1807450 (Refugee)

[2020] AATA 2251

1807450 (Refugee) [2020] AATA 2251 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807450

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jason Pennell

DATE:13 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 13 May 2020 at 2.07pm

CATCHWORDS

REFUGEE – Protection visa – Sri Lanka– Federal Circuit Court remittal– perceived as a “key threat” to the Peoples’ Alliance Party– former supporter of PA –large inheritance– concerns about authenticity of support letters – evidence in relation to attack was vague, uncertain and lacking in any detail – wealth business person –credibility concerns – second applicant suffering depression –no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5,36, 65, 91, 499

Migration Regulations 1994, r 1.12, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas on 2 May 2013 and the delegate refused to grant the visas on 11 March 2014 on the basis that the applicants are not persons to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act, and are not members of the same family unit as a non-citizen in respect of whom the minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicants (s.36(2)(b) or s.36(2)(c) of the Act).

3. The applicants applied to the then Refugee Review Tribunal (‘RRT’) for review of the delegate’s decision on 26 March 2014. The RRT heard the applicants claims for protection on 21 October 2014 (the ‘RRT hearing’). By a decision dated 28 May 2015, the RRT, differently constituted, affirmed the decision of the delegate not to grant the applicants Protection visas (‘RRT decision’).[1]

   [1] Decision record, Tribunal file 1405778 @ f. 132-147

4. The applicants applied to the Federal Circuit Court for judicial review of the RRT’s decision [in] June 2015.[2] By a judgement of [date] January 2018, the FCC ordered the matter be remitted to the Tribunal for reconsideration, on the basis that the RRT fell into jurisdictional error as it did not appropriately distinguish between the two tests that were required in order to properly consider the reasonableness of relocation in the context of the review.

   [2]  [File number deleted]

5. The applicants appeared before the current Tribunal on 11 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a Sinhalese interpreter. The applicants were represented in relation to the review and during the Tribunal hearing by their registered migration agent.

RELEVANT LAW

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.

Refugee criterion

1. 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).

2. 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.

3. 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.

4. There are four key elements to the Convention definition.

   a)First, an applicant must be outside his or her country.

   b)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.

   c)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.

   d)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.

5. 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.

6. 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

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’ 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.

3. 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.

Mandatory considerations

1. 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.

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.

2. In this case, the claims for protection are made by the first [applicant]. The second applicant, [is] the wife of the first applicant and only makes one claim for protection herself, in relation to her mental health, but otherwise is reliant on the first applicant’s claims. In addition, the third applicant, [and] fourth applicant, [are] the children of the first and second applicants and do not bring any specific claims for protection of their own. Accordingly, excepting the second applicant’s claims in relation to mental health, as the second, third and fourth applicants have no protection claims of their own, they will be considered members of the same family unit under s.36(2)(b) of the Act.

CLAIMS AND EVIDENCE

1. The issue in this case is whether the first or second applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ migration history

1. The first applicant claims that he was he was born on [date] in [Town 1], North Western Province (‘NWP’), Sri Lanka. [3] The applicant claims he did travel internationally prior to arriving in Australia.

   [3] Department [file] @ ff. 17-31

2. The applicant first arrived in Australia [in] March 2009 as the holder of a [Student] visa. His wife was the primary visa holder. They were granted further [student] visas on 13 May 2010. They travelled offshore from [December] 2010 to [January] 2011 and again [in] March 2011. They were refused the grant of Temporary Work (Skilled) (Class UC) visas on 6 December 2011 and lodged a merits review application with the Migration Review Tribunal (‘MRT’). They travelled offshore for a third time [in] March 2013. While they were offshore, they made a fresh application for Temporary Work (Skilled) visas. The MRT found on 2 April 2013 that it had no jurisdiction to review their first Temporary Work (Skilled) visa application. The applicants applied for a Protection visa (Class XA) visa on 2 May 2013. They were again refused the grant of Temporary Work (Skilled) visa on 1 August 2013 and again lodged a merits review application with the MRT. They currently hold Subclass (Bridging C) visa associated with the Protection visa application.   

3. The adult applicant’s sons were born in Australia on [date]. Protection visa applications were lodged on their behalf on 12 February 2014. They also currently hold associated bridging visas.

Country of reference and family unit

1. The adult applicants both declared they are citizens of Sri Lanka. These first and second applicants provided the Department certified copies of their passports, together with the Victorian birth certificates of their sons as evidence of their identity.[4] The Tribunal sighted the same passports during the Tribunal hearing, copies of which are on the Tribunal file.[5]

   [4] Department [file] @ ff. 74-80; 81-101; 149; 157.

   [5] Tribunal file 1807450 @ ff. 42-3

2. In light of the above and in the absence of any evidence to the contrary, the Tribunal accepts that the applicants are citizens of Sri Lanka, and as such, the protection claims of the applicants will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

3. The Tribunal is also satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country and, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3).

Claims for protection and supporting documentation

1. The first applicant’s initial written claims for protection are contained in his application for a protection visa dated 2 May 2013[6], as follows:[7]

   [6] Department [file] @ ff. 17-31

   [7] Department [file] @ ff. 25-23; Applicants protection Visa application dated 2 May 2013 questions 43-48.

   Why did you leave that country?
   My wife and I left Sri Lanka to escape harm for the Sri Lankan government security forces and paramilitary forces operating with support of the Sri Lankan government.

   Have you experienced harm in that country?
   Yes. Yes, my wife and I were constantly threatened on a number of occasions during this period.

   What do you fear happen to you if you go back to that country?
   If we go back, we will face the risk of either being killed or being kidnapped or being tortured and illtreated at the hands of the government security forces and para militants.

   Who do you think may harm/mistreat you if you go back?
   Sir Lankan security forces and paramilitary forces operating with the support of the Sri Lankan government.

   Why do you think this will happen to you if you go back?
   Our family supported the present Sri Lankan regime in the past, however, due to their undemocratic, oppressive and violent attitude towards the opposition parties and minorities, they no longer believed in supporting government ideology and escalating violence and against the opposition and minorities. During my visit to Sri Lanka, my wife and I also endorsed the view of our family members. During our stay in Sri Lanka, my wife and I were invited to attend and support the government supporters district political promotion programme which was held in the first week of February 2013. We refused to attend their programme and informed them we no longer want to support the government. As we refused to participate their activities, we were the subject to numerous threats for the government supporters in the district and these were continued until we left Sri Lanka.

Do you think the authorities of that country can and will protect you if you go back?
No. The authorities of Sri Lanka have constantly failed to put an end to the ongoing onslaught on opposition members, minorities and those who are not supportive to their ideologies and activities.

1. The first applicant’s claims were summarised in the delegate’s decision, dated 11 March 2014, as follows:[8]

   [8] Department [file] @184; Delegates decision @ p.5

   (a)His family used to support the PA [Peoples’ Alliance Party].

   (b)He used to support the PA by putting up posters, attending meetings, participating in rallies, and obstructing opposition parties. At elections, he used to interfere with ballot boxes to rig the outcome in the PA's favour.

   (c)In particular, he supported [Mr A]. He knew that [Mr A] was not a good man, but he told people he would do good things.

   (d)His family no longer support the PA due to current undemocratic, oppressive and violent policies towards opposition parties and minority groups.

   (e)During his most recent visit to Sri Lanka (in January-February 2013), he endorsed his family's changed political views, but had withdrawn his support for the PA when he first left Sri Lanka in 2009.

   (f)In the first week of February 2013, he and his wife were invited to attend a pro-government promotion program in their home district. They refused to be involved and informed the government supporters that they no longer supported the government.

   (g)He also told the opposition he could not support them either. He thinks the opposition United National Party (UNP) was interested in recruiting him because he is a wealthy businessman.

   (h)Government supporters threatened him repeatedly until he left Sri Lanka. They placed floral wreaths on his doorstep to signal their intent to kill him.

   (i)He reported these threats to the police, but they said they could not take action unless he produced written threats against him.

   (j)His family members have not been harmed since he left Sri Lanka. They have been warned that when he returns to Sri Lanka, he will be dealt with.

   (k)He cannot relocate to another part of Sri Lanka because his enemies would find him eventually.

2. The applicants provided the following documents in support of their protection claims to the Department:[9]

   [9] Ibid@ ff. 158-165

   (a)The first and second applicants’ passports.[10]

   [10] Department file [number deleted] @f.80-101

   (b)The third and fourth applicants’ Victorian Birth Certificates.[11]

   [11] Department file [number deleted] @ f.149 & f.157

   (c)A letter dated [July] 2013 from [Mr B], United National Party (‘UNP’) [Position] for [Town 1].[12]

   [12] Department file [number deleted] @f.135 &f.165

   (d)A letter dated [July] 2013 from [Mr C], UNP [Official].[13]

   [13] Department file [number deleted] @f.134 &f.164

   (e)A letter dated [July] 2013 from [Mr D].[14]

   [14] Department file [number deleted] @f.133 & f.163

   (f)A letter dated [July] 2013 from [Mr E].[15]

   [15] Department file [number deleted] @f.132 &f.161

   (g)An undated letter from [Mr F].[16]

   [16] Department file [number deleted] @f.134 & f.159

(h)Statement in support of the application of a protection (class XA) visa.[17]

[17] RRT File 1405778 @ f.95

(i)Deed of Gift [No].[18]

[18] RRT File 1405778 @ f.99

(j)Document dated 13 October 2014 referring to the leasing income of [second applicant].[19]

(k)Document entitled ‘Agreement to lease out the shop premises [of] [Town 1] Council.’[20]

(l)Letter dated 13 October 2014 entitled ‘Balance [Confirmation].’[21]

(m)Document entitled ‘Will be owned by [the second applicant] the 1^st defendant.’[22]

(n)Various [News] articles.[23]

(o)Parliamentary General Election Results 2004 & 2009.[24]

(p)Provincial Election Results 24/04/2004.[25]

(q)Presidential Election results 2005.[26]

(r)Various financial documents relating to the first and second applicants’ assets and income. 

[19] RRT File 1405778 @ f.100

[20] RRT File 1405778 @ f.105

[21] RRT File 1405778 @ f.106

[22] RRT File 1405778 @ f.107

[23] RRT File 1405778 @ f.117-125

[24] RRT File 1405778 @ f.127 & f.131

[25] RRT File 1405778 @ f.128

[26] RRT File 1405778 @ f.130

Applicants’ evidence to the RRT

1. The applicants’ representative provided submissions dated 11 October 2014 to the RRT in support of the review application,[27] which can be summarised as follows:

   (a)The first applicant is perceived as a “key threat” to the Peoples’ Alliance Party (‘PA’) because of his knowledge of widespread corruption within the party and his recent inheritance of a large amount of wealth from his father-in-law.

   (b)The first applicant strongly opposes the mistreatment of Tamils and opposition supporters by the PA. He told the PA he was stopping his support for them because of their “corrupt and unethical ways”.

   (c)It is not inconsistent for UNP politicians to provide letters of support to someone like the applicant who has turned away from the PA because they will still want to support someone who opposes the PA even if he does not support the UNP. In any event, three of the letters provided are written by people not related to the UNP.

   (d)The first applicant will be known as a former PA supporter who actively engaged in the corrupt dealings of the PA, by being involved in tampering with election ballot cards and rigging votes. The applicant is immediately perceived to be a threat to the PA because he knows of their corrupt dealings. Due to his large inheritance, he is a valuable target for the PA who could force to support them financially or kill them and take his wealth. They also will want to prevent him from supporting another party in the future.

   (e)The first applicant’s circumstances are unique and so should be evaluated separately from considering the circumstances of low-level PA supporters being targeted if they discontinue their support.

   (f)The first applicant had a valid reasons for not seeking protection soon after his arrival in Australia: his current fears arose only during his last visit to Sri Lanka and he initially wanted permission to remain in Australia by applying for a temporary work visa because he feared that if the government of Sri Lanka found out he had sought asylum in Australia he would be considered a traitor and a threat to them if he returned to Sri Lanka.

   [27] RRT file 1405778 @ ff. 80-83

2. The applicants appeared before the RRT on 21 October 2014, and at the hearing provided several documents in English and Sinhalese regarding properties and other assets held by the applicant wife’s family, including properties held in her name.[28]

   [28] Ibid@ ff. 86-107

3. Following the hearing, the first applicant made further submissions, dated 13 November 2014,[29] in which he claimed that his “wealth, reputation and propensity to be re‑targeted for political reasons” means he would not be safe if he relocated to another part of Sri Lanka unless he kept his identity a secret and lived “very cautiously”, requiring him to modify his conduct in a way that was inconsistent with the relevant Australian case law. It was submitted that PA supporters would find him wherever he was living in Sri Lanka.

   [29] Ibid@ ff. 110-125; Attached to the submission were new translations into English of the documents referred to at 29 (c)-(f) and copies of online media reports of incidents of targeted killing and corruption in Sri Lanka.

4. It was also submitted that the second applicant has been suffering depression and that relocating within Sri Lanka would adversely affect the applicants’ mental health and well‑being because of the harm they fear suffering and as a result of the threats and harassment to which the applicant has been subjected.

Applicants’ evidence to the Tribunal

First applicant’s evidence to the Tribunal

1. The first applicant claims that he was he was born on [date] in [Town 1], North Western Province (‘NWP’), Sri Lanka. [30] The applicant’s evidence was that he attended school [until a specified grade]. He then attended a [course] in [Town 2], Sri Lanka for one year, at which he completed a [course] in 1999.

   [30] Department [file] @ ff. 17-31

2. After finishing the [course] he went to work [in] a [shop] in [Town 1], known as [Business 1] (‘the business’), that belonged to his wife. He met his wife while working in the business. His responsibilities included [details deleted]. The applicant worked at the store until his arrival in Australia. 

3. While the applicant and second applicant have been in Australia, the business has been conducted by the second applicant’s father and mother. The applicant claims that, for Sri Lankan standards, the business is comparatively large. It is engaged in both retail and manufacturing of [products] and employs approximately [number] people  

4. The first applicant’s parents continue to live in [Town 1], Sri Lanka. His father is retired [and] his mother is engaged in home duties. The applicant has two brothers. His elder brother lives [overseas] and currently [works], while his younger brother continues to live in Sri Lanka and [works].

5. The applicant travelled to Australia with his wife, the second applicant, who arrived in Australia on a student visa to [study].  The second applicant has completed her [course]. In Australia, the first applicant has worked for [a company].

6. The first and second applicant returned to Sri Lanka 2010, 2011 and 2013. They returned to [Town 1], Sri Lanka in 2010 for approximately one month to visit the second applicant’s father, who was ill.  The second applicant’s father passed away in 2011. As a result, both the applicant and the second applicant returned to Sri Lanka in 2011 to attend the funeral.

7. After the second applicant’s father passed away, her mother took over the responsibility of running the [business]. The second applicant has a younger brother who has his own [business] in Sri Lanka separate to [Business 1].

8. The first and second applicant returned to Sri Lanka in 2013 due to the second applicant being depressed and home sick, after [having a medical condition] in 2012.  In addition, the applicant returned for the purpose of receiving his share of the business as part settlement of his dowry due to be transferred to him upon the death of his father-in-law. As a result, the applicant received a share of the business but was not involved in the day to day operations of the business.

9. The first applicant claimed that he had been a supporter of [Mr A], [an official of] the United Peoples Liberation Front (UPLF) [at] that time. He claimed that he was introduced to [Mr A] through his father and that he worked on campaigns distributing posters, providing transport and supporting him financially. He claimed that he had worked for [Mr A] during the 2004 election.

10. The first applicant’s evidence was that he had never been involved with or worked for the PA. In addition, he claimed that he ceased all work in politics prior to commencing work at the business in 2004. He confirmed that he did not participate in the elections conducted in 2005 and 2010. Finally, he confirmed that he had never held any position of responsibility in the UPLF.

11. The first applicant claims that when he returned to Sri Lanka in 2013, he was threatened by supporters of [Mr A]. Initially the applicant’s evidence was that [Mr A] had approached him personally, but when questioned by the Tribunal his evidence was that he had not been approached by [Mr A] directly but by his supporters. In fact, in response to the Tribunal’s questions, he confirmed that he had never met [Mr A].

12. Nevertheless, the first applicant claimed that as a result of having previously working on campaigns for [Mr A] he was aware of “some of his dirty work and some murders”. Save that the applicant claimed to have been involved in ballot fixing he did not provide any specific details as to when and where he engaged in such activities. In addition, the applicant provided no evidence or details of [Mr A]’s ‘dirty works and murders’ as claimed. The applicant stated that he believed that he was asked to rejoin and work for [Mr A] because he had information that was harmful to him. In addition, he claimed that they were interested in taking the property he had received as part of his dowry

13. The first applicant claimed that during his visit in 2013, after he had been back in Sri Lanka for about a week, four people came to his mother-in-law’s house to approach him. He claimed that he was [at] his mother-in-law’s house with his mother-in-law and the second applicant when the four men arrived.  The first applicant claimed that he invited them into the house. They identified themselves as supporters of [Mr A] and asked the first applicant if he would support [Mr A] in the event of an election in the future. The first applicant said that he refused as he was no longer politically active. As a result, they asked him to think about it and left. The first and second applicants both confirmed that they had not been threatened with harm by the four men.

14. The first applicant then claims that approximately three days after the visit from the four men a further 15 people approached him at his mother-in-law’s home and made a further request for him to work for [Mr A].  Once again, the applicant claims he refused on the basis that he was no longer politically active. Both the first and second applicant confirmed that they were not threatened with harm by the men.

15. The first applicant then claims that two days later he was approached [at the business] by people asking if he was going to join them in support of [Mr A]. The applicant again confirmed that he was not threatened with harm. However, he claimed that he felt uncomfortable and called his wife. On her advice he went to the police. The applicant’s evidence was that the police did not take any statement from him; they said they would ‘look into it’ but they did nothing.

16. The applicant then claims that after a few days a group of people again approached him at his mother-in-law’s home. He claims they were armed with pistols. They wanted to know why he had reported the matter to the police. He claimed that they said to him words to the effect of “you’re trying to get a bullet into your head” as a result of him having reported their previous approaches to the police. The applicant’s evidence was that as a result of the people threatening him, his mother-in-law interrupted telling them not to threaten him and demanding that they leave. As a result, they left.

17. The applicant claims that the next day a wreath was placed at the front gate. He assumed it was put there by the same people and took it as a threat.

18. The applicant claims that after a few days, [in] March 2013, he was traveling in the car on the way to the [business] when he was stopped by a group of people. He claims that he was grabbed by the collar and threatened and asked if he knew what was going to happen to him. However, his evidence was that they followed him but did not enter the [workplace]. As a result, the first and second applicants decided they could not stay in Sri Lanka. [In] March 2013 they went to a hotel in [Town 2] and then returned to Australia.

19. As a result, the Tribunal asked the applicant why [Mr A] would be interested in him in circumstances where he had not held any position of responsibility, had merely assisted in distributing election material and had not been involved in any election campaign since 2004. The applicant responded that in 2011, on his return trip to Sri Lanka, he had a social discussion about politics with a group of people (three of which where his friends) and about [Mr A] and his ‘dirty tricks.’ He claimed there had been ‘killings’ and ‘robbing’ at ballot boxes.  His evidence was that someone in that group may have overheard him and related the information to [Mr A]. He claimed that a person in the group was the son-in-law of [a government official] and that it may have been him who reported his conversation to [Mr A]. He claimed this may have been a reason why [Mr A] was interested in him and why the people who approached him wanted him to join them.

20. In addition, he claimed because he had received his dowry from his father-in-law’s estate, they were aware that he had come into property and they thought that they may be able to take his assets. However, in response to the Tribunal’s enquiry, the first applicant conceded that he could not explain how they would have become aware of his ‘inheritance.’ In addition, he confirmed that no one had made any claim for any of his property.

Second applicant’s evidence to Tribunal

1. The second applicant was born on [date] in [Sri Lanka]. She claims to be an ethnic Sinhalese and a Buddhist. Her father passed away in 2012. Her mother continues to live in Sri Lanka and to operate the family [business]. The second applicant has a younger brother who owns and operates his own [business] in [Town 2], Sri Lanka. 

2. She was educated in [a] College in [Town 1]. In or about 2004, after she left school, the second applicant commenced work in the family [business] with her father. Her responsibilities included assisting in the management of the business.

1. The first and second applicant met while working at the business and were married in 2006. The second applicant travelled to Australia on a student visa for the purposes of [studying]. The second applicant claims that it was her desire to continue her [studies], but her father requested from her a grandchild. As a result, she became pregnant and had [children].

2. The second applicant confirmed that she and the first applicant have returned to Sri Lanka in 2010, 2011 and 2013. She confirmed the first applicant’s evidence that they returned in 2010 due to her father’s illness and to attend his funeral in 2011. In 2013 they returned due to her suffering from depression [and] for the purposes of settling the first applicant’s dowry from her father’s estate.

3. The second applicant confirmed that she had applied for a temporary work visa in 2011. She claimed that she wanted to stay for some time as she and the first applicant had commitments in Australia. Her evidence was that the first applicant was working [for a company]. She claimed that he was well regarded by the firm and they wanted him to stay working.

4. The second applicant’s evidence was that about a week after returning to Sri Lanka some people came to the gate of her mother’s house asking for the applicant. The first applicant did not know them but invited them into the house. They asked him to rejoin the party to help in any future elections. Her evidence was that the conversation was amicable and that they did not threaten the first applicant. She claimed that the first applicant said that he was no longer involved in any political activities. She claimed that they were not happy but left peacefully. The second applicant’s evidence was that she was not aware of the first applicant’s political involvement prior to them being married. However, she said that he had not been involved any political activities since working in the business.

5. The second applicant’s evidence was that about three days later the first applicant was visited by a group of unknown people. She was not involved in the conversation, but her evidence was that they wanted him to join their political activities. Her husband said that he was no longer involved in any political activities.

6. The second applicant claimed that in or about [February] she was informed by the first applicant about an incident involving two people visiting the shop asking about the first applicant’s settlement. She claims that she was informed by the first applicant that they threatened him. She advised him to go to the police, but they did nothing. 

7. The second applicant claimed that toward the end of the month a group of people came to her mother’s house and forcefully came into the house. They threatened the first applicant about going to the police station saying words to the effect of “Do you want to get killed?” The second applicant’s evidence was that her mother intervened demanding that they leave her house immediately. She claimed that on the same day a wreath was left outside the house, which was taken as a warning.

8. Finally, the second applicant claims she is informed by the first applicant that while he was driving to the [business], there was incident in which he was stopped in his car and threatened. As a result of the incident, their parents asked them to leave the country. As a result, they went to a hotel for a couple of days before returning to Australia.

COUNTRY INFORMATION

1. Along with other publications and country information provided by the applicant, the Tribunal has considered the Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report - Sri Lanka, dated 23 May 2018 (the ‘DFAT Report’), which states:

   ‘Economic Overview[31]

   [31] DFAT Report @ p.9

   2.9 The World Bank classifies Sri Lanka as an upper middle-income country. Gross national income on a per capita basis was USD4,102 in 2018. Sri Lanka’s economy has expanded significantly since the end of the war. Spurred by post-war reconstruction efforts, large infrastructure projects and an increase in tourism, the economy grew at an average rate of 5.8 per cent between 2010 and 2017. The pace of growth has since slowed, owing to prolonged drought conditions in many parts of the country, monsoon floods in 2017 and 2018, rising inflation, sluggish reform implementation and political instability. The economy grew by 3 per cent in 2018 — its slowest expansion in 17 years. The IMF projects growth of 3.5 per cent in 2019 and 4 per cent in 2020, although the terrorist attacks of April 2019 have impacted negatively on Sri Lanka’s tourism sector and will affect future growth prospects.

   2.10 Sri Lanka’s economy is heavily dependent on the manufacturing and services sectors — collectively, these account for nearly 80 per cent of Gross Domestic Product (GDP). Agriculture, previously the backbone of the Sri Lankan economy, contributes approximately 8 per cent of GDP. Economic growth is driven largely by the Colombo Metropolitan Region, which generates 45 per cent of total GDP. Remittances are Sri Lanka’s largest source of foreign exchange earnings. In 2017, Sri Lankans working abroad remitted approximately USD7.2 billion, the equivalent of 8 per cent of GDP.

   2.11 Sri Lanka’s unemployment rate (4.4 per cent in 2018) is relatively low, although regional variations exist. The Western Province has the lowest unemployment rate in the country, at 3.2 per cent, while the Northern Province has the highest, at 7.7 per cent. Unemployment in the Southern (5 per cent) and Eastern (6 per cent) provinces is also higher than the national average. Youth unemployment (those aged 15-24) is 20.7 per cent nationally. The labour force participation rate for men (74.1 per cent) is more than double that for women (35.1 per cent). The services sector employs 47.7 per cent of Sri Lanka’s labour force, while the agriculture sector employs 26.7 per cent. Approximately 212,000 Sri Lankans left to work abroad in 2017, mostly for the Middle East. Departures for foreign employment in 2017 were down 12.6 per cent from a year earlier.

   South Asia. The United Nations Development Programme (UNDP) ranked Sri Lanka 76 out of 189 countries in its 2018 Human Development Index — the highest ranking of all South Asian countries. Poverty rates are relatively low and extreme poverty is rare. According to Sri Lanka’s most recent Household Income and Expenditure Survey, just over 4 per cent of the population was living below the national poverty line (defined as those living on LKR4,166, or approximately AUD34, per month) in 2016. This was down from 15.3 per cent in 2007, although a large share of the population live just above the national poverty line. Wealth and economic development are not evenly distributed. Colombo and the Western Province, as the main engines of economic growth, are relatively prosperous, while the Southern Province and former war-affected areas in the north and east are less developed (see Economic conditions in the north and east).

   2.13 Sri Lanka ranked 89 out of 180 countries in Transparency International’s 2018 Corruption Perceptions Index, up two places from 2017. The government established a Presidential Commission of Inquiry to ‘Investigate and Inquire into Serious Acts of Fraud, Corruption and Abuse of Power, State Resources and Privileges’ in March 2015, with a mandate to investigate large-scale acts of fraud and corruption between 2010 and 2015. The Commission submitted its final report to President Sirisena in January 2018. The most serious cases of alleged fraud and corruption are with the Attorney-General for further investigation and action. In May 2018, parliament approved a new law establishing courts to handle cases specifically relating to bribery and corruption, in order to accelerate delayed cases. In September 2018, Gotabaya Rajapaksa, a former Defence Secretary and brother of ex-President Mahinda Rajapaksa, was indicted in an anti-corruption court for allegedly misusing public funds to build a memorial for his parents (on 15 October 2019, the Special High Court suspended the case until 9 January 2020). In January 2019, Sirisena established a separate presidential commission of inquiry into alleged fraud and corruption by public officials during the period 2015-2018. It delivered its findings on 27 September 2019. Bribes were allegedly solicited by, and offered to, members of parliament in exchange for their allegiance during the 2018 constitutional crisis.

   2.14 Sri Lanka has a high stock of public debt, equivalent to almost 80 per cent of GDP. This includes loans taken out by the previous government to fund large infrastructure projects, including as part of China’s Belt and Road Initiative. In 2017, the government’s debt repayments were the equivalent of 4.8 per cent of GDP, exceeding the proportion of GDP spent on health and education. To avert a balance of payments crisis, in June 2016 Sri Lanka entered into a three-year, USD1.5 billion bail-out program with the International Monetary Fund. Investor confidence in Sri Lanka’s economy plummeted following Sirisena’s ouster of Wickremesinghe in October 2018, prompting international capital flight and causing the value of the local currency, the rupee (LKR), to plunge.

   2.15 DFAT assesses that, despite the relatively strong rates of economic growth and low formal unemployment statistics overall, Sri Lankans – particularly in the less developed Northern and Eastern provinces – continue to perceive a lack of economic opportunities, including access to university education (see Education). DFAT assesses that economic reasons, particularly access to employment, act as a ‘push factor’ for external migration.

   Political System[32]

   [32] DFAT Report @ p.13

   2.32 Sri Lanka is a democracy with a mixed parliamentary and presidential form of government. The current Constitution was adopted in 1978. It has been amended 19 times, most recently in April 2015. The president is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. The most recent presidential election was held in January 2015. Maithripala Sirisena of the Sri Lanka Freedom Party (SLFP) defeated his erstwhile ally, Mahinda Rajapaksa, president since 2005. Sirisena, previously a member of Rajapaksa’s Cabinet, contested the 2015 election as the common candidate of an opposition alliance led by the United National Party (UNP), the SLFP’s historic rival. A split in the Sinhalese vote and support from the Tamil and Muslim communities secured Sirisena’s victory. Sirisena appointed Ranil Wickremesinghe, leader of the UNP, as prime minister.

   2.33 Sri Lanka has a unicameral parliament with 225 members: 196 members directly elected from districts, and 29 elected through national proportional representation. International and domestic election observers deemed the last parliamentary election, held in August 2015, to be credible. The results reinforced the outcomes of the January 2015 presidential election and ushered in a government of national unity. The United Front for Good Governance, a coalition of parties including the UNP and Sirisena’s SLFP faction, won 106 seats on a ‘good governance’ platform promising economic growth, transparency, anti-corruption, ethnic reconciliation, and protection of individual freedoms and rights. Former President Rajapaksa's United People's Freedom Alliance (UPFA), including Rajapaksa’s then-SLFP faction, secured 95 seats. The Tamil National Alliance (TNA), the largest political party representing the Tamil community, won 16 seats, and smaller parties won the remaining eight seats. TNA leader Rajavarothiam Sampanthan became the formal leader of the opposition in parliament.

   2.34 Relations in the national unity government fractured in February 2018, when the SLFP and the UNP suffered losses in local government (council) elections. Rajapaksa’s faction contested these elections as the newly-formed Sri Lanka Podujana Peramuna (SLPP) party. The SLPP performed strongly, emerging as the single largest party, underlining Rajapaksa’s ongoing popularity within the Sinhalese community.

   2.35 Sri Lanka has nine provincial councils, with members elected for five-year terms. Provincial councils are led by a chief minister. Each provincial council also has a governor, appointed by the president to represent the central government for a period of five years. The tenure of governors roughly aligns with the term of the president. Sirisena replaced all nine governors following the January 2015 presidential election. There have been several gubernatorial reshuffles and new appointments since January 2015. Provincial council elections were last held in 2014. They are next likely to be held in 2020, having been postponed in 2017 and 2018. At the time of publication, the terms of all provincial councils had expired.

   2.36 Presidential elections will be held on 16 November 2019. Sirisena will not contest. Parliamentary elections will be held between April and August 2020 (the president can dissolve parliament after 17 February 2020, or earlier if they secure the support of a two-thirds majority).

   Prevalence of Fraud[33]

   [33] DFAT Report @ p.73

   5.68 The Central Registrar issues identity documents, including to populations that were in the north and east during the war. Most official records in Sri Lanka are kept in a centralised location in hard-copy format; government departments lack computerised information databases.

   5.69 Genuine identity documents can be obtained by submitting fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported. Sri Lanka has a mature people smuggling industry. In recent years, the Criminal Investigation Department disrupted an organised crime group that produced high quality European identity documents and visa labels on an industrial scale.

   5.70 Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.

   5.71 DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.

   Conditions for Returnees[34]

   5.43 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country or origin or a third country. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

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

   5.45 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.

   5.47 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment.

   5.48 DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.49 Some refugees and failed asylum seekers reported social stigma upon return to their communities, including for being beneficiaries of financial reintegration assistance. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced societal discrimination following their return.

   5.50 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

   [34] DFAT Report @ p.69

The Peoples’ Alliance Party (PA)

1. The country information[35] states that the PA was a coalition of left-leaning parties formed in 1994 dominated by the Sri Lanka Freedom Party (SLFP). It comprises the following parties:

   ·Sri Lanka Freedom Party

   ·Lanka Sama Samaja Party

   ·Communist Party of Sri Lanka

   ·Sri Lanka Mahajana Party

   ·Bahujana Nidahas Peramuna

   ·Desha Vimukthi Janatha Party

   ·Democratic United National Front

   [35] Canada: Immigration and Refugee Board of Canada, Sri Lanka: People's Alliance Party, Arachchikattuwa, including structure, leadership and establishment; relationship with the United People's Freedom Alliance (UPFA) (2010-November 2014), 19 November 2014, LKA104997.E, available at: 28 April 2020]

2. The PA was successful in the general elections held in 1994 and 2000, as well as the presidential elections of 1994 and 1999. However, it was defeated in the general election in 2001. PA was merged into the United People's Freedom Alliance (UPFA) in 2004.

3. In 2010, President Mahinda Rajapaksa (Rajapaksa) of the ruling UPFA won a second six-year term in office (2014). The Sri Lankan Department of Elections website indicates that in the 2011 local authorities elections, the UPFA won 9 seats and 72 percent of the vote in Arachchikattuwa Pradeshiya Sabha, followed by the United National Party (UNP) with 2 seats.[36]

   [36] ibid

4. Freedom House[37] reports that harassment of opposition politicians has occurred. Its reported that during election periods there was “inappropriate use of state resources” to benefit the ruling coalition, as well as reports of violence and intimidation by the military and pro-government forces. It is reported that local party leaders often use intimidation and violence to promote their party causes.[38][Country information deleted].[39] The Sri Lankan newspaper Ceylon Today indicated that there were 65 incidents of ‘election violations’ (such as damaging property, intimidating political candidates/supporters, illegal propaganda, abuse of state power and attacks on party offices) in Northwestern [Province]. Its claimed that local government party wings operate with “little supervision” from the national party and “often will not be charged” if they are accused or arrested for crimes, depending on their position in the party.[40] 

United National Party (UNP)[41]

[37] ibid

[38] ibid

[39] ibid

[40] ibid

[41] Canada: Immigration and Refugee Board of Canada, Sri Lanka: The United National Party (UNP), including organizational structure, membership and differences between local and national branches; election process for UNP committees at the local level (2004-November 2014), 18 November 2014, LKA104996.E, available at: type="1">

The UNP currently is the main ruling party in the government of Sri Lanka and is headed by Ranil Wickremesinghe. The UNP is considered to have right-leaning, pro-capitalist, and liberal conservative policies.

The UNP has been described[42] as a “moderate” and “democratic socialist” party, or as a “conservative” party that has adopted a “moderate” stance on communal issues, and that is largely supported by the Sinhalese. It draws its support mainly from urban populations in the south and west of the island. The UNP’s party headquarters is located in the city of Pitakotte near Colombo.

[42] ibid

At the last legislative elections in Sri Lanka, held on 17 August 2015, the UNP was the leading member of the coalition United National Front for Good Governance (UNFGG). The UNP won 106 seats, an increase of 46 since the 2010 election, and 45.66% of the popular vote. It beat the United People’s Freedom Alliance, a left-leaning coalition, which won 44.38% of the vote.[43]

United People’s Freedom Alliance (UPFA)[44]

[43] ibid

[44] Thiranagama, Dayapala. "Politics of Sinhala Nationalism: Underpinning of the UPFA Victory and Undermining of the Sri Lankan Nationhood". Groundviews. gorundviews.org.

1. The UPFA was a political alliance in Sri Lanka founded by former Sri Lankan president Chandrika Kumaratunga in 2004. The alliance is generally regarded as being representative of leftist anti-imperialistic Sinhalese nationalism.

2. The alliance has been led by its senior partner, the Sri Lanka Freedom Party, and enjoyed a majority in the Sri Lankan parliament between 2004 and 2015 under both Chandrika Kumaratunga and Mahinda Rajapaksa. The 2015 parliamentary elections saw a partial continuation of its influence on government, with loyalists of the party's Sirisena faction forming a coalition government with the opposition UNP. The current leader of the UPFA is Maithripala Sirisena, with Mahinda Amaraweera functioning as general secretary.

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[45]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[46]

   [45] s.5AAA Migration Act 1958.

   [46]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[47] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [47]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[48] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Accepted Facts

[48]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Based on the evidence provided by the applicant, the Tribunal accepts and finds that:

   (a)The first applicant was born on [date] in [Town 1], North Western Province (‘NWP’), Sri Lanka.

   (b)The first applicant attended school [until a specified year]. He then attended a [course] in [Town 2], Sri Lanka for one year at which he completed a [course] in 1999.

   (c)The first applicant worked in the second applicant’s family [business] known as [Business 1].

   (d)The second applicant was born on [date] in [Sri Lanka].

   (e)The first and second applicants are ethnic Sinhalese and Buddhists.

   (f)The second applicant’s father passed away in 2012.

   (g)The second applicant’s mother continues to live in Sri Lanka and to operate the business.

   (h)The second applicant has a younger brother who owns and operates his own [business] in [Town 2], Sri Lanka. 

   (i)The second applicant was educated in [a] College in [Town 1].

   (j)The second applicant commenced work in the family [business] in or about 2004.

   (k)The first and second applicants were married in Sri Lanka in 2006.

   (l)The first and second applicants are the parents of the third and fourth [applicants].

   (m)The first and second applicants returned to Sri Lanka as follows:

   ·     December 2010

   ·     March 2011

   ·     January 2013 

   (n)The second applicant made the following trips from Sri Lanka:

   ·   March 2003 – [Country 1]

   ·   March 2003 – [Country 2]

   ·   November 2006 – [Country 2]

   ·   November 2006 – [Country 3].

Applicant’s refugee claim

1. The first applicant submits that his claims fall within the scope of the s.91R(1)(a) of the Act by reason of his political opinion, actual or imputed, by reason of his refusal to support the government of the day, [Mr A] and the PA in circumstances where he previously did offer support.

2. The Tribunal accepts that the first applicant’s claim satisfies the relevant test under the convention pursuant to s.91R(1)(a) of the Act by reason of his political opinion.

Applicant’s well-founded fear

1. In Chan v MIEA[49] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[50]

   [49] (1989) 169 CLR 379 at 396.

   [50] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed in the event that he returns to India.

3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [51]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [51] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: [52]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [52] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. Accordingly, the applicant claims that he that is a person who has a well-founded fear of persecution pursuant to s.91R(1)(a) of the Act by reason of his political opinion.  Based on the applicant’s evidence to the Tribunal, it accepts the applicant has a subjective fear of being persecuted for a reason mentioned in s.91R(1)(a) of the Act. However, for the reasons stated herein, the Tribunal does not accept that, on an objective basis, the applicant has a reasonable fear of persecution.   

Consideration of the applicant’s claims

1. While the Tribunal is prepared to accept some elements of the first applicant’s claim, he did not present to the Tribunal as a credible witness, as he appeared to either embellish or fabricate the evidence in support of his claim. The applicant’s evidence to the Tribunal was not consistent with his claims made to both the Department and the RRT. In addition, it was not consistent with the documentary evidence he produced in support of his claims to the Department and the RRT. The Tribunal accepts that due to the passage of time, an applicant’s memories of events may change and that an applicant’s claim may vary. However, the applicant’s evidence of events lacked the consistency and the logical detail by which it was possible to conclude he had been persecuted as claimed.    

Applicants’ documentation

1. The first applicant provided several letters in support of his claims. The Tribunal notes the country information which refers to the fact that attempts to use fraudulent documents are common from Sri Lankan asylum seekers. These include fraudulent sponsorship and employment letters and fraudulent land title deeds used as evidence of an individual’s financial situation. DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.[53]

   [53] DFAT Report @ p.73

2. The applicant provided the following letters (‘the letters’) in support of his claim:

   (a)A letter dated [July] 2013 from [Mr B], United National Party (‘UNP’) [Position] for [Town 1] (‘the [Mr B] letter’).[54]

   (b)A letter dated [July] 2013 from [Mr C], UNP [official] (‘the [Mr C] letter’).[55]

   (c)A letter dated 19 July 2013 from [Mr D] (‘the [Mr D] letter).[56]

   (d)A letter dated [July] 2013 from [Mr E] (‘the [Mr E] letter’).[57]

   (e)An undated letter from [Mr F] (‘the [Mr F] letter’)[58]

   [54] Department [file] @f.135 &f.165

   [55] Ibid @f.134 &f.164

   [56] Ibid @f.133 & f.163

   [57] Ibid @f.132 &f.161

   [58] Ibid @f.134 & f.159

3. However, the letters in support of the first applicants’ claims were contrary to the evidence presented by the applicants at the hearing. The first and second applicant’s evidence was that the first applicant had not been involved in politics since 2004. It was the second applicant’s evidence that she had never been engaged in politics and that the first applicant had not been involved in politics since the time he commenced work in the business in 2004. However, contrary to the applicants’ evidence, all five of the letters state that the applicant had been engaged in politics after his marriage to the second applicant in 2006. 

4. In addition, the letters claim that the first applicant was a supporter of the UPFA. However, in circumstances where the UPFA was not established until 2004 and in face of the first and second applicant’s evidence that the first applicant had not been engaged in politics after 2004, it is difficult to see how the applicant could have been involved with the UPFA after his marriage in 2006 as claimed by the [Mr F] letter, the [Mr D] letter and the [Mr B] letter.

5. Finally, the Tribunal has concerns about authenticity of the letters. The letters do not describe how each of the authors have knowledge of the first applicants’ political activism and do not detail the nature and extent of the first applicant’s involvement in politics. In addition, the wording of each letter is similar. For example, the use of the words ‘ardent supporter’ are used to describe the applicant’s political involvement in both the [Mr F] letter and the [Mr D] letter.

6. Therefore, having considered the county information in relation to document fraud in Sri Lanka, the fact that the letters were not consistent with the first and second applicants’ evidence and the fact that the letters lacked any detail of the first applicant’s political activities, the Tribunal places no weight on the letters in support of the first applicant’s claim.

That the first applicant and the second applicant would be harmed by government security forces and paramilitary forces.

1. The applicant claims in his protection visa application that he and his wife departed Sri Lanka to avoid being harmed by government security forces and paramilitary forces operating with the support of the government.

2. However, the evidence of the first and second applicant was that the first applicant had been politically active working for [Mr A] prior to him commencing work at the [business] in 2004. They both claimed that party supporters of [Mr A] had approached the first applicant to work for [Mr A]. They claim as a result of having refused to support [Mr A] in any future election, his supporters threatened to harm the first applicant. There was no evidence that the supporters who its alleged approached the first applicant were government security forces and/or paramilitary forces. In fact, the first applicant’s evidence was that the men who approached him were merely supporters of [Mr A]. There was no evidence that the first applicant had been threatened with harm by government security forces and/or paramilitary forces as claimed in the first applicant’s protection visa application.

3. In addition, it was the first and second applicant’s evidence that the second applicant was not threatened while in Sri Lanka. That is, contrary to the first applicant’s protection visa application, the applicant’s claim that only the first applicant and not the second applicant, was threatened.

4. Accordingly, the Tribunal finds that the evidence presented to the Tribunal did not support the first applicant’s claim that he and the second applicant had been threatened by Sri Lankan government security forces and paramilitary forces. As such, the Tribunal finds that there is no real chance the first and second applicant will be seriously harmed by government security forces or paramilitary forces operating with the support of the government if the first applicant returns to Sri Lanka.   

The first applicant’s refusal to attend the district political promotion programme

1. The first applicant claimed that during their stay in Sri Lanka in 2013 he and the second applicant were invited to attend and support the government supporters district political promotion programme conducted in the first week of February 2013. The first applicant claimed that even though his family had supported the present regime in the past, they were unable to support the government’s ideology and escalating violence toward minorities. He claimed that as a result he and the second applicant refused to attend the programme and informed them they no longer wanted to support the government. He claimed that as they refused to participate, they were subjected to numerous threats from the government supporters in the district which continued until they left Sri Lanka.

2. While the first applicant’s evidence was that this family had previously supported the government in Sri Lanka, there was no evidence of the first and second applicant having been invited to attend and support the government supporters district political promotion programme in February 2013.  The applicant gave detailed evidence of supporters of [Mr A] having approached him at his mother-in-law’s home and at the business. He did not give any evidence of him and the second applicant being invited to attend the district political promotion programme as claimed. As a result, the Tribunal does not accept that the first applicant or the second applicant were invited to the government supporters district political promotion programme in the first week of February 2013 as claimed.

1. Accordingly, the Tribunal find that there is not real chance the applicants will be seriously harmed by reason of their refusal to attend the government district political promotion programme in February 2013 as claimed. 

The Applicant as a former supporter of PA

1. The first applicant claimed that he and his family were supporters of the PA.  He claimed that he supported the PA by putting up posters, attending meetings, participating in rallies, and obstructing opposition parties. He claimed that at elections, he used to interfere with ballot boxes to rig the outcome in the PA’s favour. He claimed that he supported [Mr A].

100.The first applicant’s evidence to the RRT was that he had withdrawn his support from the PA. However, he claimed that he was perceived as a “key threat” to the PA because of his knowledge of widespread corruption within the party. However, the applicant did not provide any evidence of corruption within the PA.

101.The applicant’s evidence to the Tribunal was that he had worked for [Mr A] prior to him commencing work in the business in 2004. The applicant claimed that he knew [Mr A] through his father and that he had worked for him during the 2004 campaign distributing campaign posters, providing transport and supporting him financially.

102.His evidence was that since commencing work in the business in 2004 he not been involved in politics. The second applicant confirmed that the first applicant had not been involved in politics since commencing work at the business.

103.The Tribunal questioned the first applicant if he had been involved in political activities for the PA. The first applicant denied that he had ever worked for the PA. He confirmed that he had been involved in political activities for [Mr A], a candidate for the United People's Freedom Alliance, during his 2004 campaign.

104.Therefore, despite claiming to the RRT that he was perceived as a “key threat” to the PA (having knowledge of widespread corruption within the party, including tampering with election ballot cards and rigging of votes), his evidence to the Tribunal was that he had never been involved with the PA. Rather, he maintained that he had worked for [Mr A] as a candidate for the United People's Freedom Alliance.

105.Therefore, based on the applicant’s own evidence, the Tribunal accepts and finds that the applicant was not a supporter of the PA as claimed to the RRT. As such, it finds that there is no real chance that the applicant will be seriously harmed by reason of no longer supporting the PA as claimed.

Threats by [Mr A] supporters

106.[Mr A] is a Member of the United People's Freedom Alliance (UPFA). He is a member of the Sri Lankan Parliament, having first been elected as the representative [in] 2004. He was re-elected in 2015.[59] The applicant’s evidence was that he worked for [Mr A] in 2004 distributing campaign materials, supplying vehicles and making a financial donation. The applicant claims that there is a real chance he will be seriously harmed by [Mr A] and/or his supporters if he is returned to Sri Lanka.

[59] [Details deleted]

107.The applicant’s evidence was that he did not hold any official position within the UPFA. In addition, he did not have any further contact with the UPFA or [Mr A] after he commenced work at the business in 2004. The applicant confirmed that he was not involved in the 2005 or 2010 elections. The second applicant confirmed that the first applicant was not involved in politics after he commenced working at the business. Based on the applicants’ evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the first applicant worked for [Mr A] in the lead up to the 2004 Sri Lankan general election.

108.The first applicant claimed that during his visit to Sri Lanka in 2013 he was approached by four supporters of [Mr A] who said to him that if an election was called in the future, they would like him to support [Mr A]. His evidence was that he declined to be involved. He said that he explained to them that he had stopped being politically active after commencing work in the business. The evidence of the first and second applicant was that the supporters were disappointed by his response but respected his decision and departed without making any threat to the first applicant, the second applicant or his mother-in-law.

109.The first applicant then claimed that after three days, approximately 15 people came to his mother-in-law’s house and again asked him support [Mr A] in any future election. He was not able to identify any of the men. He again declined on the basis that he was no longer politically active. The first and second applicant’s evidence was that the men left without threatening or harassing him.

110.The first and second applicant claim that the next day, a wreath was placed at the front gate. He assumes it was put there by the same people who had visited him the night before. The first applicant took the presence of the wreath as a threat. However, there is no evidence that the wreath was placed by the men who approached the first applicant at his mother‑in‑law’s house. The applicant was not able to identify any of the men who he claims approached him at his mother-in-law’s home. There is no evidence that any of [Mr A]’s supporters were responsible for the wreath. Based on the applicants’ evidence that the first applicant, the second applicant and his mother-in-law were not threatened by the supporters, the Tribunal has difficulty in connecting the presence of the wreath to the first applicant and the supporters.  As a result, the Tribunal finds that there is no real chance that the applicant will be harmed in the event that he returns to Sri Lanka as a result of a wreath being placed outside his mother-in-law’s home by unidentified people.

111.The first applicant then claimed while he was at the business [workplace], he was approached by people asking if he would support [Mr A]. The first applicant confirmed that he was not directly threatened but stated that he felt uncomfortable about being approached at the business. His evidence was that he called the second applicant who advised him to call the police. His evidence was that the police did not take a statement from him and took no further action in relation to the incident. This is perhaps not surprising given there were no other witnesses to the alleged incident, the applicant could not identify the individuals, he was not directly threatened and he was not followed. In any event, the first applicant was not able to provide any independent evidence of having made a complaint to the police as claimed. Therefore, in circumstances where the first applicant’s evidence was that he was not directly threatened, does not know the identity of the individuals and there is no other evidence to support his claim that he was approached as claimed, the Tribunal does not accept that he was threatened at the [workplace] as claimed.     

112.The first applicant then claimed that a group of people approached him at his mother-in-law’s home. His evidence was that they were armed with pistols. He said that they were upset that he had gone to the police. In circumstances where the first applicant’s evidence was that the police did not take a report and did nothing about the first applicant’s complaint, it was difficult for the Tribunal to understand how the group knew he had made a police complaint. Save for speculating that a person must have seen him, the applicant was not able to provide any logical or rational reason as to how the group of people knew he had made a complaint to the police. 

113.In any event, the first and second applicant’s evidence was that neither the second applicant nor the mother-in-law where threatened. The Tribunal finds it hard to accept that an armed and aggressive group of people would not threaten or harass the second applicant or the mother-in-law. It’s more likely that such a group, in threatening the first applicant, would have no hesitation to threaten anyone else who happened to be at the premises at the time.

114.Finally, the Tribunal does not accept that the group left the premises, without objection, when ordered to do so by first applicant’s mother-in-law. It does not accept that an aggressive, armed and threatening group of people would be so easily removed by his mother-in-law if the purpose of their visit was to threaten and harass the first applicant. Accordingly, for the reasons expressed above, the Tribunal does not accept the first and second applicant’s evidence that the first applicant was threatened at his mother-in-law’s home by an armed group of men. As such, the Tribunal finds that there is no real chance the applicant will be harmed if he returns to Sri Lanka by reason of armed men having threatened him at this mother-in-law’s home.

115.The applicant finally claims that a few days later he was stopped in his car by a group of people on his way to the business. He claims that he was grabbed by the collar and threatened by being asked if he knew what was going to happen to him. The applicant’s evidence in relation to the attack was totally unconvincing. The applicant’s evidence in relation to the attack was vague, uncertain and lacking in any detail. While the Tribunal accepts that in extreme circumstances where a person is frightened and confused, a person may forget certain details. However, where the applicant claims to have been attacked while driving in his car, the Tribunal would have expected the applicant to have recalled certain details such as the location of the attack, the speed he was traveling, how he was stopped, the traffic conditions at the time of the attack, how many people were involved in the attack or a description of the person who held him by the collar. The applicant did not provide any of these details. As a result, the Tribunal does not accept that the first applicant was attacked in his car as claimed. Accordingly, the Tribunal finds that there is no real chance that the first applicant will be seriously harmed if he returns to Sri Lanka by reason of being attacked in his car as claimed.

116.The applicant’s evidence in relation to the alleged incidents was unconvincing. His evidence in relation to each event was vague, unconvincing and lacking in any detail. He was not able to identify any of the individuals who had approached him at each incident. There was no evidence that the car attack and the incident at the business [workplace] were conducted by supporters of [Mr A]. Accordingly, the Tribunal does not accept that the incidents occurred as claimed. In any event, if they did happen, the first and second applicant’s evidence was that they were not harmed. It seems despite the supporters having plenty of opportunities to harm the first applicant, he remained in good health. Accordingly, the Tribunal finds that there is no real chance the first applicant will be seriously harmed as a result of the threats by supporters of [Mr A] as claimed.

Applicant as a threat to [Mr A]

117.The first applicant claims that in the lead up to the 2004 election he was actively involved in corrupt activities on behalf of [Mr A]. This included tampering with election ballot boxes and rigging votes.The applicant claimed that if he returns to Sri Lanka he will considered a threat to [Mr A] and his supporters and as such there is a real chance that he will be seriously harmed by them due to his knowledge of their crimes and widespread corruption.

118.The country information reports that UPFA has used state resources to harass. Local party leaders often use intimidation and violence to promote their party causes.[60] [Town 1] has experienced "significant" levels of electoral partisan violence, with politicians using violence and intimidation outside of election periods. [Details deleted].[61]

[60] Ibid

[61] Ibid

119.In particular, the Tribunal notes the country information which reports that [Mr A] has been arrested several times for aggressive and threatening behavior. [Details deleted].[62] [Details deleted]. [63] 

[62] [Details deleted]  

[63] [Details deleted]

120.Therefore, based on the country information, the Tribunal accepts that having worked for [Mr A], the applicant may have some knowledge of his corrupt activities as claimed.  However, based on the available country information, the activities of [Mr A] appear to be well known to the authorities, and the community more generally in Sri Lanka, as its reported that he faces criminal charges for violent and corrupt activities. Notwithstanding the fact that the Tribunal has found that there is no real chance the first applicant will suffer serious harm as a result of the alleged actions of his supporters, given that [Mr A] has been charges by the authorities, there appears to be no basis upon which it can be claimed that the first applicant will be harmed as a result of his knowledge of [Mr A]’s ‘dirty works.’ The extent of the evidence in relation to the applicant’s knowledge of such ‘dirty works’ was that he had been engaged in ballot fixing. Given the charges made against [Mr A], this sort of activity appears to be well-known by the authorities. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he returns to Sri Lanka as a result of his knowledge of [Mr A]’s corrupt dealings as claimed.

121.In addition, the applicant claims that there is a real chance he will be seriously harmed as a result of his knowledge of ‘some murders’ committed by [Mr A] and his supporters. The applicant did not provide any evidence to indicate that he had any knowledge of murders as claimed. In circumstances where the activities of [Mr A] have already been investigated by the authorities and there is nothing in the country information that indicates that he has been charged or accused of having been responsible for such crimes, the Tribunal does not accept that the applicant has such knowledge as claimed. Accordingly, the Tribunal finds that there is no real chance that the first applicant will be seriously harmed as a result of his knowledge of ‘some murders’ committed by [Mr A] and is supporters as claimed.

The Applicants’ wealth

122.In addition, the first applicant made submissions, dated 13 November 2014,[64] in which he claimed that because he was a wealth business person in Sri Lanka as a result of his inheritance from his father-in-law, he is a valuable target for the PA who could force him to support them financially or kill him and take his wealth. The applicant repeated this claim to the Tribunal but stated that he was a valuable target for the UPFA rather than the PA. The first applicant claims that his “wealth, reputation and propensity to be re‑targeted for political reasons” means he would not be safe if he was to return to Sri Lanka.

[64] Ibid @ ff. 110-125; Attached to the submission were new translations into English of the documents referred to at 29 (c)-(f) and copies of online media reports of incidents of targeted killing and corruption in Sri Lanka.

123.The applicants provided several documents in English and Sinhalese regarding properties and other assets held by the second applicant’s family, including properties held in her name.[65] Included in the documents provided were the following:

[65] Ibid @ ff. 86-107

(a)a deed of gift of land for the benefit of the second applicant from her father’s [estate] .[66]

[66] RRT 1405778 @ f.95

(b)a document entitled ‘Will be owned by [second applicant] the 1^st defendant’[67] by which the second applicant receives (amongst other items) a quarter share in three parcels of land and a quarter share of [amounts].

[67] RRT 1405778 @ f.107

(c)an Agreement to Lease by which the second applicant receives Rs[amount] (approximately $AUD[amount] per month) in relation to shop located [in] [Town 1] Council. 

(d)a letter dated 13 October 2014 that confirms the balance of four fixed deposit accounts in the second applicants name for the amount of Rs[amount] (approximately $AUD[amount]) each.[68]

[68] RRT 1405778 @ f.100

(e)a letter headed ‘To Whom It May Concern’ detailing rental income received by the first applicant.[69] It notes that the applicant is earning approximately $AUD[amount] per month from three [leases].  

[69] RRT 1405778 @ f.99;

124.In support of his claim, the applicant provided a newspaper report in relation to the murder of a wealthy businessman, Mohammed Siyam,[70] in which a Sri Lankan politician, Vaas Gunawardene (a member of the UPFA), was accused of being involved in his murder. While the country information reports that Vaas Gunawardene has been involved in several controversies ranging from fraud, criminal record, remand time, fraud bureau investigations, unpaid loans, spying, overstepping and unfulfilled promises,[71] the Tribunal was not able to find any reference to him having been arrested or convicted of murder. In any event, there was no suggestion in the article that the businessman had been killed for the purposes of Vaas Gunawardene or his supporters taking his assets.

[70] Lanka on Globe, “DIG Vass Gunawardena in Remand but Controversy Continues’ 14 June 201, "Meet Mahinda's Man Friday". The Sunday leader. 2006. any event, based on the list of assets provided by the first applicant, the Tribunal does not accept that he is so wealthy that he would be considered a valuable target that supporters of [Mr A] and/or members of the UPFA would force him to support them financially or kill him and take his wealth. The first applicants’ evidence was that his father in law was a wealthy man who owned amongst other assets the business. The first applicant’s evidence was that he had been left from his father-in-law’s estate a part of the business and rental properties as part of his dowry. When asked how it was known to the supporters of [Mr A]’ and/or members of the UPFA that he was to receive his dowry on his return visit in 2013, he said that it was common knowledge in the community. The applicant could not explain how it had become common knowledge or how [Mr A] or his supporters could have known of his inheritance in circumstances where he had never meet [Mr A] and his supporters were strangers to him. The fact that he may have been left a dowry may have been common knowledge amongst his family and close friends, but it is difficult to understand how [Mr A] or his supporters would have come to this knowledge.

126.The applicant claimed that he was wealthy man. However, on his own evidence, he had received a minor share in the business. From the documents provided and based on the first applicant’s evidence, the second applicant and his mother-in-law owned most of the business and other assets of his father-in-law’s estate. As such, despite being wealthier than the first applicant, the second applicant and his mother in law did not receive any threats from the supporters.

127.While the Tribunal accepts that he has received assets from his father-in-law’s estate as part of his dowry, it does not accept he has received so much money that it would have been of interest to [Mr A] and his supporters. No doubt, that having come from modest means, the money and assets the first applicant received as part of his dowry represented a large amount of money to him. However, the financial documents provided by the first applicant to the Tribunal indicated that he had received only a modest distribution of his father-in-law’s assets and as such the Tribunal does not accept that he would have been considered a wealthy man by [Mr A] and his supporters. Accordingly, the Tribunal does not accept the applicant’s evidence that he was targeted by [Mr A] and his supporters and/or members of the UPFA as a result of him having received his dowry from his father-in-law’s estate. Accordingly, the Tribunal finds that there is no real chance that he will be seriously harmed if he is returned to Sri Lanka as a result of him having received his dowry as claimed.

The second applicant’s mental health

128.It was also submitted that the second applicant has been suffering depression and returning to Sri Lanka would adversely affect her mental health and well‑being because of the harm they fear suffering and as a result of the threats and harassment to which the first applicant claims to have been subjected to by supporters of [Mr A].

129.The first applicant’s evidence was that part of the reason for returning to Sri Lanka in 2013 was that the second applicant had suffered [depression]. As a result, they returned to Sri Lanka because she had been feeling depressed and craved the comfort and support of her family.

130.The applicants did not provide any medical evidence to support the second applicant’s claims that she had suffered from depression or in fact any other mental health issue. There was no evidence of her having received any treatment in Sri Lanka or upon her return to Australia.  As a result, the Tribunal finds that the second applicant has not suffered depression or other mental health issue since returning from Australia.

131.In the event that the second applicant does suffer depression as claimed (which the Tribunal has specifically found she does not), it is highly unlikely that any such condition would be made worse as claimed in circumstances where she was not threatened by the supporters of [Mr A]. In addition, in circumstances where the Tribunal has found that there is no real chance the first applicant will be harmed by supporters of [Mr A], then any mental condition that the second applicant claims to have suffered cannot be affected as claimed.

132.The country information[72] reports that Sri Lanka is experiencing demographic, social, and epidemiological transitions; non-communicable diseases and mental health are emerging more strongly as public health problems. Substance and alcohol abuse have increased in magnitude over the past two decades. Sri Lanka has one of the world’s highest suicide rates (ranked 8th).

[72] World Health Organisation, Country Office for Sri Lanka, ‘Focus of WHO Sri Lanka on Mental Health’; most resources for mental health care in Sri Lanka were confined to Western province, with three mental hospitals in the surroundings of Colombo. Together with the strategy of scaling-down the capacity of centralised mental health institutions, decentralised district-based community mental health services have been initiated after the tsunami from 2005 onwards.[73]

[73] ibid

134.The World Health Organisation (WHO) supports the Government of Sri Lanka to develop effective and humane decentralised mental health services in line with the National Mental Health Policy of Sri Lanka, which was developed with WHO’s support and adopted by parliament in 2005. WHO supports priority areas of activities in line with WHO CCS and Mental Health Policy, leading to a cost-effective and comprehensive mental health system, which ensures coverage at national level.

135.Therefore, if the second applicant was suffering from depression as claimed (which the Tribunal has specifically found she was not), the Tribunal does not accept that the Sri Lankan government has demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness in Sri Lanka. Therefore, while the Tribunal does accept that mental health facilities in Sri Lanka are not ideal, based on the country information the Tribunal does not accept that the Sri Lankan government has systematically and discriminatorily decided not to provide adequate mental health treatment and services to people suffering from mental illness. There is no evidence that in the event that the second applicant does suffer from mental health issues that she would be refused mental health services on a systematic and discriminatory basis. The fact that the Sri Lankan government has implemented the recommendations of the WHO shows that the state has positively recognised mental health within society and acted positively towards those suffering from mental illness by implementing a mental health strategy.

136.Accordingly, for the reasons set out above, the Tribunal finds that there is no real chance the second applicant will be seriously harmed in the event that she returns to Sri Lanka by reason of her mental health as claimed. 

As a failed asylum seeker

137.The first applicant claimed that he and the second applicant feared of retuning to Sri Lanka as a result of the first applicant being threatened their visit to Sri Lanka in 2013. The applicant claims that he had previously wanted permission to remain in Australia by applying for a temporary work visa because he feared that if the government of Sri Lanka found out he had sought asylum in Australia he would be considered a traitor and a threat to them if he returned to Sri Lanka. The applicant did not provide any evidence to the Tribunal to support this claim.

138.It was claimed that the second applicant also feared returning to Sri Lanka as a result of being failed asylum seeker. However, no evidence over and above that provide din relation to the first applicant was presented in support her claim. 

139.The country information[74] states that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere. In this case, the applicant’s evidence was that he and the second applicant and her family are wealthy. Despite the Tribunal finding that he was not so wealthy as to attract the interests of those he claimed would want to extort money from him, he does have access to enough funds, including an interest in the business, to be able to relocate to Sri Lanka.

[74] DFAT Report @ p.69

140.In addition, the country information[75] reports that societal discrimination is not a major concern for returnees, including failed asylum seekers. The first and second applicant did not provide any evidence that they would be discriminated against if they returned to Sri Lanka.

[75] ibid

141.Finally, the DFAT report[76] assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

[76] ibid

142.Therefore, based on the country information and the fact that the first and second applicant did not provide any evidence of harm they would suffer as a result of being a returned asylum seeker, the Tribunal finds that there is no real chance that they will be seriously harmed if they are returned to Sri Lanka by reason of the fact that they are returned asylum seekers.  

143.Therefore, having considered the first and second applicant’s claims singularly and cumulatively, the Tribunal finds that that there are no grounds for believing that, because of being removed from Australia to Sri Lanka, there is no a real chance that they will suffer serious harm. 

144.For the reasons given above, the Tribunal is not satisfied that the first and second applicant are people in respect of whom Australia has protection obligations pursuant to Article 1 of the Convention and sections 91R and 91S of the Act. Therefore, the Tribunal finds that the first and second applicants do not satisfy the criterion set out in s.36(2)(a).

145.Therefore, based on the Tribunal’s finding that the first and second applicants are not people to whom Australia has protection obligation under s.36(2)(a) of the Act, the Tribunal finds that the third and fourth applicants do not satisfy s.36(2)(b)(i) or s.36(2)(c)(i) of the Act on the basis of being a member of the same family unit as the second applicant, who satisfies s.36(2)(a) or s.36(2)(aa). Accordingly, the third and fourth applicants do not satisfy the criterion in s.36(2).

146.Having concluded that the first and second applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As set out below, the Tribunal is not satisfied that the first or second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Complementary protection

147.In considering whether the first or second applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicants are nationals of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for these purposes.

148.The first applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that he has been threatened by [Mr A] and his supporters as a result of his refusal to support [Mr A] at future elections. In addition, the second applicant claims that by reason of her mental health that there is a real risk she will suffer significant harm as a result of threats made by [Mr A] and his supporters.

149.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[77] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.  Therefore, based on the findings above, the Tribunal finds that there is no real risk that the first and second applicants will suffer significant harm by [Mr A] and his supporters if they return to Sri Lanka.

[77]  MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

150.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the first and second applicant being removed from Australia to Sri Lanka, there is a real risk they will suffer significant harm as required by s36(2)(aa).

151.Therefore, based on the Tribunal’s finding that the first and second applicants are not people to whom Australia has protection obligation under s.36(2)(aa) of the Act, the Tribunal finds that the third and fourth applicants do not satisfy s.36(2)(c)(i) of the Act on the basis of being a member of the same family unit as an applicant who satisfies s.36(2)(aa). Accordingly, the third and fourth applicants do not satisfy the criterion in s.36(2).

CONCLUSIONS

152.For the reasons given above, the Tribunal is not satisfied that the first and second applicants are persons in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).

153.Having concluded that the first and second applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the first and second applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

154.Therefore, based on the Tribunal’s finding that the first and second applicants are not people to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act, the Tribunal finds that the third and fourth applicants do not satisfy s.36(2)(b)(i) and s.36(2)(c)(i) of the Act on the basis of being a member of the same family unit as the first and second applicant, who satisfies s.36(2)(a) and s.36(2)(aa). Accordingly, the third and fourth applicants do not satisfy the criterion in s.36(2).

DECISION

155.The Tribunal affirms the decision not to grant the applicants Protection visas.

Jason Pennell
Senior Member

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