1802541 (Refugee)

[2019] AATA 1590

1802541 (Refugee) [2019] AATA 1590 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802541

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Susan Hoffman

DATE: 22 January 2019

PLACE OF DECISION:  Perth

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

Statement made on 22 January 2019 at 12:02pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Court remittal – particular social group – criminal informants – illegitimate children – returned failed asylum seeker – victim of assault by father – father’s criminal links – people smuggling – alleged organiser of smuggling venture – internal relocation – prison conditions – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34

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 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 9 April 2013. He was interviewed by the delegate on 12 December 2013. The delegate refused to grant the visa on 18 March 2014.

3. The delegate’s decision was reviewed by a member of the Refugee Review Tribunal (RRT), who affirmed that decision on 5 June 2015. The RRT decision was appealed to the Federal Circuit Court which decided on 18 January 2018 that the application for review was to be re-heard. The primary reason was that the Court found that the RRT decision was “affected by jurisdictional error by reason of a denial of procedural fairness in making the findings…in relation to the applicant’s role on the boat” in which he travelled to Australia.

4. The applicant appeared before this Tribunal on 30 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

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

3. 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.

4. Section 91R is about persecution. It sets out that persecution involves serious harm to the person. Section 91R(2) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

1. 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’).

2. Significant harm is defined in s.36(2A) as being arbitrarily deprived of life; that 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.

3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Background, protection claims, and the delegate's decision

1. The applicant claims to be a citizen of Sri Lanka. The Tribunal accepts that the applicant is a citizen of Sri Lanka and that Sri Lanka is his country of nationality and receiving country.

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

3. The applicant arrived [in Australia] [in] August 2012 on a [vessel]. He claims he was born in [Town 1], Sri Lanka on [date] and until his departure for Australia, he has lived in Sri Lanka. He gave his ethnicity as Sinhalese.

4. The applicant claimed, and the Tribunal accepts, that he is unmarried and has [number] sisters. He was educated to year [number] and when in Sri Lanka, he worked in [Industry 1] and as a fisherman.

5. During the course of this matter, there have been a number of submissions from the applicant’s former migration agent. The applicant’s claims can be summarised as follows:

   ·     The applicant’s main reason for leaving Sri Lanka was he feared harm from his father. His father had never accepted the applicant was his son and abused him.

   ·     His father was a fisherman who was involved in [criminal activities]. [The evidence of this criminal activity was] hidden at the family home. In about 2000 the applicant told [Relative A] where the [evidence was] hidden which led the to his father’s arrest and conviction.

   ·     His father spent about [number] years in prison and was released [number] months before the applicant left Sri Lanka.

   ·     His mother told him after his father was released from prison that his father would want to harm him and that was why he left Sri Lanka.

   ·     If removed from Australia to Sri Lanka, he would be a member of the particular social group – returned failed asylum seeker.

   ·     [Relative A] told him that he, [Relative A], was skippering a boat to Australia and the applicant left with him, on the understanding that he would help [Relative A] drive the boat and serve the food. He only knew about the boat the day before it left.

   ·     The day before the boat left, he helped load provisions onto it. When they were at sea, the boat was drifting and they were rescued by another boat. [Relative A] did not get on the second boat but returned to Sri Lanka on the broken down boat. [Relative A] has since been imprisoned in Sri Lanka for illegally smuggling people to Australia.

Findings and reasons

1. The Tribunal has considered the evidence before it, including the sworn evidence of the applicant. The Tribunal acknowledges the difficulties faced by an applicant in a formal hearing, and recalling events from years past. Broadly if an applicant’s account is credible, the Tribunal will extend the benefit of the doubt with regard to specific claims the applicant cannot substantiate. At the same time, the Tribunal is also required to test the evidence and critically evaluate it.

2. A submission was made the day before the hearing. It comprised a statutory declaration from the applicant, and a bail application lodged with [a court in Town 2] and the court order made following the application. The bail application and order were submitted in the original language and translated into English. [Town 2] is a Sri Lankan town located in the Southern Province.

3. In his statutory declaration the applicant wrote as follows:

   If the tribunal has doubts on the genuineness of the court documents, I expressly authorise the Government of Australia to take whatever steps it wishes to satisfy itself of the genuineness of the documents.

4. The Tribunal sought to get the document authenticated but withdrew the request after being advised by the Department that verifying the court document might not be possible as doing so could potentially breach protection visa obligations. Given the content of the document, the detailed account in his statutory declaration of how the applicant acquired it through relatives in Sri Lanka and why he requested it from them, and his willingness for the document to be authenticated, the Tribunal accepts the bail application and order documents as submitted to be copies of genuine documents.

5. The Tribunal was satisfied that the applicant was honest in giving his evidence. It considers there may have been at past interviews or hearings some confusion over dates (whether an event happened in 2009 or 2012) which may be attributable to errors in translation or confusion on the part of the applicant as to when events occurred.   

6. It also considers there was an error in a written submission provided by a previous representative which contributed to a perception that the evidence given by the applicant at the RRT hearing was unreliable. This is discussed further below.  

Claims related to the applicant’s relationship with his father

1. In a post-hearing submission dated 8 October 2018, it was claimed that the applicant was a member of the particular social groups comprising (a) illegitimate children and (b) persons who inform on criminals.

2. It was submitted that the applicant had a well-founded fear of significant harm at the hands of his father, because of the history of the father abusing the applicant, believing him to be illegitimate and because the applicant informed on the father. The applicant fears the father will be able to harm him through his criminal network, no matter where the applicant hides.

3. At hearing, the applicant repeated claims already set out about the poor relationship between him and his father. He spoke of an unhappy childhood and of trying to kill himself as a [age] year old. He said that because of this, he told his [Relative A] about his father’s involvement in  [criminal activities], and told [Relative A] to inform the police about his [father]. The applicant said [Relative A] was the only one in his village who looked after him.

4. The applicant said that all he knew about his father’s work was that he [engaged in specified illegal activities]. He said his father was jailed for [number] years between [year] and [year]. Upon release he went back to the village.

5. The applicant said that he was in year [number] when he stopped going to school and started working as [Occupation 1]. He decided to leave his village and moved to Trincomalee, which is on the northeast coast of Sri Lanka. It is about [number] kilometres from [Town 1].

6. The applicant said that he had a job based in [Trincomalee] as a [Occupation 2], which meant he was responsible for [doing specified work]. When he managed to get an identity card, he started to work on a fishing boat.

7. The applicant said that by the time his father was released from prison, he (the applicant) was a seafarer based in Trincomalee.

8. The applicant said that his father had a lot of people working for him and when, in 2009, a vehicle tried to run him down, he believed it was done by one of his father’s henchmen. In relation to that incident, he claimed it was a police vehicle and at first he thought it was in a hurry to get to an emergency but as it came towards him, it veered his way and onto a verge and tried to run him down. He jumped out of the way to avoid being hit. He had no proof but believed the police were associates of his father who were trying to kill him. The RRT member did not accept that this incident happened on the basis that the applicant claimed in a statutory declaration and at the RRT hearing it happened in 2009 whereas he told the delegate it happened in 2012. The applicant told the Tribunal it happened in 2009.

9. The applicant said there was another incident in 2012 when his was on his way to his home village, [Town 1], from Trincomalee. He said he was assaulted and an attempt was made to abduct him but he ran away. He said he was then halfway between the village and Trincomalee. He got on a bus and returned to Trincomalee. The applicant said this happened in [City 1] which is about [number] kilometres from [Town 1] The applicant said that the men who assaulted him did not say anything to him but his father was out of prison by then and was looking for him to kill him.

10. Asked how he knew his father was after him to kill him, the applicant said that his father had harassed him since he was young and he, the applicant, had no other enemies. He said that his mother and [Relative A] told him not to return to the village because of his father. The applicant said he did not need anyone to tell him that his father wanted to kill him as he knew that was the case, and his father was not scared of anyone.

11. The Tribunal notes that the applicant did not refer to his father being a criminal at the delegate’s interview although he did talk about the difficult relationship between them, and that his father had been abusive towards him for many years and did not accept the applicant as being his son.

12. The applicant raised what were then new claims in a submission made prior to the RRT hearing. It was at this point that the applicant claimed his father was a [criminal] and the applicant informed on him.

13. The Tribunal accepts that the applicant has had a difficult relationship with his father and that his father was involved in [illegal activities]. The Tribunal considers that if the father was a [criminal] who spent [number] years in jail because his son informed on him, it is credible that the father was looking for his son with a view to killing him.

14. The Tribunal accepts that there were incidents in 2009 and 2012 and that the applicant was genuine in his belief that his father was behind attempts to harm him. However the Tribunal is not persuaded of this because there are other plausible explanations; for example in relation to the 2009 incident, the applicant may have been wrong in his perception that the vehicle tried to run him down. Regarding the men he claimed attacked and tried to abduct him, they may have been attempting to rob him and had nothing to do with his father. Even though the Tribunal does not accept the applicant’s interpretation of these events, it does accept that they occurred. It does accept that he has reason to be fearful of his father because of their hostile relationship and that the applicant was responsible for the father being charged and given a lengthy jail term.    

15. The applicant said he went back to his home village three times in 2012. He had previously said he went to visit his mother three times between 2009 and 2012. The Tribunal will give the applicant the benefit of the doubt in relation to this apparent inconsistency, as there may have been a misunderstanding or misinterpretation about the question and answer.

16. In relation to the third occasion, the applicant said his mother had told him that his father had gone fishing and was away from home so he went to see her. He said the journey from Trincomalee to his home village took about [number] hours by bus. He was asleep at his mother’s home when his father attacked him and his mother. Neighbours heard and came to help. They restrained his father while the applicant escaped. He said his father had stomped on him, on his neck and shoulder. He needed treatment and was strapped up by doctors.

17. In a statement dated 25 March 2013 which accompanied his application for a protection visa, the applicant stated:

    10.  In 2012, my father caught me at home one night while I was there visiting my mother and sisters and tried to kill me. He squeezed my neck so badly that I was in [a hospital] for four days. I have attached a medical certificate from the doctor who treated my injuries. He is registered as [a specialist] in [Town 1]. His name is Dr [B]…

    11. My mother went to the specialist who treated me a few weeks ago and asked him to please provide her with a certificate to confirm that I was admitted to hospital and he treated my injuries [in] May 2012. She has the original document with her in Sri Lanka and can post it to me here in Australia if required.

    12. This assault was never reported to the authorities by my mother as she was afraid of the consequences if the authorities approached my father. The hospital never reported the incident to the authorities because I was over 18 years old and where I come from these things are not always reported to the authorities… 

18. The applicant provided the delegate with a copy of a letter from the [hospital] [in] March 2013 to corroborate his claim that he was admitted to hospital in 2012.

19. In a submission to the RRT dated 26 May 2015, his then-representative wrote as follows:

    [The applicant] instructs that his statement submitted with his protection visa application is true except for the 2012 strangulation incident (paragraphs 10 – 12), which he made up.

20. The RRT decision referred to the applicant giving evidence that it was not his father who tried to kill him but his father’s cronies, and that he was injured and used medication from a first aid box kept on the fishing boat to treat his injuries. It was then stated:

    He conceded that he did not see a doctor regarding his injuries. He conceded that he did not receive any medical treatment as indicated by the letter from the hospital but that the doctor who provided the letter had been happy to give it because he knew of the father’s abuse of the applicant and his mother in the past. He conceded that it was a false letter but had been provided with good intentions.

21. When asked about this at the most recent hearing, the applicant told the Tribunal that the only untrue part of claims he had made was to do with obtaining a medical certificate.

22. The Tribunal notes that the applicant, during the course of his protection application, has referred to at least two incidents that occurred in 2012. One when he was assaulted on the journey between Trincomalee and [Town 1] by men he believed were associates of his father, and a separate incident when he was at the family home in [Town 1] and his father attacked him. His claim is that he sought medical treatment as a consequence of the latter incident.

1. Having gone through the statements he made at the delegate’s interview on 12 December 2013 according to that decision, at the RRT hearing on 27 May 2015 according to the RRT decision and at the Tribunal’s hearing on 30 August 2018, as well as his original statutory declaration and written submissions, the Tribunal is satisfied that the applicant has been consistent in his account of attending hospital after being attacked by his father in 2012.

2. The Tribunal is satisfied that the submission made to the RRT prior to that hearing by the applicant’s then-representative as quoted above (paragraph 44) was incorrect and the applicant had not withdrawn all his claims about the 2012 incident as set out in paragraphs 10 to 12 of his statutory declaration; he was only withdrawing the claim he made about the medical certificate. The submission may have contributed to what this Tribunal considers to be a lack of clarity at the RRT hearing as to what 2012 incident the applicant was talking about, such that his evidence about two separate incidents was incorrectly conflated, leading to a perception that his evidence was unreliable.

3. The applicant was adamant at the Tribunal’s hearing that he did get medical treatment after his father attacked him and the part of that story which was untrue was to do with the medical certificate. He said that he did not get one at the time but when asked to get proof that he had been hurt and had received medical treatment, he arranged for his mother to get a medical certificate or doctor’s report, and a sympathetic doctor produced a document after the event.

4. While admitting to this, the applicant was insistent that he and his mother were injured, with his mother losing four teeth when his father hit her. The Tribunal accepts that this incident did occur as the applicant has been consistent in referring to this incident, and he answered questions about it at the Tribunal’s hearing consistent with it being a truthful account. The Tribunal recognises the difficulty for the applicant when asked to get medical proof some years later, when he is residing in a different country. The manner in which the applicant answered questions about this incident suggested that he was recounting an event that did occur.

5. The applicant said that after leaving hospital, he went back to Trincomalee. His father did not come after him there; Trincomalee had a naval camp and there was security to go through to access the harbour where the applicant lived. He said he slept on a boat in the harbour and it was very safe for him there, although if he left the harbour area to, for example, buy food, it was not secure like the harbour area was. However nothing untoward happened even when he was outside of the harbour area.

6. Country information confirms the applicant’s description of Trincomalee harbour being secure and having a naval base there. An article titled ‘Sri Lanka Navy - Trincomalee Harbor’ states that “The Bay of Trincomalee's harbor is renowned for its large size and security; unlike every other in the Indian Sea, it is accessible to all types of craft in all weathers.”[1]

   [1] Global Security.org (2012) Sri Lanka Navy - Trincomalee Harbor, accessed 17 January 2019 at

7. Asked if he knew what his father was doing now, the applicant said his mother told him that his father was still [engaging in criminal activities] and doing better than he was, explaining this was in the sense of [his illegal business was] flourishing.

8. The Tribunal accepts the applicant’s claim that if he was to return to his home village in Sri Lanka, he would be at risk of serious harm from his father because the father has never accepted the applicant as being his son, because the applicant informed on his father, and his father has previously injured him. The applicant claimed that his father is linked in to criminal networks - which the Tribunal accepts - and through them, he may have contacts across Sri Lanka.

9. The Tribunal considered whether the applicant could safely relocate to other parts of Sri Lanka. About internal relocation, the DFAT reports states there are no official restrictions to relocation. It notes that an absence of family connections or lack of financial resources can limit internal relocation options. Sri Lankan security forces maintain effective control throughout Sri Lanka and therefore individuals are unable to relocate internally with anonymity. 

10. Sri Lanka has a population of about 21 million people. The applicant left school as a young man and worked in [Industry 1] and as a fisherman. He left his home village and made a living for himself some [number] kilometres from there, in Trincomalee, first as a [Occupation 2] then as a fisherman. He also made his way to Australia and has been able to subsist here.

11. The Tribunal is satisfied that the applicant could safely relocate to Trincomalee where he could obtain employment and support himself, as he did before. It does not accept that the father’s criminal networks are that extensive such that the applicant could be located by the father if the applicant was living and working in Trincomalee.

12. The Tribunal considers that the applicant, if he returned to Sri Lanka, and was not detained by authorities (discussed below), he could safely live and work in Trincomalee, despite his father’s connections.

Claims related to the boat journey to Australia

1. The applicant said that [Relative A], who lived about a kilometre from the applicant’s home village in [Town 1], operated a boat from Trincomalee. The applicant said it was normal practice in Sri Lanka to take a boat out from [a port in another village]. He said that in Sri Lanka, people generally lived in the same house all their lives, and going elsewhere to fish was normal. He said [Relative A] would take his van to carry supplies and pick up his crew on the journey from the village to Trincomalee, and that journey could take [number] hours. The applicant said that for one fishing trip, he was with [Relative A] on the water for one and a half months and they came ashore for about a week before setting out again. He could not be specific about how many fishing trips were made in a year as it varied, depending on the weather and other factors.

2. The applicant said that [Relative A] wanted to take a boat with paying passengers to Australia as a commercial venture; [Relative A] intended to return to Sri Lanka. The boat broke down, they were drifting for eight days in the high seas and [Relative A] arranged for another boat to rescue them.

3. The applicant said he was a helper on the boat, and some people who were on the boat returned to Sri Lanka. He said [Relative A] has since been charged with smuggling and was detained for [number] months. This was consistent with information contained in the Sri Lankan court documents submitted before the hearing.

4. The bail application stated that a person named [Alias 1] (the applicant’s first name is [Alias 2]; the difference in spelling is accounted for by translation) had organised the trip and the petitioner ([Relative A]) was only a passenger on the boat. The applicant said that he does not know if it was [Relative A] or someone else who said that it was him who was the people smuggler but they got his name somehow. In his statutory declaration dated 27 August 2018, the applicant wrote that he was shocked when he became aware that he had been named in the bail application as the person who organised the boat trip.

5. The Federal Circuit Court, in its Reasons for Judgment quotes from the transcript of the RRT hearing. The applicant said in that hearing that the owner of the boat was someone called [Mr C], and [Relative A] was the skipper. 

6. The Tribunal notes that according to the bail application to [a court in Town 2], [Relative A] was [age] years old in April 2013. When the boat left Sri Lanka in 2012 he would have been [age] years old. The applicant was [age] years old at that time. The Tribunal considers it more likely than not that the applicant was doing as he was told by [Relative A] who was the boat skipper who organised the boat trip, rather than the applicant being the organiser of the voyage.

7. The applicant claimed that because he was named as being the smuggler, even though that was not true, if returned to Sri Lanka, he will be charged with people smuggling, and it could be twenty years behind bars.

8. The DFAT report states that the processing of returnees to Sri Lanka takes some hours and for returnees travelling on temporary documents, police undertake an investigation to confirm identity which would identify someone trying to avoid court orders or arrest warrants.

9. It also states that most Sri Lankan returnees, including those from Australia, are questioned upon return, usually at the airport. If an illegal departure is suspected, they can be charged under the Immigrants and Emigrants Act (1949) (I & E Act). It is an offence under the I & E Act to depart from Sri Lanka, other than from an approved port of departure, such as a seaport or airport. The manner in which the applicant left Sri Lanka appears to be an offence under the I & E Act.

10. According to the DFAT report, penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, although in practice most cases result in a fine and no imprisonment. On this basis, and as put to the applicant, if he was to return to Sri Lanka and questioned as if he was a passenger on a smuggling boat, he would perhaps be detained for a short while, maybe fined and then he would be free to go his own way.

11. However as the applicant has been named in a court document as the organiser of a smuggling venture, the Tribunal is of the view that it is possible, if not probable, that he will be apprehended by police on his return to Sri Lanka and charged with that offence under section 45C of the I & E Act.

12. The DFAT report states that persons charged as facilitators or organisers of smuggling ventures under section 45C are not usually released on bail, and that according to information from the Sri Lankan police as at September 2017, all facilitators, organisers and skippers convicted under section 45C had received prison sentences of one year.

13. DFAT noted that the processes just set out applied to returnees who travelled illegally to [Country 1] and then to a third country.

14. The DFAT report notes that according to a report from October 2016, torture was routine and practised all over Sri Lanka, mainly in relation to police detention, and that police used torture during interrogation and arrest regardless of the nature of the suspected offence. The UN Special Rapporteur on human rights and counter-terrorism concluded in July 2017 the use of torture had been and remains endemic and routine for those arrested on national security grounds. The use of torture appears to have been used particularly against the Tamil population (4.14). The applicant is not a Tamil and there is no evidence to suggest he would be detained on national security grounds

15. DFAT observed the difficulty in verifying allegations of torture. It assesses that the use of torture by the military, intelligence or police forces has decreased since the end of the civil conflict and is no longer state-sponsored. While it is difficult to determine the prevalence of torture, Sri Lankans face a low risk of mistreatment that can amount to torture.

16. DFAT stated that in general, Sri Lankan prisons do not meet international standards due to poor sanitary and other basic facilities, and overcrowding. According to estimates from 2016, there are approximately 17,500 prisoners, including convicted prisoners and those on remand. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. The Tribunal understands from this that if the applicant was returned to Sri Lanka and charged with people smuggling, even if found guilty and given a sentence of one year, he might be in prison for much longer than that.

17. According to the court document, the applicant’s [Relative A] was released on bail for reasons that included his age, poor health and that has [number] children, and that he had, at that time of the order, been detained for [number] months.  

18. The arguments put on behalf of [Relative A] in his bail application based on his age and family responsibilities do not apply to the applicant. If the applicant was detained on smuggling charges, the Tribunal considers it is unlikely he would be realised on bail. (As noted above, DFAT assessed that persons charged as facilitators or organisers of smuggling ventures are not usually released on bail.)

19. The DFAT report refers to the Sri Lankan judicial system as being overburdened with lengthy legal procedures, large numbers of detainees and a limited number of qualified prosecutors and judges. It mentions a recent study that found some cases have taken over 17 years to resolve.

20. At the hearing, it was submitted that if the applicant went back to face charges, his treatment and any penalty he received would be harsher for political reasons. The Tribunal could not locate any current country information to support that claim. It has already set out DFAT’s assessment regarding charges related to people smuggling. It was also submitted the applicant would not get a proper trial in his home country. DFAT assessed that the judiciary in Sri Lanka exercise independence in criminal and civil cases. It noted that there are no public defence services and legal services can be costly. There is a legal aid commission which provides legal advice and representation to Sri Lankans without financial means.

21. The applicant’s representative wrote that the applicant can defend and would eventually win his case in Sri Lanka but that does not address the risks to which he would be exposed once deported, and the harm he would suffer until exonerated.

22. The Tribunal notes the PAM 3 Complementary Protection Guidelines as follows:

    Imprisonment / Prison conditions

    Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.

    As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

    Examples of conditions which have been held to constitute breaches of Article 7 include:

    ·     extremely cramped or unsanitary [conditions],  exposure to [cold] or inadequate ventilation or [lighting]

    ·     lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate [exercise]

    ·     prolonged solitary confinement or total [isolation]

    ·     denial of medical [treatment]

    ·     harsh rules of conduct restricting fundamental rights of prisoners; the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time; unfair procedures for deciding on disciplinary measures; inadequate protection against reprisals by warders; lack of a credible complaints mechanism and frequent use of protective measures such as leather [handcuffs]  and

    ·     violent treatment in detention (force may be used to enforce discipline, but must be proportionate in light of [circumstances]),  including acts such as beatings or assaults by prison warders, repeated death threats, mock executions, theft or destruction of personal possessions or displaying prisoners in a cage to the [press].

23. The Tribunal notes that the DFAT report recorded that in general, Sri Lankan prisons do not meet international standards due to poor sanitary and other basic facilities, and overcrowding. In addition, it is likely that the applicant might be detained for some years awaiting trial. This might be tantamount to him being subjected to cruel or inhuman treatment. However for this to meet the criteria for protection under the complementary protection provisions, any harm suffered by the applicant as a consequence of him being held in a Sri Lankan jail for a protracted period of time, perhaps many years, in overcrowded and unsanitary conditions would require there to be an intentionally inflicted act or omission. There is no evidence that indicates the conditions of Sri Lankan prisons are as they are to intentionally inflict harm on prisoners; rather, the poor conditions and lengthy period people spend in prison on remand reflect a lack of resources. The Tribunal is satisfied that detention in a Sri Lankan prison, even for a protracted period, does not of itself satisfy the complementary protection criteria.[2]  

    [2] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34

24. As already discussed, the Tribunal has accepted the applicant’s claims concerning his father’s criminal history and activity. It considers that the applicant would be at real risk of serious harm from his father if he returned to his home village but is satisfied that the applicant would be able to relocate within Sri Lanka and live safely. He could find work for himself in other parts of Sri Lanka as there is no impediment to him doing that as he did when he went to live in Trincomalee.

25. However, given he has been named in a court document, it seems likely that upon his return to Sri Lanka the applicant will be apprehended and charged for his alleged role in the smuggling venture. The Tribunal has already referenced the DFAT report which records that the processing of returnees to Sri Lanka takes some hours and for returnees travelling on temporary documents, police undertake an investigation to confirm identity which would identify someone trying to avoid court orders or arrest warrants.

26. Country information indicates that the applicant would be detained in the prison system for some time, possibly years, until the case is finalised. According to the DFAT report at 5.18, the US State Department reported that some prisons in Sri Lanka do not segregate remand and convicted detainees. The Tribunal is of the view that because of the possibility of a lengthy jail term and that remand and convicted prisoners are not held separately, there is more than a remote chance – that is, a real chance - the applicant will be located by his father given the latter’s links to criminal syndicates, and by extension to prisoners. The Tribunal considers that while held in prison there is a real chance that his father would find out that the applicant was in prison and that the applicant would be harmed by people acting on his father’s behalf.  

27. The Tribunal is satisfied therefore that the combination of circumstances – his relationship with his father, his father’s criminal links, the allegation made against the applicant in his absence as to his role in the smuggling venture and the possibility of him being detained in prison for a number of years – gives rise to a real chance of him facing serious harm should he be returned to Sri Lanka, because of his membership of a particular social group; that being of someone who informed on a criminal.

28. The Tribunal is not satisfied that the state would be able to protect the applicant from that serious harm if he is inside the prison system, given the overcrowding and poorly-resourced prison system. 

CONCLUDING PARAGRAPHS

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

2. The Tribunal finds that the essential and significant reason for the persecution feared by the applicant is his membership of a particular social group and that it is systematic, in the sense of not being random, and discriminatory in that it is directed at the applicant because of this membership. The Tribunal considers that the persecution feared by the applicant involves serious harm in that it involves a threat to his life, liberty or significant physical harassment or ill-treatment (section 91R of the Act). The Tribunal is satisfied that the criteria set out in s.91R of the Act are met.

1. The Tribunal is satisfied on the evidence that the applicant has a well-founded fear of persecution for a Convention reason if he is returned to Sri Lanka now or in the foreseeable future.

DECISION

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

Susan Hoffman
Member