1729305 (Refugee)
[2019] AATA 6331
•31 July 2019
1729305 (Refugee) [2019] AATA 6331 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1729305
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Antoinette Younes
DATE:31 July 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Statement made on 31 July 2019 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) sympathiser – particular social group – Tamils who left Sri Lanka illegally – failed asylum seeker – Western returnee – assaulted by military – physical disability – mental health – psychological vulnerability – no involvement or association with LTTE – routine use of torture and coercion – risk of harm if detained by security services – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
A v MIMA [1999] FCA 116
A99 of 2003 v MIMIA [2004] FCA 773
Koe v MIMA (1997) 74 FCR 508
MIMA v Gnanapiragasam (1998) 88 FCR 1
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1MIMA v Thiyagarajah (1998) 80 FCR 543
MZRAJ v MIMIA [2004] FCA 1261
MZYQU v MIAC [2012] FCA 1032
NASJ v MIMIA [2005] FMCA 124
Osman v United Kingdom (1998) 29 EHRR 245
Prathapan v MIMA (1998) 47 ALD 41.
S1573 of 2003 v MIMIA [2005] FMCA 47
SZBBE v MIMIA [2004] FMCA 753
SZBBE v MIMIA [2005] FCA 264
SZCAL v MIAC [2008] FMCA 330
SZGHC v MIAC [2007] FMCA 570
SZOET v MIAC [2010] FMCA 483
SZSFS v MIBP [2015] FCA 534Any 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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 20 December 2012 and the delegate refused to grant the visa on 27 February 2014. The applicant sought review of the delegate’s decision and the Tribunal (differently constituted) affirmed the delegate’s decision. On judicial review, the matter was remitted to the Tribunal on 17 November 2017.
The applicant appeared before the Tribunal on 10 May 2019 to give evidence and present arguments. Further submissions were received post-hearing. 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 by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to have regard to the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In support of his application for a protection visa, the applicant provided a statement signed on 17 December 2012 in which he made the following claims:
i) He is a Sri Lankan citizen, Hindu of Tamil ethnicity. He fled Sri Lanka in June 2012 to seek protection in Australia.
ii) He was working as a fisherman in 2006 in [Village 1], Sri Lanka. He suffered harassment from Sri Lankan navy officers whilst working as a fisherman. The harassments were mostly in the form of verbal abuse and insults, physical assaults and repeated requests for producing the fishing permit.
iii) In May 2007, he was out in the sea at night when a navy boat turned up with two navy officers on board. They asked him to produce his fishing permit but he was not carrying it at that time. One of them started insulting him and hitting him with a metal rod. They aimed at hitting him in the head but he raised his arm to protect himself. The metal rod hit his [arm] and caused a fracture and he still has a scar on his arm as a result. They kept hitting him and left him with severe injuries. He sought treatment and could not return to work for a number of months. After that incident, he was very fearful about continuing to work as a fisherman.
iv) In or about July 2008, unidentified people started to abduct persons from his village in white vans. Almost 15 young Tamil boys went missing and their families asked the authorities to investigate the incident but they did not receive a response. The government was responsible for the abductions because they suspected young Tamil males to be supporters or members of the LTTE.
v) Those incidents caused him further harm. He was very scared that the same could happen to him. The abductions continued in Sri Lanka and he spent most of his time in the house to avoid the risk of being abducted by the white vans because he is a young Tamil man. He fled Sri Lanka in June 2012 to seek protection and save his life.
vi) If he were to return to Sri Lanka, he would be harmed by the Sri Lankan army and the Sri Lankan government. This would happen to him because he is a young Tamil man and the Sinhalese authorities would harm him. Furthermore, he was living in an area which had supported the LTTE for a long time which exacerbated his fear of harm. He has also left unlawfully and would be treated as a member of the LTTE. The authorities cannot protect him. As a Tamil, he would be suspected of being a traitor by the authorities who would accuse him of divulging information to a foreign government. He would therefore be tortured. He cannot relocate to any other part of Sri Lanka.
In submissions dated 8 January 2013, the representative summarised the applicant’s claims, referred to country information and indicated that the applicant fears persecution on the basis of his Tamil race, his real and imputed political opinion arising from his race, his membership of a particular social group namely Tamils who left Sri Lanka illegally and unsuccessfully sought asylum. In essence, the representative contended that the Sri Lankan authorities oppress the Tamil population, continue to commit human rights abuses, remain to perceive a threat from the LTTE, and has commenced a program of Sinhalese transmigration to predominately Tamil areas. The representative submitted that country information demonstrates that returned Tamil asylum seekers have been subjected to arbitrary arrest and torture on their return. The applicant could suffer harm including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
In submissions to the Tribunal dated 27 April 2014, the representative summarised the applicant’s claims and indicated that[1]:
i) The applicant’s life changed when his [arm] was broken by the Sri Lankan Navy. It made it difficult for him to work and [scarring] of his arm identifies the applicant as having clashed with the Sri Lankan forces. In [Village 1], there is nowhere for him to hide and there is a real chance that he would be detained and/or assaulted.
ii) There are documented cases of returnees being detained and abused, not usually at the airport, but within a month of arrival. There are reports of arbitrary arrests, killings and disappearances. There is a general climate of impunity relating to the police. Sinhalese people are encouraged and assisted to move into Tamil areas and Tamils are frequently denied the right to use the land and fishing in the area.
iii) A person who has a profile such as the applicant has a reason to fear harm and the applicant would not be able to obtain state protection because it is the agents of the state who are the persecutors. He would be persecuted for reasons of his ethnicity, his personal and family history and for being imputed with a political opinion.
iv) The delegate relied on limited country information and the finding that Tamil failed asylum seekers are not members of a particular social group, is incorrect law. The police continued to show interest in the applicant by visiting his family asking about his whereabouts. The applicant would be identified as having fled Sri Lanka and the fact that he has spent a number of years in Australia makes his situation different to other Tamils. The situation for Tamils remains to be problematic. The Sri Lankan authorities are convinced that the LTTE is reviving.
[1] The representative referred to a number of articles to support the submissions.
Summary of the evidence at hearing
The applicant gave evidence that he came to Australia in June 2012 and he does not want to return to Sri Lanka because he fears that he would be harmed. He said he does not have the same capacity because he has a disability, namely injuries to his [arm]. He said that the [injury] still causes problems for him in terms of work. He gave evidence that he worked as a fisherman in [Village 1] and was subjected to harassment by the Sri Lankan navy. He said he had to carry an ID card and on one occasion, he was beaten and as a consequence, he suffered injuries to his [arm]. He said he has a [scar] as a result of the beating by the Sri Lankan security forces.
The applicant gave evidence that he is worried about the general level of security in Sri Lanka.
The Tribunal discussed with the applicant the report of the Department of Foreign Affairs and Trade (DFAT) about the security situation in Sri Lanka, particularly that in the north and east, it has “significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country”[2], the situation for Tamils, as well as returnees and failed asylum seekers. The applicant said he cannot live in peace in Sri Lanka. He reiterated that he has been disabled as a result of the injuries he sustained from the beating.
[2] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018.
The Tribunal observes that in the course of the hearing, the applicant was very tearful and had difficulties in expressing himself and discussing events relating to the harm he had suffered. This prompted the representative to request time for the provision of a psychologist report and the Tribunal agreed given the applicant’s apparent mental health status.
Post hearing submissions
The representative provided written submissions as follows:
·The applicant was subjected to verbal abuse for most of his life by the Sri Lankan authorities. He was subjected to harassment and serious physical assault from Sri Lankan navy officers while fishing, particularly during the incident which occurred in May 2007.
·The applicant’s cousin, [Mr A], had travelled with the applicant via boat and [Mr A] was granted a temporary protection visa three years ago. The applicant claims that his cousin had similar claims to him.
·The applicant’s mother was visited by CID [in] June 2019 in respect to a SIM card registered in the applicant’s name, which contained discussions relating to the Easter Sunday bombings.
·The latest DFAT Country Information Report concerning Sri Lanka dated 23 May 2018 makes the finding that there is no official discrimination on the basis of ethnicity or religion since the change of government from Rajapaksa regime to the Sirisena government in 2015. However, the Report has been superseded by the sacking of Prime Minister Wickramasinghe in October 2018 and the Easter Sunday bombings.
·The current Sri Lankan Government has only been in power for four years and an election is due to take place in December 2019. Rajapaksa is likely to campaign that the current government is weak on terrorism[3].
·The Prevention of Terrorism Act, which allows the facilitation of human rights abuses by Sri Lankan authorities, has not been repealed[4]. A State of Emergency was declared in March 2018, as a result of anti-Muslim riots[5].
·An example of the “true attitude” of Sri Lankan Government is demonstrated by the throat-slitting gesture made by Brigadier Priyanka Fernando towards Tamil protestors during the celebrations of Sri Lanka’s independence from British rule. The act by a senior representative in a public domain suggests that worse is likely to go on outside the public arena[6]. Military personnel involved in human rights violations during the Civil War continue to have immunity from prosecution[7]. Tamil asylum seekers are not afforded an “all is forgiven approach”[8].
·There are reported assaults on inmates in the Angunokolapelessa Super Prison by prison authorities, noting that it is a prison built to international standards. If placed in a less prominent prison, there is a probability that the applicant will suffer abuse[9].
·Reporting of incidents is suppressed by the Sri Lankan government that actively blocks social media[10]. The replacement of Prime Minister Wickramasinghe with Rajapaksa would rightly alarm and dismay Sri Lankan Tamils[11]. The current atmosphere of mistrust and fear will jeopardise the reconciliation process between Tamil and Sinhalese populations[12]. Sinhalese Buddhist nationalist is expected to fire up again[13].
·Mahinda Rakapeksa’s brother, Gotabhaya Rajapaske, will be running for president in December 2019[14]. Capital punishment has been revived in Sri Lanka[15].
·Mental health is a relevant consideration in the assessment of a person’s credibility,[16] and the reasonable practicability of them relocating to another area to escape the risk of serious or significant harm.[17] The conditions of the mental health system in Sri Lanka are one of the worst in the world. [18]
·The applicant is likely to be questioned upon his return. Reasonable relocation in Sri Lanka is necessarily limited.[19] The applicant has limited emotional and intellectual resources to enable him to settle elsewhere. Mental health services in Sri Lanka are located in the cities and are unable to meet the demand[20]. The applicant’s mental condition impairs his ability to relocate from his family.
[3] Champa Patel and Ganeshan Wignaraja, ‘What Next for Sri Lanka Following the Terrorist Attacks’, Chatham House, (online, 29 April 2019) < Article, ‘Repeal Draconian Security Law’, Human Rights Watch, (Web Page, 29 January 2018) Meenakshi Ganguly, ‘State of Emergency Declared in Sri Lanka’, Human Rights Watch, (Web Page, 7 March 2018) < AFP, ‘Sri Lankan diplomat suspended over throat-slitting gesture’, Daily Mail Australia, (online, 7 February 2018) < >.
[7] Bharatha Mallawarachi, ‘Sri Lankan Leader will Protect General Accused of War Crimes’, Associated Press News, New York Times, (online, 3 September 2017) < >.
[8] Niro Kandasamy, ‘Not ‘all is forgiven’ for asylum seekers returned to Sri Lanka’, The Conversation, (online, 10 March 2017) < ‘Probe into attack in Angunakolapelessa Super Prison’, Daily Mirror, (online, 16 January 2019) < Report, ‘Sri Lanka Country Report’, Freedom on the Net 2018, (Web Page, 2018) < Joanna Slater, ‘Sri Lanka’s Prime Minister reinstated ending political crisis’, The Washington Post, (online, 16 December 2018) Taylor Dibbert, ‘Buddhist Anger Could Tear Sri Lanka Apart’, Foreign Policy, (online, 20 May 2019) < Isaac Chotiner, ‘A Scholar of Extremism on How Religious Conflict Shapes Sri Lanka’, The New Yorker, (online, 22 April 2019) Anbarasan Ethirajan, ‘Gotabhaya Rajapaksa: The wartime strongman who wants to run Sri Lanka’, BBC News, (online, 30 June 2019) < Sri Lanka hires first two hangmen in 43 years’, BBC News, (online, 29 June 2019) < SZSFS v MIBP [2015] FCA 534.
[17] MZYQU v MIAC [2012] FCA 1032.
[18] Harry Minas et al, ‘Mental Health System Development in Sri Lanka’ (2017) 1 Mental Health in Asia and the Pacific: Historical and Cultural Perspectives 59.
[19] MIMA v Gnanapiragasam (1998) 88 FCR 1.
[20] Harry Minas et al, ‘Mental Health System Development in Sri Lanka’ (2017) 1 Mental Health in Asia and the Pacific: Historical and Cultural Perspectives 59.
Psychologist report
In support of those submissions, the representative provided a psychological report of [Ms B] dated, 12 June 2019.
In summary, [Ms B] notes that the applicant has had history of trauma, including:
·He has been verbally abused on a regular basis on account of his ethnicity.
·He was [abused] by [a person] at the age of about [age] years old. The applicant did not disclose this information to the psychologist, rather it was disclosed when he completed the Post-Traumatic Stress Diagnostic Scale.
·At about [age] years of age, the applicant was taken by the authorities to a “navy camp” and detained overnight. He was physically and verbally abused. About 25-30 people in his village have been taken by security forces and never seen again.
In terms of diagnosis, [Ms B] concluded that:
·The applicant suffers from PTSD and Adjustment Disorder with Mixed Depression and Anxiety. The applicant fell in the “extreme” range on the Beck Depression Inventory.
·The applicant is of “low average” intelligence. He lacks adaptive coping skills and strategies, whereby he denies or minimises the extent of his negative feelings.
·The applicant identified the 2007 incident as the most traumatic experience he has endured on the Post-Traumatic Stress Diagnostic Scale.
·The applicant’s symptoms remain “moderate-severe.”
FINDINGS and REASONS
The applicant is claiming that if he were to return to Sri Lanka, he would be harmed for reasons of his overall profile including his Tamil ethnicity, former work as a fisherman in [Village 1], having a scar on his [arm] due to the injuries he sustained when he was physically assaulted by the Sri Lankan navy, his psychological vulnerability, being a failed asylum seeker returning from a Western country, and the level of insecurity currently prevalent in Sri Lanka. The applicant has further claimed that he remains to be of interest of the Sri Lankan authorities. He was intending to send documents to the Tribunal in support of that claim but has not. The Tribunal has decided to proceed in favour of the applicant on other bases. On the evidence however, the Tribunal does not accept that the applicant is currently wanted by the Sri Lankan authorities.
The Tribunal accepts that the applicant is of Tamil ethnicity, has left Sri Lanka illegally, that he worked as a fisherman and that he was assaulted by the Sri Lankan navy which resulted in injuries and scarring to his [arm].
Security level in Sri Lanka
The incidents of Easter 2019 have created a level of insecurity in Sri Lanka. However, this level of insecurity needs to be considered in the context of substantial advancements over the last 10 years, since the end of the war. As noted by DFAT, the security situation in Sri Lanka, particularly in the north and east, has “significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country.”[21] It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[22] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[23] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[24]
[21] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 11.
[22] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.
[23] (2004) 222 CLR 1 at [26].
[24] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].
What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[25] or a ‘reasonably effective police force and a reasonably impartial system of justice’,[26] indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[27] Thus, an unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.[28]
[25] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].
[26] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].
[27] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.
[28] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29].
While the joint judgment in S152/2003 gives support to the use of ‘international standards’ as a benchmark of adequate protection levels, it does not necessarily require an administrative decision maker to identify and specify the ‘international standards’ against which to assess a particular country’s responses to a claimed fear of persecution by non-state agents.
In MZRAJ v MIMIA, Heerey J stated that:
[t]he ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, “international standards” of protection and matches the law enforcement machinery of the state in question against those standards.[29]
[29] [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]. See also SZBBE v MIMIA [2004] FMCA 753 (Raphael FM, 8 November 2004) and on appeal SZBBE v MIMIA [2005] FCA 264 (Jacobson J, 24 March 2005) at [46]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005); NASJ v MIMIA [2005] FMCA 124 (Barnes FM, 25 February 2005) at [9]; SZGHC v MIAC [2007] FMCA 570 (Driver FM, 7 May 2007) at [27]; SZCAL v MIAC [2008] FMCA 330 (Orchiston FM, 20 March 2008) at [51]-[56]; and SZOET v MIAC [2010] FMCA 483 (Smith FM, 5 July 2010) at [23]-[24]. Contrast A99 of 2003 v MIMIA [2004] FCA 773 (Mansfield J, 9 July 2004).
The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[30] However Osman’s case, referred to in S152/2003, may provide some limited guidance. That case was concerned with the right to life protected by Article 2.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[31] The Court described the state’s primary duty in this respect as a duty ‘to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’.[32] The Court held that such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.[33] Some guidance can also be found in Australian case law predating S152/2003.
[30] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]-[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]-[34].
[31] Article 2.1 enjoins the state to refrain from the intentional and unlawful taking of life, and also to take appropriate steps to safeguard the lives of those within its jurisdiction.
[32] Osman v United Kingdom (1998) 29 EHRR 245 at [115].
[33] Osman v United Kingdom (1998) 29 EHRR 245 at [116].
In Prathapan at first instance, Madgwick J referred to ‘a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy’ as ordinarily amounting to effective and ‘available’ protection.[34] His Honour stated:
No doubt the protection in question must be effective and “available”, and an actual inquiry into this must be made: Jong Kim Koe.[35] However, in 1951 and since, having regard to the realities of nations and the practicalities of applying the Convention, the framers and keepers of the Convention would hardly have envisaged that a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy, would not ordinarily amount to effective and “available” protection.[36]
[34] Prathapan v MIMA (1998) 47 ALD 41.
[35] Koe v MIMA (1997) 74 FCR 508.
[36]Prathapan v MIMA (1998) 47 ALD 41 at 48. This decision was overturned on appeal (MIMA v Prathapan (1998) 86 FCR 95) but this point was not disturbed.
Similarly, the Full Court in A v MIMA explained that where the decision maker has a view based on available material that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort feared, in the absence of evidence advanced by the claimant, the decision maker will be entitled to reject the contention that the applicant is unable or unwilling for a Convention reason to avail him or herself of the protection of that country.[37]
[37] [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) at [42]. Note that some aspects of the discussion of protection in that case may not be consistent with what was said about the second limb of Article 1A(2) in the joint judgment in MIMA v Respondents S152/2003 at [28].
Tamil ethnicity
In relation to Tamils, the Department of Foreign Affairs and Trade (DFAT) in its report, DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018[38], discusses the situation in relation to Tamils. The Report refers to Tamils being the second largest ethnic group in Sri Lanka and that according to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. The Report notes that Tamils live throughout Sri Lanka concentrating in the Northern Province where they comprise 93% of the population and the Eastern Province where they comprise 39% of the population. Relevantly, the report indicates the following:
3.5 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
3.6 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.[39]
[38] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018.
[39] Ibid, pp 13-14.
In relation to monitoring, harassment, arrest and detention of the Tamil community, the Report notes the following:
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
3.9 Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
3.10 Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
3.11 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.
3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[40]
[40] Ibid, p14.
DFAT has assessed in its Report[41] 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”.
[41] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 19.
DFAT’s Report refers to the identification in 2012 by UNHCR of a range of people with real or perceived links to the LTTE, namely:
· persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;
· former LTTE combatants or ‘cadres’;
· former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
· former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
· LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
· persons with family links or who are dependent on or otherwise closely related to persons with the above profiles[42].
[42] Ibid, p 20.
There have been reports of some Tamils with imputed LTTE links being monitored by the police and harassment in 2016[43]. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.[44]
[43] Ibid, p 20.
[44] Ibid, p 20.
The applicant is not claiming that he or any member of his family has been associated with the LTTE, or any other political organisation. The Tribunal has found that he is of Tamil ethnicity. The Tribunal is satisfied that on balance, credible independent country information indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted. On the evidence before it, the Tribunal is satisfied that the applicant has no profile of being involved or associated with, or suspected of being involved with the LTTE and as a consequence, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because his Tamil ethnicity.
However, the Tribunal is satisfied that having a scar and being assaulted by the Sri Lankan navy gives him a potentially adverse profile, albeit limited.
Would the applicant be harmed on the basis of being a failed asylum seeker or a returnee from a western country who left Sri Lanka unlawfully?
In its May 2018 Country Reports: Sri Lanka, DFAT outlined exit and entry procedures relating to Sri Lanka. In essence, although the Sri Lankan Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’, that freedom is qualified in the Immigrants and Emigrants Act (1949) (the I&E Act) that governs exit and entry from Sri Lanka.
Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. DFAT noted that “...Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport”[45]. A number of agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters[46]. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. Depending on various factors, processing of returnees at the airport can take several hours and returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed[47].
[45] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, at para 5.27.
[46] Ibid, at para 5.28.
[47] Ibid. at para 5.28.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. DFAT noted that all “returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport[48]”.
[48] Ibid at para 5.29.
In relation to offences under the I&E Act, DFAT reported that:
5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
In the May 2018 Report, DFAT provided the following assessments of those suspected of people smuggling:
5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
5.34 The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
5.35 DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
There is before the Tribunal a psychologist report prepared by [Ms B]. a professional qualified to provide the clinical opinions that she has provided. The author of the report is a clinical psychologist and she provided a comprehensive report concluding that the applicant has had a history of trauma with diagnoses of PTSD, Adjustment Disorder with Mixed Depression and Anxiety. [Ms B] noted that the applicant fell in the “extreme” range on the Beck Depression Inventory. She observed that he is of “low average” intelligence, lacks adaptive coping skills and strategies, denies or minimises the extent of his negative feelings. She concluded that the applicant’s symptoms remain “moderate-severe”. The Tribunal has decided to give [Ms B’s] report significant weight. The Tribunal accepts the observations and conclusions of [Ms B]. The Tribunal is satisfied that the applicant is psychologically vulnerable and that his vulnerability is a significant issue in determining the review.
The Tribunal accepts DFAT’s advice that there are penalties for leaving Sri Lanka illegally that can include imprisonment and a fine. The Tribunal accepts that if he were to return to Sri Lanka, there is a real risk that the applicant would be interviewed and questioned by the Sri Lankan authorities, as well as being detained.
Although the Tribunal has found that the applicant has a limited adverse profile, his psychological vulnerabilities mean that being interviewed and questioned by the Sri Lankan authorities and/or detained, in his case creates a real risk of significant harm. The Tribunal has given regard and weight to DFAT’s advice that in practice, most cases result in a fine and not imprisonment. The Tribunal gives weight to DFAT’s advice that the Sri Lankan Attorney-General’s Department’s claim that no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. The Tribunal gives weight to the advice that fines are issued to deter people from departing illegally in the future and that the fine amounts vary from LKR 3,000 to LKR 200,000. However, the Tribunal cannot exclude the real possibility that the applicant would be questioned, potentially detained and/or imprisoned. In his case, and due to his psychological vulnerability, this amounts to significant harm as contemplated by the Act.
Future risk of harm to the applicant
In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of future harm to the applicant.
Although the applicant does not fit the profile of a person who could be targeted, in his case there are a number of factors that indicate an increased risk of harm to the applicant if he were to return to Sri Lanka. The Tribunal and for the stated reasons found that the applicant has a profile of interest, albeit limited. The UN Special Rapporteur on the Committee Against Torture visited Sri Lanka in April/ May 2016, reporting that while the practice of torture was less prevalent than during the conflict and the methods used at times less severe, a culture of torture persists, with physical and mental coercion used against suspects being interviewed by the CID and the Terrorism Protection Division[49]. In its June 2017 report, the UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions. It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[50]
[49] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 23 May 2018 at 8.5.5
[50] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017
DFAT reports that while the Sri Lankan constitution specifically prohibits torture, several local and international organisations have alleged torture by the Sri Lankan military and intelligence forces, mostly perpetrated by the police against members of the Tamil community and involving people with imputed links to the LTTE.[51] The United Kingdom Upper Tribunal has found that if ‘a person is detained by the Sri Lankan security services, there remains a real risk of harm requiring international protection’.[52]
[51] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 23 May 2018
[52] GJ and Others (Post-civil war Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4)
The applicant is not claiming that he or any member of his family has been associated with the LTTE. In its Report, DFAT refers to the treatment of those with a political profile and although those with an adverse profile are essentially linked in some way with the LTTE[53], the Tribunal is of the view that it is also plausible that a person such as the applicant could attract adverse attention. However, on the evidence, the Tribunal is not satisfied that the harm that the applicant faces is essentially and significantly related to a Convention ground. Consequently, the Tribunal finds that the applicant does not meet the refugee criterion in s.36(2)(a). The Tribunal needs therefore to consider whether the applicant may nevertheless meet the criteria for the grant of a protection visa pursuant to visa s.36(2)(aa).
[53] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 19.
On the evidence before it, the Tribunal is satisfied that although the applicant has a limited adverse profile, his own personal circumstances namely his psychological vulnerabilities mean that there is a real risk of significant harm occurring to the applicant if he were to be returned to Sri Lanka. The Tribunal is satisfied on the evidence that the applicant will suffer significant harm as defined in s.36(2A). The Tribunal is satisfied that in the applicant’s case and because of his psychological vulnerabilities, being questioned, interviewed, or detained, or imprisoned by the Sri Lankan authorities amounts to significant harm as contemplated by the Act. The Tribunal is persuaded by the submissions that as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection would not be available to the applicant and relocating internally within Sri Lanka would not remove the threat of harm.
The Tribunal is satisfied in this case that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer intentionally-inflicted significant harm that would cause him severe pain and suffering.
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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Antoinette Younes
Senior Member
0
15
0