1732005 (Refugee)

[2023] AATA 1604

1732005 (Refugee) [2023] AATA 1604 (24 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Madhu Warnakulasuriya (MARN: 1068979)

CASE NUMBER:  1732005

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Genevieve Hamilton

DATE:24 March 2023

PLACE OF DECISION:  Melbourne

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 24 March 2023 at 3:38pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – religion – Catholic – attacks on churches – extortion – forced conversion – complementary protection – accused people smuggler – fear of drug dealers – illegal departure – fear of killing – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 46A, 65
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 July 2015. The delegate refused to grant the visa on 26 August 2017.

3. The applicant appeared before the Tribunal on 12 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

6. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

7. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

8. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

9. 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.

10. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

12. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations 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 they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

16. The applicant was an unauthorised maritime arrival (UMA).  In his entry interview on 13 August 2012 (he arrived on [a specified date]) the applicant said he was born on [date] in [Village 1], Sri Lanka.  He is a Sri Lankan citizen, ethnically Sinhalese, religion Christian.  His most recent address in Sri Lanka was [Village 2].  Two [relatives] arrived on Christmas Island one month before he did.  He said he left Sri Lanka because he was looking for a job in Australia.  Asked how he would support himself if he were released into the community he said he needed to find a job, he is a fisherman but would be happy with anything.  He had never been arrested or detained or charged with any offence.  Asked if he had any other issues he wanted to discuss the applicant said he just needed to find a job.  He was employed by a different person each day as a fisherman.  His wife and [children] remain in [Village 2]. 

17. The Delegate’s decision records that during the interview the applicant was asked why he left Sri Lanka.  He replied: I am a fisherman and it is not very successful career.  So when we go fishing we are there about one month and one month we come back to the land, and even then we do not get a good price for our fish. Fuel prices are very high, and we do not get a very good price for the fish we catch. That is the reason, no matter how difficult things are the government will not help us, and I want to educate my children, that is why I made this trip.  The applicant was then asked: apart from these reasons are there any other reasons why you left Sri Lanka? The applicant replied: that is the main reason, because even though we have jobs, it is not enough to survive, so that is the reason. Other than the fishing work, we don't get any other jobs, so that is why we left. 

18. The applicant identified himself as member of the crew of the boat he arrived on.  He also identified the other crew.  However the AFP decided not to prosecute him.  The applicant was screened out for protection in January 2013.  After this he made a written statement and discussed with a Case Officer that he had problems with drug smugglers in his village going back to 1997. 

19. The applicant was included in a data breach incident in 2014 and later that year he was released from detention.  In May 2015 the Minister lifted the s 46A(2) bar preventing him, as a UMA, from applying for a visa, and he was invited to apply for a protection visa.  In his application he said he had [specified family members] in Sri Lanka and was in weekly contact with them.  He said his boat departed from Negombo port. 

20. The applicant said he would be severely harmed and even killed if he returned to Sri Lanka, by Buddhist nationalists, drug dealers and the authorities.  The authorities would not help him because they are corrupt, they are involved in illegal activities and they persecute religious minorities. 

21. In his statement of claims the applicant said that Sinhala Buddhist nationalism had resurged following the end of the Tamil war, threatening religious minorities such as Christians and Muslims.  Christians were a very small number in his area. His church had been attacked several times by local members of Bodu Bala Sina and Sinhala Ravaya since 2010.  Whenever he and his priest went to the police went to the police to report these incidents they were told it would be investigated but no one had been arrested and brought to justice.  In early 2011 he reported a break in at the Church office but he was asked for money in order that the police investigate.  He was angry and argued with the police superintendent. 

22. Also, drug dealers had political influence and underworld connections.  They were a real danger to the village, but people were scared to raise their voices.  The applicant was very opposed to their actions as the youth were becoming addicted.  In February 2011 he saw suspicious vehicles parked and men beside the beach.  He called the police.  The police came and arrested them after finding heroin and weapons.  They were released because of political influence.  They found out the applicant had informed on them.  They came to kill him.  They could not find him so they threatened his family including his wife and children.  He escaped to Trincomalee and only came home occasionally. 

23. The applicant decided to leave Sri Lanka.  Their boat broke down and some of them managed to board another boat.  The captain of the left behind boat falsely told the Sri Lankan Navy that the applicant was a people smuggler and had captained the boat taking people to Australia including LTTE members.  The Sri Lankan authorities had come to his house several times asking his wife about his whereabouts and told her that he was a people smuggler. 

24. The Delegate’s decision was submitted with the review application and contained the following:

    I asked the applicant several times during the TPV interview for specific examples of discrimination or persecution against himself or the church.  The applicant was not able to give any specific details; he said there was basic tension between religious groups…. I asked the applicant if there was any incident that occurred against the church. The applicant said that the Sinhalese Buddhists broke into the church and it appeared that they were going to break down the church, but nothing happened. I asked the applicant if there were any other incidents, the applicant said no, this was the only one.  The applicant claims he had an argument with the local superintendent of police when he reported a crime against the church.  The applicant did not claim that the argument lead to any harassment or mis-treatment as a result of the argument.

25. The Delegate’s decision also contains the following information:

    I asked the applicant what made him contact the police (about the drug dealers).  The applicant said that he thought it looked suspicious. I asked the applicant how many cars there were and how many people. The applicant said there was one car and a few people, but could not tell how many as it was dark. 

    …

    In his verbal testimony the applicant stated that the CID came once to look for him, whereas in his written statement of claims he stated that the CID came several times looking for him. 

26. At the Tribunal hearing the applicant said he was born in [his home town in] Puttalam District, and moved to [Village 2] (a short distance from [Village 1]) as a child.  It is also on the coast.  He married in 1994 and his wife and [one child] live there; [another child] has been studying and working in [Country 1].  [Some family members] have passed away of natural causes, [and others] are fishing in [Village 2], employed by others.  [Another member] lives there.  His father was also a fisherman; the applicant finished [grade] and schooling and then himself became a fisherman. 

27. The applicant said he came to Australia because he had a lot of problems and threats.   He was doing a lot of work for the Catholic Church and there were Buddhist extremists who caused him problems because of this.  He was helping the priest every week in services, village development activities and social welfare.  The extremists were trying to get Catholics to convert to Buddhism.  Catholics didn’t want to convert, so they applied pressure.  Asked what pressure was applied, the applicant said they would demand money from people if they did not convert.  The Tribunal asked why Buddhist extremists would want money from Catholics.  The applicant said it was because they refused to convert.  They only asked Catholics.  The Tribunal put to the applicant that demands for money did not amount to serious harm.  The applicant said problems would arise from this for the Catholic people and it was a considerable amount.  The Tribunal asked the applicant what problems would arise.  The applicant reiterated that they were told to join Buddhism and when they refused, the extremists didn’t like it.  The Tribunal said that it did not consider this to be serious harm.  The applicant did not respond.  The Tribunal asked the applicant if anything else happened to the Church or the people in the Church.  The applicant said the [named] Church was damaged, but not his own.  The Tribunal put to the applicant that in his claims he had said that his Church had been attacked several times and broken into.  The applicant said it was not his Church but the one in the next village. 

28. The Tribunal asked how the applicant himself was affected by religious extremism; the applicant replied that it was because of his work with the priest that he was asked for money and threatened that he must move away from the Church and join the Buddhists.  Asked who the extremists were the applicant said they were from the Bodu Bala Sena and Sinhala Ravaya.  The Tribunal asked who they were exactly.  The applicant said there were two or three such people in his area (but he did not name them).  He said Church leaders (including himself) would tell people not to join the Buddhists. 

29. The Tribunal observed that it did not detect that Buddhist extremism in Sri Lanka took the form of trying to actually convert Catholics to Buddhism.  The applicant maintained that it was a problem.  The Tribunal referred to country information which indicates that there is a low risk of discrimination against Christians and that this was a fairly static situation.  The applicant said that was not his memory.  Asked whether he went to the police about the demands for money, the applicant said he did not.  The Tribunal put to the applicant that this was inconsistent with his previous claims.  The applicant said he could not remember if he went to the police. 

30. The applicant said there was also a problem with illegal activities because he lived in a coastal village.  He reported this to the authorities and was threatened.  He confirmed that this referred to his claims regarding drug dealers.  He said he did not like that this was going on because he had children.  It was February 2009, he was working in [Town 1], and on his way home saw two vehicles which were not normal cars used in his village.  He called emergency services, they came and searched the vehicles and found weapons and drugs.  The occupants were arrested.  They are part of the underworld and connected to politicians.  They found out it was the applicant who informed on them.  The Tribunal asked how they found out.  The applicant said he did not know.  Someone told him about it.  He got threats to kill him and had to leave the village.  Asked who threatened him, the applicant said he could not remember.  7-8 people came to his house and he escaped through the back.  They went away. 

31. Asked who was arrested, the applicant said he did not know exactly.  Then he named two people from his village who were suspected.  The Tribunal observed that considering he was threatened as a result, it would have thought the applicant could say who was arrested.  The applicant said he didn’t know who came to his house because it was dark.  The Tribunal redirected the applicant to the question of who was arrested with drugs and weapons.  The applicant said he was unable to find out.  The Tribunal asked the applicant to confirm how many cars there were.  The applicant said there were two.  The Tribunal put to the applicant that in his interview he had said there was one.  The applicant said he recalled there were two. 

32. There was a discussion about the applicant having “left his village”.  It emerged that it was common to spend part of the year fishing off the east coast due to monsoon season bringing more fish there.  The applicant said that the people who threatened him may have also been watching his house while he was in the East.  He did not remember if the threats had been reported to the police. 

33. The Tribunal asked the applicant why these events would be a problem for him now, more than a decade afterwards.  The perpetrators would have lost interest him by now?  The applicant said this was not the way things worked.  They continued to come to his home after he left Sri Lanka; in February 2013 they went and asked his wife about him.  She told them he had gone to Australia. 

34. The Tribunal asked the applicant why he made no claims concerning religion, or drug dealers, at his entry interview.  The applicant said he was afraid he would be sent back.  The Tribunal queried this response.  The applicant said he was not in a good frame of mind.  He had been on two boats.

35. The Tribunal observed that the data breach had not seemingly resulted in any one being harmed on return to Sri Lanka; it may have resulted in it becoming known that he had been in immigration detention in Australia at some stage.  The applicant did not make any claims about this but simply said that he was aware of it as he had been given a letter. 

36. Asked if he had any other concerns the applicant described what happened on the water.  He said the boat they were on had engine problems and drifted at sea for about [number] days.  Another boat came along and [number] people on the applicant’s boat were transferred to it.  [Number] people were left behind, including the captain and [crew].  The captain of the second boat wanted the applicant, and one other crew member, for cooking and steering on his boat.  The people left behind were arrested by the Sri Lankan navy.  The captain of that boat told the Navy that the applicant had been its captain.  The Tribunal asked the applicant how he found out about this.  The applicant said the first boat captain called the applicant himself (the two boats were still in radio communication and the first boat was aware that the Sri Lankan Navy was coming to get it).  The captain said he was going to name the applicant as captain of the first boat in order to protect himself.  The applicant was near [location] by that time. 

1. Asked what happened to the people on the first boat, the applicant said they were all gaoled for 6 to 7 months and the crew were held even longer.  Asked if he was afraid of this, the applicant said yes it did worry him as people can get seriously harmed in goal.  The Sri Lankan police had been to his house and spoke to his wife, because they believed that some of the people that came to Australia with him were former LTTE members. 

2. Of the crew of the second boat, the applicant thought the captain had gone back to Sri Lanka (he didn’t know if anything had happened to him); one crew member was still in Australia. 

3. DFAT’s country report on Sri Lanka contains the following information:

   Religion

   Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity: most Sinhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian. Muslims are considered a separate ethnic group as well as a religious group. Most Muslims speak Tamil.

   The Constitution provides for freedom of religion, including the freedom to change religion. The Constitution also provides for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’ and obligates the state to ‘protect and foster’ Buddhism while protecting the rights of religious minorities. In 2003, the Supreme Court ruled that the state was constitutionally required to protect only Buddhism. DFAT assesses that any attempt to remove Buddhism’s special status as part of constitutional reform is unlikely to succeed in the foreseeable future. Acts intended to insult religion are punishable by a fine and/or a maximum of one-year imprisonment. This is applicable to all religions, not just Buddhism. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years’ imprisonment. This applies to all religions.

   …

   The Government adheres to a 2008 ministerial circular, introduced by the Ministry of Buddha Sasana, Religious, and Cultural Affairs (though later revoked, according to the US Department of State). According to local sources, the circular is used as the basis to restrict the construction of new places of worship by religious minorities. Local sources allege that police and government officials at the local level, who are predominantly Buddhist, are prejudiced against religious minorities and are not responsive to instances of religiously-motivated attacks against them.

   According to local sources, the Rajapaksa Government maintains the support of its largely Buddhist Sinhalese base by engaging in religious polarisation, including by supporting extremist Buddhist groups. A number of these operate in Sri Lanka, including the Bodu Bala Sena (BBS), Sinha Le (Lion’s Blood), Sinhala Ravaya (Sinhalese Roar) and the Mahason Balakaya. These groups emerged in response to perceived threats to Sri Lanka’s Buddhist identity posed by religious minorities, mostly during the time of President Mahinda Rajapaksa’s Government (2005-2015). The BBS is the most prominent; founded in 2012, it has engaged in acts of violence and hate speech against religious minorities, particularly Muslims. Hate speech against religious minorities, particularly Muslims, is prevalent on social media. …

   In 2020, Sri Lanka’s National Christian Evangelical Alliance of Sri Lanka (NCEASL) reported 50 ‘incidents of attacks on churches, intimidation of and violence against pastors and their congregations, and obstruction of worship services’ including groups led by Buddhist monks accosting evangelical Christians on their way to church or interrupting church services.

   …

   DFAT assesses that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely.

   …

   In recent years, documented incidents of violence and intimidation against Christians have primarily involved intimidation (including physical and verbal threats against pastors and their congregations), disruption of worship services, demands for closure of churches and legal challenges. In some cases, local officials requested evangelical Christian churches to register as places of worship, although no law or regulation requires registration. Buddhists were the perpetrators of most of the reported incidents …

   According to sources from the local Christian community, Christians who file complaints on the basis of perceived breaches of their right to religious freedom are often victimised and blamed by law enforcement officials, and some complaints are not investigated further. In September 2020, Christians in a village were told they could not worship; their complaint was initially rejected by local police but later accepted. Of the incidents of violence and intimidation against Christians documented by a local NGO since 2015, nearly half involved state agents …

   DFAT assesses that Christians in Sri Lanka face a low risk of official discrimination. DFAT also assesses that evangelical Christians in Sri Lanka face a moderate risk of societal discrimination, and that Roman Catholics and other mainstream Christian denominations face a low risk of societal discrimination. The number of incidents targeting evangelical Christians has remained largely static over recent years and is highest in Buddhist-majority regions in the North Central, South and Western provinces. Aside from the 2019 Easter Sunday terrorist attacks, DFAT assesses that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if such groups were to expand in membership and strengthen their international links.

   Deaths in Custody

   The Department of Prisons reported 168 deaths of prisoners in custody in 2020, down from 183 in 2019, but up substantially from 50 in 2017. The HRCSL, in its landmark study of prisons in 2020, found examples of ‘violence inflicted by prisoners and prison officers which ultimately caused death’. The US Department of State has assessed in the past that most deaths in custody are due to natural causes; however, 16 prisoners were reported to have been killed in 2020 and over 100 injured in multiple incidents in several prisons. According to the US Department of State 2020 Human Rights Report, on 29 November 2020, guards at the Mahara prison in Gampaha District opened fire on prisoners, who were attempting to escape during a riot sparked by panic over a COVID-19 outbreak. Eleven prisoners were killed and over 100 injured. Human rights activists noted Mahara prison was severely overcrowded, holding more than 2,000 inmates, despite its official capacity of 1,000, and said nearly half of the prisoners were COVID-19 positive. Police announced an investigation into the incident, but no public disciplinary action was taken nor arrests made in connection with the shooting. Consequently, there is an increasing sense of a lack of accountability with regard to deaths in custody in Sri Lanka.

   Torture

   Article 11 of the Sri Lankan Constitution and several other laws specifically prohibit torture. Sri Lanka has ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and, in December 2017, acceded to its Optional Protocol. In line with its treaty obligations, Sri Lanka received a visit by the UN Sub-Committee on Prevention of Torture in April 2019 and facilitated access to all requested places of detention. Torture is an offence punishable by imprisonment of between seven and 10 years.

   …

   … In its 2020 report on human rights, the US Department of State stated that ‘torture and excessive use of force by police, particularly to extract confessions, remained endemic.’

   Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.

   Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.

   …

   DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.

   DFAT assesses that Sri Lankans face a low risk of torture overall. DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government.

   Treatment of Returnees

   Exit and Entry Procedures

   Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

   …

   Offences under the Immigrants and Emigrants Act

   The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

   Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. …

   …

   DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

   FINDINGS AND REASONS

4. Based on the information given in his entry interview and protection visa application, the Tribunal finds that the applicant’s country of nationality is Sri Lanka. 

5. The Tribunal accepts that the applicant is a Christian.  The Tribunal does not accept that the applicant or his Church was harmed by Buddhist extremists.  The applicant did not mention any such experiences during his arrival interview, and the Tribunal is not persuaded by his reasoning that he was tired from his journey or afraid.  He was able to articulate his economic concerns quite clearly and without hesitation.  If he was afraid to be sent back to Sri Lanka he needed to make relevant claims.

6. Moreover, the applicant’s religious claims were inconsistent.  At first he claimed his Church had been attacked several times and broken into, at interview he only mentioned a break-in, and at the hearing he said nothing happened to his Church at all, but to the one in the next village.  At the hearing he added a claim that the Buddhists were extorting money from Catholics who did not convert to Buddhism, but this was not realistic or supported by the country information.  Even if Buddhists do engage in such a practice, it does not amount to serious harm. 

7. As the Tribunal has not accepted that the applicant or his Church was directly affected by religious harm, it does not accept that he reported this to the police resulting in a demand for money or an argument with the police. 

8. The applicant has not articulated a clear and particularised claim as to anything that had happened to him personally because of his religious beliefs.  While the country information indicates that these groups do exist and have engaged in violence and hate speech, in general Christians face a low risk of discrimination let alone serious harm.  The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to his religion.  

9. The applicant did not claim to fear harm for any other of the refugee reasons set out in s 5J(1).  He therefore does not have a well-founded fear of persecution as required by 5J(1).  The Tribunal finds that he is not a refugee as defined in s.5H(1). 

10. Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions.  

11. The Tribunal does not accept that the applicant is at risk of harm from drug dealers.  The incident the applicant described, where he reported people who were found with drugs and weapons, was affected by inconsistent evidence about the number of vehicles involved, and a lack of clarity about who was involved to the extent that the claim was rendered implausible.  The Tribunal does not accept that it occurred, or that it resulted in him being threatened.  This finding is reinforced, again, by the fact that it was not mentioned during his arrival interview. 

12. As the particular claims made by the applicant in relation to drug dealers have not been accepted, the risk to the applicant from such people in the future is no more than speculative. 

13. The applicant has consistently stated, and the Tribunal accepts, that his journey to Australia was interrupted due to the breakdown of his first boat.  His journey overall took [number] days.  They drifted without a working engine for [number] days and then were picked up by another boat.  The applicant was crew.  The captain of the first boat told the Sri Lankan Navy that the applicant was not only crew but captain.  He left Sri Lanka illegally and is therefore already liable to be charged under Sri Lanka’s emigration laws.  The country information indicates that people smuggling crew are unlikely to be bailed.  The boat that was turned back to Sri Lanka would have given the Navy information about the [people] that went on to Australia.  It is plausible that the authorities identified some as being former LTTE members or supporters.  It is plausible that they police visited the applicant’s wife in relation to people smuggling (although he may have exaggerated the number of times).  This doesn’t mean they will accuse the applicant of helping the LTTE, of course.  What it does mean is that there is a good chance of the applicant spending at least a year in gaol. 

14. The relevant section of the Sri Lankan Immigrants and Emigrants Act provides:

    45c. (1) Any person, who—

    (a) organizes one or more persons to leave Sri Lanka in contravention of any of the provisions of this Act ; or
    (b) attempts or does any act preparatory to, or aids and abets any other person to, so organize under paragraph (a),

    shall be guilty of an offence.

    (2) Any person guilty of an offence under subsection (1) shall, upon conviction by a

    Magistrate, be liable to imprisonment of either description for a term not less than one year

    and not more than five years.

    (3) In this section, the expression “organize”, with its grammatical variations, includes—

    …

    (d) the transportation of persons by sea, land or any other manner without obtaining valid

    travel documents

    …

15. The systemic use of torture in Sri Lanka is widely reported, and reflected in the DFAT report cited above.  DFAT assesses that those detained by the authorities face a moderate risk of torture, especially if they are poor. 

16. The Tribunal is therefore satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm as defined in S 36(2A). 

17. The exclusions in s 36(2B) do not apply to the risk faced by the applicant, as he cannot avoid being charged by relocating within Sri Lanka, and he is not going to be protected by the authorities (it is the authorities he fears).  Regarding the third exclusion, all Sri Lankans are potentially subject to criminal laws which might result in them being detained and therefore tortured.  They are not laws which apply to the applicant personally.  However the Complementary Protection Guidelines state that while a particular individual must face a real risk in light of their specific circumstances, it is not necessary to show that the individual would be ‘singled out’ or targeted for significant harm. 

    CONCLUSION

1. For the reasons set out above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   DECISION

2. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

   Genevieve Hamilton
   Member