1718155 (Refugee)

[2019] AATA 6880

1718155 (Refugee) [2019] AATA 6880 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718155

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Alison Murphy

DATE:9 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2019 at 10:47am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – race – Tamil – harassed for money while working – actual or imputed political opinion – protest activity – credibility concerns – late claims not raised earlier – attack by grease man – illegal departure from Sri Lanka – sought asylum in Australia – religion – Hindu – Tamil Christian friends – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 is a [age] year old male from [Town 1], Batticaloa District in Sri Lanka’s Eastern Province. He seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis of his Tamil ethnicity, his actual or imputed political opinion and his membership of the particular social groups ‘failed asylum seeker/ returnee from the West’ and ‘young Tamil male from the North West of Sri Lanka’.

3. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Sri Lanka, there is a real risk that he will suffer significant harm.  A summary of the relevant law is contained in Attachment A. 

4. In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (Refugee and humanitarian - Complementary Protection Guidelines and Refugee Law Guidelines) and the two country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration (DFAT’s Country Information Report for Sri Lanka dated 23 May 2018 and DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014).

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

   History of proceedings 

6. The applicant arrived in Australia by boat [in] July 2012 and applied for the visa on 29 November 2012. The delegate refused to grant the visa on 26 September 2013, not being satisfied that the applicant is a person to whom Australia owes protection. The applicant sought review of the delegate’s decision from the former Refugee Review Tribunal, which affirmed the delegate’s decision on 4 May 2015.  That decision was quashed by judgment of the Federal Circuit Court [in] October 2016, which ordered this Tribunal to reconsider and determine the matter according to law.

7. The applicant appeared before the Tribunal on 23 May 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.

8. The applicant was not represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

9. It is not in dispute that the applicant is Sri Lankan national and the delegate’s decision records that he has produced to the department copies of his Sri Lankan passport, national identity card, birth certificate, marriage certificate and driver’s licence.  The Tribunal finds that the applicant is a citizen of Sri Lanka has assessed his claims against that country.

   The applicant’s personal background

10. The applicant was born in Colombo, although his family originates from [Town 1], near Batticoloa in Sri Lanka’s Eastern Province.  He is one of [number] brothers and has a number of half siblings from his father’s first marriage with whom he has no contact.  His parents moved between [Town 1] and [Town 2] in Puttalam District in North Western Province during the conflict and the applicant attended school in [Town 2], living initially with an uncle and later with his parents.

11. The applicant undertook [number] years schooling in [Town 2], finishing in 2007. While in [Town 2] the applicant worked in [a business] as a [Occupation 1]. He married his wife in [Town 2] in 2009, returning to [Town 1] with his wife, his parents and his brothers in late 2009 or early 2010 after the end of civil war. After returning to [Town 1] in late 2009/ early 2010, the applicant worked in another [business].

12. The applicant arrived in Australia by boat [in] July 2012, travelling with his brother [Mr A]. His wife and child travelled to Australia by boat in May 2013 and applied for protection visas which have not yet been processed. Since the arrival of the applicant’s wife in Australia, the couple have had another child.

13. At the time of the first Tribunal hearing on 21 April 2015, the applicant’s brothers [Mr B] and [Mr A] were in Australia awaiting the outcome of their protection visa applications. At the time of the second Tribunal hearing, [Mr A]’s application had been refused and he had been returned to Sri Lanka where he lives with the applicant’s parents in Negombo. The applicant believes [Mr B] remains in Australia although they are not in touch and he is not aware of [Mr B]’s visa status.

14. The applicant’s parents currently move between Negombo and [Town 1], staying several months in each place. When in [Town 1] they look after his brother [Mr B]’s house.

15. I accept the applicant’s account of his personal and family background.

    The applicant’s ethnicity and place of origin

16. I accept that the applicant is of Tamil race and that he originates from the village of [Town 1], near Batticoloa in Sri Lanka’s Eastern Province.  In making this assessment I note that the applicant speaks Tamil and independent sources indicate that Tamils make up 39% of the population in Eastern Province[1].  I note he has at all times participated in departmental and tribunal processes with the assistance of a Tamil interpreter.

    The applicant’s claims for protection

    [1] Department of Foreign Affairs and Trade 2018 DFAT Country Information Report Sri Lanka 23 May

17. The applicant claims to fear harm if returned to Sri Lanka on the basis of his Tamil race, his actual and imputed political opinion and his membership of the particular social groups ‘failed asylum seeker/ returnee from the West’ and ‘young Tamil male from the North West of Sri Lanka’.

18. At the first Tribunal hearing in April 2015 the applicant gave evidence he didn’t intend to return to [Town 2] but would return to [Town 1]. At the second Tribunal hearing the applicant gave evidence that he didn’t know whereabouts in Sri Lanka he would return to and that it would depend on the situation at the time.

19. The applicant originates from [Town 1] and he lived there for two years before travelling to Australia. His parents currently move between Negombo and [Town 1] where his brother still has a house. In view of this, I find the applicant would return to [Town 1] if he returns to Sri Lanka and I have assessed the applicant’s claims against [Town 1] in the Batticaloa district of Eastern Province.

    Events at [business] in [Town 2]

20. The applicant claims that while he was working at [the business] in [Town 2] in 2008, Sinhalese people used to come into the shop on weekends and ask him for sums of money, usually 50 or 100 rupees. He told them that the shop didn’t belong to him and he could not give money out with the owner’s permission, with the result that they became abusive and threatening. On one occasion they called him outside and assaulted him, telling him he was a Tamil dog. When he ran away one person threw a knife at him which hit his leg and cut it. He was hospitalised for 9-10 days. His mother told him that [Town 2] was not their country so he had to bear with it and not get angry.  He returned to work after about a month and continued to work at the [business] for about a year or a year and a half before moving to [Town 1]. After that incident, when people asked him for money he gave it to them from his own money.

21. At hearing I asked the applicant whether that incident had anything to do why he moved back to [Town 1]. He said he didn’t move because of that incident, but because the freedoms that Tamils have in their own place were better than in [Town 2]. When asked if he continued to have concerns because of this incident, he stated he didn’t know the current situation in Sri Lanka so he couldn’t think about that. When I put to him that it seemed unlikely that the people who hurt him in [Town 2] in 2008 would try and hurt him again if he returned to Sri Lanka now, the applicant agreed.

22. I note that there have been some inconsistencies in the applicant’s evidence about the attack on him in 2008. For example the delegate’s decision (a copy of which was provided to the Tribunal by the applicant) sets out that the applicant stated at interview that he returned to work at the [business] for about 3.5 months after the stabbing, while at hearing before me he stated he worked there for a year to a year and a half. The delegate’s decision also records that he stated at interview that the police didn’t take any action against his attackers, while he told the first Tribunal in April 2015 that his attackers were arrested and held on remand for two weeks. At the first Tribunal hearing he stated that he stayed home to recover from his injuries for three months, while at hearing before me he stated he returned to work after a month.  These inconsistencies cause me to consider the applicant has exaggerated his claims.

23. However I accept he has been broadly consistent in his evidence about being harassed for money while working at an [business] in [Town 2] in 2008 and assaulted on one occasion when he did not give money as demanded. I accept those things to be true, although I do not accept he was seriously injured or required three months to recover from his injuries. Nor do I accept that he made a complaint to the police and that the police refused to act on that complaint.

24. Rather I find the applicant returned to work within a month of the assault and continued to work at the [business] for a year or 18 months before returning with his family to live in [Town 1]. At hearing before me he stated that this incident was not the reason he left [Town 2] and returned to live in [Town 1] and he agreed it was unlikely that the people who had harmed him in 2008 would pose any further threat to him. On the evidence before me I do not accept there to be a real chance that the applicant would face harm from the persons who attacked him in [Town 2] in 2008 if he returns to [Town 2] now or in the foreseeable future, rather I consider that prospect to be remote. Nor do I accept there to be a real chance those people would seek to harm the applicant if he returns to any other part of Sri Lanka including [Town 1] now or in the foreseeable future.

    Protest activity in [Town 1] in April 2010

25. The applicant claims to have participated in a protest against the Sri Lankan authorities [in] April 2010. In his visa application he stated that after the protest the Sri Lankan army came to his family’s home to investigate whether they were involved in the LTTE. He stated that he managed to escape but the SLA took his brother, who returned a few weeks later with torture marks all over his body.

26. At hearing I asked the applicant if he had any problems in [Town 1] after returning there to live at the end of 2009/ early 2010.  He stated that initially he had no problems, but after participating in a protest he had a small problem. The protest took place [in] April 2010 and it was a protest against the Sri Lankan authorities’ treatment of Tamils during the war.

27. The applicant gave evidence that he initially was just standing and watching the protest and he didn’t have a clue what it was about. He stated that someone came and invited him to join them, explaining that the protest was about the Tamil people who were killed in the war and telling him that no problems would come to him as a result. He was given a banner saying something like ‘we oppose the violence perpetuated against the Tamil people’ and he held the banner and joined the procession. The procession was about 1km long and some people recorded it with video cameras. Other people attacked the protesters who scattered and the applicant was hit in the leg. He went to [Town 3] Hospital where he stayed for a week or so.

28. The applicant claims that when he returned home from the hospital there were no problems until his mother told him that 4-5 people had come looking for him one day while he was in town. He made enquiries of a friend who said those people were looking for him as well because of his participation in the protest. The people returned to the house looking for him a week later and when they entered the house he went out the back and ran away.

29. He told me he thought there would be continuing problems and so he decided to go to [Town 2] to stay with his uncle. He stayed 2-3 months in [Town 2] where he didn’t venture out of the house and then his mother phoned him and said his friend had gone missing. The applicant felt bad and left [Town 2] for Colombo where he stayed at his aunt’s house for some days. Then he went to Vavuniya where he stayed at his grandmother’s house for a few months. He obtained a visa to go to India and thought about doing that, but his wife and mother advised him against it. He alternated between [Town 2], Colombo and Vavuniya until he left Sri Lanka for Australia in mid-2012. His parents told him that the Sri Lankan authorities came looking for him on 2-3 occasions during that period and one officer misbehaved with his wife.

30. At hearing I discussed with the applicant that he had stated in his visa application that his brother was taken from the family home when the Sri Lankan army came looking for the applicant in 2010, but his brother had stated in his own protection visa application that he was detained in 2011 when he was taken along with three other Tamil men while they were on their way to work. The applicant stated that he did not know why [Mr A] had said that, because he saw [Mr A] being taken from the house as the applicant was running away out the back. He stated that in those days the army frequently came and checked on Tamils and on one of those occasions his brother [Mr A] was taken.

31. At hearing I discussed with the applicant that I may not accept his account of those events, noting that he did not suggest in his written claims that he was beaten at this protest and hospitalised, even though that appeared to be the most serious part of his claims. I also noted that at his entry interview he didn’t mention either attending the protest or being beaten and hospitalised, rather when asked if anything happened to him in Batticaloa he said that nothing had happened to him but things happened to his brother. The applicant stated he was only given a little time in his entry interview and they were insisting he answered the questions in a very short way and did not give him an opportunity to explain them in detail. He said he didn’t mention the beating he received at the protest in his written claims because he didn’t have any medical evidence and thought he would not be believed. His mother later got a hospital report so he thought he would mention it. After the hearing I wrote to the applicant about these matters in the terms set out in s.424A of the Act, however the applicant did not respond to that letter.

32. I discussed with the applicant the first Tribunal’s finding that the medical report and letter from his father about this incident had been fabricated to bolster his claims. I noted  that he had been inconsistent in his evidence about being beaten at the protest, telling the delegate he had spent six days in hospital (and producing a medical certificate stating he had been treated [during] April 2010), but telling the first Tribunal that he was treated overnight and then released the next day. The applicant said he couldn’t remember I these things, but maybe the wrong information had been put on the medical report. I noted the medical report suggested he had been hospitalised for six days, but he had told the first Tribunal that he was kept in only overnight. The applicant stated there was no chance of that because a hospital in Sri Lanka would never discharge the next day but kept all their patients in for at least 2-3 days.

33. I discussed with the applicant that his evidence was also inconsistent with the letter he had produced from his father, which stated the protest took place in [Town 3] [in] April 2010 and was against Muslims, who then attacked the applicant. His father’s letter suggested he was attacked by a mob of Muslims in [Town 3], which appeared to be completely different from his evidence that the protest took place in [Town 1] and was against the Sri Lankan government for their treatment of Tamils during the war.

34. The applicant stated his father’s letter was describing a completely different incident in which there was a squabble between the applicant and some Muslim people during which he got hit and then returned home. I put to him that I was having difficulty accepting that, given that his father’s letter stated he was involved in a protest in [Town 3] against Muslims on [in] 2010 and was treated for a few days in [Town 1] hospital for his injuries, which was the same date the applicant claimed to have been involved in a protest in [Town 1] against the Sri Lankan authorities after which he was hospitalised for 6 days. The applicant stated his father had made a mistake about the date.

35. After the hearing I wrote to the applicant about the above matters in the terms set out in s.424A of the Act, however the applicant did not respond to that letter.

36. I accept the applicant carried a banner or placard in a protest against the Sri Lankan authorities’ treatment of Tamils during the conflict in [Town 1] [in] April 2010. However I do not accept the applicant’s evidence that he was beaten or harmed or otherwise targeted for mistreatment either during or after the protest in [Town 1] [in] April 2010. In making this assessment I note the following:

    ·The applicant stated at his entry interview that he did not experience any difficulties while living in [Town 1] from 2010 to 2012;

    ·The applicant did not suggest in his written claims that he was beaten or otherwise harmed at the protest in April 2010;

    ·The applicant has given inconsistent evidence about the medical treatment required after the protest, telling the delegate that he was hospitalised for six days (and producing a medical certificate indicating the same) while telling the first Tribunal that he was kept in hospital overnight and returned home the next day;

    • The applicant has submitted a letter from the applicant’s father’s to the Grama Sevaka (village headman) about the applicant’s involvement in the protest [in] April 2010. However the contents of this letter contradict the evidence of the applicant about the location of the protest, the reasons for the protest and the identity and motivation of the persons who harmed the applicant. I do not accept the applicant’s evidence that his father was referring to an unrelated incident in which the applicant was attacked by Muslims after participating in a protest against Muslims, given his father’s letter states that incident took place on the same date and also resulted in the applicant’s hospitalisation. Rather I consider the contents of the applicant’s father’s letter to the Grama Sevaka to be false. While I accept the applicant may have received medical treatment for traumatic myalgia from [Town 3] Hospital [during] April 2010, I do not accept that medical treatment was for injuries suffered by the applicant at the protest. 
    • Nor do I accept the applicant was otherwise involved in fights between Tamils and Muslims in [Town 3] [in] April 2010 or any other date, given the applicant did not make such a claim until the inconsistencies between his own evidence and the statements in his father’s letter were pointed out to him.

1. I do not accept that the Sri Lankan authorities or any other person went looking for the applicant at his home in 2010 at any other time as a result of his participation in the protest in [Town 1], nor that the applicant went into hiding at his uncle’s house in [Town 2], his aunt’s house in Colombo or his grandmother’s house in Vavuniya. In making that assessment I note the applicant did not make such a claim in his entry interview or his protection visa application.  Rather in both his entry interview and in his protection visa application he stated he lived at [Town 1] between 2009/2010 and his departure from Sri Lanka in about July 2012. In his protection visa application he stated he worked at [a named business] in [Town 1] between 2010 and 2012.

2. As I have not accepted the Sri Lankan authorities went looking for the applicant at any time during the period between the applicant’s involvement in the protest in April 2010 and his departure from Sri Lanka in July 2012, I do not accept that his brother was taken from the family home and tortured when the Sri Lankan army came looking for the applicant in 2010, nor that the authorities visited the applicant’s wife and mistreated her while making enquiries about his whereabouts. Nor do I accept the applicant’s claim that a white van came looking for him on several occasions at his family home in [Town 1] between 2010 and his departure in 2012.

3. For all of the above reasons, while I accept the applicant participated in a protest in [Town 1] against the Sri Lankan authorities’ treatment of Tamils during the conflict [in] April 2010, I do not accept he has at any time been targeted for harm or adverse attention by the Sri Lankan authorities for reasons of his involvement in that protest. It follows that I do not accept his claims to the first Tribunal that the CID visited his home on 4 occasions after he departed in Sri Lanka in 2012 for any reason relating to his involvement in that protest.

4. The applicant claims that his father was taken away by the army ‘on suspicion’. In the written statement accompanying his protection visa application dated 16 November 2012, he states that after his arrival in Australia his mother told him that his father was taken by the Sri Lankan authorities and beaten up, before being released after three weeks. At the first Tribunal hearing, the applicant stated his father was detained by the army because of the applicant’s participation in the protest and was released after one week. At the second Tribunal hearing, the applicant stated that the army took his father for the usual security reasons and he thought that after checking everything, the Sri Lankan authorities released his father. He said that these kinds of problems are the normal problems that Tamils experience and there was no particular reason why the Sri Lankan authorities would be interested in his father. When asked if he believed this had anything to do with the applicant’s involvement in the protest in April 2010, the applicant stated he was unable to say, but he didn’t think so because if that were the case his father would not have been released until the applicant presented himself to the Sri Lankan authorities. When asked if his father was detained or just questioned and released, the applicant stated he couldn’t remember but his father might have been detained for one or two weeks.

5. I accept the applicant’s father may have been questioned and identity checked by the Sri Lankan authorities in between the applicant’s arrival in Australia in July 2012 and the date of his statement in November 2012. In making that assessment I note country information indicating that Tamils were regularly subjected to round ups and identity checks during the conflict and its immediate aftermath. I also note country information cited in the delegate’s decision indicates that at that time the Sri Lankan authorities increased their efforts to combat people smuggling and the delegate considered it plausible that the authorities may have questioned the applicant’s father about his son’s departure[2]. I do not accept that any such questioning had anything to do with the applicant’s participation in the protest in April 2010, given that participation occurred more than 2 years earlier and the applicant gave evidence at the second hearing that he did not think his father’s questioning in 2012 was related to his participation in the protests in 2010. Given the inconsistencies in the applicant’s evidence, I do not accept his father was detained for any prolonged period or otherwise harmed by the Sri Lankan authorities, rather I find he was identity checked, questioned and then released.

   Attack by grease man in 2011

   [2] 'People smuggling a serious issue', Colombo Gazette, 03 June 2013, CX312428

6. The applicant claims his mother was attacked by a grease man in July 2011. Country information suggests that grease men or grease devils form part of traditional Sri Lankan beliefs about spirits and devils:

   [T]raditionally a grease devil was a thief who wore only underwear and covered his body in grease to make himself hard to grab…the modern iteration has a far more sinister reputation as [a] prowling attacker of women. 

7. Reports indicate at least 30 incidents involving grease men or grease devils were reported during a wave of attacks on women left vulnerable by the long running conflict along Sri Lanka’s east coast in July and August 2011, resulting in at least 47 arrests. The police stated the grease men were merely criminals taking advantage of traditional beliefs in spirits and devils in Sri Lanka’s rural areas, and vowed to punish those responsible for spreading panic[3].  In the light of this information, I accept the applicant’s mother was attacked by a grease man in July 2011 as claimed. The applicant’s evidence is that she was on her way to the bathroom when she was attacked and her screaming caused the applicant and his father to come out, at which point the attacker ran away. I accept the applicant’s account of that incident.

   [3] Aneez, S & Sirilal, R 2011, ‘“Grease Devil” panic grips rural Sri Lanka’, Reuters, 12 August < ; Women’s Action Network n.d., ‘Statement by women on the recent attacks on women, impunity and the lack of the rule of law’, MinorityVoices.org website < of Refugee Convention claims

8. The applicant claims that to have a well-founded fear of persecution for the Convention reasons of race, religion, political opinion and his membership of the particular social group of failed asylum seekers returning from a western country who illegally departed Sri Lanka.

9. In assessing these claims I have given careful consideration to the independent sources cited in the submissions of the applicant’s former representative to the first Tribunal about the situation for Tamils in Sri Lanka.  I have considered as well other independent sources before the Tribunal discussed with the applicant at hearing and those cited in the delegate’s decision. 

10. In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider whether there is a real chance the applicant will face serious harm if returned to Sri Lanka now or in the foreseeable future and this assessment is a forward looking test.

    Assessment of harm on the Convention ground of race

11. The applicant fears harm in Sri Lanka because of his Tamil ethnicity and as a Tamil man who originates from Batticaloa in Eastern Province.  For the reasons set out above, I have accepted that the applicant is of Tamil ethnicity and that he is from the Tamil majority area of Batticaloa in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE.

12. Independent sources confirm that between 1983 and May 2009, the Liberation Tigers of Tamil Eelam (LTTE) waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state in the north and east, leading to a serious civil conflict which lasted until May 2009 when the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka. DFAT reports that at its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants[4].  DFAT reports that over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed[5]. The UN found credible allegations that both sides committed crimes against civilians[6].  

    [4] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2015 DFAT Country Report 18 December

    [5] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2014 DFAT Country Report 3 October

    [6] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2.1

13. In assessing the risk of harm to the applicant as a Tamil male from Batticaloa, I give weight to the UNHCR’s most recent assessment in its 2012 Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka (the Eligibility Guidelines), which assesses that being of Tamil ethnicity and originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection.[7] In July 2017, the UK Home Office stated that a person being of Tamil ethnicity would not in itself warrant international protection.[8]  DFAT reports that since the end of Sri Lanka’s civil conflict in 2009, the security situation has significantly improved in the north and east of the country and that Tamils have a substantial level of political influence and are represented by numerous Tamil political parties.[9] Each of those sources was discussed with the applicant at hearing.

    [7] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012

    [8] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, 2017 at 3.1.2

    [9] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 3.4-3.7

14. In light of the above information I find that Tamils, including male Tamils living in or originating from Batticaloa or Eastern Province Sri Lanka, do not face a real chance of serious harm solely on account of their Tamil ethnicity or their profile as Tamil males. It follows that I do not accept there to be a real chance the applicant will suffer serious harm if returned to Sri Lanka solely on the basis of his Tamil race or the fact he is young Tamil male from Batticaloa in Eastern Province.

    Assessment of harm on the Convention ground of political opinion

15. The applicant claims he will face persecution in Sri Lanka on the basis of his actual and imputed political opinion. He claims this perception will arise as a result of a combination of factors including his Tamil race, his attendance at a protest against the Sri Lankan authorities in April 2011 and because he departed Sri Lanka illegally by boat and has sought asylum in Australia.

    Actual and imputed political opinion as a Tamil

16. For the reasons set out above, I have accepted the applicant is of Tamil ethnicity and that he originates from Batticaloa in Sri Lanka’s Eastern Province which was formerly under the control of the LTTE, although the applicant resided in [Town 2] in Sri Lanka’s North Western Province during the conflict and undertook his education there. 

17. I accept that Tamils in Sri Lanka faced harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and its immediate aftermath and that some Tamils and non-Tamils face a continuing risk of persecution by the Sri Lankan authorities in the post-conflict phase. The UNHCR Eligibility Guidelines identify a number of profiles requiring particular careful examination, including persons suspected of certain links with the LTTE.[10] 

    [10] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, UNHCR, 21 December 2012 at p. 5

18. As discussed with the applicant at hearing, those Eligibility Guidelines state that the links to the LTTE that may continue to expose individuals to treatment which may give rise to a need for international protection go beyond prior residency within an area controlled by the LTTE.  Rather the Eligibility Guidelines suggest that such links may include persons who held senior positions with considerable authority in the LTTE civilian administration, former combatants or cadres, former LTTE supporters who were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists, and family members who are dependent on or closely related to persons with such profiles.[11]  It is not suggested that the applicant held such a position with the LTTE or otherwise had any involvement with that organisation and I find he did not. 

    [11] UNHCR, ‘UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka’, 21 December 2012 at p. 27

19. As discussed with the applicant at hearing, the UK Home Office reports that the LTTE has not held any military power or political authority since the end of the civil war in 2009 and assesses that being of Tamil ethnicity does not in itself warrant international protection.  It assesses that persons who have (or are perceived to have) a significant role or are otherwise active in post-conflict separatism may be considered a threat to Sri Lanka as a single state and may, depending on the circumstances, require international protection.[12]

    [12] UK Home Office Operation, Country Information and Guidance about Tamil Separatism in Sri Lanka, 28 June 2017 at 3.1.1–3.1.11

20. The applicant stated that the Sri Lankan army continued to have hold onto land and property of Tamils in north and eastern Sri Lanka and their livelihood was at stake. When asked if that applied to land owned by he or his family, he confirmed it did not.

21. I note the applicant spent most of his childhood living outside of Eastern Province, returning only after the civil war ended in 2009. I consider that any contact the applicant or his family may have had with the LTTE in [Town 1] or Batticaloa to be consistent with the contact and involvement of Tamil residents of formerly controlled LTTE areas. It is not suggested that he or his family members have been involved in any post-conflict separatist activities in Sri Lanka or Australia.

22. I do not accept that the family’s residence in [Town 1] or Batticaloa will cause the authorities to take an adverse interest in the applicant ten years after the end of the conflict. Nor do I accept that the applicant’s Tamil race or ethnicity or the fact he originates from an area formerly controlled by the LTTE means that there is a real chance that he will be imputed to be a sympathiser or supporter of the LTTE or opponent of the Sri Lankan government and targeted for harm if he returns to Sri Lanka. For these reasons I find that there is no real chance he will be targeted for harm because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity or the fact he originates from an area formerly controlled by the LTTE. 

    Actual and imputed political opinion on the basis of involvement with grease men

23. I have accepted the applicant’s mother may have been attacked by a grease man in July 2011. As discussed with the applicant at hearing, country information indicates that no attacks have been reported since September 2011 and it was women who were the targets of those attacks. The applicant stated it was not a big issue for him as it was a common problem. He stated that grease men don’t attack any particular person, it might be him today and someone else tomorrow. He agreed that the reports suggested that grease men targeted women.

24. On the information before me, I do not accept there to be a real chance the applicant will face harm from grease men if returned to Sri Lanka, now or in the reasonably foreseeable future.

    Actual and imputed political opinion as a Tamil who departed Sri Lanka illegally by boat and sought asylum in Australia

25. I accept the applicant departed Sri Lanka for Australia in about July 2012 and he has sought asylum in Australia.  He has provided to the Department a copy of the front pages of his Sri Lankan passport which expired on 2 July 2018. As he does not hold a valid passport, I accept that if he is returned to Sri Lanka he will need a temporary travel document. I accept the circumstances of his return may cause the Sri Lankan authorities to become aware of or infer that he departed Sri Lanka illegally and has sought asylum in Australia. I accept the circumstances of his departure will likely be viewed as a breach of Sri Lanka’s Immigrants and Emigrants Act 1948 (the I & E Act).

26. As discussed with the applicant at hearing, DFAT reports that between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka and many others have been returned from the US, Canada, the UK and other European countries, most of whom are Tamil. The Sri Lankan government has consistently stated that refugees are welcome to return to Sri Lanka[13]. At hearing the applicant stated that he had no comment to make about this information.

    [13] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.37 - 5.42

27. As discussed with the applicant at hearing, DFAT reports that most Sri Lankan returnees from Australia are questioned by police on return to Colombo international airport.. During the processing of returnees, the Sri Lankan authorities take photographs, fingerprints and statements from returnees and run checks against the immigration, intelligence and criminal databases. For returnees travelling on temporary travel documents, police will seek to confirm a person’s identity by interviewing the returnee and conducting checks in a person’s home location[14].

    [14] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018 at 5.27 - 5.30

28. I accept that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad. However I consider that such questioning, in conjunction with intelligence, will quickly establish that the applicant was of no adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka in July 2012, some three years after the conflict ended. Nor do I accept that his status as a failed asylum seeker from Batticaloa who sought international protection in Australia will cause him to be imputed with a political opinion that is pro-LTTE or pro-Tamil separatism or otherwise adverse to the Sri Lankan government.

29. I accept that the applicant departed Sri Lanka for Australia by boat using a people smuggling venture. As discussed with the applicant at hearing, DFAT advises that the Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected facilitating or organising irregular migration, be charged under the I&E Act and appear in court. I accept that upon return to Sri Lanka, the applicant may be charged with offences under the I & E Act relating to his illegal departure in 2012.

30. As discussed at hearing, DFAT advises that persons charged with offences under the I & E Act are transported to the Magistrate’s Court and brought before a magistrate at the first available opportunity, generally within 24 hours unless it is a weekend or public holiday in which case they may spent up to two days in an airport holding cell.[15] Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, although DFAT reports that most cases result in a fine and not imprisonment.  It states the Attorney General’s Department, which is responsible for the conduct of the prosecutions, claims no person who merely travelled on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, rather fines of between LKR 3,000 (approximately AUD 25) and LKR 200,000 (approximately AUD 1,670) are issued to deter people from departing illegally in the future[16].

    [15] Ibid at 5.28 - 5.30

    [16] Ibid at 5.32

1. A guilty plea will attract a fine, which can be paid by instalment and the person is then free to leave. If a person pleads not guilty, they will usually be granted bail on the basis of personal surety or a guarantee by a family member although they may need to wait for the guarantor to come to the court before they can leave.[17]

   [17] Ibid at 5.17–5.32

2. At hearing I asked the applicant if that information was consistent with his brother [Mr A]’s experience of returning to Sri Lanka. He stated that it was and that his mother told him his brother was taken to a court within 24 hours. He thought that his brother’s fine was about 5 lakhs (about $4,500), although he wasn’t sure. I noted that 5 lakhs was significantly more than the highest level of fines reported by DFAT and he did not dispute that, stating only that he might have trouble getting hold of 5 lakhs. When I discussed with him that he could pay any fine by instalments, he stated that his only worry about returning to Sri Lanka related to the protest he had attended in 2011 and that he could ‘manage all the rest’.

3. On the evidence before me, I find that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will be charged with departing Sri Lanka illegally and that he may be held on remand for a period most likely less than twenty four hours but possibly as long as a couple of days before being brought before a magistrate. I do not accept on the information before me that there is a real chance that the applicant will face harm during this process, either during his questioning at the airport or during any period he spends in an airport holding cell before being brought before a magistrate.

4. I have considered the applicant’s evidence that thought his brother’s fine may have been LKR 500,000, but he wasn’t sure. Given that amount is more than double the highest amount reported by DFAT, I do not accept there is a real chance the applicant will be fined such an amount. I find that if the applicant pleads guilty to illegal departure, he will receive a fine of not more than LKR 200,000 (approximately AUD 1,670) and it is likely to be considerably less. Based on the DFAT advice, I find the applicant will be able to pay that fine by instalments. In making that assessment I note the applicant previously worked in Sri Lanka and gave evidence at the second hearing in response to questions about his ability to pay any fine that his only worry about returning to Sri Lanka related to the protest he had attended in 2011 and that he could ‘manage all the rest’.

5. If he decides to plead not guilty, I consider he will be granted bail when presented to the court. I consider that if convicted of charges under Sri Lanka’s I & E Act, the applicant will be fined and I do not accept there to be a real chance that he will be sentenced to a jail term. 

6. The DFAT report states that returnees are treated in the same way regardless of their race or religion and the applicant stated at hearing that he accepted that to be the case. I do not accept that the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason. I am satisfied that the I & E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity.

7. The material before me does not indicate Sri Lanka’s immigration laws have a discriminatory intent or impact or that the law is being applied selectively or in a discriminatory manner for a Convention reason. I find that any questioning, charge, conviction or penalty to which the applicant may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way. As such I find that any brief period the applicant may be required to spend in jail or any fine he may incur as a result of prosecution or penalty on conviction for an offence will not be directed at the applicant for any of the five Convention grounds.

8. I accept that when the applicant returns to his home area in Batticaloa, his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given my findings above, I do not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that of his political opinion or because he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia or for any other reason.

9. For these reasons I find that the applicant does not have a well-founded fear of persecution for his political opinion reason of his Tamil ethnicity, either alone or in combination with any imputed political opinion imputed to him as a young Tamil male from Batticaloa who has family members who were connected with the LTTE during the conflict or as a person who departed Sri Lanka illegally and would be returning to Sri Lanka as a failed asylum seeker.  I find that any fear on these bases is not well founded.  For the same reasons I find the applicant does not have a well-founded fear of persecution for reasons of his membership of the particular social groups ‘failed Tamil asylum seekers’.

   The applicant’s Hindu religion

10. The applicant has consistently stated he is of Hindu religion and he confirmed this at the second Tribunal hearing. He gave evidence that he had friends who were Tamil Christians and had on occasion been invited to attend Christian churches in Sri Lanka and Australia. Most recently he attended a church in Australia to say prayers for the victims of the bombings across Sri Lanka during Easter 2019. I accept his evidence in this regard.  The applicant stated he did not fear harm in Sri Lanka because he had on occasion attended a Christian church in Sri Lanka or Australia, but he feared harm as a Hindu.

11. As discussed with the applicant at hearing, DFAT reports that religion plays a significant role in daily life in Sri Lanka and that most Tamils are Hindus, although some are Christian. Article 10 of the Constitution provides for freedom of religion while granting Buddhism ‘a foremost place’. Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. DFAT assesses that there are no laws or official policies that discriminate on the basis of religion, although adherents of religions other than Buddhism face a low risk of official discrimination from local government authorities, which can affect their ability to practise their faith freely[18]. At hearing the applicant indicated he agreed with that information.

    [18] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka, 23 May 2018

12. When asked what he feared would happen if he returned to Sri Lanka, the applicant stated that it had been many years since he was there so he didn’t know what problems he would face but that as long as there were racial and language issues there would be problems. He stated that nowadays there are problems between the Sinhalese and the Muslims, as evidenced by the recent terrorist attacks in April 2019. He agreed those attacks were perpetuated by Muslims but stated that had a Tamil been responsible for the attacks, there would be no Tamils left in Sri Lanka.

13. I acknowledge the very serious terrorist attacks on a number of Christian churches and western hotels in Sri Lanka on Easter Sunday, 21 April 2019. 257 people are reported to have died during a number of coordinated suicide bombings on three Christian churches and three luxury hotels in Colombo, Negombo and Batticaloa. The bombings are reported to have been undertaken by a local Islamic group, Thowheeth Jama’ath, but Islamic State also claimed responsibility. In the aftermath of the bombings, the Sri Lankan authorities imposed curfews and schools were closed. Religious tensions flared, particularly in Negombo, where dozens of Muslim-owned businesses, homes and vehicles were reported damaged in retaliatory attacks. The Catholic Church appealed for calm and urged Christians not to carry out revenge attacks against Muslims and hundreds of troops entered Negombo to impose a curfew. As discussed with the applicant at hearing, by 8 May 2019 the Sri Lankan authorities stated that they had accounted for and either arrested or killed all those responsible for the bombings, curfews had been lifted and schools reopened[19].

    [19] ‘All members of Sri Lanka terror cell dead or in custody’ The Australian 8 May 2019 at

14. For the reasons set out above, I have accepted the applicant is of Hindu religion. While I accept the Easter bombings have increased religious tensions in Sri Lanka, the evidence before me does not suggest that such tensions have resulted in Hindus being targeted for harm. Rather the evidence before me indicates that Christians were the victims of those attacks and that Muslims have since been targeted in revenge attacks. On the evidence before me, I do not accept that there to be a real chance that the applicant will face harm for reasons of his Hindu religion if he returns to Batticaloa, now or in the reasonably foreseeable future.

    Cumulative assessment

15. I have accepted that the applicant is a young Tamil male of Hindu religion originating from Batticaloa in Eastern Province who participated in a protest about Tamil rights in Sri Lanka in [Town 1] in April 2010, but suffered no adverse attention or harm from the Sri Lankan authorities as a result of this protest for the remainder of the period in which he lived in Sri Lanka. I have accepted he departed Sri Lanka illegally by boat in July 2012 and has sought asylum in Australia. I have considered whether the cumulative effect of such characteristics may result in a real chance that the applicant will be targeted for harm in Sri Lanka if he returns now or in the foreseeable future.

16. Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for serious harm by Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his Hindu religion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

    Complementary protection

17. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act, I have considered whether there are 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 will suffer significant harm.  In this case, I have found that the applicant is a national of Sri Lanka and I therefore find that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1) of the Act.

18. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[20]  For the same reasons I do not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

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

19. For the reasons set out above, I have accepted the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as a couple of days before being brought before a magistrate. 

20. ‘Significant harm’ is exhaustively defined in s.36(2A) as follows:

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

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

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

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

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

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

21. It is not suggested that the death penalty will be carried out on the applicant for any reason. I do not accept on the information before me that there is a real risk that the applicant will be arbitrarily deprived of his life or face torture, cruel or inhuman or degrading treatment or punishment, either during his questioning at the airport or during any period he spends on remand. 

22. I have found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I & E Act, he will likely face a fine of between 3,000 and 200,000 rupees.  I have found the applicant will be able to pay such a fine.  I do not accept on the evidence before me that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in s.36(2A), either during his questioning at the airport or during the short period that he would spend on remand. 

23. In considering whether the applicant may face harm while on remand awaiting a bail hearing, I have accepted that prison conditions in Sri Lanka are generally poor. I have had regard to PAM3 which sets out that detention is not of itself a breach of Article 7 of the International Covenant on Civil and Political Rights although it may be in some circumstances, depending on the nature and context of the treatment, its duration, its physical and mental effects and other relevant factors.  In this case the short period the applicant will spend on remand causes me to not to be satisfied there is a real risk he would face significant harm as a result of poor prison conditions.  Nor do I accept there to be a real risk the applicant would face significant harm from any other person or group during the short period he will be on remand.

24. I have accepted that when the applicant returns to his home area in Batticaloa in Sri Lanka, his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given my findings above, I do not accept there to be a real risk he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a young male Tamil who departed Sri Lanka illegally and has sought asylum in Australia, because of his involvement in a protest in 2011 about the treatment of Tamils during the conflict or for any other reason.

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

    CONCLUSIONS

26. 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).

27. 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).

28. 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

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

    Alison Murphy
    Member

    
    

    ATTACHMENT A - THE RELEVANT LAW

30. 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.

31. 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).

32. 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.

33. 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’).

100.   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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.