1729065 (Refugee)

[2019] AATA 5932

1729065 (Refugee) [2019] AATA 5932 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729065

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Ann Duffield

DATE:24 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 24 June 2019 at 11:51am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court Remittal – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) – brother joined LTTE – race – Tamil – membership of particular social group – failed asylum seeker – departed illegally – hearing vague and lacking in detail – ethnicity not a barrier to employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

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 Citizenship on 18 September 2013 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 24 December 2012. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia had protection obligations.

3. A differently constituted Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

BACKGROUND

1. The applicant is a citizen of Sri Lanka born in [year] ([age] years old). He claims to have been born in [a village], [in a city], Sri Lanka and is a Hindu Tamil. The applicant provided the then Department of Immigration and Citizenship (the Department) with copies of his identity documents and the delegate was satisfied that the applicant’s country of reference for the purpose of assessing his protection obligations under the Refugees Convention is Sri Lanka. The applicant has not claimed citizenship of a third country and there is no evidence before the Tribunal that the applicant is a citizen of another country

2. The applicant was interviewed in relation to his claims by a delegate of the Department on 19 July 2013. The following is a summary of his claims at that time:

   a.His elder brother joined the LTTE in 1995 and as a result he and his family were subject to intimidation by the Sri Lankan Army between around 2000 and 2002;

   b.The applicant claims that he was beaten by the SLA and interrogated during this period;

   c.In 2006 the applicant received news that his brother had been killed and he returned to his home village. At that time, three SLA officers were killed by LTTE members in his village and he was beaten, interrogated and accused of providing food and assistance to the LTTE members who were responsible for killing the SLA officers in November 2006;

   d.Approximately one month later he was accused of involvement in a bomb blast. He subsequently lived with his uncle until April 2009 without incident;

   e.The applicant lived peacefully until around February 2012 when he claims that the CID came to question him on three occasions about his employment;

   f.The applicant departed for Australia and within a week the CID visited his mother several times; and

   g.The applicant claims that if he returns to Sri Lanka he will be kidnapped, shot or killed by the Sri Lankan authorities because he is a Tamil and has been imputed with having LTTE links and because he sought asylum in a western country and departed Sri Lanka illegally.

3. The delegate found that the the war in Sri Lanka ended in May 2009 and the applicant had not been harassed or been of interest to the authorities between December 2009 and his departure from Sri Lanka in July 2012, and noted that the CID provided a clearance check in relation to the applicant’s employment with a foreign company without incident. The delegate was not satisfied that the applicant would face discrimination on the basis of his race, religion or imputed political opinion upon his return such that it would constitute persecution. The delegate also noted the UNHCR’s report in relation to those Tamils who had been imputed with or actually associated with the LTTE, unless of a sufficiently high rank, would be of little or no interest to the authorities. The delegate also noted that thousands of Sri Lankan Tamils had returned to Sri Lanka without incident and citied several country reports supporting that view.

4. At the previous Tribunal hearing the applicant reiterated his claims and added that he would also face persecution because of his work [in Occupation 1].

5. The Federal Circuit Court remitted the applicant to the currently constituted Tribunal because it found that the Tribunal erred in its interpretation of “serious harm” in relation to the past experiences of the applicant and therefore such interpretation infected any consideration the Tribunal had of the applicant facing future “serious harm”.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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 them-self 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).

4. 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.  

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

1. The issue in this case is whether Australia has protection obligations to the applicant either for refugee purposes, or because he meets the requirements to obtain complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

COUNTRY INFORMATION

Country information

1. The following information is provided by DFAT Country Report, 28 May 2018.

   3.4 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.

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

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

   3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints. [1]

   [1] DFAT Country Information Report Sri Lanka, May 2018, Pages 13-14

2. Furthermore, in relation to the applicant’s religion and ethnicity, the DFAT report notes the following which it also put to the applicant during the hearing:

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

   3.17 DFAT assesses that while no laws or official policies discriminate on the basis of religion, adherents of religions other than Buddhism face a low risk of official discrimination from local government authorities, which can affect their ability to practise their faith freely.

   Hindus

   3.29 Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information. [2]

   [2] DFAT Country Information Report Sri Lanka, May 2018, pages 14-17

3. The applicant does not claim to be a member of the LTTE, only that his brother was a member and he was killed in 2006. The Tribunal notes the following information from DFAT in relation to LTTE membership or association and put aspects of this information to the applicant during the hearing.

   3.38 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.

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

   3.40 Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.[3]

   [3] DFAT Country Information Report Sri Lanka, May 2018, pages 17-19

4. The Tribunal has also considered the applicant’s claim that he will be targeted because of an imputed membership of LTTE. The applicant has not claimed that his brother held a high position in the LTTE. Again, DFAT information indicates that unless the applicant has links with high profile members or the likes, he would be of no interest to the authorities:

   3.48 In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:

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

   ·    former LTTE combatants or ‘cadres’;

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

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

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

   ·    persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. [4]

   3.49 Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.

   [4] DFAT Country Information Report Sri Lanka, May 2018, pages 19-20

Returned failed asylum seekers

1. The applicant also claims that because he has been of adverse interest to the government of Sri Lanka in the past, his detention and questioning as a result of his failed asylum claim in Australia will lead to his persecution. The Tribunal notes in relation to those matters the following information from DFAT and put a summary of it to the applicant during the hearing.

   5.37 Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.

   5.38 The government has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Sri Lankan Prime Minister Ranil Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with scepticism.

   5.39 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN organisations and international NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan government promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.

   5.40 While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.

   5.41 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.

   5.42 DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities. [5]

   [5] DFAT Country Information Report Sri Lanka, May 2018, pages 40-43

1. The Tribunal put to the applicant summaries of this country information at relevant times during the Tribunal hearing and sought his response. Those responses are included, where relevant, in the findings and reasons below.

TRIBUNAL HEARING

1. The applicant’s evidence at the hearing was vague and lacking in relevant detail. The Tribunal cautioned the applicant that it may give little weight to such evidence and encouraged him to provide as much detail as possible in his answers to the Tribunal’s questions. The Tribunal also put to the applicant, on several separate occasions, its concerns with aspects of his evidence. The Tribunal informed the applicant that his response to those concerns was important as those matters would form a reason or part of the reason for affirming the decision. The applicant indicated that he understood. The Tribunal also asked the applicant if he needed more time to re consider the responses he had already given or to add to them. The applicant indicated to the Tribunal that he felt he had been given adequate opportunity to respond to its concerns and to respond again would only mean that he would be repeating himself. Where relevant, the Tribunal’s concerns and the applicant’s responses are included in the findings and reasons below.

2. For the purposes of this decision, the Tribunal accepts that the applicant’s treatment and the harm he suffered prior to 2009 was serious harm, particularly in relation to his shrapnel wounds and his psychological distress.

3. The Tribunal informed the applicant that even if it did accept that he suffered serious harm in the past, it must now be satisfied that he will suffer serious harm in the future and that that harm or fear of persecution was for one, or some combination of the five Convention reasons, should he return to Sri Lanka or that the Tribunal is satisfied that there are 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 will suffer significant harm. The applicant indicated that he understood.

LTTE links

1. The Tribunal asked the applicant why he feared returning to Sri Lanka and he said that the CID would be looking for him because he was associated with the LTTE. He said that they had come to his house in 2012 and also after he left. He said that they would know he had returned and kidnap or otherwise harm him if he returned. When asked to expand upon the reasons why the CID would be interested in him, he said that in around August 2012 the CID came to his house several times and asked him about his employment. When pressed the applicant told the Tribunal that the CID put to him that he was [working in Occupation 1 and] also asked him when his employment would end.

2. The Tribunal asked the applicant why he believed that such questions amounted to persecution or would lead to him being harmed and he said that it was because he was associated with the LTTE and that the remarks were insulting. In the Tribunal’s mind, the questions were not sinister, nor did they result in the applicant suffering any harm. If the applicant considered them disparaging or offensive, again, this does not, in the Tribunal’s mind, amount to serious harm.

3. The Tribunal put to the applicant the country information in relation to the response of the Sri Lankan government and authorities to prior LTTE members or those who may have been associated with LTTE members. The Tribunal put to the applicant that he was not of the profile that would attract the negative interest of the authorities, particularly as his brother, who was a member of the LTTE, was killed in 2006. The Tribunal put to the applicant that it did not appear that he would come to the attention of the authorities. The applicant told the Tribunal that three or four months ago three Sri Lankan policemen shot an LTTE man who had been rehabilitated and that he would not therefore have no chance of being harmed. He provided no supporting evidence of this event and on the basis of that statement alone, the Tribunal cannot reasonably extrapolate that he would be likewise treated.

4. The applicant’s evidence is that he suffered no harm of any kind from anyone between 2009 and 2012 for any reason. He told the Tribunal that he was working for [Organisation 1] and that might have offered him some protection.

5. The Tribunal is not satisfied that the applicant would be persecuted upon his return to Sri Lanka for LTTE links he had through his brother some 13 years ago. The applicant himself claims not to have been harmed or targeted for harm for this or any other reason between 2009 and his departure in 2012.  Indeed, he was working with [government] funded [Organisation 1 in Occupation 1]. It seems implausible, in the Tribunal’s mind, that the government of Sri Lanka or its agencies would have an adverse interest in the applicant for a long spent association with an LTTE member. Indeed, if they did have such an interest, given his involvement with [government funded Organisation 1], he would have been easily found and persecuted by the CID if that was their intent. The applicant’s evidence is however that the CID merely asked when his employment with that organisation would cease and observed that he was [working in Occupation 1]. It seems to the Tribunal that the government would view the applicant’s activity beneficial to the nation as opposed to a reason to persecute him and do not amount to an interest in the CID persecuting the applicant or otherwise causing him harm for any reason should he return to Sri Lanka now or in the reasonably foreseeable future.

Employment

1. The applicant has claimed that he will face persecution by the Sri Lankan Government or its authorities upon his return to Sri Lanka because of his work with [Organisation 1].

2. After a lengthy discussion about this matter it transpires that [Organisation 1] was funded by the Australian government and overseen by the Sri Lankan Government. The Tribunal put to the applicant that it seemed fanciful that the Sri Lankan Government or its authorities would persecute an individual for [working in Organisation 1] funded by the Australian government as it was clearly in the government of Sri Lanka’s interest that the [work was completed].

3. The applicant told the Tribunal that the CID kidnapped people involved in [this activity] because it suspected that the [goods being handled] were being taken. The Tribunal put to the applicant that seemed implausible and he was unable to provide any additional evidence to support that claim.

4. The Tribunal does not accept that the applicant would face persecution or harm of any kind by reason of his employment with [Organisation 1] by the government of Sri Lanka, or its agencies, or indeed anyone else.

Tamil ethnicity

1. The applicant claims he will be persecuted as a Tamil if he returns to Sri Lanka. The Tribunal put to him the country information that indicates that whilst there may be a level of discrimination against Tamils, this did not amount to persecution and discriminatory laws had been repealed. The applicant said that there was trouble brewing between the Singhalese and the Muslims and that he would be caught up in it. The applicant was unable to be specific about these matters and the Tribunal put to him that it was not possible for it to make a finding that he would be persecuted by unknown people in events that he was merely speculating about. The applicant said that Tamils fought with Muslims. When asked by the Tribunal if he was or would be directly involved in these events the applicant said that it was hard to know.

2. However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection. Neither would a person such as the applicant whose connection with the LTTE was only as a result of his brother’s involvement. The applicant has made no claims that he himself was involved with the LTTE in the past and has not given evidence that he has been active in any way in the Tamil diaspora since he departed Sri Lanka. The Tribunal does not accept that the applicant has a profile that would lead him coming to the adverse attention of the authorities should he return to Sri Lanka.

3. The Tribunal does not accept that the applicant will face persecution as a Tamil if he returns to Sri Lanka either now or in the foreseeable future. The applicant has not described persecution or harm he has faced as a result of his ethnicity between 2009 and his departure in 2012. Indeed he was employed by an organisation funded by the Australian government, for several years suggesting that his ethnicity was certainly not a barrier to his employment at that time.

4. The Country Information put to the applicant indicates that Tamils in Sri Lanka are protected by the law and whilst discrimination exists, it does not amount to persecution.

5. Given these considerations,  the Tribunal finds the applicant’s risk of serious harm to be  remote for  imputed political opinion grounds as an LTTE supporter (or on the basis of his ethnicity) even when considered cumulatively with other aspects of the applicant’s profile, considered separately below. The Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka by the authorities on the basis of an imputed (pro-LTTE) political opinion and/or his Tamil ethnicity in the foreseeable future. His fears of persecution on imputed political opinion grounds and on the basis of his Tamil ethnicity are not well-founded

6. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution or serious harm either now or in the reasonably foreseeable future by reason of his Tamil ethnicity if he returns to Sri Lanka.

Failed asylum seeker

1. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on his return to Sri Lanka as a failed asylum seeker. The Tribunal understands that the applicant’s fear is that he would be imputed with an anti-government political opinion on this basis and face persecution as a result.

2. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

3. At hearing the Tribunal discussed the latest DFAT Country Information Report on Sri Lanka.

4. In that report, DFAT assesses that returnees are treated according to standard procedures, regardless of the returnees’ ethnicity and religion. DFAT further assesses that even if he is detained at the airport upon his return, detainees are not subject to mistreatment during processing at the airport.

5. As discussed at hearing, DFAT also states that during 2008-2015, over 1,500 failed asylum-seekers were returned from Australia to Sri Lanka, in addition to the many Sri Lanka asylum seekers who have been returned from other countries, including the US, Canada, the UK and other European countries.

6. While the Tribunal accepts that the applicant, as a failed Tamil asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka and may even be detained, taking into consideration his particular profile the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker who departed illegally.

7. The Tribunal accepts that the applicant’s brother was a member of the LTTE. His brother passed away in 2006, however it does not accept that he would experience problems from the authorities as a result if he returned to Sri Lanka either now or in the reasonably foreseeable future.

8. The Tribunal finds remote the chance that the applicant would be imputed with an anti-government political opinion on the basis of these matters or seriously harmed by the authorities as a result on return, even when combined with other aspects of his profile such as being Tamil, a worker for an international agency, associated with the LTTE, being a failed asylum seeker and departing illegally.

9. The Tribunal does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or anyone else on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason. His fear of persecution on membership of a particular social group (‘failed asylum seekers’) and imputed political opinion grounds are not well founded.

Illegal departure

1. As discussed with the applicant in relation to his fears of facing persecution as a failed asylum seeker noted above, the Tribunal equally does not accept that the applicant faces a real chance of persecution if he were detained upon his arrival, given its findings that he is not of any adverse interest to anyone. Any period of questioning or detainment would be the result of the general law of application rather than for any convention related reason.

2. The Tribunal does not accept that the applicant being detained for a short period and possibly fined constitutes serious harm as defined in s.91R(2).

3. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with his other claims.

Conclusion – Refugee grounds

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

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

Complementary protection

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

2. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, as a Tamil, a failed asylum seeker, a worker of an international company, for his illegal departure or for any other reason.

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

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

CONCLUSION

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

2. 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).

3. 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

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

Ann Duffield
Senior 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.

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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.

1. 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.

2. 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 them 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.

3. 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.

4. 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.

5. 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.

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36Protection visas – criteria provided for by this Act

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(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.

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