1722461 (Refugee)

1722461 (Refugee) [2022] AATA 1457 (18 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722461
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Haag
DATE:18 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2022 at 3:48pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – irregular maritime arrival from India – by the ENDLF to participate in military training camp – departed for India in 1990 – detention in India and perceived association with LTTE detainees – worked and operated business in India – departure to Australia after 16 years in India – no evidence of supporting LTTE – no evidence of anti-government activities – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations, and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 25 February 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity 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.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
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
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 (DFAT) with the date 23 December 2021, expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity
The applicant claims he was born on [date] in [Jaffna] province, Sri Lanka. He claims to be of Tamil ethnicity and Hindu religion. The applicant states that he can speak, read and write in Tamil.[1]
[1] Part C – Application for a protection visa application form dated 21 December 2015, Department [file].
The applicant provided the Department with copies of his Sri Lankan national identity card, Sri Lankan birth certificate, Emergency Travel Document and a letter dated 2 July 2012 relating to a positive Independent Obligations Assessment (IPA) outcome and other documents relevant to establishing his identity and refugee status. The applicant claims to have never had a passport.[2]
[2] Department [file].
The documents provided by the applicant are consistent with his evidence in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Based on the information provided by the applicant the Tribunal finds that he is a citizen of Sri Lanka, and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant first arrived in Australia on April 2011. The applicant entered Australia as an irregular maritime arrival (IMA) on a vessel code-named ‘[deleted]’. The applicant says he travelled by boat from India.
The applicant claims he had travelled by boat from Sri Lanka to India in August 1990 seeking protection. He lived in various refugee camps until April 2011. After arriving in Australia, he was held at Cocos Island Immigration Detention Centre until May 2011 when he was transferred to Christmas Island Immigration Detention Centre. He was then transferred to [an onshore] Immigration Detention Centre where he remained until March 2012. Since his initial arrival he has not departed Australia.[3]
[3] Department file
The applicant was the subject of an unfavourable Protection Obligations Determination (POD). Consequently, there was an automatic referral of the applicant’s unfavourable POD for an IPA. The independent assessor recommended to the Department that the applicant is a refugee under the 1951 Convention and relevant provisions of the Act. Consequently, the applicant was permitted to apply for a protection visa.
Considering further the applicant’s circumstances in Australia: the applicant was granted a Temporary Humanitarian Stay (Subclass 449) visa in 2012.
The applicant is presently lawfully onshore as the holder of a bridging visa granted on 29 September 2015.
The applicant submitted a valid Temporary Protection (Subclass 785) visa application to the Department on 29 September 2015.
The above-mentioned protection visa application was refused by the delegate of the Minister for Immigration and Border Protection on 4 September 2017. The applicant provided to the Tribunal a copy of the record of the delegate’s decision. The Tribunal has read the decision.
The applicant applied for a review of this decision on 20 September 2017.
The applicant made a valid application for a Safe Haven Enterprise (Subclass 790) visa (SHEV) on 18 December 2015.[4]
[4] Department file
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
Applicant’s evidence
The applicant claims to have never married. At the time of application, the applicant’s mother and [sisters] resided in India, and a sister and brother resided in Sri Lanka. The applicant’s father was deceased.
At hearing the applicant said he is [age] years of age and that he has been out of his home country for 31 years. He spent this period of time in India and Australia.
The applicant claims and the Tribunal accepts he is an ethnic Tamil. The applicant also claims his religion is Hindu.
The applicant claims to have attended primary and secondary school [in] [Jaffna] from [year range].
According to the applicant’s evidence at hearing he left school at the age of [age range]. He worked in a relative’s workshop where he learnt to be [an Occupation 1]. He worked as [an Occupation 1] until he departed his country of residence, Sri Lanka and travelled to India in August 1990.
The applicant lived with his family until he departed for India. The applicant says that he left his home country in fear for his life.
According to the applicant’s evidence at hearing, neither he nor members of his family were members or supporters of Liberation Tigers of Tamil Eelam (LTTE). Furthermore, according to the applicant’s evidence he was never involved in antigovernment activities in Sri Lanka.
There is no evidence members of the applicant’s family were actively involved in antigovernment activities in Sri Lanka.
According to the applicant’s oral evidence LTTE forcefully recruited young male Tamils into their ranks. They also sought financial support from Tamils. At the time when members of LTTE wanted the applicant to join their army, the applicant’s family made a financial contribution to LTTE. Consequently, LTTE gave up on their efforts to recruit him.
According to the statement dated 18 February 2018 that the applicant provided to the Tribunal, and his evidence at hearing, he was forced by the ENDLF to participate in their training camp for the purpose of military training. That happened in either 1987 or 1988.[5] At hearing the applicant did not know the name of the group and said it is ‘Eelam Freedom or something’. According to the applicant’s evidence at hearing, due to advocacy on his behalf by members of his family, he was released from the training camp within a week of being inducted. He resumed living with his family and working as [an Occupation 1] for about 2 to 3 years. In August 1990 he departed for India.
[5] Tribunal file, applicant’s written statement dated 18 February 2022.
The applicant says one of his brothers travelled to India before him to escape poor economic conditions in Sri Lanka, including food shortages, difficulty in finding employment and limited electricity. Similar difficulties also existed, according to the applicant, before he departed for India.
The applicant says in evidence that one of his sisters and a brother[are] living in Sri Lanka and that he has not spoken to his brother for a long time.
According to the applicant’s evidence at hearing, upon arrival in India he was given money and taken to [a] refugee camp in Tamil Nadu. After about 5 months he, along with other Tamils, were moved to a refugee camp called [name]; it was a bigger camp in the same area as the first camp. After about 8 months in December 1990, he was jailed. This followed his arrest by an Indian state security agency responsible for monitoring newly arrived Tamils. According to the applicant 10 to 13 other people were arrested at that time.
The applicant said at hearing that he was not told the reason for his arrest, but he was told that he and the others were being investigated.
In response to a question from the Tribunal the applicant qualified his earlier evidence about being jailed, and said he was taken to a big fortress-like place. He was kept there for 5 years.
The Tribunal asked the applicant about being tortured during this period of detention. He explained there was not enough food; he was given the same food every day; and he did not like the food. The applicant accepted in evidence that the torture he claimed to have suffered in detention was being provided with food he disliked.
The applicant says he was released from the fortress in 1995. He was registered in India as a refugee. The detainees who were LTTE ‘people’ were not released.
In evidence the applicant asserted he was released from the fortress due to the intervention of the United Nations High Commission for Refugees (UNHCR) shortly before he was due to be returned to Sri Lanka. The applicant says the UNHCR intervened because the authorities in Sri Lanka would have known he, and the other returnees were arriving from a refugee camp and therefore he was at risk of being harm by the authorities upon his return. The applicant says the UNHCR saved him and the other potential returnees.
The applicant gave evidence that the authorities in Sri Lanka would be aware of his period of detention and that he was detained with a few senior members of the LTTE.
The applicant also says in evidence that due to the circumstances of his detention he would be at risk of suspicion and investigation by state security in Sri Lanka. His fear, according to his evidence, that he would fall under the suspicion or be investigated by state security, is based wholly on his association with members of the LTTE during the 5 years he spent in confinement in India.
In his oral evidence the applicant accepted that LTTE is a spent force, and that the government is vigilantly acting to prevent its resurgence. In these circumstances, according to the applicant, Tamils are going missing.
According to the applicant’s evidence, he and other detainees held a hunger strike in which they demanded UNHCR intervention. After the intervention he and the others gave up the hunger strike. The hunger strike was the only political activity the applicant engaged in during the period he was in India.
After the applicant was released from detention, he was transferred to [a] refugee centre along with 31 other persons.
The applicant worked after he was released. He was paid to make [products]. He also worked as a labourer. He established his own [business], and he carried on the business until he departed India for Australia.
There is no dispute that the applicant’s parents and sisters arrived in India in 2000. According to the evidence the applicant lived with his family members after their arrival. The applicant’s father died in India.
The applicant said at hearing he has not engaged in political activities in Australia.
In Australia the applicant worked in [a line of work] from 2012 to 2015, thereafter, he worked as [an Occupation 2] until the time he applied for the protection visa.[6] At hearing there was no material departure from this employment history.
[6] Part C – Application for a protection visa application form dated 21 December 2015, Department [file].
At hearing the applicant provided more details about his employment history in Australia. When he initially worked in [that line of work] he did so in partnership with another person. He left the partnership and worked for his former partner as an employee. He also worked as [an Occupation 2] and [Occupation 1]. For short periods of time, he was unemployed. More recently he worked as [an Occupation 3] and now he is [self-employed]. Currently he has A$10,000 in savings and he proposes to use his savings to purchase a replacement [equipment].
The applicant says he has summarised his protection claims in the written statement dated 18 February 2022 (statement) that he provided to the Tribunal.[7] In the same document he informed the Tribunal that, at hearing, he will provide further information about his protection claims.
[7] Tribunal file
The applicant raised his claims by referring to and relying on the Independent Protection Assessor’s recommendation that he be recognised as a person to whom Australia has protection obligations. It is not open to the Tribunal to adopt the Independent Protection Assessor’s recommendation, that is to say the Assessor’s opinion, as the reason or part of the reason for the decision it reaches in this review. The Tribunal is required by law to make a fresh and independent decision in this review.
In his application for protection dated 29 September 2015, the applicant states: ‘I refer to and rely on the 15 June 2012 Independent Protection Assessor recommendation that I should be recognised as a person to whom Australia has protection obligations. I request the opportunity to provide further information should the Department require additional information before a decision is made on my TPV application’.
The claims for protection that the applicant made to the Independent Protection Assessor during the IPA process are substantially in line with the claims he made in the statement he provided to the Tribunal and his oral evidence at hearing.
The applicant says in evidence that the government in Sri Lankan believes Tamils support the LTTE.
Claims for protection
The applicant claims:
·In 1987/1988 he was forcefully detained by the ENDLF and given a week of training.
·Following this training by the ENDLF his family feared he would be forcibly recruited by the LTTE: for his own protection his family sent him to India.
·He arrived in India [in] August 1990.[8]
[8] Evidence at hearing
·He cannot return to India because he has no lawful right to entry and stay in India.
·Due to the applicant being of Tamil ethnicity and his age, the Indian authorities suspected he was associated with the LTTE. Consequently, in December 1990 he was arrested and detained for 5 years [in] Velur District.
·In detention he was severely tortured and interrogated. He was released from detention in 1995 with the assistance of the UNHCR.
·He fears the authorities, including the Sri Lankan Army (SLA), are aware of this detention and, as a consequence the SLA believes he is a supporter of the LTTE.
·After he was released, he was monitored by the authorities during the period after he was released from detention in 1995 and his departure for Australia by boat in 2011.
·He cannot return to Sri Lanka because the authorities will suspect he is a former LTTE person who is returning home for the purpose of assisting the LTTE to re-establish itself of a similar group.
·He fears the authorities would abduct, harass and kill him if he returns to his home country.
·He fears the authorities will persecute him if he is returned to Sri Lanka and that they will not protect him because he believes the authorities will persecute him.
·He is afraid of the current government of Sri Lanka led by the Rajapaksa brothers due to them being accused of condoning sexual violence and extrajudicial killings alleged to have been committed by Sri Lankan security forces during the civil war.
·Newly elected President Gotabaya Rajapaksa is reputed to be unforgiving and ruthless. His family address him as the ‘terminator.’ Tamils in Sri Lanka live in fear since he was elected President.
·Due to his Tamil ethnicity the authorities will suspect him of association with the LTTE.
·He will be persecuted in Sri Lanka due to the authorities imputing to him the political opinion that he believes in the objectives of the LTTE and that his reason for returning to Sri Lanka would be to ‘rebirth the LTTE or a similar group’.[9]
·He would not be able to relocate from his home area because the authorities operate with impunity throughout Sri Lanka.
·Any attempt to relocate would come to the attention of the authorities because in order to do so, he would be required to use his national identity card which would alert the authorities to his movements.
·He has no formal qualifications, he has always worked as a labourer, and he does not have a support system in Sri Lanka.
·He fled to India in 1990 in fear for his life.
[9] Tribunal file, the applicant statement.

At hearing the applicant claimed:
- That the LTTE will extort money from him in Sri Lanka.
·Tamils are economically and politically marginalised in Sri Lanka.
·The intelligence services may persecute him.
·The LTTE may harm him.
·He will be monitored, investigated and live like a slave if he lives anywhere in Sri Lanka.
·Q Branch of the intelligence services administer injections to low-ranking members of the LTTE and they die after a few years.
·He would be at risk of suspicion and investigation by state security due to his association with a few high-ranking members of the LTTE during the 5 years he spent in detention in India.
·He was monitored in India after his release from detention.
·He fears groups would persecute him because he is a Tamil.
·A group that may be called the ‘sword slashers’ slash Tamils and they do that with the support of the Government.
·If he is returned to Colombo, he fears he will fall under the suspicion of Q Branch, the military and the sword slashers, due to him being out of the country for 31 years and that he will not know how to behave and fit into day to day living.
·He will be subjected to religious discrimination from the Sinhalese and Chinese people who are mostly Buddhists and they dislike Tamils, and he is Hindu.
ANALYSIS
The evidence establishes the applicant was not a member of or affiliated with the LTTE and he was not involved in anti-government activities while he lived in Sri Lanka. He did not join LTTE while he was residing in India.
There is no evidence that the applicant expressed pro-LTTE or anti-government opinions while he was residing in India, and in particular, during the 5 years he was in detention.
There is evidence that Indian state agencies monitored the activities of Tamil refugees at the time the applicant was residing there, including the applicant. There is evidence that on one occasion a member of a monitoring agency was a passenger on public transport at the same time as the applicant. They recognised each other and conversed.
There is no evidence that during their conversation the applicant was accused of being a political activist, or holding views that indicated he may be at risk to state security in India or Sri Lanka.
There is evidence the applicant was arrested and detained in India in a place that the applicant describes as the appearance of a fortress, but it was not a jail. The applicant spent 5 years in that place.
There is also evidence that the applicant engaged in a hunger strike towards the end of the 5-year period. He along with other detainees were protesting against their imminent deportation to Sri Lanka. The UNHCR interceded and the deportation did not occur. According to the evidence the UNHCR intervention led to the release of the applicant and other detainees in 1995. However, according to the applicant’s evidence LTTE detainees were not released.
Later in evidence and in the context of the applicant accepting that he is not connected with the LTTE but he was detained with a few senior members of the LTTE, he said some members of the LTTE escaped. He was concerned that it was possible he would be regarded by the authorities in Sri Lanka as an escapee, and as a consequence, he would be viewed as a member of the LTTE.
After the applicant was released from detention in December 1995 he lived openly with his family, he worked consistently and he established and operated his own small business until he left India for Australia 16 years later, [in] April 2011. There is evidence the applicant was monitored in India after his release along with other Tamil refugees. The evidence does not establish the applicant was consistently monitored or that he was specifically monitored after his release because he was considered to be a current or potential threat to state security in India or Sri Lanka. If the applicant was regarded as an escapee, it is reasonable to expect he would have been arrested and detained between December 1995 and his departure from India in 2011.
The evidence does not satisfy the Tribunal that the applicant in India was involved in any group that was opposed to the Sri Lankan government or that he expressed views that indicated he posed any risk to state security in Sri Lanka.
The Tribunal accepts it is likely the authorities in Sri Lanka were informed by the authorities in India of the applicant’s presence in India, detention and his release from detention in 1995. The evidence does not satisfy the Tribunal that the applicant would’ve been reported as an escapee from detention, or that he was suspected by the Indian authorities of being a member of the LTTE or a risk to state security in Sri Lanka. The evidence is to the contrary. According to the applicant’s evidence, the Indian authorities did not release members of the LTTE.
Furthermore, the presence of the applicant in the detention facility in India for 5 years, whilst bringing him into contact with senior members of the LTTE, is not sufficient evidence when it is considered alone and in combination with the totality of the evidence, to satisfy the Tribunal that the applicant would be viewed by the authorities in Sri Lanka as a present-day risk to state security and that he is likely to endeavour to revive the LTTE.
There is no evidence that establishes members of the applicant’s family were associated with or sympathetic to the LTTE or expressed political views that may be considered to be challenging to the Government of Sri Lanka, while living in either Sri Lanka or India.
The evidence considered cumulatively does not establish the applicant’s conduct and personal associations in India would cause the authorities there to take the view that the applicant was a member of the LTTE or that he supported their conduct and objectives.
On the basis of the evidence, it is reasonable to conclude any report by the Indian authorities to the Sri Lankan authorities about the political attitudes and conduct of the applicant in India, would have been made about the time he was released from custody in 1995, approximately 27 years ago. According to the applicant the known LTTE members were not released from detention whereas the applicant was released from custody irrespective of him being detained in the same place with a few senior members of the LTTE.
The evidence before the Tribunal including the DFAT country information report is insufficient to establish to the satisfaction of the Tribunal that any report about the applicant in India by the Indian authorities to the Sri Lankan authorities would expose the applicant to a real chance of persecution in Sri Lanka.
According to the applicant, he has not engaged in any political activities in Australia.
According to the DFAT country Information report, the LTTE is a spent force. In evidence at hearing, the applicant agrees with this assessment and says he is not connected with the LTTE. Nevertheless, he is afraid the rejection of his claim for protection, combined with him being single and a Tamil, will mean he will be suspected of being a supporter of the LTTE returning to Sri Lanka to ‘rebirth’ the LTTE and any claim to the contrary will not be believed.
His fear of persecution is compounded by the vigilant efforts of the government to prevent a resurgence of the LTTE. In that context the applicant says people are disappearing.
The applicant says his long absence from Sri Lanka will mean he will be unable to fit into society and that he will expose himself in a way that will attract the suspicion of the authorities.
The Tribunal does not accept this is a realistic or genuine fear. The applicant’s history of living and working in Sri Lanka; adapting to and living in detention and refugee camps in India; working for others and establishing and operating his own small business in India; securing passage to Australia by boat; the period he has lived in Australia; his work history in Australia including operating his own [Occupation 3] business; that he arrived in Australia on his own are circumstances, when considered in combination, constitute evidence that it is likely the applicant will successfully readapt to living in his home country, notwithstanding the time he has been away from the country.
The Tribunal is not satisfied that the applicant is likely to be subjected to a real chance of serious harm due to behaviours associated with relative unfamiliarity with living in Sri Lanka in the present circumstances, and that he is Tamil and Hindu or his actual or imputed political opinions. In this regard it is relevant to note that conditions have improved in Sri Lanka compared to the time the applicant lived and worked there. As a matter of common knowledge and the information contained in the DFAT country information report, the armed conflict between the government and the LTTE ceased in May 2009 and the civil war ended. The LTTE is a spent force. Since the cessation of the conflict the government exercises effective control over the entire country including the Tamil-populated areas in circumstances of armed conflict. The government is actively working to prevent terrorism including Islamic terrorism and any revival of the LTTE.[10]
[10] DFAT country information report.
According to the applicant’s evidence at hearing, due to his ethnicity, that he is single, his fear of the authorities, and the long period of time he has been absent from Sri Lanka, he would stand out in Sri Lanka. Consequently, he would attract the attention of the authorities and be harassed by the authorities. The applicant also says that his denials of any involvement with the LTTE would be disbelieved, and that he would be arrested and persecuted.
The applicant claimed at hearing that rejection of his visa application would cause the authorities to take the view he is a member of the LTTE.
The Tribunal informed the applicant that country information available to the Tribunal indicated that low profile individuals who were supporters of or members of the LTTE are permitted to go about their business but they are subject to monitoring and that is all. The Tribunal suggested to the applicant that this information is inconsistent with his fear that he would be persecuted upon his return and invited him to comment. He agreed that monitoring is carried out by members of the intelligence branch of the government, and asserted he would live like a slave. The intelligence services inject Tamil suspects with a substance that caused them to die after a few years. The applicant did not substantiate his evidence in relation to slow acting injections being administered to individuals with his profile, or at all, and the Tribunal finds the evidence to be unpersuasive.
Neither the country information nor the evidence, considered individually and cumulatively, establishes the applicant was associated with the LTTE any time in his life. The evidence does not satisfy the Tribunal that state or non-state actors would treat the applicant like a slave; that he would be monitored due the authorities suspecting he was a past member or of the LTTE; suspected of prior involvement with the LTTE; or any suspicion that he would endeavour to reinvigorate the LTTE in Sri Lanka now or in the reasonably foreseeable future.
The Tribunal is not satisfied of the existence of a real chance the applicant would be persecuted in Sri Lanka for reasons of an actual or imputed past, present or future association with the LTTE.
The applicant indicated at hearing that he feared he may be harmed by former members of the LTTE or members of the ENDLF because he left the country. This evidence is vague in nature and it is unsubstantiated by concrete evidence. The Tribunal finds the evidence to be unpersuasive.
The applicant did not give evidence that specifically addresses the consequences of returning to Sri Lanka as a person who departed illegally. The Tribunal has had regard to the DFAT country information in relation the treatment of returnees.
The applicant departed Sri Lank illegally. Upon his return it would be immediately apparent to the authorities that he is a person who departed Sri Lanka illegally. Consequently, he would be referred to relevant authorities at the airport, due to him returning on temporary travel documentation issued by the Australian authorities. He would be detained and investigated to determine whether he had a criminal or terrorist background. DFAT is not aware of detainees being mistreated at the airport.
DFAT country information indicates the applicant may be charged with statutory offences due to his illegal departure. Although imprisonment is one penalty that may be imposed, according to the country information report, a fine in the order of LKA 50,000 to 20,000 (A$350-1,400) may be imposed. Pending resolution of any charges, an application for bail is available to the applicant. The evidence before the Tribunal does not demonstrate the applicant has a criminal history or a history of involvement in terrorism that suggests the existence of a reasonable likelihood that in the ordinary course of legal proceedings, the applicant would not be granted bail if he were to make the application.
The evidence and the country information does not establish to the satisfaction of the Tribunal that the applicant would be mistreated at the airport and during any time spent in detention pending the result of inquiries into whether his antecedent conduct involved criminal or terrorism related activities, and whether he may pose a risk to state security, or that he would be detained for an inordinate period prior before being processed for bail.
The applicant has not claimed, and the evidence does not establish the applicant would be detained for an inordinate period of time or in circumstances upon his return due to him being a failed asylum seeker and his illegal departure from Sri Lanka.
Resolution of any court proceedings arising from the applicant’s illegal departure in August 1990 is likely to take a considerable period of time involving a number of court attendances, due to his illegal departure from Sri Lanka.
The applicant also says at hearing he would be at risk of being attacked by groups who slash Tamils with swords. The applicant claims these groups have the support of the government and act with impunity. This evidence is general in nature; neither the source or age of this information has been identified by the applicant; and it is not supported by concrete evidence. The Tribunal finds this evidence to be unpersuasive.
The applicant’s evidence is the dominant ethnic group in Sri Lanka, the Singhalese, and also Chinese people in Sri Lanka are Buddhists. The applicant says they don’t like Hindus; he is Hindu and therefore, he will suffer discrimination and harm from Buddhists for reasons of his religion and ethnicity. This evidence is general in nature. The applicant has not supported this claim with concrete evidence, and the Tribunal finds the applicant’s evidence to be unpersuasive. Furthermore, the applicant has provided no evidence of him engaging in Hindu religious practices in his home country, India or Australia.
Nevertheless, according to the DFAT report, DFAT assesses there is a low to moderate risk of religious adherents other than Buddhists suffering official discrimination from government authorities which can affect their ability to build places of worship, seek recourse for religiously motivated attacks, and practise their faith freely. The Tribunal has given regard to this information. Nevertheless, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant would practise the Hindu faith if he is returned to Sri Lanka now or in the foreseeable future.
Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal of the existence of a real chance the applicant would suffer serious harm for reasons of religion if he is returned to Sri Lanka now or in the reasonably foreseeable future.
The applicant claims the LTTE may harm him if he returns to Sri Lanka. In evidence the applicant agreed that the LTTE is a spent force. The applicant’s evidence establishes he was never a part of or associated with the LTTE. There is no evidence of any historical grievance between the LTTE and the applicant or members of his family. Relevantly, the applicant’s sister and brother are still living openly in Sir Lanka. There is no evidence of any members of the applicant’s family giving cause to any person associated with the LTTE to want to harm the applicant. The Tribunal finds the applicant’s evidence in suspect of this claim to be unpersuasive.
The DFAT country information report demonstrates the Government controls all of Sri Lanka and that the security situation in the north and east of the country has improved significantly since the end of the Civil War in May 2009. The country information does not support the applicant’s claim that he would be subject to harm by agents of the state due to him being Tamil and single. Relevantly, the applicant has not claimed he would be at risk of serious harm due to his sexual identity, or potential sexual behaviour in Sri Lanka.

100. The applicant asserts that Tamils fear and he fears he would be persecuted by the present leaders of the Government, including the current President who is known to be ruthless, unforgiving and that his family address his as the ‘terminator’.[11]
[11] Ibid.
101. DFAT country information demonstrates the Government and President strongly promote state security and vigorously suppress Islamic extremists, especially after the devastating terrorist attacks they carried out on 21 April 2019. DFAT reports that the government works assiduously to ensure the LTTE does not re-establish itself. Nevertheless, according to the DFAT report the involvement of the military in civilian life has decreased since the end of the war, although it is involved in certain business-related activity.
102. DFAT assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official discrimination at present in Sri Lanka. Considering the applicant does not claim, and the evidence does not establish he has ever been directly or indirectly involved in acts of terrorism, or personally supported such activities or that he would be of particular interest to the authorities due to his past conduct inside or outside Sri Lanka, the evidence as a whole, is insufficient to establish to the satisfaction of the Tribunal that there is a real chance the applicant would be subjected to serious harm in his home town or anywhere else in Sri Lanka, now or in the foreseeable future, on the grounds of his actual or imputed opinions or his ethnicity.
103. The applicant claims he will suffer serious harm because of his long absence from his home country, he has no remaining support structure there; he has no formal qualifications and he has worked as a labourer all his life, and he would be unable to subsist in Sri Lanka.
104. The evidence establishes the applicant trained as [an Occupation 1] in a relative’s business, and that he has many years of experience in that occupation. The resilience and resourcefulness of the applicant in difficult and challenging circumstances is evidenced by the applicant’s employment history in India including successfully establishing and operating his own business in India.
105. The applicant has established himself in Australia. According to the applicant he has been steadily employed since his arrival, with short periods of unemployment. Currently he is self-[employed]. He paid A$5,000 for the [equipment]. It has been unreliable and he plans to replace it with [another equipment] that is in better condition. According to his evidence he will use his savings to pay for the replacement [equipment]. The applicant said at hearing that he has A$10,000 in savings in a bank account.

106. According to the applicant’s evidence he has one sister and a brother in Sri Lanka. The brother is [employed]. The applicant said in evidence that he has not spoken to his brother for many years. The evidence is insufficient to establish to the satisfaction of the Tribunal that the state of the relationship between the applicant and his brother is such that it could not be renewed if the applicant resumed living in Sri Lanka. On balance, the Tribunal is not satisfied the applicant would be unable to avail himself of assistance from his sister and potential his brother if he asked for it.
107. The evidence does not satisfy the Tribunal that it is reasonable likely the LTTE or ENDLF would attempt to extort money from the applicant or target him and subject him to serious harm if he returned to his home country now or in the reasonably foreseeable future.
108. Currently the applicant owns [equipment] which would have some monetary value, and he has AUD$10,000 in bank savings in Australia. The evidence does not establish that his cash savings and any money he obtained from selling his [equipment], would be largely unavailable if he were to return to Sri Lanka now or in the reasonably foreseeable future.
109. The evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant would be unable to find employment somewhere in Sri Lanka as [an Occupation 1], or otherwise re-establish himself in the workforce in Sri Lanka, or that he would be unable travel safely to his hometown or elsewhere in Sri Lanka and relocate himself to any location in which he found employment.
110. On balance, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance of significant economic hardship that would threaten the applicant’s capacity to subsist; or, that he would be denied access to basic services in circumstances where the denial threatens his capacity to subsist.
111. Based on the whole of the evidence that is materially relevant to the applicant’s claims and the protection claims themselves, considered individually and cumulatively, the Tribunal is not satisfied of the existence of a real chance the applicant would be subjected to serious harm because of his actual or imputed political opinions, race, religion, or for any of the other reasons specified in s 5J(1)(a) of the Act, if he is returned to Sri Lanka now or in the reasonably foreseeable future.
112. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out is s 5H.
Complementary protection
113. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will meet that criterion if there are ‘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’.
114. The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
115. Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

116. The Tribunal will now consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. The applicant will satisfy the criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.
117. In applying the decision in MIAC v SZQRB (2013) 210 FCR 505 [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(aa) of the Act. Therefore, for the reasons outlined above the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
FINDINGS
118. 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).

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).
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 any of the criteria in s 36(2).
DECISION

121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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.
…

[2022] AATA 1457

18 March 2022

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