1716831 (Refugee)

[2020] AATA 1274

1716831 (Refugee) [2020] AATA 1274 (10 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716831

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Nicole Burns

DATE:10 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2020 at 4:28pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – ethnicity – Tamil – imputed political opinion – pro-Tamil independence/supporter of Liberation Tigers of Tamil Eelam, anti-government – illegal departure and failed asylum seeker/returnee – religion – conversion from Hinduism to Christianity – association with people smuggler – harassment by police and army – health and treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
SZTGM v MIBP [2017] HCA 34

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for the visa on 24 August 2012 and the delegate refused to grant the visa on 26 March 2013.  The former Refugee Review Tribunal (differently constituted) affirmed the decision of the delegate on 16 October 2013.[1]  The applicant sought judicial review of that decision and the case was remitted to the Tribunal by consent order of the Federal Circuit Court of Australia (FCCA) dated [June] 2014.  On 9 January 2015 the Migration and Refugee Division of the Administrative Appeals Tribunal (differently constituted) affirmed the delegate’s decision[2].  The applicant sought judicial review of that decision and the case was remitted by consent order of the FCCA dated [July] 2017.

   [1] RRT No. 1305052.

   [2] AAT No. 1410677.

3. In relation to the current matter the applicant appeared before the Tribunal on 21 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Complementary Protection Guidelines and Refugee Law Guidelines prepared by the Department of Home Affairs (the Department) and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. 

10. The Tribunal notes DFAT issued a new country information report on Sri Lanka dated 4 November 2019, after the Tribunal hearing, which superseded the previous report dated 23 May 2018.  The Tribunal discussed information contained in the May 2018 DFAT report with the applicant at hearing, insofar as it was relevant to his claims.  That information which the Tribunal has relied on in the earlier DFAT report – discussed in more detail below in assessing the applicant’s separate claims – is broadly consistent with the information contained in the November 2019 DFAT report and/or is supportive of the applicant’s claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

11. The applicant came to Australia by boat in May 2012 and claims to be a Sri Lankan national.  He presented to the Department various documents evidencing his Sri Lankan identity, including a student identity card, general certificate of completion of studies at the ‘Ordinary’ level and his original birth certificate.  The delegate accepted these documents as genuine and did not indicate any concerns about his claimed nationality and identity.  The Tribunal therefore accepts the applicant is a national of Sri Lanka and has assessed his claims accordingly. 

    Background, claims and evidence

12. The applicant is a [age]-year-old Tamil man from [North Western Province], Sri Lanka. He left Sri Lanka in May 2012 by boat. He claims to fear persecution on return to Sri Lanka for a number of reasons, including from the authorities there on the basis of his Tamil ethnicity, imputed (pro-Liberation Tigers of Tamil Eelam (LTTE)/anti-government) political opinion, as a failed asylum seeker and because of his illegal departure from the country.  He also claims to fear serious harm from community members as a convert to Christianity (from Hinduism), and more broadly from Muslims and others as a member of a religious minority.

13. The applicant set out his initial claims in a written statement that accompanied his protection visa application dated 24 August 2012.  In it he stated, among other things, that he has been detained and ‘rounded up’ by the Sri Lankan authorities in the past (in 2007 and 2012), and fears being ‘tortured’ because he left the country illegally.  A written submission was provided to the Department by his then representative dated 10 September  2012 which sets out the applicant’s claims and identifies the following protection grounds:

    ·his Tamil ethnicity

    ·actual/imputed political opinion (perceived support of Tamil independence or the LTTE); and

    ·membership of a particular social group of ‘Young Tamil men from [the] Northwest or Tamil fishermen from an area with a history of LTTTE presence and/or LTTE recruitment’ or ‘Young Tamil men from the militarised North-Western Province fears persecution upon his return to Sri Lanka as a consequence of his application for asylum in Australia’.

14. In her submission the representative references country information from a variety of sources (some of which is superseded and/or out of date) to support her contention that the applicant’s fears of persecution on these grounds are well-founded.

15. A record of statement taken from the applicant by phone to his then migration agent on 24 May 2013 was provided to the first Tribunal.  In it the applicant clarifies that at his interview when he arrived on Christmas Island he said he had come here to study, but that was incorrect; he was not in the right frame of mind, and he left Sri Lanka to seek protection.  He also stated that, according to his mother, the Sri Lankan Army (SLA) went to his home looking for him in approximately April 2013 (uniformed and armed) and told his mother they were looking for him because he had not gone and signed in as he had been told to when he was rounded up in 2012; and that the officers told his mother that someone from his family had to go and sign in to say they would produce the applicant when he returned. The applicant also provided a copy of his baptism certificate and a letter [Church 1].

16. The applicant’s then representative provided a written submission dated 24 May 2013 to the first Tribunal setting out the applicant’s claims, addressing some matters raised by the delegate, and referring to country information relevant to his claims.  The representative submitted that the applicant has a well-founded fear of persecution on return to Sri Lanka as a Tamil, based on his imputed political opinion (opposed to the Sri Lankan government as a consequence of his race and act of seeking asylum in Australia) and as a member of a particular social group of ‘Tamil failed asylum seeker who left the country illegally’.

17. Before the second Tribunal the applicant provided a statutory declaration dated 12 November 2014 in which he addressed some concerns raised by the first Tribunal, including  about his statements made to the Department when he had recently arrived (in Australia).  He noted that at the time he was suffering from anxiety, forgetfulness and difficulty concentrating: symptoms which purportedly led to a diagnosis of post-traumatic stress disorder (PTSD) by his treating doctor.  He also stated that he was concerned he would be arrested if he disclosed previous (people smuggling) activities with a man he knew in Sri Lanka called [Mr A]. 

18. Before the current Tribunal the applicant has provided copies of documents already submitted as well the following documents:

    ·A statutory declaration dated 18 October 2019 in which he advises that his parents and sister were questioned by SLA officers in Sri Lanka after the 2019 Easter bomb blasts on at least two occasions: they asked about the applicant and recorded information. 

    ·A written submission from the applicant dated 18 October 2019 in which he sets out country information to support his claims that his fears of persecution on return to Sri Lanka as a Tamil, Christian, and member of a particular social group (‘illegal departure/failed asylum seeker returning from a Western country’) are well-founded.

    ·A handwritten document titled ‘statutory declaration’ dated 6 August 2018 signed by the applicant about problems he has experienced in Australia with a former housemate who allegedly defrauded him as well as a letter from [a bank] (dated [August] 2018) about the applicant’s request to correct his credit information. 

    ·A document titled ‘Research since the Easter attacks’ by Rutaban Yameen, given to the applicant by someone from [an organisation], according to the applicant at hearing.

19. In his oral evidence to the current Tribunal the applicant detailed his experiences in Sri Lanka that led to him leaving there in May 2012, summarised as follows.  He said in February 2012, when he was living at home with his parents, brother and sister and working as a [fisherman], three men (dressed in black uniforms) from the Criminal Investigation Department (CID) approached him trying to locate the whereabouts of a local man called [Mr A], who they suspected was a people smuggler.  The CID members accused the applicant of helping [Mr A] in this endeavour, and were about to arrest him; however they let him go once a group of people intervened, including another fisherman called [Mr B] who spoke Sinhalese (as well as Tamil).  [Mr B] explained to the CID that the applicant was not a people smuggler and had not assisted [Mr A] in any way, and the applicant was let go.  The applicant said [Mr A] disappeared around this time and he has not heard from him since.

20. Around two months later – sometime in April 2012 – the applicant said he was rounded up with some other Tamil fisherman by the army, asked to produce his ID, and when he said he did not have it, was taken to an open area (surrounded by shrubs).  There the SLA took photographs and a video of the applicant and the others in front of around five guns, before they were let go.  The applicant said people he knew told him some time later they saw the video on the news on TV in Sri Lanka, which implicated the applicant as an LTTE suspect. 

21. The applicant said after this incident he was often harassed by SLA officers whilst going to work, including being asked to buy cigarettes and other goods.  Given such harassment, he decided to leave the country.

22. Sometime after he left Sri Lanka the applicant said the army visited his parents’ home in [the northwest] and asked his whereabouts.  His parents told the SLA officers he was overseas.  His parents were instructed to report once a month at an army area and sign a document: the applicant said either his brother or father did so, for around six months until they paid some money (and fish) and were no longer required to do so.

23. The applicant said after the bomb blasts in a number of churches and hotels across Sri Lanka in Easter 2019, members of the SLA visited his parents’ house on two occasions, checking the inhabitants of the house.  Again his parents told them he was overseas. 

    Findings about the applicant’s past experiences in Sri Lanka

24. The Tribunal accepts the applicant is a young Tamil male who originates from [the northwest] and lived there all his life before coming to Australia in May 2012. It accepts his parents continue to live there along with his brother and sister.  It notes in this regard the applicant’s claims in his initial statutory declaration provided to the Department that his father left them when he was young and he had to support his younger siblings as a fisherman.  However at hearing the applicant explained that his father divided his time between the applicant’s mother and his other ‘wife’.  His father worked as a fisherman and has always supported their family.  The Tribunal accepts his oral evidence in this regard.

25. The Tribunal also accepts, based on his oral evidence at hearing, that the applicant’s father and brother are fishermen and his sister has recently completed Year [number] in Sri Lanka.

26. The Tribunal accepts that the applicant worked as a fisherman in [the northwest] for around 18 months until shortly before he left Sri Lanka, using nets to capture fish from shore.  Prior to that he was at high school (up to O level).  It accepts that during the period when he worked as a fisherman the army often checked his (and other fishermen’s) identity documents, and sometimes asked for his fish without paying, as claimed in his initial statutory declaration and at hearing.  This was not uncommon during this time.  However given the passage of time and improved security situation for Tamils overall in Sri Lanka (discussed below, elsewhere), the Tribunal finds the applicant does not face a real chance of serious harm on return to [the northwest] from the authorities due to being checked for his ID in the past and having to give fish to the SLA, for example.

27. The Tribunal has considered the applicant’s claims to have been rounded up by the army in 2007 and 2012 and questioned by the CID about his relationship with [Mr A] – a suspected people smuggler – in February 2012.  Although the applicant did not mention being rounded up in 2007 at hearing, he did in his written claims to the Department (and before the first and second Tribunal) and given the passage of time since then the Tribunal does not draw an adverse inference from the fact he failed to mention it at the current hearing. (In his oral evidence to the Tribunal the applicant focused on the more recent round up – in April 2012, addressed below.) In his 2012 statement of claims the applicant said in 2007 he was detained for an hour and his details taken down, which the Tribunal accepts.  There were no further problems in relation to this incident.  Given this, and the fact the incident took place over 12 years ago, prior to the end of the war in 2009, the Tribunal finds the applicant does not face a real chance of serious harm from the army or anyone else because he was rounded up, questioned and detained for an hour by the army in 2007.

28. The Tribunal has considered the applicant’s claims to have been questioned by the CID in February 2012 in [the northwest] about his relationship with a man called [Mr A], allegedly a people smuggler.  The Tribunal found the applicant’s evidence about his relationship with [Mr A] at hearing confused, and at times inconsistent with his earlier evidence, which casts doubts about his claims in this respect.  For instance initially he said he first met [Mr A] whilst working as a fisherman in [the northwest] in February 2012; however when it was pointed out that was the time he claimed to have been questioned about his relationship with [Mr A] by the CID, the applicant said he actually met him around 18 months prior. However, the applicant told the second Tribunal that he met [Mr A] one and a half months before he was questioned (in February 2012). 

29. Additionally, at hearing the applicant told the Tribunal that when he was questioned by the CID about [Mr A] (in February 2012) they asked to see his ID, but he refused.  However this is inconsistent with his claims in his initial statutory declaration provided to the Department that the CID officers ‘did not believe my innocence and took down my information’.  The applicant has claimed at the time of making his initial claims to the Department to have been suffering from anxiety, forgetfulness and difficulty concentrating (and was diagnosed with PTSD).  Whilst the Tribunal accepts the applicant may have been anxious and forgetful to a certain extent at the time as claimed, there are other credibility concerns it has with the applicant’s claims in this regard which cannot be explained by such medical issues.  For example, the Tribunal also finds it implausible the applicant would refuse to show the CID his ID when requested, as now claimed.  As well, the applicant told the first Tribunal that he had assisted [Mr A] with his people smuggling operations whilst he told the current Tribunal that he did not. 

30. Given these concerns the Tribunal does not accept that the applicant was questioned by the CID about a people smuggler called [Mr A] in [the northwest] in February 2012.  Accordingly he does not face a real chance of serious harm from the authorities on return to Sri Lanka on the basis of being questioned by the CID about [Mr A] in early 2012 or more broadly in regards to his relationship with [Mr A], a people smuggler, on return to Sri Lanka in the foreseeable future. 

31. The Tribunal has considered the applicant’s claims to have been rounded up (along with other Tamil fishermen) by the SLA in April 2012.  The Tribunal accepts the applicant was rounded up at this time whilst on his way to work, along with other fishermen from his village, detained for a few hours next to a temple, then let go once his mother arrived with his ID.  It also accepts that whilst detained the SLA took photographs and a video of the applicant (and the others who were detained with him), as originally claimed.  However, it does not accept that in the video the applicant and others appeared behind guns, or that this video was subsequently shown on television in Sri Lanka.  This is because the applicant failed to mention this fact at all in his initial statement dated August 2012 provided to the Department and the Tribunal is of the view that the applicant’s claims have grown over time in this respect, even taking into account he may have been anxious as submitted.  The Tribunal also finds that if the SLA suspected the applicant and others were LTTE members or supporters they would not have let them go after a few hours. 

1. The Tribunal accepts the applicant was rounded up in 2007 and again in 2012 by the SLA, asked to show his ID, detained for a short period of time, and videoed and photographed in 2012.  However this was not unusual for Tamil fisherman during this time leading up to the end of the war and in the immediate post war period, there is no indication that the applicant was specifically targeted for questioning or of particular interest to the authorities at the time, and on the applicant’s own evidence he was released after one hour in 2007 and after three hours in 2012 once his mother showed the SLA his ID.  He did not indicate any follow up after the 2007 incident or the 2012 incident – although the Tribunal notes he left the country shortly after this incident.  The Tribunal has not accepted the applicant was questioned by the CID in February 2012 about [Mr A], who the authorities considered a people smuggler.  Given these considerations, combined with country information that indicates that a person being of Tamil ethnicity would not of itself warrant international protection,[3]  and the passage of time, the Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka from the authorities or anyone else because he was rounded up and temporarily detained by the army on two occasions in the past – in 2007 and 2012 – in Sri Lanka in the foreseeable future. 

   [3] DFAT, Country Information Report Sri Lanka, 4 November 2019; UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, Version 5.0, June 2017; and UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012.

2. The Tribunal has considered the applicant’s claims that sometime after he left Sri Lanka the army visited his parents’ home in [the northwest], asked his whereabouts and told them to report monthly at an army area (and sign a document).  The Tribunal found the applicant’s oral evidence was very vague in this respect.  For example he was not sure when a family member had to report to the army area, or until when, or who specifically out of his family did so.  He told the Tribunal he thinks they started before he applied for protection for around six or seven months, however he failed to mention this fact in his initial statement of claims provided to the Department, dated 24 August 2012.  Furthermore the Tribunal is unclear why the army required the applicant’s family members to sign a document monthly, noting that the applicant did not mention at hearing that he had been instructed to sign in before being released after the April 2012 round up.  It is also unclear why they stopped after six or so months, apart from the applicant’s claims that they did so because his family gave them some money and/or fish.  At hearing the applicant was unable to state how much money was given.

3. Given these concerns the Tribunal does not accept the applicant’s claims that the army visited his parents’ house after he had left Sri Lanka enquiring about him or that his family members were required to sign a document at an army area each month for around six months thereafter.

4. In a statutory declaration dated 18 October 2019 provided to the Tribunal the applicant stated that after the bombs on Easter Sunday in Sri Lanka, the authorities have been undertaking round up checks of people in his village; his parents and sister have been questioned by the army; and his mother told him on at least two occasions they asked his whereabouts.  At hearing he explained that the SLA had questioned his family after the Easter bomb blasts to determine the inhabitants of the house.  The Tribunal accepts that occurred, along with numerous other households in the immediate aftermath of the bomb blasts in a bid by the authorities to locate the perpetrators.  There is nothing to indicate that the applicant or his family were of particular adverse interest to the authorities.  The applicant told the Tribunal that his parents told the SLA he was overseas and there has been no follow up or further interest in relation to the bomb blasts or for any other reason.

5. Accordingly, the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Sri Lanka from the authorities on imputed or actual (pro-LTTE/anti-government) political opinion grounds on account of being rounded up and questioned by the SLA in 2007, being rounded up, questioned and photographed and videoed by the SLA in 2012, having his ID checked on occasion by the authorities, being pressured to give the authorities fish in the past (and other goods), due to his links to a purported people smuggler ([Mr A]), because the SLA conducted household checks following the Easter bomb blasts, or for any other reason. His fears of persecution for these reasons are not well-founded.

   Tamil ethnicity

6. The Tribunal has considered if the applicant faces a well-founded fear of persecution on the basis of his Tamil ethnicity, on imputed (pro-LTTE) political opinion grounds as a Tamil, and based on his membership of a particular social group of ‘Young Tamil men from [the northwest], in Northwest or Tamil fishermen from an area with a history of LTTTE presence and/or LTTE recruitment’ as submitted. 

7. The applicant’s former representative refers to country information from a variety of sources in her written submission[4] provided to the Department to support her contention that Tamils experience discrimination and human rights abuses in Sri Lanka.   She submits, among other things, that Tamils continue to be disproportionately targeted through new security measures, particularly the Prevention of Terrorism Act (PTA).  As noted earlier, much of the country information cited has been superseded and/or is somewhat out of date given the changed circumstances in Sri Lanka, discussed further below.

   [4] Dated 10 September 2012.

8. In his written submission provided to the current Tribunal the applicant submits that country information demonstrates that Tamils continue to face arrest, detention, torture and other serious harm at a disproportionately higher rate than others in Sri Lanka, referring to a Freedom House report published in early 2019,[5] comments by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms whilst countering terrorism following a visit to Sri Lanka in 2018 about allegations of the torture of Tamils,[6] and the persistent impunity for conflict-era abuses noted in the 2018 US State Department’s country report on human rights practices in Sri Lanka.[7]  Additionally the applicant refers to news articles that indicate that the appointment of Major General Shavendra Silva – who allegedly committed war crimes and crimes against humanity against the Tamil population during the war – has been viewed as further evidence of a climate of impunity for conflict-era abuses and is likely to undermine reconciliations efforts.

   [5] Freedom House, Freedom in the World 2019 – Sri Lanka, 4 February 2019.

   [6] UN General Assembly, ‘Visit to Sri Lanka: report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’, 14 December 2018.

   [7] US Department of State, Country Report on Human Rights Practices 2018, 13 March 2019.

9. In his submission the applicant also refers to country information that indicates, he argues, that there is a clear climate of political instability following the constitutional crisis in December 2018; there are ongoing stability and security concerns across the country following the April 2019 Easter bombings; the then President (Sirisena) immediately issued a Public Security Ordinance to preserve the deployment of the armed forces in 25 districts after the four month ‘state of emergency’ declared after the Easter bombings lapsed (on 22 August 2019), including districts with large Tamil populations in the north and east; and the powers provided to the military include powers of search and arrest, usually conferred on police officers.   The applicant submits therefore in the context of ongoing impunity, widespread support of the government and military leaders who have been implicated in war crimes and crimes against humanity against Tamil civilians and legislation which provides sweeping powers to the police and military to search, arrest and monitor people, Tamils in Sri Lanka continue to face an increased risk of harm due to their ethnicity.  

10. The Tribunal accepts the applicant is [age] and may still be considered a young Tamil male. It accepts he originates from [the] North Western Province where he used to work as a fisherman, and is likely to do so again on return. It accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection,[8] including being from the north and/or an area previously controlled by the LTTE. Neither, in general, would a person who evidences past membership or connection with the LTTE warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state.[9] Although the Tribunal accepts the applicant has been rounded up and had his ID checked by the authorities in the past whilst working as a Tamil fisherman, it does not accept he was of any particular adverse interest to the authorities in Sri Lanka in the past as a suspected LTTE supporter, people smuggler (or for any other reason), and he has not indicated that he has been active in the diaspora community since leaving Sri Lanka.  He has not indicated that he was ever involved with the LTTE. 

    [8] DFAT, Country Information Report Sri Lanka, 4 November 2019; UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, Version 5.0, June 2017; and UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012.

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

11. Taking into account country information as set out above and discussed at hearing that in general a person of Tamil ethnicity or who evidences past membership or connection with the LTTE does not warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus are a threat to the state, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities on imputed (pro-LTTE) political opinion grounds as a Tamil, and/or young Tamil male from the North Western Province, and/or based on his membership of a particular social group of ‘Young Tamil men from [the] Northwest or Tamil fishermen from an area with a history of LTTE presence and/or LTTE recruitment’ as submitted. 

12. The Tribunal acknowledges that military and security forces remain in the Northern Province (which is different to the North Western Province where the applicant originates from) of Sri Lanka and parts of the east, and operates a number of commercial businesses, primarily in the Northern Province.  The Navy and Air Force have some economic interests, including fishing, albeit on a lesser scale that the army.  The military also continue to occupy some fertile farming land in the north and restrict access to some fishing areas.[10] Nonetheless as discussed at hearing, DFAT report that the security situation in the north and east has improved significantly since the end of the conflict in May 2009, with greater freedom of movement and a decrease in the military’s involvement in civilian life, and that most of the military personnel are confined to the Security Forces Cantonment on Jaffna Peninsula or smaller surrounding military camps.[11] 

    [10] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 2.19.

    [11] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 2.65.

13. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assess that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the (now former) Sirisena government.   They do state, however, that surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues related to the war (including missing persons, land release and memorial events).[12] The Tribunal notes this advice refers to the north and east of Sri Lanka, not the North Western Province where the applicant is from.  Even so, the applicant has not claimed that he has, or would be associated with such politically sensitive issues. At hearing he claimed that he may get involved in protests on return to Sri Lanka; however his evidence was vague and general and given he has not indicated he has been politically active at all in the past, in Sri Lanka or Australia, the Tribunal does not accept that he would be politically active on return to Sri Lanka in the foreseeable future.

    [12] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 3.11 and 3.15.

14. The Tribunal notes that since the hearing there has been an election in Sri Lanka (on 17 November 2019) which resulted in the former Defence Secretary, and brother to the former president, Gotabaya Rajapaksa becoming the new President, replacing Sirisena.  The election of Gotabaya Rajapaksa, who has been subject of allegations of war crimes and human rights violations, has generated predictions that the military’s forays into civilian life—especially in the Tamil dominated north and east of Sri Lanka—will increase, that anti-minority violence will become more common, and perpetrators will not be held accountable.[13]  (These concerns were highlighted in the applicant’s written submission to the Tribunal, in terms of fears if the Rajapaksa’s returned to power in the then upcoming elections.)  Whilst a concern, the Tribunal is of the view that it is premature to predict what Rajapaksa’s election as president will mean for Tamils like the applicant on the ground.  Taking into account other relevant considerations and context, including the civil war ending 10 years ago, a number of significant security and governance improvements under Sirisena (albeit not in all areas), the Tribunal is not satisfied that the election of Gotabaya Rajapaksa and change in Sri Lanka’s leadership will result in the applicant facing a well-founded fear of persecution as a Tamil or for any other reason if he returns to Sri Lanka in the foreseeable future.  

    [13] 'Human Rights, Reconciliation, and Peace in Sri Lanka Under Gotabaya Rajapaksa', Diplomat, The, 27 November 2019, 20191204155534;  'In Sri Lanka, the Rajapaksas will Rule Ruthlessly', Lowy Interpreter (The Interpreter), 26 November 2019; Taylor Dibbert, ‘The Rajapaksa Own Sri Lanka Now’, Foreign Policy, 19 November 2019.

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

16. In reaching this conclusion the Tribunal has considered the applicant’s claims in his initial statement that he had to run errands for government authorities on more than four separate occasions because he is a young Tamil male who can be bullied by the Sinhalese and that sometimes they gave him money to buy something, whilst sometimes he had to make up the difference.  At hearing the applicant said he had to buy cigarettes, for example, for SLA officers in Sri Lanka.  The Tribunal accepts that in the past in Sri Lanka the applicant may have had to run errands, including buying goods such as cigarettes, for Sinhalese and/or SLA officers.  However the Tribunal is not satisfied that such actions constitute serious harm, examples of which are set out in s.91R(2) of the Act.  Combined with the significantly improved circumstances for Tamils in Sri Lanka since the end of the war and during Sirisena’s presidency, the Tribunal finds there is no real chance the applicant would suffer serious harm in relation to these incidents or if required to buy or ‘give’ goods to the SLA as a fisherman, or generally as a Tamil, on return to Sri Lanka in the reasonably foreseeable future.

17. The Tribunal notes in his initial written statement provided to the Department the applicant stated that ‘we’ signed many petitions to the government asking the army not to come to the village and round up Tamils. The applicant did not mention this at hearing.  Nonetheless the Tribunal is willing to accept that the applicant, along with other Tamils, may have signed petitions in the past asking the army not to round up Tamils. However given there is no indication that the applicant experienced problems from the authorities as a result, the passage of time, and changed circumstances in Sri Lanka, the Tribunal finds remote the chance the applicant would face serious harm on return there because he signed petitions requesting the army not round up Tamils many years ago.

    Failed asylum seeker and returnee from a western country

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

19. At the Departmental stage the representative argued that the applicant faced a well-founded fear of persecution in Sri Lanka based on his membership of a particular social group of ‘young Tamil men from the militarised North-Western Province fears persecution upon his return to Sri Lanka as a consequence of his application for asylum in Australia’. In her written submission to the Department reference is made to reports (many of which are now somewhat out of date) outlining concerns about the treatment of Tamil asylum seekers on their return to Sri Lanka.  She argued that the applicant’s risk is increased because in addition to being a young Tamil male from the north who would return as a failed asylum seeker, he is someone who is already known to the authorities in his area. 

20. At the Tribunal hearing the applicant said he fears being detained on return to Sri Lanka at least for a day; the authorities will get his details; and because he is young he will be presumed to have connections with the LTTE and other armed groups and the army will create problems.  For the reasons above the Tribunal does not accept the applicant faces a real chance of serious harm on return to Sri Lanka on imputed LTTE political opinion grounds including due to his Tamil ethnicity and/or youth. 

21. At hearing, the Tribunal discussed the standard procedures for processing involuntary returnees as set out in the 2018 DFAT Country Information Report on Sri Lanka. In that report (which is very similar to what is reported in the 2019 report),[14] it is stated as follows:

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

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.[15]

    [14] At 5.32 and 5.33.

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

1. DFAT also state that 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 or a third country, and most returnees are Tamil. DFAT state further that although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links or because of the relatively lower cost of living compared to the south.[16]

   [16] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 5.43.

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

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

3. For the reasons above, the Tribunal does not accept the applicant faces a real chance of serious harm from the authorities in Sri Lanka. 

4. While the Tribunal accepts that the applicant, as a Tamil failed asylum seeker and returnee from the west, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he is not of any adverse interest to the authorities (including as a suspected people smuggler or linked to a people smuggler) and has had no involvement in diaspora activities, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker and returnee from the west. The Tribunal is not satisfied that the process of questioning itself would lead to serious harm given these considerations. In reaching this conclusion the Tribunal has given weight to DFAT’s advice that returnees are treated according to standard procedures, regardless of ethnicity and religion, and that they understand that detainees are not subjected to mistreatment during processing at the airport.

5. The Tribunal accepts that when the applicant returns to his home area of [the northwest], his arrival may be noted and he may be questioned by the Sri Lankan authorities. DFAT confirm that monitoring and surveillance of some returnees with suspected LTTE links in the north and east continues.  However they understand that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis.[18]  Furthermore, they assess that returnees face a low risk of societal discrimination.[19] As mentioned, the applicant comes from the North Western Province, not the Northern Province (as submitted by the applicant’s representative at the Department stage).  Also, given the Tribunal’s findings above, it does not accept there to be a real chance that such monitoring or surveillance would result in the applicant being targeted for serious harm by the Sri Lankan authorities or anyone else in his home area on this basis, including in a more heightened security environment after the Easter bombings and given the changed political leadership. His fear of persecution as a member of a particular social group of failed asylum seekers from a western country and on related imputed (anti-government) political opinion grounds, including as a young Tamil from the North Western Province who sought asylum in Australia, is not well-founded.

   [18] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 5.46.

   [19] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 5.50.

   Illegal departure

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

7. The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so. At the hearing, the Tribunal discussed with the applicant DFAT’s advice that the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, claims that no fare-paying passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally (as distinct from facilitators and organisers). Also, in practice, most penalties are almost always a fine, and fine amounts vary, can be up to LKR200,000 and can be paid by instalments. Further, DFAT advise that if a person pleads guilty, they will be fined and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[20]

   [20] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 5.37.

8. At hearing, when asked if his family members in Sri Lanka can help him pay the fine or act as a guarantor if required, the applicant said his father would be able to help him pay the fine.  However he said he does not think his family members would act as a guarantor because by nature they are fearful people. The Tribunal accepts his family members may be reluctant to act as guarantor; however given the applicant’s evidence that they are otherwise supportive of him, the Tribunal is satisfied that they would if required.  On this basis the Tribunal is satisfied that the applicant has family members who can act as a guarantor if needed, and his father will help him pay any fine that may be imposed because of his illegal departure, if required.

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

10. The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general, prison conditions in Sri Lanka do not meet international standards including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities.[21] However the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short-term period of being detained, given its findings that he is not of any ongoing adverse interest to anyone. As mentioned, the Tribunal is satisfied the applicant’s parents can act as guarantor if needed and he has the capacity to pay a fine if required, with his father’s help. The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return. There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges, may be subjected to mistreatment by the authorities and security forces in prison. However, as the Tribunal does not accept the applicant is of adverse interest to the authorities for any reason, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population. The Tribunal is not satisfied, therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required, nor does the Tribunal accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm as contemplated by the various examples of serious harm set out in s.91R(2).

    [21] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 5.21 and 5.22.

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

12. The Tribunal notes at hearing when discussing what might happen to him on arrival in Sri Lanka, the applicant said even if he is granted bail he will have problems; that in Sri Lanka young people are being targeted, including through forced sterilisation and killings to prevent the resurrection of the LTTE (but such problems are not in the news); and nowadays the army is given full legal support.  The Tribunal acknowledges the applicant’s concerns about returning to Sri Lanka however there is nothing before it to indicate that the authorities are targeting young people through killings and forced sterilisations and the Tribunal is not satisfied on the limited evidence before it that the applicant faces a real chance of serious harm on return on such a basis. 

    Christian religion

13. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka on the basis of his Christian religion, and as a Christian convert (from Hinduism), and more broadly due to increased religious tension in the country.  

14. At hearing the applicant said he was born into a Hindu family and used to practise his Hindu faith in Sri Lanka by regularly attending the temple, for example.  However sometime after his arrival in Australia whilst living with a Christian family who introduced him to Christianity, he decided to convert.  He was baptised [in] January 2013 at [Church 1] in [Suburb].  He said he continues to attend church, to this day. 

15. As a Christian convert the applicant said he will be ostracised by his family and community, unable to take part in religious ceremonies and events as he did in the past.  He fears being verbally abused and discriminated against and that his family will try to reconvert him to Hinduism so he can marry and have children.  He said he would want to practise as a Christian in Sri Lanka as long as there was no danger, noting there are so many religious problems. 

16. The applicant’s knowledge of Christianity – including the different denominations – at hearing was limited and he struggled to articulate why he decided to convert, apart from indicating that he was very disturbed at the time and the Christian family he was staying with gave him peace of mind.  Nonetheless the Tribunal accepts there can be various motivations as to why someone decides to change religions, and a person’s lack of knowledge of key tenets of their faith does not necessarily mean they are not genuine.  The applicant told the first Tribunal that he was a Christian convert, has provided a reasonably consistent (if vague) explanation as to why, and been able to describe his activities in Australia.  He has provided evidence of his baptism and church attendance to the earlier Tribunal in the form of a baptism certificate, and a letter from [Church 1] bishop.[22]  Accordingly the Tribunal accepts the applicant is a genuine Christian convert from Hinduism and is satisfied that he would continue to practise his Christian religion on return to Sri Lanka, primarily by attending church there.  As it is satisfied that his conduct in Australia in this respect has been otherwise than for the sole purpose of strengthening his refugee claims, the Tribunal has not disregarded that conduct as required by s.91R(3) of the Act.

    [22] Dated [May] 2013.

17. The applicant told the Tribunal that his family were reasonably accepting of his conversion when he told them, from Australia.  However the situation would be different if he were to return to Sri Lanka given his family is known as a Hindu family.  He believes that the Hindu community will not accommodate him; it will be difficult for him to marry (a Hindu); his sister and brother will find it difficult to marry (other Hindus); opportunities will be fewer; and the chance of him getting a job will be remote, noting that some jobs are designated for certain religions (Hindus fish, Christians normally do banking and Muslims are involved in jewellery, according to the applicant).  He said that some of his Tamil friends who returned to Sri Lanka from Australia have allegedly spoken to his relatives who have spoken in derogatory ways about his conversion.  His evidence was vague in this respect, for instance he was unable to say who specifically spoke negatively about his conversion, or when.  Nonetheless the Tribunal is willing to accept that there may be some level of disapproval among his family, relatives, friends and the broader community, including the Hindu community in which he grew up, on his return to Sri Lanka because he has converted to Christianity.  However on the applicant’s own evidence his family members were reasonably accepting of his conversion (when he informed them initially) and apart from occasional disapproving comments by community members and his friends, he has not indicated that they, or anyone else, has threatened him due to his conversion. The Tribunal also notes there is nothing before the Tribunal to suggest that Hindu converts to Christianity face persecution in Sri Lanka. 

18. The Tribunal accepts that as a Christian he may be excluded from some Hindu community events, including with his family, and may face verbal abuse as a convert by community members in Sri Lanka.  In terms of difficulties being able to marry a Hindu woman (as a Christian), the Tribunal accepts that might be the case.  However the Tribunal is not satisfied that being exclude and experiencing verbal abuse constitutes serious harm, having regard to the examples of series harm in s.91R(2) of the Act.  

19. For these reasons the Tribunal does not accept that the applicant faces a real chance of serious harm from his relatives, family or the broader community as a Christian convert on return to Sri Lanka in the reasonably foreseeable future.

20. The Tribunal has considered whether the applicant faces a well-founded fear of persecution as a Christian, and Christian convert on return to Sri Lanka from extremists groups, including in the wake of the 2019 Easter bombings which targeted churches, among other locations.  In his statutory declaration provided to the Tribunal the applicant states that there are problems in Sri Lanka between Muslims and Christians, and he is fearful that if anyone comes to know that he has converted to Christianity and if he returns and practises his Christian faith, he may be harmed by Muslims who are targeting Christians.

21. In his written submission provided to the Tribunal the applicant refers to increase Muslim-Christian conflict in the wake of the Easter bombings in Sri Lanka, and increased security across the country to avoid any communal tensions. He submitted that whilst the state of emergency – which gave unbridled powers to Sri Lanka’s security apparatus to arrest and detain suspects for long periods – officially ended in mid-2019 there is little evidence of it ceasing.  In a subheading titled ‘Forecast: Things to come’ the applicant states that with expanded powers under the Emergency law, the Sinhalese police and military will terrorise Tamils and may take revenge on Tamil protesters who protested against the military occupying their land, referring to an article in the Colombo Telegraph in May 2019.[23] 

    [23] >

    As discussed at hearing, there have been reports of attacks against Christians and Christian places of worship (as well as other religious minorities) in Sri Lanka in recent years, largely perpetrated by a number of extremist Sinhalese Buddhist groups – including the Bodu Bala Sena (BBS or Buddhist Power Force).   DFAT report that the former Rajapaksa Government (now current government) sanctioned religious discrimination, including by supporting the BBS, and that incidents targeting religious minorities were reported throughout 2018 and 2019.[24]  They report further that the BBS has engaged in acts of violence and hate speech against religious minorities, particularly Muslims.[25] 

    [24] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 3.24.

    [25] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 3.25.

22. As well, as submitted in the applicant’s written submission to the Tribunal and discussed at hearing, on 21 April 2019 nine Muslim suicide bombers conducted six coordinated attacks across Sri Lanka targeting churches and five star hotels, resulting in more than 250 people being killed and hundreds injured.[26] The authorities in Sri Lanka stated that the attacks were carried out by two little known Muslim organisations, the National Thowheeth Jama’ath (NTJ) and Jammiyathul Millathu Ibrahim (JMI); that Sri Lankan security forces have killed or arrested most of those linked to the bombings; and more than 10,000 troops were deployed across the island in an effort to uproot NTJ’s countrywide network, with Islamic religious groups reported to be lending their support to authorities.  In a report released by the International Crisis Group (ICG) in September 2019 (as discussed at hearing) it is stated that five months after the Easter attacks those responsible have been identified; that NTJ and JMI were considered at the fringes of society; there is no evidence to suggest any remain at large; and police have stated that there is no evidence that ISIS ordered or directed the attacks.[27]   Based on such country information the Tribunal is satisfied that the applicant does not face a real chance of serious harm in the form of further attacks from such militant Muslim groups and/or terrorist groups and/or Muslims in general as a Christian on return to Sri Lanka. 

    [26] 'Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019, 2019; 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019. 

    [27] International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing the Risks of Future Violence’, Report No. 302/Asia, 27 September 2019,

1. The Tribunal notes there have been reports of Muslims in the community facing a backlash following the bomb blasts, including targeted attacks by the BBS.[28]  However the applicant is Christian. 

   [28]  International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing the Risks of Future Violence’, Report No. 302/Asia, 27 September 2019; and DFAT, Country Information Report Sri Lanka, 4 November 2019.

2. With respect to the risk Christians face in Sri Lanka, overall DFAT assess that:

   ...Christians in Sri Lanka face a low risk of official discrimination. DFAT assesses that evangelical Christians in Sri Lanka face a moderate risk of societal discrimination, and that Roman Catholics and other mainstream Christian denominations face a low risk of societal discrimination. The number of incidents targeting evangelical Christians has remained largely static over recent years, and is highest in Buddhist-majority regions in the North Central, South and Western provinces. The NCEASL has attributed some instances of violence and intimidation against Christians to the BBS, although DFAT is not aware of any specific incidents perpetrated by the BBS against the Christian community in 2018. The primary focus of the BBS and other Buddhist extremist groups is the Muslim community. There were no reported incidents of attacks on Christians by radical Muslims in Sri Lanka prior to the Easter Sunday terrorist attacks. Future attacks against the Christian community by homegrown Islamic extremists are possible. DFAT assesses that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if such groups were to expand in membership and strengthen their international links.[29]

   [29] DFAT, Country Information Report Sri Lanka, 4 November 2019 at 3.46.

3. The November 2019 DFAT report repeats its earlier assessment (in May 2018) that Christians in Sri Lanka face a low risk of official discrimination and of societal discrimination (with the exception of evangelical Christians, who face a moderate risk of societal discrimination).

4. Given this country information – in particular that Christians face a low risk of official discrimination, and a low threat of violence from home grown Islamic extremist groups (even though attacks are possible) – the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka as a Christian, and a Christian convert from Hinduism, including being caught up in a terrorist act and/or communal or sectarian violence.

   Ability to subsist

5. At hearing the applicant said he is worried about being able to get a job in Sri Lanka, particularly as a Christian convert, and if he returns to work as a fisherman is worried about being able to make enough money, noting new regulations introduced that restrict the use of certain types of nets. 

6. In his statutory declaration provided to the Tribunal he stated that his father told him the army will not permit him to use his fishing net in his village and his family cannot make any profit to live if they are not able to fish.  At hearing the applicant said that that his father and brother do not experience any problems but are worried if a certain type of net is banned and Tamils are more affected because Sinhalese (fishermen) give fish to the army.   The Tribunal accepts the applicant may be concerned to some extent about his and his family’s ability to earn an income through fishing, particularly if the regulatory environment tightens as claimed.  However at hearing he said his father and brother continue to work as fishermen in [the northwest], they have their own boat, and are able to make enough income for their family.  Furthermore, there is nothing before the Tribunal to suggest that currently Tamil fishermen in Sri Lanka face discrimination that amounts to persecution at the hands of the authorities and Sinhalese.  Nor is there information before the Tribunal indicating that Christians would be prevented from fishing, or otherwise obtain employment.

7. Given these considerations the Tribunal is satisfied that the applicant would be able to work as a fisherman on return to Sri Lanka, as he has in the past, and finds there is no real chance of him being subject to discrimination on the basis of his Tamil ethnicity, or his health problems (for reasons discussed below) that will result in serious harm, such as ‘significant economic hardship that threatens [his] capacity to subsist’ or ‘denial of capacity to earn a livelihood of any kind, where the denial threatens [his] capacity to subsist’: s.91R(2) of the Act. 

   Health (including mental health) problems

8. The Tribunal has considered the applicant’s claims to have a number of health (including mental health), issues.  He provided the following documents to the second Tribunal:

   ·A report from Dr [C], clinical psychologist, dated [November] 2013.  In it the doctor states that he had seen the applicant twice, referred by his GP; that the applicant experienced PTSD symptoms and acute stress due to his current predicament; and he was taking medication and required further counselling and support.

   ·A letter by Ms [D] to the Red Cross dated [July] 2014 regarding the applicant’s ability to engage in employment.  In it Ms [D] states that the applicant has low mood, he reports he has difficulty remembering things and displays symptoms indicative of PTSD. 

   ·An undated letter from the applicant’s GP. 

9. In a statutory declaration dated 12 November 2014 provided to the second Tribunal the applicant, as mentioned earlier, stated that when he first arrived (in Australia)  he was suffering from anxiety, forgetfulness and difficulty concentrating: symptoms which purportedly led to a diagnosis of PTSD by his treating doctor.  He states that he was not offered psychological treatment when in detention; he saw a doctor after he was released who prescribed him with anti-depressants and anti-anxiety medication and referred him to a psychologist (Dr [C]) and counsellor ([Ms D]); and he stopped seeing these professionals when his Medicare expired and stopped taking medication recently, unable to afford it.

10. In his statutory declaration provided to the current Tribunal the applicant said he has a number of health problems: specifically he cannot sleep for more than two hours due to his thoughts; he saw a psychologist but failed to attend some appointments because counselling was also making him worried; he has problems with his eyes (they are dry and he struggles with long distance); and he is losing weight but is not aware of the cause.  At hearing the applicant said in the past he saw a psychologist, for around six weeks (every two weeks) and was prescribed sleeping tablets.  Currently he takes sleeping tablets and medication for his eyes.  Asked if he has any specific concerns about returning to Sri Lanka because of his health problems, the applicant said he is concerned he will not have a proper job, and will not receive the same level of treatment (as in Australia) from Sinhalese doctors because he only speaks Tamil.  

11. Based on the applicant’s claims and medical evidence provided, the Tribunal accepts the applicant has experienced PTSD symptoms and stress in the past, although it notes no recent detailed assessment has been provided regarding his mental health, and it does not appear he has been formally diagnosed with PTSD.  No contemporaneous medical evidence has been provided indicating the nature and extent of the applicant’s current mental health problems.  The applicant told the Tribunal that he has worked in Australia – in [work sector] – but had to stop given his problem with his eyes: he did not indicate he ceased employment due to mental health issues.  Given these considerations the Tribunal is not satisfied that the applicant’s symptoms of stress, anxiety and possibly PTSD are so severe as to result in a real chance of serious harm on return to Sri Lanka.  Further, the Tribunal is satisfied that the applicant was able to meaningfully participate in the Tribunal hearing because he was able to understand the Tribunal’s questions and respond clearly.    

12. In terms of the applicant’s other health problems, the Tribunal accepts the applicant has had problems with his eyes for which he told the Tribunal that he is receiving treatment in the form of eye drops and sunglasses.  He said he is losing weight and does not know why.  The Tribunal accepts the applicant has these health problems and concerns but is not satisfied on the limited evidence before it that his health problems are as severe as to result in him being unable to work or otherwise face a real chance of serious harm on return to Sri Lanka.

    Other matters

13. At hearing the applicant told the Tribunal that a former housemate in Australia stole his identity documents and secured a number of bank loans in Australia in his name, totalling AUD[amount], before absconding. The applicant took the matter to the police and the [bank], which investigated and found he had not taken the money and was not in the wrong.  The Tribunal accepts his claims in this regard; however on the applicant’s own evidence at hearing it is satisfied that the issue is now resolved, and he does not owe the bank any money.

    Conclusion – refugee grounds

14. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

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

    COMPLEMENTARY PROTECTION

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

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

18. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual (anti-government/pro-LTTE) political opinion grounds, as a Tamil, as a young Tamil, or as a member of the particular social groups (detailed above), including as a young Tamil male from North Western Province, as a Christian, as a Christian convert, or because of his health or mental health issues. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[30] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

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

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

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

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

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

23. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards. However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention by the Sri Lankan government to inflict such harm,[31] and therefore do not amount to significant harm.

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

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

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

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

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

CONCLUSION

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

104.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Nicole Burns
Member