after 10 years in Australia he has adapted to life in Australia and he couldn’t adapt to Sri Lanka again. The Tribunal acknowledges that the applicant has adjusted to life in Australia and makes an economic contribution. However, the Tribunal finds that having spent most of his life in Sri Lanka, he will be able to readjust to life there. The Tribunal also finds that any hardship arising from the readjustment due to the lengthy period of time he has spent in Australia would not amount to significant harm for the purpose of the Act, because harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.

154.        In reaching this conclusion, the Tribunal has also taken into account the applicant’s economic prospects on return to Sri Lanka, taking into account his evidence that he has been working in Australia and paying taxes. The applicant did not raise economic factors as an issue, however, the Tribunal has noted recent reports of deteriorating economic conditions in Sri Lanka, and has considered whether the applicant faces a risk of significant harm on return to Sri Lanka for this reason. In this consideration the Tribunal notes the applicant will return to his family in the north where they farm rice and that while the applicant may not be as economically secure as he is currently, the Tribunal is satisfied that the potential challenges the applicant faces on his return to Sri Lanka could be not characterised as significant harm within the meaning of the Act.  

155.        The Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A).

Member of the same family unit

156.        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

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

Amanda Paxton
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…