1716924 (Refugee)

[2019] AATA 6011

1716924 (Refugee) [2019] AATA 6011 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716924

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Brendan Darcy

DATE:5 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2019 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – illogical finding on credibility – race – Tamil – victim of past harm – imputed political opinion – Liberation Tigers of Tamil Eelam – religion – Hindu – particular social group – failed asylum seeker – lawful departure on valid passport – credibility findings – fear of ‘white van abductions’ – considerable passage of time – 2018 constitutional crisis – security situation in Sri Lanka – 2019 Easter terror outrages – mental health considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 425
Migration Regulations 1994 (Cth), Schedule 2

CASES
BJP15 v MIBP [2017] FCA 613

Kopalapillai v MIMA (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354
MIAC v SZQRB [2013] FCAFC 33
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 8 January 2013 and the delegate refused to grant the visa on 26 March 2014.

3. On 28 March 2014, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. On 19 June 2015, the Tribunal, differently constituted, affirmed the delegate’s refusal decision.

4. The applicant subsequently applied for the Tribunal’s decision (AAT file 1406077) to be judicially viewed.

5. This matter was sent back to the Tribunal because of a Federal Circuit Court order issued on 31 May 2017 on the grounds the Tribunal’s illogical finding regarding the credibility of a particular incident in 2010 and because there was a breach of the Act’s adverse information provisions: BJP15 v MIBP [2017] FCA 613.

6. The applicant appeared before the Tribunal on 6 February 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.

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

   RELEVANT LAW

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

   Refugee criterion

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 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).

10. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

19. 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’).

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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is:

    ·whether the applicant has a well-founded fear of being persecuted in Sri Lanka for reasons of his race, religion, nationality, political opinion or membership of a particular social group, and, if not;

    ·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

25. The applicant was born on [date] in [District 1], Northern Province in Sri Lanka. He is a Sri Lankan citizen and has been since birth.

26. The applicant claimed to be Hindu by religion and to be Tamil by ethnicity. He can speak, read and write in the Tamil language.

27. While the applicant’s father is deceased, his mother, stepfather, [Sibling 1] and [Sibling 2] continue to reside in Sri Lanka in the applicant’s home district of [District 1] in Sri Lanka’s Northern Province.

28. The applicant has a [cousin] who currently resides in Australia.

29. The applicant lived with his family in [the home village] in [District 1] from when he was born until the late 1990s, when he and his family moved to a displaced persons camp. The applicant’s family returned to the home village in 2001 but were again displaced in 2008, including being held in a displaced persons camp in Vavuniya between May and July 2009 and then living in Vavuniya until April 2010, after which the applicant returned to the home village. He then departed Sri Lanka in September 2010 by first travelling to [Country 1] on a [temporary] visa using a Sri Lankan passport in his own name then travelled to [Country 2] in January 2011.

30. In March 2012, he travelled from [Country 2] to [Country 3], where he remained until travelling to Australia without permission [in] July 2012, as an irregular maritime arrival.

31. The applicant completed [school] in the home village. He worked as a [Occupation 1] with his stepfather and [Sibling 2] and also at a [business] in [District 2] in Sri Lanka’s Northern Province during 2007 and 2008. He worked casually for a [company], as an [Occupation 2] and at a [business] while living in [Country 2].

    Written claims at the time of application for protection

32. The applicant provided a statutory declaration dated 19 December 2012 (folios 40–43 of the Department file for the visa application: [Department file number]) completed with the assistance of an accredited Tamil interpreter setting out his protection claims.

33. That statutory declaration can be relevantly summarised as follows:

    a)Since 2009, the applicant has been suspected by the Sri Lankan authorities of being involved with the Liberation Tigers of Tamil Eelam (the LTTE). He escaped from the refugee camp in Vavuniya where he and his family were being held. He just climbed the fence and went to live with his cousin in Vavuniya. His cousin’s younger brother had been killed fighting the LTTE.

    b)The authorities detained the applicant when he was with his cousin in around September or October 2009. They thought he was his cousin’s younger brother. They took him to the local police station and into a house where they tortured him by hanging him upside down and beating him with pipes. He was held in custody for [months], having been taken back to the police station after being held at the [house]. He was taken before a court in December 2009 and the court discharged him.

    c)In 2010 he was detained and questioned again by the Sri Lankan Criminal Investigation Department (the CID). They were questioning people in [District 1] about the LTTE and rounding up young Tamils in the area. The applicant had never been involved with the LTTE and he denied any involvement. He was released after his parents showed the authorities a letter from his school and the court discharge letter showing he was not connected to the LTTE.

    d)After that the applicant was still randomly questioned by the CID and asked to work with them to identify LTTE members. They remained convinced he has an LTTE past and the CID continue to go to his house.

    e)The applicant fears he will be killed, tortured or otherwise mistreated after being detained by the Sri Lankan authorities because they suspect him of being connected with the LTTE. The CID ignores the court discharge orders and continues to be convinced he is an LTTE member.

34. The applicant was interviewed by the delegate with the assistance of a Tamil interpreter on 15 October 2013. A registered migration agent from the same employer as the representative attended the interview.

35. The applicant has provided the following other relevant documents in support of his protection claims:

    a)    Certified copies of the applicant’s Sri Lankan identity card issued [in] 2009, a Tamil refugee organisation card issued to the applicant in [Country 2] and a temporary identity card issued to the applicant in 2009;

    b)    A copy of a letter from the United Nations High Commissioner for Refugees (the UNHCR) Representation in [Country 2] dated [in] February 2012 certifying the applicant is an asylum seeker and a copy of what appears to be the same document in [another language];

    c)    A copy of a UNHCR appointment card;

    d)    A copy of the applicant’s Sri Lankan birth certificate;

    e)    Copies of documents about the applicant’s education in Sri Lanka;

    f)     A copy of a residence and character certificate in Tamil; and

    g)    A copy of a letter from [a court in] Vavuniya dated [December] 2009 stating that the applicant has been discharged from a case.

36. As mentioned above, the delegate refused to grant the applicant a protection visa on 26 March 2014.

37. In that primary decision, it was accepted that the applicant is a Hindu Tamil from [District 1] and that he had been questioned by the CID in the past. However, the delegate made adverse credibility findings regarding the applicant’s claims to have been held in a displaced persons camp or to have been detained, questioned and tortured by the Sri Lankan authorities. On the country information before him or her, the delegate was not satisfied the applicant faced a real chance of suffering serious or significant harm because he is Tamil, because of any political opinion imputed to him because he is Tamil or because he is identified as having unsuccessfully sought asylum in Australia.

    Evidence provided to the Tribunal’s earlier decision maker

38. At the hearing of the Tribunal, differently constituted, on 30 March 2015, the applicant provided further documents relating to his detention by the Sri Lankan authorities during 2009 and 2010 (AAT file 1406077, folios 82–89), including:

    a)A “Detention Order” dated [November] 2009 (the detention order) ordering the applicant be detained for [a number of] days from the date of that order because he is suspected of being a member of the LTTE and “having come out from the IDP camp in an illegal manner and aiding and abetting the LTTE Organisation to commit unlawful activity”; and

    b)An affidavit from the applicant’s mother made [in] March 2015 (the affidavit), stating that the applicant was arrested by the Sri Lankan police [in] October 2009, detained under a detention order [in] November 2009, produced before a magistrate [in] December 2009 and discharged on the same day and that the difference in the spelling of the applicant’s name in the detention order is because both versions of the name are pronounced the same way.

39. On 14 April 2015, the Tribunal received an email from the representatives, attached to which was a copy of a document written in Sinhalese, together with a certified translation, which purport to be a message from the Sri Lankan police dated [July] 2014, requiring that the applicant’s stepfather present at an office of the Terrorism Investigation Department (the TID) [in] August 2014 to make a statement.[1]

    [1] AAT file 1406077, folios 91–92.

40. This Tribunal member notes these particular findings in the Tribunal’s decision record dated 19 June 2015:

    43. However, I do not accept the applicant’s claim that he was taken again by the CID in 2010. As put to the applicant at the hearing, I give significant weight to the fact that there is no reference in the affidavit from his mother made in March 2015 (see [18 b]) to the applicant having been detained by the CID in 2010. I find that if the applicant had been detained and tortured by the CID his mother would have referred to this in the affidavit. I do not accept the applicant’s claim that this affidavit was produced solely in order to explain the different spelling of the applicant’s names in some of the documents he provided about his detention in 2009. I find it highly implausible that if the applicant had been detained and tortured by the CID in 2010 his mother would have chosen not to refer to it in an affidavit prepared for the purposes of the assessment in Australia of the applicant’s claims to be owed protection.

    44. The applicant has described being held in a dark room, hung upside down and questioned while being detained in 2010. I accept that the applicant has been subjected to harm in this way but find that he has described treatment he has suffered when he was detained in 2009. I note that this is what the applicant described happening to him when he was detained in 2009 during his initial entry interview with department officials on 9 October 2012 (see the back of D1, folio 85).

    45. No medical evidence has been provided of the applicant suffering any mental health, memory problems or other psychological difficulties. However, as I have accepted that he was physically assaulted, tortured and beaten in the ways that he claims in 2009, I am willing to accept that the applicant has suffered some form of trauma that may affect his ability to recall past harm. Even taking that into account, however, I find that find the inconsistency in the applicant’s claims about what happened to him in 2010 and the absence of any reference to the applicant’s detention in 2010 in his mother’s affidavit to be so substantial that I find the applicant’s claim he was detained and tortured in 2010 to lack credibility.

    Evidence provided to the Tribunal following the court remittal of the earlier decision

1. As outlined above, this matter was remitted to the Tribunal, now constituted as the Administrative Appeals Tribunal, to be reviewed for a subsequent time by a new Member.

2. The applicant appeared before the Tribunal at a scheduled hearing on 6 February 2019. On the day of the hearing the applicant submitted the following documents.

3. At the hearing, the applicant provided two additional handwritten ‘message notes’ from the TID requesting the applicant to provide statements. Translations were provided. These are discussed below in some length.

4. The applicant also submitted a copy of the ICRC Detention Attestation letter (dated [in] January 2019) indicating the applicant had been detained in November 2009 by the authorities.

5. The applicant explained that his family members did not provide him these letters at an earlier date and that one of them was dated after the 8 January 2019 invitation to attend the scheduled hearing because they were afraid.

6. At the end of the hearing, the Tribunal provided the applicant with an opportunity to make a submission by 28 February 2019. The applicant’s representative requested an extension of time which was granted up to 31 March 2019.

7. On 21 February 2019, the Tribunal also assisted the applicant and his representative by providing electronic copies of the country information that the Tribunal may find relevant: (DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014; the UK Home Office Country Policy and Information Note – Sri Lanka: Tamil Separatism dated 7 June 2017).

8. On 1 April 2019, the applicant’s representative submitted an 11-page legal submission. The legal submission particularly addresses the developments since the primary visa application in 2013 and the impracticality of relocation outside the applicant’s home area of the Northern Province. It also mentions that the Tribunal should bear in mind that Sri Lanka faces another general election in the next 12 months and that this could see Rajapaksa (former prime minister) returned to power.

9. Below is a list of attached news items to the legal submission:

   ·     ‘Repeal Draconian Security Law’, Human Rights Watch, 29 January 2018;

   ·     ‘State of Emergency Declared in Sri Lanka’, Human Rights Watch, 7 March 2018;

   ·     Letter from Joan Ryan MP and Siobhain McDonagh MP to Boris Johnson, dated 5 February 2018;

   ·     ‘Sri Lankan Diplomat Suspended over Throat-slitting Gesture’, Daily Mail, 7 February 2018;

   ·     ‘Sri Lankan Leader will Protect General Accused of War Crimes – MP’, The New York Times, 3 September 2017;

   ·     ‘Not “All is Forgiven” for Asylum Seekers Returned to Sri Lanka’, The Conversation, 10 March 2017;

   ·     ‘Probe into Attack in Angunakolapelessa Super Prison’, Daily Mirror (Sri Lanka), 16 January 2019;

   ·     ‘Internet Freedom in Sri Lanka – Sri Lanka Faces Crisis as Two Claim to be Lawful Prime Minister’, The Guardian, 28 October 2018;

   ·     ‘Sri Lanka’s Prime Minister Reinstated, Ending Political Crisis’, Washington Post, 16 December 2018;

   ·     ‘Sri Lanka Struggles with Mental Health Burden’, The Lancet, 13 March 2010;

   ·     ‘Decentralizing Provision of Mental Health Care in Sri Lanka’, South East Asia Journal of Public Health, 12 May 2017.

   ASSESSMENT OF CLAIMS AND FINDINGS

   Country of reference

10. The applicant has claimed to be a citizen of Sri Lanka.

11. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided copies of his birth certificate and national identity card issued by Sri Lankan authorities to the Department which are on the departmental file.

12. On the basis of this evidence and with no evidence to the contrary, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that Sri Lanka is the applicant’s country of origin under s.36(2)(a). On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

13. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

14. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196–197 and 203–204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.

15. However, decision makers are not required to accept uncritically any or all allegations made by an applicant. Moreover, decision makers are not required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

16. In this decision, the Tribunal makes a limited number of adverse credibility findings while finding the applicant to be an otherwise credible and reliable witness. In making these findings, it has done so as it accepts that the applicant has been a victim and a survivor of torture and that it finds it understandable that he has presented such non-genuine documentation.

    Accepted personal circumstances of the applicant

17. The Tribunal accepts that the applicant was born in [year] in [District 1] in Northern Province in Sri Lanka; that his ethnicity is Tamil; that he speaks, reads and writes Tamil; and that his religion is Hindu.

18. With regard to his family composition, it is accepted that the applicant’s mother continues to reside in [the home village] in [District 1] with the applicant’s stepfather who is a [Occupation 1]. It is accepted that the applicant understands that his biological father is deceased but he could be alive. It is further accepted the applicant has one [Sibling 2] who works with the applicant’s stepfather; and a [Sibling 1] who is married to an [Occupation 3] and has one child.

19. The applicant, it is accepted, has never been married, engaged or in a de facto spousal relationship in the past. He does not have any children.

20. It is accepted that the applicant’s highest level of education was [level]. While in Sri Lanka, the applicant had undertaken employment in [Occupation 1] and [work] for a [business] in [District 2] during 2007 and 2008.

21. It is also accepted that the applicant had resided in Northern Province all his life while in Sri Lanka. The Tribunal further accepted that he was relocated to [a] Refugee Camp controlled by the Sri Lankan army in Vavuniya in Northern Province between May 2009 and 2010, after which he moved to [District 1].

    Claims about past harm

22. The applicant claims that neither he nor anyone in his immediate family were actually soldiers or combatants during Sri Lanka’s civil war, although they lived in an LTTE-controlled area. As the applicant lived as a Tamil in this area, he trained as an LTTE combatant, which was compulsory. The applicant further added that he worked for a [business] which was linked to the LTTE in supporting an LTTE [centre]. To this extent the applicant claimed that he was indirectly supportive of the LTTE in a material way. The Tribunal accepts this.

23. The applicant also claimed that there were members of his extended family who had died or were killed during the civil war, including his [cousin] in 2008 by gunshot wounds as an LTTE combatant.

24. This is relevant as the applicant claimed that he left the [camp] without the permission of the authorities running the camp in July 2009 and that he stayed with [the] brother of [his cousin]. However, members of the CID (Criminal Intelligence Department) discovered the applicant while at a checkpoint in September 2009. The applicant further claimed that he was identified as [his cousin] because the applicant resembled his deceased cousin. The applicant claimed that he was then beaten and tortured and called a ‘Tiger’ and was referred to as [his cousin] during this ordeal.

25. The applicant claimed he remained in custody while the authorities continued to question people in [District 1]. After [a number of] months, the applicant was released in December 2009 after one of the applicant’s family members showed the authorities his identity card and a passport belonging to the applicant.

26. The Tribunal notes that the applicant submitted a 2009 detention order [in] November 2009; a discharge notice from a magistrate dated [in] December 2009 to support his claims of having been detained by the CID in 2009; as well as an affidavit from the applicant’s mother to support the claim.

27. The Tribunal accepts the applicant’s account of being detained and later seriously physically ill-treated and tortured by the authorities in 2009 to be a reliable account consistent with the country information about the treatment of Tamils in the Northern Province, especially those residing in [District 1] in the immediate post-conflict period in 2009. It accepts that the reason for the applicant’s detention was based on the authorities imputing the applicant with being a suspected member of the LTTE due to his resemblance to his deceased cousin as well as being a person who had resided in an LTTE-controlled area.

28. The Tribunal has considered the applicant’s account about the second claimed incident of very serious harm. In this regard, it is noted that the earlier Tribunal decision did not accept this to be a genuine account. It is claimed by the applicant in his 2012 statement of claims that he had been detained and questioned in 2010 by the CID. The applicant had been rounded up by the authorities along with other young Tamils in [District 1] about LTTE involvement as the Tamil Tigers had been recruiting in the area since 2007. While the applicant denied any involvement in the LTTE, he had been seriously maltreated while being questioned over about a [period]. He further claimed that after his parents had shown a court discharge notice to demonstrate no involvement in the LTTE he was released.

29. During the earlier hearing conducted by the Tribunal in 2015, the Tribunal enquired into the reasons the authorities changed their minds about the applicant being a member of the LTTE when there was a decision made to discharge the applicant in 2009 on the basis that he was not. The applicant responded that the members of the military did not accept the magistrate’s assessment of non-LTTE involvement. The Tribunal member made an adverse finding about the credibility of this incident as it was not mentioned in the 2015 affidavit provided by the applicant’s mother. The Tribunal member did not accept the applicant’s explanation that the scope of the affidavit was to address the spelling of the applicant’s name and the 2009 incident. In this regard, it is noted the Federal Court found jurisdictional error as the Tribunal illogically discounted the mother’s affidavit which only came into existence after the delegate’s decision and that it dealt clearly with the specific matter in the delegate’s finding in rejecting a claim.

30. Having reviewed the information with fresh eyes, the Tribunal accepts that this incident of harm in 2010 as claimed is credible. The Tribunal finds the country information supports the treatment of young Tamil males whereby they are generally suspected of LTTE sympathies and that the authorities remained most vigilant against a resurgence of LTTE combative activities during this immediate post-civil war period. It is plausible that the applicant would have been subjected to such interrogation and detention. It is probable that the members of Sri Lanka’s military who have risked their lives defeating militants from the Tamil separatist cause would ignore a magistrate’s assessment about the applicant’s non-LTTE involvement in their maintaining a system of intimidation against perceived threats arising from Tamils in the Northern Province. The fact that the applicant’s mother did not mention the 2010 incident does not make it necessarily inconsistent with the applicant’s claims. The Tribunal found no inconsistencies in the applicant’s account about the length of time he was detained in 2010 and found his account had been consistent with his 2013 statement at the time of application..

31. The Tribunal also accepts that the applicant had been repeatedly questioned by the CID many times since the 2010 incident, that they monitored and visited his residence and that he had been asked to help the authorities to identify LTTE members and supporters, right up to until the time he decided to depart Sri Lanka.

    Ongoing person of interest claims since the applicant’s departure

32. The applicant has provided three documents. They all purport to be handwritten ‘message notes’ requesting the applicant or his family members to report to the TID. The first one was dated [July] 2015 requesting the applicant’s stepfather to present at an office of the TID; the second is dated [June] 2017 requesting the applicant present to the authorities [later in] June 2017; while the third is dated [January] 2018 requesting the applicant’s stepfather to report to the TID [in] January 2018.

33. During the 2019 hearing, the Tribunal discussed these salient points: In 2010, the applicant departed Sri Lanka via Colombo international airport for [Country 1] and that he did depart on a validly issued passport. The applicant claimed the passport was under his name. If the applicant departed Sri Lanka on a valid passport, then his departure would be recorded in a centralised manner and the authorities would be aware the applicant’s departure and that he had not returned to Sri Lanka. The applicant further elaborated that it would be difficult for the local authorities to access his movement records. Later in the hearing, the applicant claimed that he obtained his passport via an agent, inviting the Tribunal to consider that the passport had been fraudulently obtained and that he had indeed breached Sri Lanka’s Immigration and Emigration Act (I&E Act). The applicant claimed that the agent gave him instructions to go to a particular counter in order to evade the authorities apprehending him from his departure. The applicant’s representative contributed to this argument by stating that the gaining a passport is not undertaken in any orderly manner in Sri Lanka where corruption operates at all levels.

34. According to DFAT’s 2018 country information report, the Sri Lanka government has a Central Registrar which issues identity documents, including to populations in the north and east during the conflict. Most official records in Sri Lanka are kept in a centralised location in hard-copy format: government departments lack computerised information databases. Genuine identity documents can be obtained with fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported. The same report also mentions that 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. This country information indicates that while fraudulent or illegal passports are generated with Sri Lanka, the applicant’s movement records are accessible by the TID should they urgently require to investigate his whereabouts. Furthermore, the country information indicates that as the applicant travelled on a passport with his own name that he was not subject to any ‘stop’ or ‘watch’ lists.

35. The applicant first claimed that he had a passport at least in 2009 as it was shown to the authorities as proof of the applicant’s identity in order to have him released from arbitrary detention and he claimed that he obtained it with the assistance of a community leader. That the passport had been fraudulently obtained has only been raised with the Tribunal in the February 2019 hearing. At no stage has the applicant claimed that it was not his own identity on the passport or that he was apprehended or interviewed when he departed, indicating he was not on any list of suspected or wanted persons. The earlier Tribunal member noted that the applicant has not provided any information as to the reasons his stepfather was required to make a statement at that time (such as whether it was as a witness to a particular incident or for some other reason), whether his stepfather attended at the time he was required and made a statement or any consequences of him either having or not having done so. The applicant told the Tribunal that he only learned of the more recent TID ‘message notes’ requesting statements after he requested a copy of the ICRC Detention Attestation letter (dated [January] 2019). The applicant explained that his family members did not provide the applicant these letters at an earlier date and that one of them was dated after the 8 January 2019 invitation to attend the scheduled hearing because they were afraid of being bugged on the phone and they did not want to further distress the applicant. The Tribunal finds this a weak and implausible explanation. Even if there is a widespread belief of being monitored by the authorities, the applicant’s family were sufficiently knowledgeable that the applicant was outside of the country due to fears of persecution and that such documents would be valuable. Noting that all ‘message forms’ from the police are handwritten, there would be little difficulty in fraudulently manufacturing them, which, as discussed in the hearing, was being considered by the Tribunal.

36. The Tribunal considers this late claim about the passport being fraudulently obtained not to have been convincing since there was no compelling need to obtain such a travel document fraudulently. Based on the applicant’s overall weak and implausible arguments, the Tribunal finds that the applicant obtained a valid Sri Lankan passport which was accepted as a valid travel document by the authorities when the applicant departed his country of origin; that the applicant’s passport was not illegally or fraudulently obtained; and that he was able to travel on his passport because he was not on any stop or watch lists for suspected terrorism or LTTE sympathies; and that the applicant had not breached the I&E Act as claimed. It further finds that the applicant’s lawful departure was recorded in a centralised manner and that the applicant’s movement records were accessible to the Terrorist Investigation Division, the specific arm of the authorities which the applicant claimed to be seeking him.

37. In making these adverse credibility findings, the Tribunal has been invited to consider that all three handwritten ‘message forms’ from the TID to the applicant and his family members to report to the authorities to provide statements had been fraudulently obtained to demonstrate to the Tribunal that the applicant was an ongoing person of any urgent or meaningful interest to any limb of Sri Lanka’s security apparatus, including its counter terrorism department, as a Tamil with suspected LTTE links.

1. (While the applicant has invited the Tribunal to make further adverse credibility findings about other specific claims, it finds that the applicant has otherwise provided reliable and credible evidence to the Tribunal.)

   Tamil ethnicity, LTTE political opinion, Hindu religion, failed asylum seeker

2. The Tribunal accepts that the applicant as a young Tamil from the Northern Province has been imputed with LTTE sympathies and support in the past, including being mistakenly identified as his deceased cousin who was an LTTE combatant. It accepts that he has been significantly physically ill-treated based on the combination of his ethnicity and his imputed LTTE political opinion in the immediate post-conflict period of time between 2009 and his departure in 2010. However, the applicant has never claimed to be a member of LTTE or any other political organisation or to have supported any Tamil separatist movements while in Australia. Nor has he claimed that any of his immediate family members have supported the LTTE.

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

4. In relation to Tamils, DFAT in its report, DFAT Country Information Report Sri Lanka, 23 May 2018,[2] discusses the situation in relation to Tamils. The Report refers to Tamils being the second largest ethnic group in Sri Lanka and that according to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. The Report notes that Tamils live throughout Sri Lanka concentrating in the Northern Province where they comprise 93% of the population and the Eastern Province where they comprise 39% of the population. Relevantly, the report indicates the following:

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

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

   3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.[3]

   [2] DFAT Country Information Report Sri Lanka, 23 May 2018.

   [3] Ibid, pp 13–14.

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

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

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

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

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

   3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[4]

   [4] Ibid, p 14.

6. DFAT has assessed in its Report[5] that the “LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list”.

   [5] Ibid, p 19.

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

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

   ·former LTTE combatants or ‘cadres’;

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

   ·former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   ·LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and

   ·persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.[6]

   [6] Ibid, p 20.

8. There have been reports of some Tamils with imputed LTTE links being monitored by the police and harassed in 2016.[7] The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.[8]

   [7] Ibid, p 20.

   [8] Ibid, p 20.

9. The applicant is not claiming that he or any member of his immediate family has been associated with the LTTE, or any other political organisation, the Tribunal finds that the applicant does not have a real chance of being seriously harmed or a real risk of being significantly harmed due to his being an actual or past member of the LTTE or any Tamil separatist movement or due to any sur place activities in favour of Tamil separatism in Australia, if he were to return to anywhere within Sri Lanka, including his home area of [District 1].

10. The applicant’s representative has specifically argued the applicant is a Tamil who has family links or who is dependent on or otherwise closely related to persons with LTTE profiles. The Tribunal is satisfied that on balance, credible independent country information indicates that Tamils from Northern Province who have perceived strong LTTE links/sympathies or who are imputed with having an LTTE political opinion do have a real chance and a real risk of being targeted by the authorities through ongoing monitoring and surveillance and by being requested to report to the authorities on a regular basis which, in turn, can lead to serious harm during interrogation or detention.

11. Should the applicant return to his home area of [District 1], he will return to a part of Sri Lanka where the conflict between the LTTE and the Sri Lankan authorities had culminated in 2009 and where the military maintains a strong presence. In this regard, the Tribunal does not discount the applicant having a chance of serious harm or risk of significant harm based on being a Tamil from the Northern Province, being associated with extended members of his family with associations with the LTTE, having been detained, interrogated and tortured in the past; being from the Northern Province; or having been a person of interest in the past.

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

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

    [9] DFAT Country Information Report Sri Lanka, 23 May 2018

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

    [10] DFAT Country Information Report Sri Lanka, 23 May 2018

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

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

    Discrimination towards Tamils and Tamil Hindus

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

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

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

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

    Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information.[11]

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

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

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

   Returnee or failed asylum seeker

3. As stated above and based on adverse credibility findings, the applicant departed Sri Lanka with a valid passport with his name and he had not breached the I&E Act due to the lawful manner of his departure. It is neither claimed nor accepted that the applicant had been prevented by having his name added to the movement alert list.

4. Nonetheless, the Tribunal accepts that as a Tamil suspected of LTTE sympathies and activities, the applicant had been detained and later released in the past and that the authorities will be aware the applicant had spent considerable time in a Western country. The Tribunal accepts that on arrival this history has a real chance of being discovered by the authorities when they investigate the applicant as a failed asylum seeker. The Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee or as a returning Tamil male from the Northern Province or someone who had been suspected of LTTE activities in the past has a real chance and risk of being subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. Once discovered, the Tribunal finds that the authorities will not assess the applicant to be a person of any further interest to them in the context of the considerable passage of time since his 2009 detention and trauma. However the Tribunal has also taken into consideration its findings that the applicant does not have a particular profile as he is someone who has no criminal record and claimed to have never been involved with the LTTE or assisted them in any way, and finds that the applicant would be released into the community without being subjected to any bail conditions as he was not an illegal departee in breach of Sri Lanka’s I&E Act. It is not accepted the applicant will be detained any longer than a short period before being released. Taking all these considerations into account, the Tribunal accordingly finds that the applicant would not face a real chance of persecution as a failed asylum seeker/Tamil failed asylum seeker/returnee/Tamil returnee or any combination of related claims, on arrival.

5. The applicant claimed that even if he were not detained after his foreseeable arrival, he feared being subjected to interrogation by the CID in his home area and that he will be subjected to the Prevention of Terrorism Act (PTA) which will lead to the applicant being disappeared and tortured. The applicant further argued that many failed asylum seekers who are Tamil continue to be arrested, maltreated and disappeared. The Tribunal explained to the applicant that it accepts that Tamils returning to the Northern Province are subjected to surveillance. This is based on the country information in the most recent DFAT report which further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.[12]

   [12] Ibid.

6. With regards to the authorities asking the applicant’s whereabouts, the Tribunal has made earlier adverse findings that the applicant has provided fraudulent documents to demonstrate that the applicant is a person of ongoing and urgent interest to the authorities. While the Tribunal does not accept these documents and accompanying claims as evidence that the local authorities are continuing to seek the applicant and that they are not aware the applicant lawfully departed Sri Lanka in September 2010, it remains the case that the applicant would expect the authorities to continue to monitor him as a returnee to his home area, along with the general Tamil population in the Northern Province. As outlined above, the Tribunal finds that the applicant will not face a real chance of harm for just being a Tamil, Tamil speaker or based on his imputed political opinion claims for a combination of these reasons. While the Tribunal accepts that the applicant holds a genuine personally held fear he will be harmed in the wider community as a failed asylum seeker of Tamil ethnicity and related reasons, based on the passage of time since the end of the war and the improving political environment between Tamil Sri Lankans under the Sirisena presidency, the Tribunal does not accept that the applicant will have a heightened profile among the authorities. This is even when taking into account his past detention and being in a Western country for a long period of time. It is not accepted that he has a real chance of being subjected to any arbitrary detention, including under the PTA or other counter terrorism laws. Accordingly the applicant will not face a real chance of serious harm as a failed asylum seeker from a Western country who is of Tamil ethnicity or had been suspected and detained for LTTE sympathies or activities in the past or any related Convention reasons; or face a real risk of significant harm based on the same accepted personal circumstances by way of arrest, detention or interrogation, if the applicant returns to [District 1] or anywhere else in Sri Lanka, now or in the reasonably foreseeable future.

   Sri Lanka’s 2018 constitutional crisis

7. The Tribunal acknowledges that the applicant’s representative has raised the chances of serious harm and the risks of significant harm to the applicant are also heightened due to Sri Lanka’s constitutional crisis that occurred in the second half of 2018. In particular, it has been argued that the constitutional crisis which led to the President sacking Prime Minister Wickremesinghe in favour of Mahinda Rajapaksa, the parliamentary leader of the Sri Lankan Freedom Party (and his Sri Lanka Podujana Peramuna (SLPP) faction), which is one of the parties making up the United People’s Freedom Alliance (UPFA).  Rajapaksa had been president of Sri Lanka that presided over the end of the civil war in 2009. It is argued that the likely elevation of Rajapaksa and the UPFA will lead to a deterioration of protections for Tamils, those with LTTE or Tamil separatist sympathies, imputed or otherwise, or for Hindu Tamils, in particular.

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

   [13] New Cabinet Ministers sworn-in before President, Official government website, 20 December 2019, <>

   At some point in the next months, Sri Lanka will undergo both a presidential and a parliamentary election. While the Tribunal is unable to make a firm prediction about the outcome of these elections, it accepts there is a real chance and a real risk of Mahinda Rajapaksa and the coalition of parties led by the Freedom Party achieving control of parliament.

9. When considering the available country information, the Tribunal does not accept there will be a real chance or a real risk of any serious political deterioration between the Sinhala and Tamil Sri Lankans including a re-ignition of the civil war and renewed security crackdown on Tamils throughout Sri Lanka, including the Northern Province. According to the situational update prepared by the Department of Home Affairs about Sri Lanka’s political crisis (CR239EC81237), while analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three-decade long civil war, there is only limited evidence to date to support this. Similarly, there are few reports at present of political violence stemming from the political crisis, or of related violence towards minorities, with the possible exception of Sri Lankan Muslims facing some reprisals for their perceived association with Islam. The report further states that there have been few reports to date of threats or political violence stemming from Sri Lanka’s political crisis, or of related violence towards minorities. On 19 November 2018 – in the midst of this political and constitutional crisis – police used tear gas and water cannons on monks from the Sinhalese nationalist Bodu Bala Sena (BBS) organisation protesting in front of the Presidential Secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently serving a six-year prison sentence for contempt of court. President Sirisena expressed his regret over the incident.[14] At the time of issuing this decision, no general election has been called and the President, who supported Rajapaksa as Prime Minister, has been careful to continue post-conflict reconciliations, albeit at a pace considered too slow for some international observers. The President has notably resisted providing support for Sinhalese and/or Buddhist extremists. In the context of the civil war ending now more than 10 years ago and based on this country information, there appears to be insufficient and highly speculative country information for the Tribunal to accept that the political situation will significantly deteriorate due to a change in government in favour of Mahinda Rajapaksa and the coalition he leads. Based on this assessment, the Tribunal does not accept there is a real chance of serious harm for any Convention reason relating to the applicant’s ethnicity or imputed political opinion or as a failed asylum seeker arising from the foreseeable change of government whereby there will be a sudden deterioration towards widespread political, religious and ethnic violence.

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

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

    Levels of security/insecurity in Sri Lanka

11. Although it has not been raised by the applicant or his representative due to its relatively recent nature, for completeness, the Tribunal has also considered the chances of serious harm and risks of significant harm to the applicant in the wake of the Easter 2019 terror outrages targeting Catholic worshippers and hotel clientele which have created a level of fear from further terrorist attacks and triggered a higher degree of internal security in Sri Lanka by the authorities.

12. The recent level of heightened security in Sri Lanka needs to be considered in the context of substantial and significant advancements over the last 10 years, since the end of the war. As noted by DFAT, the security situation in Sri Lanka, particularly in the north and east, has ‘significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country’.[15]

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

13. It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[16] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[17] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[18]

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

    [17] (2004) 222 CLR 1 at [26].

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

14. What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens.[19] The appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[20] The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[21] The obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.[22]

    [19] Ibid, at [26].

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

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

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

15. It may be noted that, regardless of the content of the relevant ‘international standards’, where the issue of state protection is considered in relation to whether a fear of persecution is well-founded, what is relevant is whether the protection that is available is sufficient to remove a real chance of persecution. However, on the majority view in S152/2003, even where state protection is not sufficient to remove a real chance of serious harm from non-state actors, Convention protection might not be engaged if the level of protection provided meets international standards.[23]

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

16. Authorities in Sri Lanka have stated that the attacks were carried out by two little-known Muslim organisations, the National Thowheeth Jama’ath (NTJ) and Jammiyathul Millathu Ibrahim, with help from international militants.[24] Sri Lankan security forces have killed or arrested most of those linked to the Easter suicide bombings,[25] including 15 suspects in a shoot-out on the following Friday.[26] More than 10,000 troops have been deployed across the island in an effort to uproot NTJ’s countrywide network, with Islamic religious groups reported to be lending their support to authorities.[27] While NTJ’s leader has been killed, and scores of further arrests have weakened the group,[28] US officials have warned that the terrorist threat is ongoing, with members of NTJ still active.[29]

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

    [25] ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357.

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

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

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

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

17. Although Sri Lankan government officials have acknowledged that foreign intelligence agencies provided domestic security officials with a detailed warning of possible threats to churches by the NTJ at least 10 days prior to the attacks,[30] President Sirisena and Prime Minister Wickremesinghe claim not to have been informed of the warnings prior to the attacks.[31]

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

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

1. The fallout from the attacks may also have further political and legal ramifications. Prime Minister Wickremesinghe has pledged to enact new counter terrorism laws, calling for the speedy presentation of the proposed Counter-Terrorism Act (CTA) to Parliament, itself designed to replace the Prevention of Terrorism Act (PTA).[32]

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

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

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

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

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

   Mental health considerations

6. This decision has been additionally difficult in assessing the real chance of serious harm and the real risk of significant harm arising from the applicant’s past trauma as a victim and survivor of torture. In this regard, the Tribunal accepts the applicant experienced significant physical ill-treatment, torture and extreme humiliation on two occasions. It is accepted that the applicant suffers from ongoing depression, loss of sleep and difficulties with memory. It is further accepted that the applicant has been diagnosed with post-traumatic stress disorder by a medical professional related to these past incidents and that being away from his family and having many years of uncertainty surrounding his migration status has exacerbated these injuries. It is further accepted that he has been treated for these psychological injuries. Although he had the opportunity to provide them to the Tribunal, there is no evidence before the Tribunal that the applicant experiences severe or debilitating psychological symptoms requiring intensive treatment as the applicant was otherwise highly functional as he has maintained employment.

7. The Tribunal notes the applicant was able to participate and respond to questioning throughout a lengthy hearing and it is accepted that he forgot some aspects of his otherwise consistent testimony, in particular, specific dates and years. The Tribunal accepts that the applicant’s difficulties in recalling some details was due to appearing before the Tribunal which can be distressing in the context of the applicant’s accepted past trauma. Nevertheless the Tribunal is satisfied that the applicant was able to meaningfully and expressively participate in the hearing consistent with s.425 of the Act.

8. With these accepted circumstances about the applicant’s psychological injuries in mind, this has made this decision particularly difficult in assessing whether he is owed Australia’s protection obligations.

9. The Tribunal accepts that the applicant holds a genuinely personally held or subjective fear of serious harm for a Convention reason as a torture and trauma victim and survivor in the context of his past experiences at the hand of the authorities arising from his ethnicity and imputed political opinion and other related Convention reasons.

10. In Sri Lanka, mental health services are scarce and institutional capacity to respond to mental health needs is weak. Mental illness is not widely discussed in Sri Lankan society and the stigma attached to those who seek treatment discourages others from doing so. Anecdotal evidence suggests a high incidence of trauma-related illnesses following the conflict, especially in the Northern and Eastern provinces. Collective trauma, a lack of mental health support and high unemployment, especially among the young, have contributed to an increase in alcohol and drug abuse, suicide, and domestic and societal violence in recent years. The Tribunal accepts the applicant has a real chance and a real risk as a victim and a survivor of torture and trauma, of suffering some psychological challenges and harm if he returns to his home area of [District 1] in the Northern Province.

11. However, based on the applicant’s circumstances as a whole, in which he is aware of the importance of treatment of mental health problems, it is the Tribunal’s assessment that the applicant is highly functional and that he does not have debilitating or severe psychological symptoms. It is noted that the applicant’s representative provided some research that there are many gaps in mental health services in Sri Lanka. Mental health services and associated medication are available in Sri Lanka, although the availability and accessibility is are not to the same standard as in Australia. It also notes that the same information indicates that the country’s health system has made improvements with the provision of outpatient care, community psychiatric nurses and raising mental health literacy. However the applicant will also be returning to the emotional support of his family from whom he has been separated for some time, if he were to return to Sri Lanka. Finally, the Tribunal finds as the psychological injuries are treatable and that Sri Lanka’s mental health care is adequate, the harm faced by the applicant is not serious or significant as to amount to severe mental torment or other serious harm non-exhaustively listed in s.91R(2) or that satisfies s.91R(1)(b) more generally. For the same reasons, the Tribunal does not accept the harm arising from the applicant’s psychological injuries is so significant as to amount to significant harm, including being subjected to degrading treatment or punishment. These findings include any anticipated interaction the applicant will encounter as a failed asylum seeker of Tamil ethnicity on his return and his subsequent release into the community with reporting requirements with Sri Lankan authorities, as outlined above.

    Cumulative findings

12. There are no more residual reasons to consider in this review application.

13. Based on all the accepted personal circumstances, the applicant’s claims and country information outlined above, both individually and cumulatively, the Tribunal assesses that the applicant will be able to return to his home area and province without facing a real chance of serious harm that would satisfy s.91R(1)(b) based on his race, religion, political opinion, imputed or otherwise, any memberships of particular social groups discussed above, including as a failed asylum seeker or any other related Convention or non-Convention reasons discussed above or a combination of them, now or in the foreseeable future.

14. The Tribunal finds that the applicant does not have a real chance of serious harm for any Convention or non-Convention reasons. Accordingly, the applicant does not have a well-founded fear of persecution that satisfies s.36(2)(a).

15. Based on the same considerations, both individually and cumulatively, and its above findings pertaining to s.36(2)(aa), the Tribunal does not accept that the applicant will face a real risk of significant harm amounting to torture, arbitrary deprivation of life, being subjected to cruel or inhuman or degrading treatment or punishment, arising from the applicant’s ethnicity, religion, marital status, relative youth, political opinion, accepted psychological injuries, as a failed asylum seeker, either on return or in the community, for any of the reasons or any combination of those reasons as discussed above, as a necessary and foreseeable consequence of being removed from Australia to his country of reference.

16. The Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    Conclusion

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

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

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

    DECISION

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

    Brendan Darcy
    Member