1720050 (Refugee)

[2020] AATA 4420

1720050 (Refugee) [2020] AATA 4420 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1720050

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Michael Hawkins

DATE:18 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 18 August 2020 at 11:21pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – religion – Roman Catholic – imputed political opinion – suspected links to Liberation Tigers of Tamil Eelam (LTTE) – displacement during civil war – forced LTTE weapons training – credibility concerns – particular social group – failed asylum seekers – illegal departure – detention at the airport – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 56, 57, 65
Migration Regulations 1994, Schedule 2

CASES
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 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 21 December 2015. The delegate refused to grant the visa on the basis that that on the basis that the applicant was not a refugee as defined by s.5H(1) of the Act and there was not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to their receiving country, there was a real risk he would suffer significant harm

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

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

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

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

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:

11. The applicant is [an age] year old man from [Village 1], Northern Province, Sri Lanka.

12. The applicant is a Tamil and a Catholic.

13. The applicant is single.

14. The applicant was detained under s.189(3) on 23 April 2011 and was an Unauthorised Maritime Arrival [in] April 2011.

15. The applicant then applied for a Protection Obligations Determination on 12 June 2011.

16. The applicant received a negative Protection Obligations Determination outcome on 18 July 2011.

17. The applicant then applied for an Independent Protection Assessment on 5 March 2012 and was granted a Temporary Humanitarian Stay (subclass 449) visa granted on 12 April 2012.

18. The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 21 December 2015.

    Claims:          

    Summarised from the Protection Visa Application and as summarised in the Delegate’s Decision.

    Statement of claims dated 12 June 2011

19. The applicant clams to be a Tamil and a Catholic.

20. The applicant claims that in September 2007 [Village 1] was captured by the Sri Lankan military, and the residents, including the applicant, were displaced from their homes.

21. The applicant claims his family, and some of the other families form the village, were sheltered by the government at a school in [Town 1] (also often spelled [variant]) for 15 days and that the Sri Lankan Army (SLA) questioned the villagers individually.

22. The applicant claims he was photographed, and questioned about whether he had any connections to the Liberation Tigers of Tamil Eelam (LTTE).

23. The applicant claims that after leaving [Town 1] his family was housed at [location], a displaced person's camp.

24. The applicant claims that in 2009 the Criminal Investigation Division (CID) summoned certain young males from the village for questioning where the CID were investigating the young men for LTTE involvement.

25. The applicant claims he could hear other young men screaming while he was questioned and that he was bashed twice. The CID took his photograph. The applicant claims he was told he would be called for questioning again and should cooperate. He was released.

26. In late 2009, the applicant claims the CID called him back for further questioning. He was questioned again about any possible LTTE involvement. Every time he was questioned he had to travel to the [Town 1] Police Station, about 20 kilometres from his home.

27. The applicant claims his brother [Brother A] went missing in 2009 after he tried to get out of Kilinochchi during fighting. [Brother A’s] wife escaped but the applicant does not know what happened to [Brother A].

28. The applicant claims in February 2011 the CID came to his home in [location] looking for him. The applicant was not home and the CID asked his father about his whereabouts. The applicant claims his father saw the CID had photographs of the applicant and became concerned the CID would take the applicant. The father told the applicant he must leave the country.

29. The applicant claims he lived in hiding with his grandmother in a village five kilometres away, until his departure from Sri Lanka.

    Statutory declaration dated 27 March 2017

30. The applicant said he had provided incorrect information and confirmed that his boat departed from [a town in] in Tamil Nadu, and not Sri Lanka as previously claimed.

31. The applicant claims he last left Sri Lanka in May or June 2008, and went to a refugee camp in Tamil Nadu.

32. The applicant claimed that of two questionings he described in paragraphs nine and ten of his statement of claims dated 12 June 2011 happened in 2008, not 2009.

33. The applicant claims when he was in [Village 1] in 2007 he was forced, along with other villagers, to take part in weapons training for two to three months. The applicant claims he was compulsorily accompanied by an LTTE sea cadre while he fished.

34. The applicant claims in mid-2010 he made an unsuccessful attempt to leave India by boat and it was intercepted by the Indian authorities. The applicant was detained at [location] for four or five days. The applicant claims he was questioned by [the authorities] and accused of LTTE involvement. He was released and was able to return to his refugee camp in Tamil Nadu.

35. That applicant claims that [Village 1] remains in military hands and the villagers, including the applicant, are refugees in their own village.

36. The applicant claims there are ongoing protests by the villagers.

    Additional claims made at interview on 17 July 2017

37. The applicant claims he worked as a fisherman.

38. The applicant claims that navy vessels pursued his boat, and on occasion fired on his boat while he fished.

39. The applicant claims that his fellow [Village 1] villagers have informed the authorities of the applicant's LTTE involvement and the villagers did so to deflect interest away from themselves.

    Fear of return to Sri Lanka

40. The applicant will face serious harm if forced to return to Sri Lanka on account of his Tamil ethnicity; as a Tamil originating from the Northern Province of Sri Lanka; his imputed political opinion as pro-LTTE and in opposition to the Sri Lankan authorities; his membership of the particular social groups of "suspected member of LTTE cadre" a person who assisted the LTTE" and ''failed asylum seekers returning or forcibly returned to Sri Lanka from a Western country after leaving the country illegally".

    Evidence:

41. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s identity document being photocopy of a Sri Lanka Refugees Identity Card and an IDPP Family registration card serial no. [number] presented to the Department;
    • Statement of claims of applicant dated 12 June 2011;
    • Form 80 Personal particulars for character assessment signed 2011;
    • Letters from the Australian Red Cross dated [in] September 2011 [and] December 2011;
    • Statutory Declaration from primary applicant dated 9 December 2015;
    • Letter from [named], Parish Priest, [Church 1], Sri Lanka dated 22 March 2017;
    • Letter from [Father A], Parish Priest, [Church 2] dated 24 March 2017;
    • Letter from [Bishop B], Catholic Diocese of [Australian City 1] dated 27 March 2017;
    • Statutory declaration of the applicant dated 27 March 2017;
    • Submissions in response to an invitation to comment from the applicant’s representative dated 28 March 2017;
    • Letter of [Mr C] dated 28 March 2017;
    • Notification of incorrect answers Form 1023 provided to the Department signed 27 March 2017.
    • Amended attachment Form 790 and amended character assessment to Form 790;
    • Record of interview with the delegate dated 17 July 2017;
    • Post-interview written submissions of the applicant’s representative of 31 July 2017 ;
    • The protection visa decision record (delegate’s decision record) dated 11 August 2017;
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Sri Lanka, published on 4 November 2019 (the DFAT Report).

    Country of reference/ receiving country:

42. The applicant claims to be a Sri Lankan national. Based on evidence provided to the Department by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

43. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3) of the Act.

    Hearing:

44. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant or his Representative did not raise any concerns in relation to holding a telephone hearing during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.

45. The applicant appeared before the Tribunal on 16 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in Tamil and English languages. The applicant was accompanied by his Representative who also attended by telephone.

46. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

47. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

48. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.

49. The Tribunal discussed his claims as summarised in the Delegate’s Decision. It confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.

50. The Tribunal discussed with the applicant a little of his background.  The applicant told the Tribunal that he was working in a [business].  He advised that the only family he has in Australia is a cousin.

51. The Tribunal enquired of his family in Sri Lanka.  He advised that his mother and father and [number of siblings] were still living in Sri Lanka.  He advised that one of his brothers was missing.  The Tribunal asked where his family were living.  He advised that they were living about [distance] away from their original village.  Asked to explain, the applicant stated that their original village was seized and was being used as a base for the military.  When his parents returned to Sri Lanka, the government gave them land and help to build a house.

    Assessment of Claims and evidence, and findings:

52. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

53. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

54. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

55. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

56. The Tribunal has strong reservations about the credibility of the applicant’s claims.

57. As had been set out in the Delegate’s decision and in his Statutory Declaration of 27 March 2017 and his Representative’s submission of 28 March 2017, the applicant effectively recanted all claims that he had previously made in his June 2011 statement and the claims he made in his Application for a Safe Haven Enterprise Visa made in December 2015.  In March 2017, the applicant provided a new set of claims and raised further claims during his interview with the Delegate on 17 July 2017.  On 2 March 2017, the Department wrote to the applicant putting information to him that the vessel on which he arrived in Australia actually departed from India rather than Sri Lanka as had been claimed.  That process, pursuant to Sections 56 and 57 of the Act, invited the applicant to comment.  In response, the applicant stated that his vessel did in fact depart from India and not Sri Lanka.

1. The Tribunal explained to the applicant that such a change in claims caused it grave concern as it might cause the Tribunal to question his credibility and to have doubts about the applicant’s evidence and his claims.  It asked the applicant why he had provided a different recount of events back in 2011. The applicant replied that everyone on the boat agreed that they should tell the story that they had left from Sri Lanka.  The Tribunal asked the applicant whether he had been threatened by anyone to state that the boat had left Sri Lanka.  He confirmed there were no threats but that he had been advised that it would be the only way for him to get a visa.

2. The Tribunal noted a new claim made in the applicant’s statement of 27 March 2017 that whilst he was in his village in 2007, he was forced, along with other people, to take part in weapons training with the LTTE for two to three months.  The Tribunal asked the applicant for some details about that training.

3. The applicant confirmed that such training took place in 2007.  He recalled it being for a period of two to three months.  He stated that training would commence at 8:00am or 9:00am in the morning.  The training would involve running, crawling and learning how to use guns.  He said they used a few different guns and were taught how to shoot, disassemble the gun and to change bullets.  He stated there were about 10 people involved in the training and between them they had five guns.  He said they would do target shooting over 50 and 100 metres.  He identified the rifle as being a [specified type].

4. The Tribunal asked the applicant what the purpose of the training was.  He advised that it was to protect the village against the Army (the SLA).  He said that the Tamil Tigers provided training to all young boys.

5. The Tribunal asked the applicant what happened after the training was completed.  He replied that he went back to his job of fishing.

6. The Tribunal asked the applicant why he hadn’t mentioned the weapons training in 2011, or when making his SHEV application in 2015.  The applicant replied that he wasn’t asked about it.  The Tribunal noted, however, that he had been able to talk about the CID and its questioning of him about his connection to the LTTE.  The applicant confirmed that was the case, but stated that he was not sure if he should be talking about the weapons training for fear of being branded as a member of the LTTE. The Tribunal confirmed that he was not a member of the LTTE.

7. The Tribunal also noted an additional claim that an LTTE cadre would accompany the applicant while he was fishing on and off forcibly.

8. The applicant explained that he started fishing when he was 11 or 12.  Fishing was the family business.  He stated that in 2007, after the weapons training, an LTTE guy would go out fishing with him sporadically.  Asked whether that usually happened with other boats, the applicant advised that his was the only boat that went deep sea fishing and that they went out looking for different types of fish.

9. At this juncture, the Representative advised the Tribunal that it was not unusual for young Tamils not to admit LTTE connections as it was in local papers advising them not to admit that.

10. The Tribunal noted that, but pointed out to the Representative that he had freely admitted in his claims to being interrogated by the CID about his LTTE connections.  The Tribunal suggested that the applicant was being selective, and would tell some parts of his story, but not all parts.

11. The Tribunal asked the applicant about the CID interviews.  The applicant confirmed that there was more than one interview.  The Tribunal asked the applicant what it was that he said during the interview that persuaded his interrogators that he was not connected to the LTTE, as it appeared that he was always subsequently released.  The Tribunal noted that the applicant appeared to come to no harm after those interviews.  The applicant advised that the police would take details. He agreed that they would always be released without harm.  He said, however, that later, some of the boys would be taken by white vans.  The applicant explained that people perceived as being anti-government often disappeared in so-called “white van” abductions.  The applicant went on to state that Australia provided the white vans.  He said that his fear was that he would be abducted in a white van.  The Tribunal confirmed that the applicant was never actually abducted himself.  The applicant agreed. And the Tribunal confirmed that the applicant never expressed any anti-government views. The applicant agreed that he did not.

12. The Tribunal asked the applicant about his departure from Sri Lanka in 2008.  The applicant advised that the war was then at its peak.  People were being abducted.  He stated that he escaped Sri Lanka with his parents and brothers and went to India.  The family returned to Sri Lanka in 2010.  The Tribunal asked the applicant whether his brothers did weapons training or were interviewed by the CID.  He replied that he was not sure.

13. The Tribunal then asked the applicant about his escape from India.  The applicant advised that he first attempted to leave India in 2010 but that he was captured, questioned, released and allowed to return to the camp.

14. The Tribunal asked the applicant what he had told the interviewers when captured.  He replied that he didn’t tell them anything about his LTTE involvement.

15. The Tribunal took issue with this response, reminding the applicant that in his claims he had stated that he had been accused of LTTE involvement.  Therefore, the Tribunal reasoned, he must have said something in response to persuade them that he ought be released.

16. The applicant restated that he wasn’t questioned at all about the LTTE and that was why he was released.

17. The Tribunal again referred to his specific claims.  The applicant replied that it was nine years ago and that he must have forgotten.

18. The Tribunal then referred to the interview with the Delegate in July of 2017.  During that interview, as recorded in the Delegate’s Decision, the applicant raised for the first time an issue of his fishing boat being fired upon occasionally by the Navy.  The Delegate noted that the applicant claimed that his fishing boat was able to evade the Navy vessels.  The applicant stated that he had been fired on a couple of times.  The Tribunal noted that it appeared to be a general form of harassment by the Navy of all fishermen.

19. The Tribunal also noted the applicant’s claim in relation to the disappearance of his elder brother.  It noted evidence before the Delegate, including a letter from the Red Cross in Australia confirming a request by the applicant that his brother be traced and also a photograph of his father holding a poster with a photograph of his brother during a protest rally.  Whilst the photo has no identifiers, the Tribunal is prepared to accept the evidence at face value.

20. The Tribunal noted a further new claim raised during the interview with the Delegate, as recorded in the Delegate’s Decision, that being that his fellow [Village 1] villagers had informed the authorities of the applicant’s LTTE involvement.  He told the Delegate that he learned of this from his parents in 2013 or 2014.

21. The Tribunal asked the applicant how it came about that the villagers would inform on him and how did he find out about it.  He replied that the CID was asking villagers for information and would pay villagers for information.  He claimed that the CID was engaging locals as spies. 

22. The Tribunal reminded the applicant that according to his 2011 statement, he was repeatedly questioned by the CID about his LTTE connections.  The Tribunal notes that whilst the applicant’s claims made in that 2011 statement and in the SHEV Application have been recanted, the applicant did restate his claims as to CID questioning but claimed such questioning took place in 2007, before he fled to India.

23. The Tribunal reminded the applicant that he claimed to have learned from his parents in 2013 or 2014 of his fellow villagers informing on him. 

24. The Tribunal asked the applicant why he would not have referred to that fact in either of his claims in his SHEV Application made in 2015, or in his Statutory Declaration in March 2017.  The Tribunal noted that it was an important claim.  The applicant replied that he had forgotten.

25. The Tribunal then considered all of the Country Information contained in the Representative’s submission.  It discussed the contents of the DFAT Report with the applicant and the Representative.  The Representative advised that the DFAT Report was now out-of-date following the recent elections.  The Tribunal undertook to review updated country information, if any, at its disposal. The Representative further advised the Tribunal of the judicial approach to Country Information which was that it should not necessarily be taken at face value.

26. The Representative went on to suggest that as the applicant’s brother had disappeared, that would put a red flag up about the applicant.  He said that as a consequence of his brother’s disappearance, the applicant had a well-founded subjective fear that the same may happen to him.  The Tribunal noted that but enquired why that would be, given that his parents and brothers had returned to Sri Lanka in 2010, had land given to them and assistance building a house and were managing to live peacefully without issue.

27. The Representative urged the Tribunal to consider the fact that the applicant had now been in Australia for nine years.  The Representative asked the Tribunal to give weighted consideration to who the new President is in Sri Lanka.

28. The applicant requested the Tribunal to consider that Tamil boys were dying in mysterious ways.

29. The applicant also restated that he had been in Australia for nine years, had been well-behaved and paid his taxes.  The Tribunal also noted the existence of character references on the Department file from the Catholic Diocese of [City 1] which in turn referred to a reference from a [Mr C] and a [Father A], together with a letter of reference from [Church 1] in Sri Lanka.

30. The Tribunal has considered extensive Country Information that is available to it against the specific claims made by the applicant.

    Tamil ethnicity and background

31. The applicant claims that he is at risk of serious harm, as a male Tamil who has lived in the Northern Province. During the hearing, it was said that the Sri Lankan authorities fear the resurgence of the Tamils, and that has been reinforced by the election of the Rajapaksa Government, with Rajapaksa himself previously having been said to have authorised the white van abductions.

32. The Tribunal notes that Tamils are the largest group in Northern Province; they comprise 93.8 per cent of the population. The Tribunal noted DFAT’s assessment[1] that Tamils face a low risk of official and societal discrimination (as do Sri Lankans of all backgrounds), and that, broadly speaking, this did not appear to amount to a real chance of serious harm. As noted in the 2012 UNHCR Eligibility Guidelines for Sri Lanka[2] recommended individualised merits assessments for Sri Lankan asylum seekers, and identified certain risk profiles, such as persons suspected of having links with the LTTE, as requiring careful assessment. This is consistent with current country information indicating that Tamil males from the north and east do not automatically have a well-founded fear of persecution. The applicant’s advice that his parents and brothers have returned to an area very near where he grew up and continue to live there without significant problems, and without reports of persecutory (or similar) harm, tends to support this.

    [1] The DFAT reports from May 2018 and November 2019 are consistent on these points.

    [2] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

33. During the hearing, the representative noted that the Easter Sunday bombings took place under the current government, and suggested a parallel with Tamil deaths during the war. The Tribunal considered articles from 2018 about the projected return of former president Mahinda Rajapaksa, and the potential impact on investigations into past human rights abuses. More recently, the recent election victory of Mahinda’s brother, Gotabaya Rajapaksa, who was sworn in as president on 18 November 2019, reinforces the point made in the submissions. As the BBC recently noted[3]: Mr Rajapaksa, who has positioned himself as a strong figure who can assure Sri Lankans' security, is a highly controversial figure among the country's more than two million Tamils. He and his brother Mahinda Rajapaksa, the former president, spearheaded the defeat of separatist Tamil Tiger rebels in 2009, ending a decades-long war in which at least 100,000 people died.’ The Tribunal appreciates that the Rajapaksas’ stridently pro-Sinhalese campaigns and their track records of dealing harshly with political opponents and journalists, have unsettled Sri Lanka’s minorities, particularly Muslims, but also Tamils and others. However, the Tribunal is not satisfied on the basis of this general country information that the applicant, as a Tamil, faces a real chance of being subject to serious harm amounting to persecution.

    [3] BBC On-line, 17 November 2019, Sri Lanka election: Wartime defence chief Rajapaksa wins presidency:

34. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of his Tamil ethnicity and other relevant factors (such as being a Tamil man from the north).

    Roman Catholic

35. The applicant did not present any claims based on religion to the Department or the Tribunal. However, for the sake of completeness, the Tribunal has noted that the applicant is a Catholic and has duly considered whether his Roman Catholic faith adds to his risk of being persecuted. Country information submitted referred to the ‘Easter Sunday terror attacks’ on 21 April 2019.

36. Country information indicates that a series of coordinated bombings on Easter Sunday, 21 April 2019, struck eight places in Sri Lanka, killing at least 253 people and wounding about 500 more.[4] Referring to general country information and the DFAT report, the Tribunal notes that the Roman Catholic community in Sri Lanka was well-established, and made up about 82 percent of Christians. It noted DFAT’s assessment as of May 2018 that ‘Christians in Sri Lanka face a low risk of official and societal discrimination’, even though there had been a low but steady incidence of violence, discrimination and intimidation of Christians generally. While the April 2019 attacks had shocked the country and the Catholic minority, the Tribunal was not aware of reports indicating that Catholics in general were at risk of repeated acts of terror, or subject to persecutory harm.

    [4] This information is from reports shortly after the attacks:

37. DFAT’s November 2019 report addresses the aftermath of the Easter Sunday terror attacks. It states: ‘The NCEASL has documented over 50 incidents of anti-Christian violence and intimidation in 2019 to date, including the Easter Sunday terrorist attacks. Christians were deliberately targeted as part of these attacks. Most of those killed were parishioners attending Easter services at the St Anthony’s Roman Catholic (Colombo), St Sebastian Roman Catholic (Negombo) and Zion evangelical (Batticaloa) churches. Public church services were suspended across Sri Lanka immediately following the attacks. They have since resumed, but with heightened security. Private Catholic schools reopened on 14 May.’ The report repeats its earlier assessment that Christians in Sri Lanka face a low risk of official discrimination and of societal discrimination (with the exception of evangelical Christians, who face a moderate risk of societal discrimination). It goes on to state that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if these groups were to expand their membership or strengthen their international links.

38. Country reports indicate that the Catholic community has resumed its activities with heightened security, but there has been no sustained violence against them. The Tribunal has found no credible evidence to indicate that the Sri Lankan authorities instigated, were involved in or motivated Muslim extremists to carry out the attacks as part of a campaign against Tamils (in particular Tamil Catholics). The Tribunal is satisfied that if the applicant had concerns about anti-Catholic violence amounting to persecution, they would not be well-founded. 

    Political interests

39. The Tribunal confirmed with the applicant during the hearing that he has not been involved in any political activities, in Sri Lanka or Australia. The Tribunal is satisfied that the Sri Lankan authorities do not and would not perceive him to be a political activist; and that the applicant has no political conviction that motivates him to engage in such activities. The Tribunal accepts that the Sri Lankan authorities may presume him to have particular attitudes, shaped by his experiences as a Tamil who was displaced during the war, but it finds there is no real chance of targeting and inflicting serious harm on him for reason of any political opinion, actual or imputed.

    Failed asylum seeker and consequences of illegal departure

40. The Tribunal accepts for the purpose of this decision that the applicant’s return to Sri Lanka would be on an involuntary basis. It accepts that he would travel on a temporary travel document. Although the Australian authorities will not reveal the fact of the applicant’s protection visa application, the Tribunal also accepts - on the basis of the applicant’s profile, the timeline of his travel to Australia and return to Sri Lanka, and common knowledge about Sri Lankan asylum seekers - that the Sri Lankan authorities would assume that he unsuccessfully sought protection in Australia.

41. The applicant claims that the Sri Lankan authorities will jail and possibly kill him if he returns to Sri Lanka, as a Tamil and having suspected LTTE connections or involvement. He claims that his villager’s having informed authorities of LTTE links and his brother’s disappearance will heighten the authorities’ perception of him as having LTTE connections or involvement, and it will be difficult for him to convince them otherwise. The Tribunal notes however, and as discussed above, that the applicant’s parents and other brothers have returned to Sri Lanka and live there without issue.

    Treatment on return

42. The Tribunal noted the applicant’s claims that he will face serious harm because:

    (a) the Sri Lankan authorities will draw adverse inferences from the mere fact that a person is suspected of having sought protection;

    (b) Tamil returnees, or those forcibly returned to Sri Lanka, face a real chance of persecutory harm (or significant harm); and

    (c) the processing of failed asylum seekers from a western country after having left illegally, exposes them to particular risks.

100.   The Tribunal discussed with the applicant the experience of his parents and brothers who all returned to Sri Lanka in 2010. The applicant gave some information about them having been given land and assistance to build a house, not far from where they originally lived. The applicant’s comments do not suggest that the authorities targeted or punished his family members as failed asylum seekers, Tamil returnees, and/or for any imputed LTTE links.

101.   The Tribunal considered information from the May 2018 DFAT Report, but considers that the November 2019 DFAT report is consistent with the information discussed at hearing.

102.   The Tribunal accepts that the applicant would return to Sri Lanka on a temporary travel document and, for the purposes of this decision, that he would do so involuntarily. Country Information states that various Sri Lankan agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the CID and, at times, the Terrorism Investigation Division process returnees at Colombo’s international airport. They check travel documents and identity information against immigration databases, intelligence databases and records of outstanding criminal matters. This process can take several hours, depending on administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot leave until they are all processed.  

103.   The DFAT Reports also both state, in identical terms:

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

104.   The Tribunal accepts that the authorities will interview the applicant, and that he will be required to remain at the airport during this process. In light of the above findings, the Tribunal does not accept that the applicant has any adverse criminal or security profile with the authorities in [Village 1] or anywhere; and therefore does not accept that he is at risk of having his clearance delayed for any such reasons. The Tribunal now addresses below whether other factors – his return as a failed asylum seeker, as a Tamil and/or (claimed) LTTE involvement, or returnee from the west after having left illegally – may give risk to adverse treatment on his return. 

Failed asylum seeker

105.   The applicant and his representative implied that the applicant’s status as a failed asylum seeker – that is, the presumption he applied for protection in Australia – will cause the Sri Lankan authorities to suspect that he is linked with the LTTE.  The applicant stated that he has been asked on many occasions about his LTTE links. The Tribunal notes that on each occasion he was released from questioning without harm.

106.   The Tribunal noted that many Sri Lankans leave for overseas, for a variety of reasons. The Sri Lankan authorities will be aware of these motivations, and know that a significant proportion of those who go to Australia, the US, Canada, the UK and other European countries do so to seek asylum and permanent residency. The Tribunal also noted the Sri Lankan government’s official position that refugees are welcome to return,[5] while acknowledging that human rights groups view such assurances with some caution.

[5] See DFAT’s May 2018 report, para 5.38; and the November 2019 report, para 5.44.

107.   The Tribunal accepts as likely that the Sri Lankan authorities will presume that the applicant has sought protection in Australia. However, it is not satisfied that the applicant’s status as a failed asylum seeker gives rise to a well-founded fear of persecution.

Tamil returnee and suspected LTTE connection or involvement

108.   The representative’s submissions and the applicant’s evidence at hearing focussed very much on the risks to the applicant as a Tamil returnee, and in particular as a person suspected of having LTTE involvement. As earlier noted, the mere fact of being Tamil or of having lived in an area under LTTE control ‘does not of itself result in a need for international refugee protection’[6] In late 2012, the UNHCR identified the kind of previous links with the LTTE, real or perceived, that could put a Tamil returnee from the northern area at risk of persecution on return to Sri Lanka. Although the guidelines are now seven years old, they remain relevant. They refer to, amongst others, ‘former LTTE combatants or cadres’, and ‘persons with family links or who are dependent on or otherwise closely related to persons with the above profiles’. The applicant and his representative raised as new claims the applicant’s involvement in weapons training and the presence of a LTTE cadre on his fishing boat. 

[6] UNHCR, 21 December 2012: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.

109.   The applicant claims that the Sri Lankan authorities will suspect him of having links with the LTTE before he left that country, most particularly because of his weapons training in his village. He claims that his departure from Sri Lanka, and the Sri Lankan authorities’ likely presumption that he has sought protection in Australia, will reinforce their suspicions. He also claims that he is at further risk of being linked with the LTTE through his weapons training and the sporadic presence of an LTTE cadre on his fishing boat.

110.   The Tribunal accepts that the Sri Lankan authorities in the CID and later the Indian authorities in Puducherry questioned the applicant about his links with the LTTE. But on each occasion, the applicant was released from questioning without any harm at all. 

111.   The Tribunal accepts that the Sri Lankan authorities may again identify the applicant as a person of potential adverse interest, and question him about his involvement with the LTTE. The Tribunal appreciates that the applicant is apprehensive about such questioning. However, it finds that he has in the past explained to the authorities that he was not involved with the LTTE, presumably accounting for his activities during the war and by telling the truth. The Tribunal is satisfied and finds, on the available material, that he will be again able to explain by referring to his past dealings with the CID authorities, who were evidently satisfied that he was not linked with the LTTE by reason of any weapons training or there being anyone on his boat; and to his residence and activities in Tamil Nadu. The Tribunal finds there is no real chance of the Sri Lankan authorities perceiving the applicant to be linked with the LTTE by virtue of his weapons training when he was young or there being an LTTE cadre occasionally present on his boat when it went deep-sea fishing.

112.   There was no evidence that his brother who has disappeared were connected to the LTTE, or that his disappearance was so linked. The Tribunal is not satisfied that this brother’s disappearance has in the past, or will in the future, cause the Sri Lankan authorities to view the applicant with suspicion.

113.   The Tribunal finds that, even if the applicant’s brother [Brother A] was connected to the LTTE, the Sri Lankan authorities have not viewed the applicant’s other family members as persons of adverse interest as a result of their affiliation with that brother. Taking into account their return to Sri Lanka in 2010, with no known adverse consequences, the Tribunal finds there is no real chance of the Sri Lankan authorities targeting him due to his association with his brother [Brother A].

114.   Having regard to the applicant’s background, profile and forced return, the Tribunal accepts that the Sri Lankan authorities will undertake routine questioning and investigations on his return, due to his Tamil ethnicity, his status as a failed asylum seeker, his return from the west (Australia) and his illegal departure from Sri Lanka (see below). However, in light of the applicant’s past experiences, in particular his ability to explain his past activities and movements to the CID, Sri Lankan authorities and Indian authorities, the Tribunal finds there is no real chance that the authorities will subject him to sustained questioning, detention or other treatment that, individually or cumulatively, involves serious harm amounting to persecution.

Illegal departure

115.   The offence: Sri Lanka’s Immigrants and Emigrants Act (I&E Act) makes it an offence to depart Sri Lanka other than through an approved point of departure. Penalties for breaches include imprisonment of up to five years and a fine of up to LKR 200,000.[7] The Tribunal accepts that the applicant left Sri Lanka without a passport and that left from a place other than an approved place of departure.

[7] See Immigration and Emigration Act, s.45(1)(b), s.45(1)(o). 45http:// The December 2015 DFAT report sets out these figures. The May 2018 and November 2019 refer to custodial sentences (without mentioning the maximum period), and fines up to LKR 200,000.

116.   The applicant and representative spoke of the applicant’s illegal departure. The Tribunal drew heavily on the May 2018 DFAT report, which is consistent with the more recent November 2019 DFAT report. The Tribunal considers the reports to be detailed and reliable, and notes that, where appropriate, they identify information that is anecdotal and/or unverified.

117.   Arrest and charging: According to DFAT[8], the Sri Lankan Attorney-General’s Department has directed that all those suspected of involvement in irregular migration – including fare-paying passengers – be charged under the I&E Act. The Police Airport Criminal Investigations Unit at Colombo Airport makes most arrests. The police take photographs, fingerprints and statements from returnees, and make further enquiries about their activities abroad if they are former LTTE members (or suspected members)[9]. The Tribunal accepts that the Sri Lankan authorities will likely identify the applicant as a person suspected of breaching the I&E Act; that the police will arrest and process him; and that they may make further enquiries. For the reasons stated above, the Tribunal accepts the applicant may attract some additional scrutiny; but it does not accept that he has engaged in any activities in Australia or en route that will prolong or complicate his processing.

[8] May 2018 DFAT report, para. 5.30; November 2019 DFAT report, para. 5.34.

[9] Note: The May 2018 DFAT report refers to further enquiries of former LTTE members, whereas the November 2019 report adds the qualifier ‘suspected’. The Tribunal is of the view that, during the course of these enquiries, the police will act on their suspicions (or knowledge, as the case may be) and there is no practical difference between the two

118.   Custody at the airport and on remand: DFAT advises[10] that apprehended persons are held in custody in the CID’s Airport Office, for up to 24 hours after arrival. If a magistrate is not available – for instance, due to a weekend or public holiday – the person may be held for up to two days, in an airport holding cell. At the earliest opportunity, the police transport the person to the closest Magistrate’s Court. As noted above, DFAT understands that all returnees, regardless or ethnicity and religion, are subject to the same processing, and not mistreated at the airport. The Tribunal finds, on the basis of these reports and in the absence of any persuasive contrary evidence, that the applicant faces the prospect of being detained at the airport and then in remand for up to several days.

[10] May 2018 DFAT report, para 5.30.; November 2019 DFAT report, para 5.34.

119.   Court processing: DFAT advises[11] that all persons charged under the I&E Act, including passengers of people smuggling ventures, are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The most recent reports state, in relation to bail: ‘A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.’ The report goes on to state that the fines usually range from LKR 3,000 (approximately AUD 25) to LKR 200,000 (approximately AUD 1,633). The most recent DFAT report quotes sources as saying that a typical fine is between LKR 15,000 and LKR 30,000.

[11] May 2018 DFAT report, para 5.32; November 2019 DFAT report, para 5.37.

120.   Remand and bail: The Tribunal notes that the applicant has family in Sri Lanka with the potential to provide bail. However, the Tribunal notes country information that detainees may be released on the basis of personal surety, or sometimes bail is required from a family member. It is therefore far from certain that the applicant will have to arrange bail, even if he pleads not guilty. Third, whether the applicant can arrange bail depends on the financial capacity and priorities of family members, and potentially also on whether the court requires them to attend court in person. The Tribunal notes that the applicant has his parents and brothers in Sri Lanka. It also notes that he has been working in Australia in a [business], and likely will have some disposable cash. On the evidence as a whole, the Tribunal finds that, even if the applicant pleads not guilty and the court requires more than a personal surety, he will be able to arrange bail and, if required, for a family member to attend the court in person. Having regard to all these factors, the Tribunal finds there is no real chance of the applicant having to remain on remand for a prolonged period.

121.   Conditions in detention: The post interview submission dated 31 July 2017 contends that individuals who are held in prison in Sri Lanka for anything other than a very short period of time ‘face a real chance of suffering cruel or inhuman and degrading treatment’ because of the extremely poor conditions of prisons in Sri Lanka.

122.   The Tribunal accepts that the applicant faces a real chance of being detained at the airport for several hours, and then on remand for possibly a few days. The Tribunal finds on the available evidence that there is no real chance of the applicant being held in detention for more than a few days, including the period on remand before he appears before a Magistrate.

123.   It is undisputed that ‘prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities’. The Tribunal acknowledges that the applicant’s detention during police investigations and while on remand will involve a loss of liberty, which is one of the examples of serious harm set out in s.36(2A) of the Act. In MIBP v WZAPN, the High Court rejected the Federal Court’s finding that under s.91R(2)(a), any loss of liberty, regardless of its duration, would amount to serious harm.[12] It held that whether the likelihood of detention rises to the level of serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In the present case, the Tribunal finds that the applicant’s detention at the airport and on remand, even if he arrived on the weekend and had to wait before he could appear before a magistrate and/or if he had to await for a guarantor to appear in court, would involve only a few days in overcrowded or unsanitary conditions.

[12] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 overturning WZAPN v MIBP [2014] FCA 947 (North J, 3 September 2014).

124.   Having regard to his treatment as a whole, including the duration of the applicant’s stay, the Tribunal finds that this does not rise to the level of serious harm, such as a threat to his life or liberty, or significant physical harassment or ill treatment, or any other form of serious harm.  

125.   Returnee from the west: No reliable evidence to show that the Sri Lankan authorities in fact perceive returnees from Western countries as being anti-government, or alternatively rich, or that they proceed to extort them was presented or gleaned from available country information. For completeness, the Tribunal finds that there is no real chance of the applicant being subject to persecution by the Sri Lankan authorities or others in the community, for such reasons.

126.   Pending court case: DFAT advises that those charged are required to appear in court in the place of their offending, and that the frequency of court appearances varies widely. Delays can be protracted, as court cases proceed only when all members of a people smuggling venture have been located. Once again, whether the applicant remains on bail for years pending the conclusion of any court process remains uncertain, and will depend on whether or not he opts to plead guilty to charges of illegal departure. However, the Tribunal finds that the expense and inconvenience of court proceedings do not amount to serious harm.

127.   Penalties: DFAT has consistently stated that the Sri Lankan authorities distinguish between fare-paying passengers and the facilitators and organisers of irregular migration. DFAT reports advice from the Sri Lankan Attorney-General’s Department that no mere passenger on a people smuggling venture has been imprisoned under the I&E Act. There is no material before the Tribunal to the contrary. The Tribunal finds, on the available material, that if the applicant pleads guilty he will have to pay a fine; and that if he pleads not guilty, he will likely spend years awaiting a final court date, with the eventual outcome also being a fine.

128.   Having regard to the totality of the treatment that the applicant will likely face as a person charged under the I&E Act – including possibly several days in detention, in overcrowded, unsanitary conditions; a possible requirement to post bail and comply with bail conditions (such as reporting); and the possible uncertainty/expense of a protracted court process - the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution. The Tribunal also finds that the I&E Act applies to all Sri Lankans. It has found no persuasive evidence that it is selectively enforced or applied in a discriminatory manner. The Tribunal concludes that the Sri Lankan authorities’ investigation, prosecution and punishment for illegal departure under the I&E Act is the result of a law of general application and does not constitute persecution.

Cumulative claims

129.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his Tamil ethnicity, his Catholic religion, his political interests, his status as a failed asylum seeker, his return from the west (Australia) and his illegal departure from Sri Lanka, or any other reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

130.   The Tribunal has considered the applicant’s claims under complementary protection.

131.   Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Sri Lanka because he feared for his life as a result his Tamil ethnicity, his Catholic religion, or his political interests.

132.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Sri Lanka now or in the reasonably foreseeable future.

133.    For the reasons that follow, the Tribunal is not satisfied that such treatment, individually or cumulatively, amounts to significant harm, in northern province or anywhere in Sri Lanka.

134.   First, based on country information about the treatment of returnees, the Tribunal does not accept that his treatment whilst in detention at the airport or in remand, or the duration of his detention over several days, amounts to significant harm as defined in s.36(2A). For the reasons stated above, it finds no persuasive country information to indicate that any period in prison in Sri Lanka gives rise to a real risk of torture, as a general proposition; and it is not satisfied having regard to the applicant’s personal circumstances that there is such a real risk.[13] The Tribunal is not satisfied that the applicant’s Tamil ethnicity, background, or other circumstances (such as perceived anti-government views or wealth as a returnee from the West) give rise to a real risk of him being treated differently from other detainees, and being subject to significant harm.

[13] The Tribunal also notes that the applicant’s detention arises in the context of lawful sanctions, that is, the Sri Lankan authorities’ administration of the I&E Act. The definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ all include (among other things) a qualification for an act or omission that causes, or is intended to cause the relevant harm ‘only from, inherent in or incident to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.’ However, given its assessment that the applicant’s prospective treatment does not involve ‘significant harm’ as defined in ss.36(2A)(c), (d) or (e), the Tribunal does not need to determine whether it arises in the context of lawful sanctions consistent with the ICCPR.

135.   Second, in relation to the overcrowded and unsanitary conditions that the applicant will experience for a short while in detention, the Tribunal is not satisfied that these are the result of Sri Lankan officials’ acts or omission that are intended to cause severe pain or suffering, of a kind that amounts to torture, or cruel or inhuman treatment or punishment; or extreme and unreasonable humiliation that amounts to degrading treatment or punishment. Rather, country information indicates that poor conditions arise from the Sri Lankan authorities’ limited resources.[14]

[14] May 2018 DFAT report, para 5.18; November 2019 DFAT report, para 5.2/

136.   Third, the Tribunal does not accept that the applicant’s detention and ancillary processes involve the death penalty or arbitrary loss of life.

137.   Fourth, the Tribunal does not accept that the imposition of a fine as punishment for the applicant’s illegal departure, or any processes association with the grant of bail or any court proceedings (such as payment of bail, the appearance of a family member at the court, requirements to attend court at regular intervals, etc.), amount to significant harm.

138.   Finally, the Tribunal does not accept that there is a real risk that the applicant will face harm that amounts to significant harm, on the basis of his circumstances as a whole – including as a Tamil male; for any political opinion (including imputed); on the basis of his Catholic faith; as a failed asylum seeker; as an illegal returnee; or on the basis of any factors (such as his association with his brother who has disappeared, or others) give risk to a real risk of him being subject to significant harm.

139.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Sri Lanka now or in the reasonably foreseeable future.  

Conclusion: Refugee Criterion

140.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

141.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq that there is a real risk that he will suffer significant harm.

Overall conclusion:

142.   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 s.36(2)(a).

143.   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).

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

DECISION

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

Michael Hawkins
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

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

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

 'Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019, 20190429105125; 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213