1817879 (Refugee)

[2019] AATA 5707

1817879 (Refugee) [2019] AATA 5707 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817879

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Antoinette Younes

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2019 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – religion – race – social group – imputed political opinion – Sunni Muslim – Tamil speaker – failed asylum seeker – returnees from the West – people smuggling – inconsistent evidence – lack of evidence – credibility issues – no real risk of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 424, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Thiyagarajah (1998) 80 FCR 543
MZ RAJ v MIMIA [2004] FCA 1261
NAGV & NAGW v MIMIA (2005) 222 CLR 161
S1573 of 2003 v MIMIA [2005] FMCA 47

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 31 October 2012 and the delegate refused to grant the visa on 19 December 2013.

3. This matter was before the Tribunal (differently constituted) previously and on 18 May 2018, Justice Bromberg remitted the matter back to the Tribunal to be determined in accordance with the law.

4. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   RELEVANT LAW

6. 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

7. 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).

8. 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.

9. 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.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. In support of his application for a protection visa, the applicant provided a statutory declaration dated 24 October 2012. In summary, the applicant claimed that:

    a)He was born in Sri Lanka of Tamil ethnicity and he is of the Muslim Sunni faith.  He left Sri Lanka because he feared for his safety. He has been suspected by the CID of being involved in people smuggling. He had a neighbour called [Mr A] whom he had known since he was [age].

    b)After work, he used to gather with other villagers outside [Mr A]’s home where they played with [Mr A]’s kids and sometimes they had a beer together. Recently, when it got dark, [Mr A] would pay the applicant to take him in his friend’s Tuk Tuk to [different] places. The applicant could not take him as far as [Town 1] because he did not have his license.

    c)[Mr A] asked the applicant for that assistance because they were neighbours and the applicant’s friend owned a [business] and did not use his Tuk Tuk much. Moreover, [Mr A] did not want others to know about his activities.

    d)He took [Mr A] to houses where he spoke to Tamil males outside.  [Mr A] did this for about a month in April-May. He paid the applicant [a sum of money] a night which the applicant gave to his friend for the use of the Tuk Tuk. The applicant did not do this for the money but he enjoyed the opportunity to get out of the house and to talk to his girlfriend on the phone privately.

    e)He only found out that [Mr A] was involved in people smuggling after approximately 2 to 3 weeks. He discovered this as a result of people stopping him randomly in the street and asking him if he was organising a boat to Australia. He did not know what the people were referring to but they told him this is so because he was hanging around with [Mr A]. He asked [Mr A] about this and [Mr A] told him that someone else was organising boats and [Mr A] was gathering people for that person. The applicant continued to drive him for about a week even though he knew he was doing the wrong thing and that he could get in trouble himself but [Mr A] was pestering the applicant.

    f)He realised that people were identifying him as being involved in people smuggling which worried him.  A few days later, when they were out in the Tuk Tuk at around [time], two CID officers went to [Mr A]’s house and asked his wife about his whereabouts. They also asked about the applicant’s name and identified him as the person who was driving the [Tuk] Tuk.

    g)The CID also went to the applicant’s home looking for him. That night he came home and his mother told him that two people were looking for him and she thought it was about his [business]. The next morning at about 6am, the shopkeeper across the road from his home told [Mr A]’s wife that he had recognised them to be CID officers.

    h)He got scared so he went to [Town 2] which is [a number of] km away from his area. He stayed with his uncle and told him what had happened. His uncle told him that other people from the area had been involved in this sort of thing and they were taken at night and ill-treated by the CID. The following night, he was at his uncle’s house when his father telephoned and told him about a boat leaving from [Town 1] to Australia. Subsequent to his arrival, he has been told by his father that the CID officers had been to the house on two occasions looking for him and that [Mr A] had been arrested.

    i)He fears that if he were to return to Sri Lanka, he would be arrested, imprisoned, and ill-treated by the Sri Lankan authorities and the CID. He would also be harmed because he came to Australia unlawfully and he would be discovered at the airport. The Sri Lankan authorities would not protect him because they are the ones who suspect his activities. He would be arrested and detained for a substantial period of time, 10 years, even though he is innocent. He would suffer significant harm for being falsely suspected of people smuggling.

22. In submissions to the Tribunal received on 26 March 2014, the representative summarised the applicant’s claims and noted[1] that:

    a)The applicant claims to fear harm on the basis of his race, religion, political opinion, and membership of a particular social group. The applicant’s fears are well-founded.

    b)There is a risk of the applicant facing harm on account of his religion as a member of the minority Muslim community in Sri Lanka. The applicant can easily be identified as a Muslim from his name as well as his attendance at the mosque. The Sinhalese majority regularly target individuals of the Muslim faith. Muslims are treated as outsiders and are not provided with protection from the authorities. Country information demonstrates that the situation for Muslims has seriously deteriorated over the years as the Sinhalese who are Buddhists, have attempted to Sinhalese the entire country and rid it of the ethnic minorities and religions.

    c)The applicant may face persecution in Sri Lanka on the basis of being a Tamil speaking Muslim. Country information indicates that Tamil speaking Muslims are subjected to harm at the hands of the Sinhalese authorities. Moreover, being of the Muslim faith means that other Tamils would regard him as being different. The root of the conflict in Sri Lanka is a racial conflict between the majority Sinhalese and the minority Tamils. The aim of the Sinhalese government was to rid Sri Lanka of Tamils including Tamil speaking Muslims. The Sinhalese monopolise positions within the government and associated authorities and consequently they are able to subject individuals of religious and ethnic minorities to serious harm.

    d)The applicant is a member of a particular social group, namely failed asylum seekers/returnees from the West. Members of this particular social group have the common attribute of having fled their country and failed in their applications for asylum in a Western country. Country information indicates that returnees and failed asylum seekers from Western countries experience persecution on the return to Sri Lanka. They are subjected to questioning and torture in an attempt to force them to admit that they committed certain acts. The applicant is likely to be detained and harmed on arrival at the airport.

    e)The applicant cannot seek protection from the Sri Lankan authorities as they are the perpetrators. The authorities in Sri Lanka are notoriously known for committing human rights abuses and atrocities. The Sri Lankan government has proven that it cannot be trusted to protect the lives of its citizens (particularly those belonging to minority communities) after refusing to investigate war crimes and trying to restrict Sri Lankans from exposing the truth. Human rights abuses are still being perpetrated and the Sri Lankan government have not taken responsibility for past wrongdoings. Despite the end of the Civil War in Sri Lanka, there are deeply entrenched ethnic struggles which continue to exist in Sri Lanka and the chance of ethnic tensions concluding is unlikely. The government is supporting the construction of statues in Hindu and Muslim areas and not allowing Tamils to work as fishermen in their native areas. This is to ensure that there are no areas which are predominantly populated by Tamils.

    f)Country information indicates that many individuals of ethnic and religious minorities are still arbitrarily detained, subjected to disappearance, torture and ill-treatment. Despite the lifting of the emergency regulations, the authorities continue to arbitrarily detain individuals and violate their human rights. Since the end of the Civil War in 2009, the government’s deliberate undermining of the rule of law has increased.

    g)There is a risk of significant harm occurring to the applicant from arbitrary deprivation of life. The applicant is fearful of returning to Sri Lanka where he may be implicated in a false smuggling case. The man who was guilty has made false accusations against the applicant to the CID who are now searching for the applicant. If returned, the applicant would be immediately targeted by the authorities as he is already known to them. The applicant’s circumstances would be escalated on discovery that he had left Sri Lanka illegally and that he is a Tamil-speaking Muslim.  [Mr A] was detained by the CID and severely beaten.

    h)The delegate’s concerns about the applicant’s credibility were based on the applicant’s testimony being vague and lacking credibility. The applicant has however been consistent about his protection claims.

    [1] Throughout the submissions, the representative cited country information to support the contentions.

23. In further submissions dated 21 September 2015, to address concerns raised by the former Member, the representative indicated that:

    a)In relation to the applicant’s credibility, there are many factors to be taken into account in the assessment of the applicant’s credibility, namely his lack of familiarity with the formal interview process, a lack of trust in the authorities and the fact that he has been required to convey information through an interpreter. Given the amount of time that has passed since the applicant left Sri Lanka and the stress he feels about the uncertainty of the immigration process, the applicant finds it difficult to remember dates and timeframes. The applicant’s credibility should not be discounted based on minor inconsistencies.

    b)Individuals who are suspected of being involved in people smuggling are at risk of being detained upon re-entry to Sri Lanka. During their detention and given that the applicant is a member of a religious minority in Sri Lanka, it is plausible that he would be subjected to serious and/or significant harm. This is supported by country information. The applicant’s fear of harm is therefore well-founded and if returned to Sri Lanka, “it would be highly likely that he would face persecution in the form of serious harm and even death”.

24. Subsequent to the hearing, the applicant provided further submissions which are discussed below.

    FINDINGS and REASONS

25. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

1. On the basis of the available information, the Tribunal finds that the applicant is a national of Sri Lanka. The applicant made no claim to be a national of any other country.

2. The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

   The applicant’s claim about assisting [Mr A]

3. The central claim made by the applicant is that he had assisted [Mr A] who was involved in people smuggling.  He fears returning because he claims that he is wanted by the authorities for his involvement.

4. In the course of the hearing, the applicant gave evidence that [Mr A] was engaged in people smuggling but the applicant did not know this initially.  He stated that he drove [Mr A] whenever he asked him. He said the CID came looking for both of them. 

5. The Tribunal asked the applicant about when he helped [Mr A] and he stated that this was a month to a month and a half prior to coming to Australia.  When asked for further details about his involvement, he stated that he drove a Tuk Tuk, the colour of which he could not recall.  The Tribunal pointed out that he had previously claimed that it was [a specific] colour and he replied that it has been a while since those incidents.

6. The Tribunal asked the applicant how often he helped [Mr A] and the applicant could not recall.  He replied that he helped whenever [Mr A] asked but he could not recall how often that occurred.  The applicant said that he hired the Tuk Tuk so that he could talk to his girlfriend.  He said he did not initially know that [Mr A] was involved in people smuggling.  He said [Mr A] went to houses and talked to people. He said he assisted him for about a month to a month and a half but discovered [Mr A]’s involvement in the last week or two of his involvement.

7. The Tribunal asked the applicant if [Mr A] paid him and he said he did but he could not recall the exact amount, but said it was more than [a sum of money] a day.  He said he took [Mr A] to houses during daytime as well as at night, essentially whenever [Mr A] asked.  The Tribunal indicated that it is difficult to accept that such activities would be conducted during daytime, given the potential serious consequences. He said he did it when he was asked.  He then said it was not “like daytime”. 

8. The Tribunal asked the applicant about when the CID came.  He said “one night” they came.  He said they came on two occasions; on the first occasion they came when he and [Mr A] were collecting people.  On the second occasion, they came when the applicant was at his uncle’s house.  He could not recall when the CID came.  The Tribunal asked the applicant how he knew that the CID were looking for him and he referred to a shop in front of the house and later said that his family told him.  He said they are still looking for him and that [Mr A]’s whereabouts are unknown.

9. The Tribunal accepts that the applicant has had [a number of] years of education which might impact on his ability to give clear evidence.  The Tribunal acknowledges that the events relating to [Mr A] are claimed to have occurred 7-8 years ago and it is natural that one’s memory about such events would be adversely impacted.  The Tribunal has given weight to those matters. 

10. The difficulty is that the applicant’s evidence lacked significant details, which means that the Tribunal is not satisfied that those events occurred.  As outlined above, although the applicant was able to provide some details, his overall evidence in relation to those events was vague and general, raising some doubts about his credibility.  On various occasions, the Tribunal prompted and sought clarification from the applicant about those matters but he did not provide those details.  He continued to repeat his evidence that he had helped [Mr A] and that he is wanted by the CID as a result.

11. The Tribunal asked the applicant about his family in Sri Lanka.  He stated that his mother died about two years ago and that his father is living in Sri Lanka.  He gave evidence that he has [a number of] siblings all of whom live and work in Sri Lanka.  The Tribunal asked the applicant if any harm had come to any member of his family and the applicant did not mention any harm.  When the Tribunal indicated that if the applicant had been wanted by the CID as claimed, it is reasonable to suggest that the CID would have approached and potentially harmed his family.  The applicant said “no one stays at home”, which he did not mention earlier when asked about the family and said they were working.  He said after the CID came to the home, they left the family home and went to work and live in [Town 3].  The Tribunal is not convinced by those explanations.  The Tribunal finds difficult to accept that if the applicant is wanted by the CID as claimed, nothing has happened to any member of his family, raising doubts about his claims. 

12. The applicant’s father gave evidence that he is [age], he lives in [Town 1] alone and that he stopped working about 5 years ago.  He stated that the police are looking for his son.  The Tribunal asked him the reasons for the police looking and he said because the applicant and his friend had a problem.  The Tribunal asked repeatedly about the nature of the problems and the witness did not appear to be able to clarify the nature of the problems.  He referred to getting news in the village about problems which led to the applicant’s departure.  The Tribunal asked the witness if they had a neighbour called [Mr A] and he confirmed that they did and said [Mr A] was his son’s friend.  He said [Mr A] is in hiding because the CID is looking for him.  The Tribunal asked him when he last saw [Mr A] and he said it was about a year ago.  He said [Mr A] is an “invalid” and that he “collects people” to send to Australia.  The Tribunal asked the witness if the applicant has been accused of helping [Mr A] and he replied “nothing like that”.

13. The Tribunal found the evidence of the witness to be vague and lacking in details relating the nature of the issues concerning the applicant in Sri Lanka.  The Tribunal acknowledges that the witness is elderly and was giving evidence via the telephone which could have impacted his ability to provide a coherent account.  This has meant however that his evidence does not in some ways support the applicant’s claims.  In fact and as raised with the applicant in accordance with s.424AA, the father’s evidence is adverse to the applicant; the father gave evidence that the applicant was wanted for departing Sri Lanka and he confirmed that the applicant has not been accused of helping [Mr A].  The father did not know that apparently the CID is after the applicant for helping [Mr A] in people smuggling.  The Tribunal has noted the evidence that [Mr A] “collects people” to send to Australia which could mean people smuggling, the witness did confirm that the applicant has not been accused of the same by the Sri Lankan authorities.

14. The other concerning issue is that the father’s evidence that he last saw [Mr A] about a year ago.  The applicant has claimed in his Statutory Declaration of 24 October 2012 that [Mr A] was arrested by the CID.  He repeated that claim in the course of the hearing when the Tribunal asked him about [Mr A].  The applicant gave evidence that [Mr A] had been arrested but brought back.  He said [Mr A] called him once but he could not recall when; he said maybe it was in 2012 or 2013, or 4-5 months after his arrival or after a year.  When the Tribunal mentioned the earlier claim that [Mr A] had been arrested, he said that his father had told him that [Mr A] had been taken by the CID.  The Tribunal asked the applicant when his father had told him so, he said “maybe 2-3 months ago” but he could not recall.

15. The applicant’s evidence about [Mr A] being taken by the CID is confused and contradictory.  Moreover, the Tribunal is of the view that if [Mr A] had been taken by the CID, the father’s evidence that he saw him last about a year ago means he has returned.  So if [Mr A] was taken around 2012 but returned, that would suggest that he is no longer of any adverse interest to the Sri Lankan authorities and consequently this would undermine the applicant’s claims that he or [Mr A] is wanted. The Tribunal appreciates that [Mr A]’s return does not necessarily mean that the applicant is of no interest to the Sri Lankan authorities, but the core claim is that [Mr A] was involved in people smuggling and if he has been released, it would suggest that those matters have been resolved. 

16. There are other concerns relating to this case.  The applicant gave evidence that his girlfriend is still waiting for him in Sri Lanka but he has not provided any corroborative evidence.  The Tribunal raised with the applicant in the course of the hearing the lack of corroborative evidence to support his claims and he agreed.

17. The Tribunal is mindful that the father gave evidence that [Mr A] ‘collects people’ which might suggest people smuggling.  However on balance of the evidence as accepted by the Tribunal, as well as the Tribunal’s concerns about the applicant’s credibility, the Tribunals is not satisfied that [Mr A] (if he exists) was involved in people smuggling, or that he has been arrested or released for those reasons, or that the applicant was ever involved in driving [Mr A] in a [Tuk] Tuk to collect people as claimed, or that the applicant is wanted by the Sri Lankan authorities for any reason, or that the CID ever went to his home accusing him of being involved in people smuggling with [Mr A], or that he has any fear of harm on the basis of this claim.  Although not a central claim, for the same reasons, the Tribunal is not satisfied that the applicant has a girlfriend [who] is still waiting for him or that he has not returned to Sri Lanka because of his fear of harm on the basis of his involvement with [Mr A].

18. In post-hearing submissions dated 14 May 2019, the applicant claimed that [in] May 2019, his father was taken into custody by the security forces and his house was ransacked by “machete wielding thugs”.  He claimed that his father’s whereabouts are unknown.  For reasons of credibility concerns and on the evidence before it, the Tribunal is not satisfied that his father was taken into custody by the security forces or that his house was ransacked, or that his father’s whereabouts are unknown. 

    Tamil ethnicity

19. The Tribunal asked the applicant about his Tamil ethnicity.  The applicant became confused and repeatedly said he was a “Tamil-speaking Muslim”.  The Tribunal referred to his Statutory Declaration of 24 October 2012 in which he claimed that he is of Tamil ethnicity.  He said when he came to Australia, he did not know anyone.  He said he told his representative at the time that he was a Muslim and that there must have been an interpreting mistake.  The Tribunal asked the applicant again about his claim of being of Tamil ethnicity and he said he is not but he is a Tamil-speaking Muslim.  The Tribunal indicated that this would suggest that he has made a false claim which could raise doubts about other claims he has made.  He said the representative made a mistake.  The Tribunal indicated that the Statutory Declaration appears to have been prepared with the assistance of lawyers and it is difficult to accept that a serious mistake such as that relating to ethnicity would be made in these circumstances.  He said when he came to Australia, he mentioned that he was Muslim and that he did not even know about the different sects of Islam. The Tribunal noted the claim of being of the Sunni faith.  He said he does not know the difference between Sunni and Shia. 

20. In post hearing submissions dated 14 May 2019, the representative noted that the applicant is a “Muslim of Tamil speaking and known as Muslim or Moor and a member of an ethnic minority group which is comprised about 9.2% of the total population of Sri Lanka”. The representative attached an article published by Wikipedia[2] relating to Sri Lankan Moors. The article describes the Moors as “…(Ceylon Moors; colloquially referred to as Muslims or Moors) are an ethnic minority group in Sri Lanka, comprising 9.2% of the country’s total population. They are mainly native speakers of the Tamil language with influence of Sinhalese and Arabic words. They are predominantly followers of Islam. The Sri Lankan Muslim community is divided as Sri Lankan moors, Indian moors and Sri Lankan Malays as per their history and traditions[3]”.

    [2] Wikipedia, Sri Lankan Moors – accessed 14 May 2019.

    [3] Ibid, p 1.

21. The Tribunal notes that DFAT’s report[4] refers to most Sri Lankan Muslims as being speakers of Tamil as their first language so being Tamil-speaking does not mean being of Tamil ethnicity.

    [4] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018.

22. The Tribunal is concerned about the applicant’s concession that he is not of Tamil ethnicity, which suggests that the applicant has made a false claim in the application for a protection visa. The Tribunal is not persuaded by his explanations or convinced. On the evidence, the Tribunal is satisfied that the applicant has made a false claim in relation to his ethnicity and the Tribunal is satisfied that this is further evidence of the applicant’s propensity to exaggerate and be untruthful about aspects of his claims. 

23. Although the applicant did not know the difference between Islamic sects, given that the claim of being a Muslim has been consistent, the Tribunal accepts as plausible that the applicant is of the Muslim faith.

24. On the evidence the Tribunal finds that the applicant is not of Tamil ethnicity and that he is a Tamil-speaking Muslim.

25. The Tribunal acknowledges that although the applicant is not of Tamil ethnicity, the fact that he speaks Tamil means that he could be imputed with Tamil political views.

26. In relation to Tamils, the Department of Foreign Affairs and Trade (DFAT) in its report, DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018[5], discusses the situation in relation to Tamils. The Report refers to Tamils being the second largest ethnic group in Sri Lanka and that according to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. The Report notes that Tamils live throughout Sri Lanka concentrating in the Northern Province where they comprise 93% of the population and the Eastern Province where they comprise 39% of the population. Relevantly, the report indicates the following:

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

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

    3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.[6]

    [5] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018.

    [6] Ibid, pp 13-14.

27. In relation to monitoring, harassment, arrest and detention of the Tamil community, the Report notes the following:

    3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).

    3.9 Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.

    3.10 Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.

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

    3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[7]

    [7] Ibid, p14.

28. DFAT has assessed in its Report[8]  that the “LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list”.

    [8] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 19.

29. DFAT’s Report refers to the identification in 2012 by UNHCR of a range of people with real or perceived links to the LTTE, namely:

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

    ·     former LTTE combatants or ‘cadres’;

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

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

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

    ·     persons with family links or who are dependent on or otherwise closely related to persons with the above profiles[9].

    [9] Ibid, p 20.

1. There have been reports of some Tamils with imputed LTTE links being monitored by the police and harassment in 2016[10]. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.[11]

   [10] Ibid, p 20.

   [11] Ibid, p 20.

2. The applicant is not claiming that he or any member of his family has been associated with the LTTE, or any other political organisation. The Tribunal has found that he is not of Tamil ethnicity. The Tribunal is satisfied that on balance, credible independent country information indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted. On the evidence before it, the Tribunal is satisfied that the applicant has no profile of being involved or associated with, or suspected of being involved with the LTTE, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is Tamil-speaking.  On the evidence, the Tribunal finds that the applicant does not have an actual or imputed political profile to mean a real risk or a real chance of significant or serious harm.

3. In essence, the Tribunal is satisfied on the evidence that being a Tamil-speaker does not give the applicant an adverse profile of actual or perceived political nature which would mean that there is a real risk or a real chance of the applicant facing serious or significant harm on his return on this basis.

   Muslim faith

4. The Tribunal has accepted that the applicant is of the Muslim faith.  The Tribunal asked the applicant if he has suffered any harm on the basis of his Muslim faith and he did not refer to any harm.  The Tribunal notes the applicant’s claims that on two occasions, he was caught up in a round up in 2010, when 30-40 people were taken to the police station and statements were taken from them about where they lived. The applicant’s evidence was that nothing else happened while he was at the police station; he was not detained or interrogated.

5. DFAT’s Report discusses the treatment of different religious groups in Sri Lanka.

   RELIGION

   3.13Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity: most Sinhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian. Muslims are considered a separate ethnic group. The government has publicly declared its commitment to religious and ethnic reconciliation.

   3.14Article 10 of the Constitution provides for freedom of religion, and Article 14 for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’. In 2003, the Supreme Court ruled that the state was constitutionally required to protect only Buddhism. The constitutional reform process has included discussion of amending Article 9. Acts intended to insult religion are punishable by a fine and/or a maximum of one year in prison. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years’ imprisonment.

   3.15Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. Prominent Buddhist, Hindu, Muslim and Christian leaders attend national functions, although most events include only Buddhist rituals. Ministers with portfolio responsibilities for the four major religions are practising followers of the faith for which they are responsible. School students are able to study their choice of Buddhist, Hindu, Muslim and Christian religious classes in most public and private schools, depending on the availability of teachers. There are some Hindu and some Muslim public schools.

   3.16DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, including by supporting the extremist Buddhist group Bodu Bala Sena (BBS, English: Buddhist Power Force). DFAT is aware of reports from 2017 of local authorities seeking to close places of worship, questioning the status of religious registration, and inconsistently applying the law against perpetrators of discrimination and religious violence. Some local government officials and police continue to refer to a 2008 circular of the Ministry of Buddha Sasana and Religious Affairs, revoked in 2015, which states that all new constructions of places of worship require the approval of the Ministry. DFAT is aware of reports of children being denied admission to schools because of their religious background, and of children being forced to observe Buddhist rituals in state schools.

   3.17DFAT assesses that while no laws or official policies discriminate on the basis of religion, adherents of religions other than Buddhism face a low risk of official discrimination from local government authorities, which can affect their ability to practise their faith freely[12].

   [12] Ibid, pp 14-15.

6. Relevantly in relation to adherents of the Muslim faith, the Report notes:

   Muslims

   3.18 Muslims are the third largest religious group in Sri Lanka. Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million. Most Muslims speak Tamil as their first language. Muslim communities live throughout Sri Lanka, including in Colombo and Kandy, with larger communities in the east in Ampara, Batticaloa and Trincomalee, and in the west in Mannar and Puttalam. The majority (98 per cent) of Muslims in Sri Lanka are Sunni. A small number of Shi’a, including members of the Bohra community from India, reside mostly in Colombo. The Malay community, largely comprising descendants of Malay members of the Ceylon Police Force, is Muslim and a few of its members hold senior positions in the Sri Lankan military and police. The Urdu-speaking Memon community of Indian or Pakistani descent mostly lives in Colombo. Sri Lanka also hosts a small number of Muslims who follow the Sufi tradition. Muslim property rights fall under state law while sharia (Islamic) law and cultural practice apply to marriages. Although many Muslims work in agriculture and fisheries, many also work in business, industry and the civil service. In November 2017, some Muslim businesses were temporarily boycotted because of tensions between the Tamil and Muslim communities in Batticaloa.

   3.19 The Sri Lanka Muslim Congress (SLMC), the largest Muslim political party, has seven members of parliament and is part of the governing coalition. The SLMC’s leader is a Cabinet Minister. In 2015, the All Ceylon Muslim (Makkal) Congress joined other anti-Rajapaksa parties to form the United National Front for Good Governance. The party holds five seats in parliament. The SLFP and the UNP both have Muslim members in parliament, including in ministerial-level positions.

   3.20 Although most Muslims sided with the (Sinhalese) government forces during the conflict, religious tensions between Muslims and the Sinhala Buddhist majority have risen since the end of the conflict. Nationalist Buddhist groups such as the BBS, Sinha Le (English: Lion’s Blood), and Sinhala Ravaya (English: Sinhalese Roar) continue to stoke religious and ethnic tensions, including through social media posts. Greater freedom of expression under the current government has enabled an increase of hate speech against Muslims and other religious minorities in Sri Lanka.

   3.21 Minority Rights Group International reported 60 incidents of hate speech, discrimination or attempts to desecrate or destroy Muslim religious buildings in the first six months of 2016. The OHCHR reported 30 registered incidents of violence against Muslims across the country around May 2017, mostly against Muslim-owned businesses and mosques, and accompanied by anti-Muslim rhetoric from Sinhala Buddhist groups such as the BBS. In September 2017, a mob led by Buddhist monks reportedly belonging to the organisation Sinhalese Nationalist Front vandalised and attempted to storm a Colombo house where 31 Muslim Rohingya refugees were staying. Buddhist groups burned more than 70 Muslim shops and houses in Gintota, Southern Province, in November 2017. The Muslim Council of Sri Lanka wrote to Prime Minister Wickremesinghe in May and September 2017 urging the government to take action against the hate speech and violence targeting the Muslim community. President Sirisena has committed to investigate anti-Muslim hate crimes and bring perpetrators to justice, although local sources claim that for political reasons authorities are reluctant to address violence perpetrated by religious clerics due to concern of public backlash. According to the US Department of State, local police and local government officials sometimes tacitly support Sinhala Buddhist nationalist groups by failing to respond to complaints of harassment or property damage by Buddhist monks.

   3.22 On 6 March 2018, the government declared a nationwide State of Emergency for 12 days in response to incidents of communal unrest between members of the Sinhalese Buddhist and minority Muslim communities in Kandy District, Central Province. Despite the deployment of high numbers of military and police, several arrests and extended curfews, violence continued in several towns around Kandy until 7 March, and four people (two Muslims and two Sinhalese) were killed and dozens injured. Police arrested the leader of the Buddhist extremist group Mahason Balakaya (English: Strong Ghost Regiment), Amith Weerasinghe, in relation to the violence. The events in Kandy represented the largest violent incident between Buddhist and Muslim communities since June 2014 when Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that many blamed for inciting riots in Aluthgama that lasted two days; Police arrested and subsequently released Gnanasara on several occasions. The events in Kandy followed a smaller incident on 27 February 2018 whereby Buddhist nationalist groups perpetrated arson attacks against Muslim-owned residences, shops and a mosque in Ampara, Eastern Province. Rumours that a Muslim restaurant was mixing ‘sterilisation drugs’ in its food to make Sinhalese women infertile triggered the attacks. Social media aggravated both the Kandy and Ampara incidents.

   3.23 In 2016 and 2017, local groups reported the construction of Buddhist shrines in the north and east in Hindu and Muslim areas with few, if any, Buddhist residents. In some locations in the north, the military was reportedly involved. In 2016, Sinha Le reportedly orchestrated protests against the construction of a mosque in Kandy.

   3.24 A lack of reliable statistics precludes an accurate assessment of whether incidents are increasing, but supporters of Sinhala Buddhist nationalist groups have engaged in a sustained campaign of hate speech against Muslims in recent years. While there have been incidents of property damage and personal violence, overall violence remains sporadic. DFAT assesses that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence[13].

   [13] Ibid, pp 15-16.

7. When the Tribunal discussed with the applicant relevant country information, particularly, DFAT’s conclusion that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence, he stated there are still problems for Muslims in Sri Lanka.  The applicant gave an example that Muslims are not allowed to carry kitchen knives.  He referred to the recent incident in Sri Lanka[14] and suggested that as a result, Muslims in Sri Lanka are now targeted.

   [14] Terrorist attacks on Easter Sunday on 21 April 2019.

8. In post hearing submissions dated 14 May 2019, the representative noted that the applicant belongs to an ethnic minority group (Tamil speaking Muslim – Moor) in Sri Lanka and members of this group are widely believed to have carried out the Easter Sunday Massacre. The representative noted that the applicant’s ethnic group is currently being targeted by the Sri Lankan authorities. The representative attached recent articles about attacks on mosques in Sri Lanka[15] and anti-Muslim riots. The representative referred to a curfew and submitted that “it appears the Sri Lankan government was either incapable or tacitly supports the persecution against this group. It is obvious that the situation currently evolving in Sri Lanka is not of the applicant’s own making and would exacerbate his fear should he return to Sri Lanka now or in the foreseeable new future”

   [15] Published in Colombo Telegraph on 13 May 2019.

9. The Tribunal is aware that on Easter Sunday, 21 April 2019, a series of coordinated bombings struck eight locations throughout Sri Lanka, killing at least 253 people, and wounding around 500 more[16].  Suicide bombers triggered explosives at three churches and three hotels across three separate cities on the Sunday morning, with another two explosions occurring in the afternoon around the capital city, Colombo[17]. A further bomb intended for a fourth upscale hotel failed to detonate[18]. The deadliest explosion was at St. Sebastian’s Church in Negombo, some 20 kilometres north of Colombo, where more than 100 people are reported to have died[19].

   [16] Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019, 20190429105125; 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213 

   [17] 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213. The locations are as follows: St. Sebastian’s Church, Negombo; Zion Church, Batticaloa; St. Anthony’s Shrine, Colombo; Shangri La Hotel, Cinnamon Grand Hotel, Kingsbury Hotel (all in Colombo). 

   [18] The suicide bombs in Sri Lanka might have been prevented', The Economist, 27 April 2019, 20190426144009 

   [19] 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213. 

10. Authorities in Sri Lanka have stated that the attacks were carried out by two Muslim organisations, the National Thowheeth Jama’ath (NTJ) and Jammiyathul Millathu Ibrahim (JMI), with help from international militants [20]. Two days after the attacks, Islamic State in Iraq and Syria (ISIS) claimed responsibility[21], and have since named NTJ as an affiliate organisation[22].  On 29 April, ISIS leader Abu Bakr al-Bagdadhi appeared for the first time in five years, issuing a statement framing the attacks as revenge for the international community’s capture of ISIS’s final stronghold in Baghuz, Syria.[23] Taking a different approach, President Sirisena stated that the attacks were a reprisal against his hard-line campaign against drug trafficking.[24] According to Sirisena, terrorists such as ISIS funded their activities through drugs, and targeted the churches due to their support for the anti-drug campaign.[25] As some analysts have noted, the attacks appear to have been committed on behalf of ISIS’ global agenda. [26] Deakin University’s Greg Barton writes that the attacks fit with what is known about ISIS’s post-caliphate intentions,[27] noting that with the loss of its final territorial control, ISIS has increasingly focussed its efforts on inspiring and directing local insurgencies elsewhere in the world.[28]

    [20] 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019.  Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357 

    [21] What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213  

    [22] 'Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019

    [23] Sri Lanka Prime Minister assures security in the country, stern actions against inciting sectarian violence, Colombo Page, 30 April 2019, 20190501135955

    [24] 'Terrorist attacks were reprisal for his hard anti-drug campaign, says Lankan President', South Asia Journal, 26 April 2019, 20190429101841.

    [25] 'Terrorist attacks were reprisal for his hard anti-drug campaign, says Lankan President', South Asia Journal, 26 April 2019, 20190429101841.

    [26] 'In divided Sri Lanka, a perfect storm for Islamist terror to swoop', Sydney Morning Herald, The, 27 April 2019, 20190429102358; 'The lessons from the Sri Lanka bombings', Australian Financial Review, 26 April 2019, 20190426143206

    [27] 'The lessons from the Sri Lanka bombings', Australian Financial Review, 26 April 2019, 20190426143206

    [28] 'The lessons from the Sri Lanka bombings', Australian Financial Review, 26 April 2019, 20190426143206

11. On the day following the attacks, President Sirisena declared a state of emergency, granting security services sweeping powers to arrest and interrogate people, and to conduct searches without a court order.[29] Controversially, and as part of the emergency rules, the government has banned head coverings that conceal a person’s face,[30] though the wording of the order does not specifically reference veils worn by Muslim women. The country’s top body of Islamic Scholars is reported to have supported the idea of a short-term ban on face coverings, though remains opposed to any attempts to legislate against face veils.[31] A ban on social media platforms such as Facebook, Youtube, WhatsApp and Viber, initially implemented to curb the spread of misinformation, has been lifted as of 30 April.[32]

    [29] What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213 

    [30] Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357 

    [31] Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357 

    [32] ‘Sri Lanka lifts social media ban imposed after Easter attacks’, Aljazeera, 30 April 2019, 20190501145953; ‘Sri Lanka on high alert over Ramadan terror threat’, Straits Times, 1 May 2019, 20190501134734; ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357 

12. Sri Lankan security forces have killed or arrested most of those linked to the Easter suicide bombings.[33] More than 10,000 troops have been deployed across the island in an effort to uproot NTJ’s countrywide network, with Islamic religious groups reported to be lending their support to authorities.[34] US officials have warned that the terrorist threat is ongoing, with members of NTJ still active.[35]  Security remains tight across the country, with security forces continuing to track down suspects.[36]

    [33] Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357 

    [34] 'Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019, 20190429105125 

    [35] Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357; ‘US warns of more attacks in Sri Lanka by active members of terror group still at large’, The Economic Times, 30 April 2019, 20190501140918; ‘Sri Lanka lifts social media ban imposed after Easter attacks’, Aljazeera, 30 April 2019, 20190501145953 

    [36] ‘Sri Lanka on high alert over Ramadan terror threat’, Straits Times, 1 May 2019, 20190501134734 

13. The applicant has provided articles, one of which refers to clashes between “… Christians and Muslims in Negombo, the town north of Colombo that was targeted by the suicide attackers. The main body of Islamic clerics, the All Ceylon Jamiyyathul Ulama, said there was increased suspicion of Muslims after the Easter Sunday attacks…”[37]

    [37] Sri Lanka has been on high alert since the Easter Sunday, 13 May 2019

14. The Tribunal acknowledges that there is a current level of insecurity in Sri Lanka and that Muslims could be targeted. It is also plausible that there is an increased suspicion of Muslims, however, on the balance of the evidence, the Tribunal is not satisfied that the applicant has a profile which would mean that there is a real chance or a real risk of him facing serious or significant harm on the basis of his Muslim faith.

15. The Tribunal accepts that the applicant may have been caught up in a round up on two occasions. On the evidence, the Tribunal does not accept that the applicant was targeted as a Tamil speaking Muslim but, in any event, the Tribunal does not accept that such a treatment amounts to serious or significant harm as defined in the Act.  The Tribunal has considered this claim in the context of the recent April 2019 attacks and although it is plausible that the applicant may experience more round up(s), the Tribunal does not accept that this amounts to serious or significant harm as defined in the Act, even under those circumstances.

    Level of security in Sri Lanka

1. The Tribunal acknowledges that the incidents of Easter 2019 have created a level of insecurity in Sri Lanka.  This level of insecurity needs to be considered in the context of substantial and significant advancements over the last 10 years, since the end of the war. As noted by DFAT, the security situation in Sri Lanka, particularly in the north and east, has “significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country.”[38]

   [38] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 11.

2. It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[39] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[40] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[41]

   [39] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.

   [40] (2004) 222 CLR 1 at [26].

   [41] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

3. What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens[42].  The appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[43] The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[44] The obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.[45]

   [42] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

   [43] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.

   [44] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]-[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]-[34].

   [45] Osman v United Kingdom (1998) 29 EHRR 245 at [116].

4. It may be noted that, regardless of the content of the relevant ‘international standards’, where the issue of state protection is considered in relation to whether a fear of persecution is well-founded, what is relevant is whether the protection that is available is sufficient to remove a real chance of persecution. However, on the majority view in S152/2003, even where state protection is not sufficient to remove a real chance of serious harm from non-state actors, Convention protection might not be engaged if the level of protection provided meets international standards.[46]

   [46] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28]. As noted above, McHugh J at [83] disagreed; however the difference between his Honour’s approach and the majority view will be significant to the outcome only where there remains a well-founded fear of serious harm notwithstanding that the country in question provides the level of protection required by international standards.

5. Although Sri Lankan government officials have acknowledged that foreign intelligence agencies provided domestic security officials with a detailed warning of possible threats to churches by the National Thowheeth Jama’ath at least ten days prior to the attacks[47], President Sirisena and Prime Minister Wickremesinghe claim not to have been informed of the warnings prior to the attacks[48].  

   [47] What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213; ‘“These Attacks Could Target Catholic Churches”: The Warning That Sri Lankan Officials Failed to Heed’, The New York Times, 22 April 2019, 20190501103309; 'The suicide bombs in Sri Lanka might have been prevented', The Economist, 27 April 2019, 20190426144009  

   [48] The suicide bombs in Sri Lanka might have been prevented', The Economist, 27 April 2019, 20190426144009  

6. In any event, the Tribunal is satisfied that the current level of insecurity does not mean that the applicant would not receive a level of protection commensurate with international standards.  The level of insecurity appears to be due to external forces and the Tribunal is satisfied that the Sri Lankan authorities have taken reasonable measures that accord with international standards. 

7. For those reasons, the Tribunal finds that the applicant does not have a well-founded fear on this basis.

   Would the applicant be harmed on the basis of being a failed asylum seeker or a returnee from a western country who left Sri Lanka unlawfully?

8. In its May 2018 Country Reports: Sri Lanka, DFAT outlined exit and entry procedures relating to Sri Lanka. In essence, although the Sri Lankan Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’, that freedom is qualified in the Immigrants and Emigrants Act (1949) (the I&E Act) that governs exit and entry from Sri Lanka.

9. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. DFAT noted that “...Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport”[49]. A number of agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters[50].  Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. Depending on various factors, processing of returnees at the airport can take several hours and returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed[51]. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants.  DFAT noted that all “returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport[52]”.

   [49] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, at para 5.27.

   [50] Ibid, at para 5.28.

   [51] Ibid. at para 5.28.

   [52] Ibid at para 5.29.

10. In relation to offences under the I&E Act, DFAT reported that:

    5.30    Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.

11. In the May 2018 Report, DFAT provided the following assessments of those suspected of people smuggling:

    5.31    The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.

    5.32    Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.

    5.33    Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.

    5.34    The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.

    5.35    DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.

12. For the stated reasons, the Tribunal has not accepted that the applicant was involved in any of the claimed activities with [Mr A].  The Tribunal accepts DFAT’s advice that there are penalties for leaving Sri Lanka illegally that can include imprisonment and a fine. However and given DFAT’s advice, the Tribunal is satisfied that in practice, most cases result in a fine and not imprisonment. The Tribunal gives weight to DFAT’s advice that the Sri Lankan Attorney-General’s Department’s claim that no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. The Tribunal gives weight to the advice that fines are issued to deter people from departing illegally in the future and that the fine amounts vary from LKR 3,000 to LKR 200,000.

13. The Tribunal has carefully considered the material before it, and is satisfied that the laws in relation to illegal departure are laws of general application, applied in a non-discriminatory manner and serving a legitimate purpose of dealing with people who depart their country unlawfully. Having considered the relevant country information, the Tribunal is satisfied that the laws regarding unlawful departure, which includes being fined (irrespective of amount) are not selectively enforced or applied in a discriminatory way for a Convention reason, as they apply to all persons who depart illegally.

14. On the evidence before it, the Tribunal is not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s.91R(1)(c). This includes processing at the airport, questioning, or being fined.  On the evidence before it, the Tribunal does not accept that, in the applicant’s particular circumstances and with his attributes, he would be persecuted for any Convention reason, as contemplated by s.91R.

15. Having considered the information before it, the Tribunal is not satisfied that the treatment faced by the applicant as a returnee who departed Sri Lanka unlawfully, amounts to persecution or gives rise to serious harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and current, post-Easter 2019 situation in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

16. Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly from one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being of the Muslim faith, a Tamil-speaking Muslim, a failed asylum seeker, or for his illegal departure, or for any other reason, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future.

17. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

    Complementary Protection

18. For the stated reasons, the Tribunal has not been satisfied that the applicant has any profile that is of any adverse interest to the Sri Lankan authorities.

19. In consideration of the evidence as a whole, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm on the basis of being of the Muslim faith, or for being a Tamil-speaking Muslim, or for any other reason, including but not limited to, being a returnee and a failed asylum seeker, and in the context of the current situation in Sri Lanka.  In essence and in consideration of the evidence as a whole, the Tribunal does not accept that there is a real risk of significant harm occurring to the applicant on those grounds.

20. Regarding any harm the applicant may face in connection with the claimed treatment of failed asylum seekers and/or returnees from western countries, on the basis of the available information, and the conclusions of credible country information regarding what awaits a person in the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment faced by the applicant, being a returned failed asylum seeker, gives rise to a real risk of significant harm as contemplated by section 36(2A) of the Act. For the same reasons, the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (to Australia by boat and without a passport), the Tribunal is satisfied that he will be questioned by the Sri Lankan authorities at the airport on his return to Sri Lanka. For the stated reasons, the Tribunal is not satisfied that he has any adverse profile in Sri Lanka which will be revealed throughout the process or in connection with that process, or that he has a profile that would mean that he would be closely scrutinised, or ill-treated.

21. The Sri Lankan Constitution and several other laws prohibit torture which is an offence punishable by imprisonment or between 7 to 10 years. [53]  As DFAT pointed out, the UN Special Rapporteur on human rights and torture concluded in 2017 that torture remains today endemic and routine for those arrested and detained on national security grounds[54]. The UK Home Office in 2017 reported a notable reduction in torture complaints, “though highlighted new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions”.[55]

    [53] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, at para 4.12

    [54] Ibid, para 4.14

    [55] Ibid, para 4.14

22. The Tribunal has found that the applicant does not have an adverse profile and although there are incidents of torture, they relate to those suspected of national security offences.  Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to torture as defined.

23. The Tribunal is satisfied on the evidence that the prospect of the applicant being detained for a prolonged period of time and paying a fine to be remote and not likely to result in hardship to the applicant that constitutes significant harm as contemplated by section 36(2A) of the Act.

24. The definition of “cruel or inhuman treatment or punishment‟ in subsection 5(1) of the Migration Act requires that pain or suffering be “intentionally inflicted‟ on a person and the definition of “degrading treatment or punishment‟ requires that the relevant act or omission be “intended to cause‟ extreme humiliation. Mere negligence or indifference is not sufficient, what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence that there is a real risk that the applicant would face “cruel or inhuman treatment or punishment‟ as defined in subsection 5(1) of the Migration Act.

25. In essence, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for any reason.

26. On balance, on the information before it, the Tribunal is not satisfied that, the applicant, being a person who has left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources excerpted by the applicant’s representative, involves or creates a real risk of treatment amounting to significant harm as contemplated by section 36(2A) of the Act. Accordingly, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

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

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Antoinette Younes

   
   Senior Member