1820986 (Refugee)

[2020] AATA 973

1820986 (Refugee) [2020] AATA 973 (23 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820986

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Deputy President Jan Redfern

DATE:23 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2020 at 11: 27 am

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – Sri Lanka - application for protection on the basis of the refugee and complementary protection criterion – applicant claims to fear persecution for reasons of Tamil ethnicity, imputed political opinion and membership of the particular social group – fear of arrest and torture – returning asylum seeker who departed Sri Lanka illegally -− errors in interpretation of evidence at the hearing before the previous Tribunal - credibility findings - consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – applicant found not to have a well-founded fear of persecution – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – no substantial grounds for believing that as a necessary and foreseeable consequence of removal to Sri Lanka there is a real risk the applicant will suffer significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss. 5AAA, 65, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 91R, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91S

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan v MIEA (1989) 169 CLR 379
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CPN16 v Minister for Home Affairs [2018] FCA 872
CPN16 v Minister for Immigration & Anor [2017] FCCA 2424
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

SZTAL v Minister for Immigration and Border Protection;SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

SECONDARY MATERIALS

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Department of Home Affairs, Country of Origin Information Services Section, “Situational Update: Sri Lanka – Elections”, 29 November 2019
Department of Foreign Affairs and Trade Country Information Report on Sri Lanka, 4 November 2019
Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, (27 February- 24 March 2017)
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
UK Home Office, Report of a Home Office fact-finding mission to Sri Lanka, 20 January 2020

United Nation High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012

STATEMENT OF DECISION AND REASONS

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 (Class XA) (Subclass 866) 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 in January 2013. His application was refused by a delegate in January 2014. The applicant applied for review of this decision and, after a delay in the review for the reasons later outlined, the Tribunal affirmed the decision under review in August 2016.

3. The applicant applied to the Federal Circuit Court of Australia (‘FCCA’) for judicial review of the Tribunal’s decision. The FCCA dismissed the application and the applicant subsequently appealed to the Federal Court of Australia (‘FCA’). On appeal, the Tribunal’s decision was found to be affected by jurisdictional error because the Court accepted that the hearing was compromised by inaccurate interpretation of certain evidence given by the applicant to the Tribunal during the hearing.  The FCA quashed the decision and remitted the matter to this Tribunal for reconsideration according to law (refer CPN16v Minister for Immigration & Anor [2017] FCCA 2424 (Judge Riley); CPN16 v Minister for Home Affairs [2018] FCA 872 (Kerr J)). Because the previous Tribunal member made adverse credibility findings, the matter was reconstituted to a different member for reconsideration.

4. The applicant appeared before the Tribunal on 17 July 2019. He was assisted by a registered migration agent, who participated in the hearing in person. As a result of issues raised at this hearing, further information was sought from the Department and a direction was made that the applicant provide further submissions and evidence to address those issues. A second hearing was scheduled for 17 October 2019. The applicant appeared in person and he was again represented by his registered migration agent, who participated in the hearing by telephone at her request.

5. In summary, the applicant seeks protection because he fears persecution for reasons of his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (‘LTTE’) and his membership of a particular social group as a Tamil and a returned failed asylum seeker. He says there is a real risk he will suffer serious harm as a result of this persecution. The applicant also seeks protection on the alternative ground of complementary protection because he says that if he is returned there a real risk he will suffer significant harm as described in the Act.

6. For the reasons that follow, I am not satisfied about the applicant’s claims for protection and I affirm the decision under review.

   RELEVANT LAW

   General principles

7. 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 a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. Relevantly, the Tribunal must be satisfied that the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)) or on other ‘complementary protection’ grounds (s.36(2)(aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class (ss.36(2)(c) and (d)).

8. Subsection 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’)[1].

   [1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

9. 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.

10. There are five key elements to the Convention definition.

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

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve serious harm to the applicant and systematic and discriminatory conduct: ss.91R(1)(b) and (c). Examples of serious harm are set out in s.91R(2) of the Act. They include a threat to the person’s life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to services such that the person’s capacity to subsist is threatened, denial of capacity to earn a livelihood of any kind threatening the person’s capacity to subsist. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379; Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (Mason CJ). 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: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ). 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: Chan Yee Kin v MIEA at 429 - 431 (McHugh J). Persecution implies an element of motivation on the part of those who persecute for the infliction of harm: Chan Yee Kin v MIEA at 284 (Gummow J). People are persecuted for something perceived about them or attributed to them by their persecutors: Chan Yee Kin v MIEA at 284 (Gummow J).

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. In other words, there must be a causal connection between the relevant characteristic of the person being alleged to have been persecuted and 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’. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded on 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[2]. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: refer Chan v MIEA (1989) 169 CLR 379; Chan Yee Kin v MIEA at 389.

    [2] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429 (McHugh J) and 407 (Toohey J).

15. Fifth, 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 [3]. 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.

    [3] See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J [69]-[70]).

16. 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 the decision-maker is satisfied there are 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 non-citizen will suffer significant harm: s.36(2)(aa) of the Act (‘the complementary protection criterion’).

17. 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.

18. Cruel or inhuman treatment or punishment for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person , so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

19. Degrading treatment or punishment for the purposes of s.36(2A)(e) of the Act is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

20. According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of “intentionally inflicted” and “intentionally causing” in the context of s.5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.

21. Subsection 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

22. 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.

23. 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.

    Section 499 Ministerial Direction

24. In accordance with Ministerial Direction No.84,[4] made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department - Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’ and Procedural Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.

25. The most recent report from DFAT is the Country Information Report for Sri Lanka dated 4 November 2019. I have considered this report, together with other relevant country information, including country information referred to by the applicant’s representatives. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review.  Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information and any relevant guidelines is set out later in these reasons.

    BACKGROUND

26. The applicant was born in Ampara, Sri Lanka. He was born in [year] and is of Tamil ethnicity and Hindu religion. He arrived in Australia by boat in June 2012 and was detained as an irregular maritime arrival in Christmas Island and then in Darwin. He was [age] when he arrived in Australia. The applicant was granted a bridging visa in November 2012 after the Minister lifted the legislative bar which allowed him to apply for a protection visa. He applied for the visa in January 2013. The visa was refused in January 2014 by a delegate of the Minister.

27. The applicant sought review of this decision to the former Migration Review Tribunal - Refugee Review Tribunal (MRT-RRT) which is the predecessor of the Migration and Refugee Division of this Tribunal. The review was listed for hearing before a member of the former Tribunal in April 2015 but was reconstituted to a different member after the original member was not reappointed following the amalgamation of the MRT-RRT with this Tribunal effective from 1 July 2015.

28. The decision of the delegate was affirmed by the second member on 26 August 2016. The previous Tribunal member did not accept the credibility of a number of the key claims made by the applicant.

29. The applicant sought judicial review of this decision, which was upheld by the FCCA. He appealed to the FCA which allowed the appeal by judgment dated 7 June 2018. As already noted, the review was remitted to the Tribunal for reconsideration according to law. The Court identified examples of inconsistencies relied on by the Tribunal to make findings about the credibility of certain claims made by the applicant and found that there were errors in the interpretation of the evidence given by the applicant in relation to these matters. His Honour, Justice Kerr observed at [108] that there were "many more such instances but those examples are sufficient in the Court's opinion to establish that the Tribunal's foundation for concluding that CPN16 had been unable to provide details of the circumstances of his escape from detention… was flawed". His Honour found at [117]

    As the effect of the deficient interpretation the Court has identified led the Tribunal to make a material finding relevant to the Tribunal’s ultimate conclusion without a proper basis, the Court is satisfied that CPN16 was thereby deprived of the hearing to which he was entitled under s 425 of the Act. The Tribunal’s decision should have been set aside by the primary judge on that basis.

30. The credibility of the applicant’s claims about what he says happened to him in Sri Lanka before he left is an important issue in this case and it is therefore useful to set out the chronology of the various accounts he has given.

1. According to Department records the applicant was interviewed by an officer of the Department in September 2012. This was a few months after he arrived in Australia. The interview was recorded and the notes of the interview are set out in a document headed "Irregular Maritime Arrival Entry Interview" which is dated 25 September 2012. There is some inconsistency between the audio recording and the notes and this inconsistency is referred to in more detail later in these reasons.

2. After this interview process and the lifting of the legislative bar, the applicant made his application for protection. This was done with the assistance of a lawyer through the Immigration Advice and Application Assistance Scheme provided by the Department.

3. It is recorded in the application for protection that the applicant feared returning to Sri Lanka for the reasons set out in a statutory declaration declared by him in January 2013. In brief, the applicant stated that he feared being killed by the Sri Lankan government or their agencies if he returned "because the Sri Lankan government thinks that all Tamil people are LTTE supporters or members".[5]

   [5] Statutory Declaration of [the applicant], dated 13 January 2013 [4].

4. The applicant was interviewed by a delegate of the Minister on 16 August 2013. There is an audio recording of this interview. The delegate included details of the interview in the decision record. Generally, the recording and the interview notes set out in the decision record are consistent.

5. In May 2015 the applicant provided a further statutory declaration, expanding on the evidence about his claims.

6. The applicant’s review was listed for hearing before the former Tribunal. The applicant appeared at two hearings and gave evidence on 30 April and 22 May 2015. Unfortunately the case was reconstituted because the previous Member was unavailable and the applicant again gave evidence on 18 May 2016 after the review was reconstituted to a different member. The application was determined unfavourably and after the successful appeal, the applicant’s review was remitted for reconsideration. Having the history of the matter and the Federal Court decision, I determined that the hearing of the review should proceed afresh and without having regard to the transcript of the previous Tribunal hearing. This was raised at the outset of the hearing and no objection was made by the applicant or by his representative about this approach. The applicant and his representative were provided with the transcript of both proceedings.

7. The applicant provided evidence at a hearing before me on 17 July 2019 and at a resumed hearing on 17 October 2019. The applicant was also given the opportunity to provide any further submissions about the change of circumstances after the hearing. No further submissions were provided.

8. I have not examined whether there are inconsistencies in the evidence given by the applicant at the previous Tribunal hearings and the hearings before me for a number of reasons. First, there were numerous challenges to the interpretation of certain evidence given by the applicant before the second member and I formed the view that any apparent inconsistencies identified may be in error. As such, comparisons would not only be unfair but of little utility. Secondly, the evidence given by the applicant to the first member is over four years old and making comparisons and questioning the applicant about any inconsistencies between this evidence and the evidence given by the applicant at the hearings before me may also be unfair and confusing. Thirdly, despite the fact that the applicant has had three previous hearings, I formed the view that it would be fairer to give the applicant the opportunity to tell his story afresh. Despite this, I have had regard to apparent consistencies between the evidence given by the applicant in the current and first Tribunal hearings and the extent to which these matters are relevant, I have referred to these matters in these reasons. Given the challenge to the interpreting of the evidence of the applicant in the hearing before the second member, I have not reviewed this evidence in any detail, nor have I made detailed comparisons.

9. As can be seen from the chronology, the applicant has provided an oral account about his claims and the evidence in support of those claims five times since his arrival in Australia. The first two accounts were to department officers, the first soon after his arrival and the second within eight months of his application for protection. He has now had hearings before three different Tribunals over five different days, with the most recent hearings some seven years after the applicant first arrived in Australia.  The challenge in assessing the credibility of the applicant’s evidence in these circumstances is examined later in these reasons.

   CLAIMS FOR PROTECTION AND MATTERS FOR DETERMINATION

10. The applicants claims about the harm that he fears he will or may face if he is returned to Sri Lanka can be summarised as follows:

    (1)The applicant is a Tamil and while he was not a member or supporter of the LTTE, authorities suspected that he was a supporter in the period after the Civil War in Sri Lanka ended from May 2009. This was because he was in the Sri Lankan Army control area when he and his former employer (who was the owner of the shop that he and his brother-in-law working in at the time) were rounded up and transferred to an Internally Displaced Persons (IDP) camp for six months.

    (2)The applicant and the shop owner (who the applicant sometimes refers to in his evidence as his ‘boss’) were released as a result of bribes given to certain officials in the camp and they were allowed to escape through a hole made in the fence at the rear of the camp. This made the applicant a target for the Criminal Investigation Department (CID), who picked him up and questioned him on two occasions during 2010 and 2011. The applicant was told to report regularly to the CID but he did not do so and his father was subsequently held and beaten because of this.

    (3)The applicant feared he would be taken into detention and beaten by the CID as a suspected LTTE supporter if he remained in Sri Lanka and he decided to leave by boat to travel to Australia. He was assisted with this by the shop owner.

    (4)If the applicant returns to Sri Lanka there is a real risk he will be persecuted as a Tamil, as a Tamil who is considered to be a supporter of the LTTE or as a failed asylum seeker.

11. It is submitted that the claims made by the applicant all give rise to protection obligations under the Convention because there is a real risk of persecution if he returns to Sri Lanka by reason of his Tamil ethnicity, his imputed political opinion in support of the LTTE or his membership of a particular social group, being a Tamil who was held in detention, escaped detention unlawfully and failed to comply with the requirements of authorities by failing to report as required. These matters are also relied on as cumulative factors. It is also submitted that since leaving Sri Lanka the applicant has a significant profile that puts him at risk. He is a failed asylum seeker, who left Sri Lanka illegally, travelled to Australia by boat, associated with asylum seekers on the boat who may be of interest to Sri Lankan authorities and has associated with members of the Tamil diaspora in Australia some of whom have been found to be refugees and might be of interest to Sri Lankan authorities.[6] In the alternative it is submitted that the applicant will face significant harm by reason of these matters and Australia therefore has protection obligations to him under the complementary protection provisions of the Act.

    [6] Refer submission of the Refugee & Immigration Legal Centre Inc dated 20 May 2015 at page 3.

12. Included in the material provided to the Department are copies and translations of various identity documents, including the applicant’s birth certificate, identity card and driver’s licence. These documents indicate that the applicant was born in Sri Lanka and is a national of that country. In the absence of evidence to the contrary I find that the applicant is who he says he is and is a national of Sri Lanka. Accordingly, for the purposes of this review I am satisfied that the receiving country is Sri Lanka.

13. I accept the applicant is a Hindu Tamil. This is not in dispute. There is no claim or submission made that the fact the applicant is Hindu is significant or contributes to his risk of harm. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country and in the absence of such evidence, I find that the applicant does not have such a right.

14. Having regard to the applicant’s claims, the critical factual matters that require determination are whether the applicant was held in detention, escaped, was subsequently targeted for questioning by the CID and failed to comply with CID reporting requirements. A further claim that was made is that because of these matters the applicant was targeted and his father was abducted and beaten in 2011. The applicant alleges that he would have a record with the CID because of his non-compliance. One of the critical issues in the case is whether these matters would cause authorities to target the applicant on his return because of his particular profile, or, alternatively, as a failed Tamil asylum seeker or simply as a failed asylum seeker who left Sri Lanka illegally.

15. The first matters are questions of fact that are essentially dependent on the credibility of the applicant's evidence. However, it should be noted that there is country information about the events that took place in Sri Lanka after May 2009 and provides context relevant to the veracity of this evidence. The second matter is dependent on the credibility of the applicant’s claims but will also be informed by available country information about what may occur if the applicant returns to Sri Lanka.

16. Given these are critical issues for this review; it is convenient to deal with these matters before consideration of the applicants claims for protection.

    OUTLINE OF EVIDENCE

17. The applicant provided to the Department information in support of his claims, including a statutory declaration dated January 2013 together with a number of documents relating to his identity.

18. In addition to the statutory declaration provided to the Department, the applicant provided to the Tribunal a further statutory declaration dated 12 May 2015, submissions dated 28 April and 20 May 2015, a letter said to be from the applicant’s sister dated 17 October 2019, undated submissions received by the Tribunal on 17 October 2019 and an Assessment Report and letter from Foundation House dated 17 March 2014 and 20 May 2015 respectively.

19. The Department file included the notes of the entry interview in September 2012. In these notes, the claims made by the applicant are recorded as follows:

    Life protection. In SL I lived in Vavuniya and working in a [a shop], we make [removed] and my boss took me to his house in Vavuniya and because of the war environment, I could not come back to Vavuniya and I was stuck at my boss' house.  At that time, the movement, they said you cannot leave because of the war situation happening at that time. On the 17 May 2009, we were asked to leave Vattuval and then army arrested us and we were in detention for 6 months and my boss got injured because of shell pieces and he needs further medical assistance.  Because of this we were released. After we got released from the detention centre, my boss leaves for India for operation and I was at Vavuniya and the CID came to my house and said I have to come with them for an interrogation and they were asking me a lot of questions and why I was helping the movement, do not know the name of the movement.   They ask me if I was in that movement and I was beaten up for 2 days then released.  Then after a while I went back to work with my cousin, and on my way home after work, unknown people came in a white van and they blindfolded me and took me somewhere and kept in a room.  They started to interrogate me and took my details about where I was living and asking why I went to Vanni and I told them that my boss took me.  They said we got information that you were in this movement and helping them, they started to beat me up, I was there fore 2 days and they did not inform my family.  My father started looking for me and he went to Human Rights, my dad made a complaint on 15 January 2010.

    After 3 days, they asked me to call my home they told me to tell my dad that he needs to pay money for me to get released.  My dad said that were struggling and my son was labourer and they said if you bribe us we will release your son.  Since I know the boss, and he is wealth, my dad borrowed 2 lakhs from my boss and they told my dad to come and drop it off at some area and then my dad was there and they took the money and dropped me off.

    Then I returned back to home and I was afraid to stay home and I started to live at friends houses.  I moved to Batticaloa and lived with my relatives.  Again these unknown people went to my house looking for me and since I was not there, they took my dad for interrogation and my dad is a heart patient and he started to stress and was admitted to hospital.   I never went back home and then my boss returned from India and knew what I was going through and he told me about a boat going to Australia and he gave me some money and my cousin helped with some money and that is why I came here.

20. The audio recording is largely consistent with these notes except in one material respect. According to the audio recording, the applicant said words to the effect:

    I was in the camp for six months and then the shop owner he used some influence and paid some money. Also both myself and the shop owner were kept in the camp for six months then [indistinct] and were released after six months.

21. The entry interview notes do not refer to the bribe but record that the applicant and his ‘boss’ were released. The applicant’s representative submits the word ‘released’ may have been wrongly interpreted and should have been interpreted as ‘escaped’. The representative was provided with the audio recording after the first hearing and, while indicating at that time that she would seek to obtain an independent translation, this was not provided prior to the resumed hearing. Notwithstanding this, I am prepared to accept that being from a detention camp released as the result of a bribe may be considered to be an escape or at the least an unlawful release. As such, any inconsistency is immaterial and I accept that when the applicant was first interviewed by Department officials, he told them about the circumstances of his release or escape from the camp.

22. This is an important interview as it was conducted within four months of the applicant arriving in Australia.

23. The second account by the applicant is set out in his statutory declaration of January 2013 which was lodged at the same time as the application for protection. In the statutory declaration the applicant stated as follows:

    I’ve told my story to the Department of immigration during an interview which occurred while I was at Darwin. I was not able to tell all of my story because the DIAC officer said they were in a hurry. If I didn’t understand the question it wasn’t explained to me again. I felt as though my story was has not been properly understood by the department. I would like to rectify that now.

24. It is apparent from the above that the applicant intended to set out his claims and the evidence he relied on to support his claims in his statutory declaration. The statutory declaration is just over two pages in length and does not include the detail that may be expected to outline the evidence of what the applicant says happened. This is not a criticism of the applicant but rather an observation about the nature of the statement provided. The fact that the statement is vague and lacking detail in some respects may reflect the process of the statement preparation. It is therefore difficult to draw negative inferences about the fact that there may be some inconsistencies with evidence later provided to the Tribunal. Despite this, the Tribunal would expect that the applicant’s key claims and evidence would be included in this statutory declaration because the applicant was assisted in the preparation of his statement by a lawyer and he expressly states that his purpose is to “tell all of my story”. The statement was prepared with the assistance of a lawyer retained to assist the applicant as part of the immigration advice and application assistance scheme.

25. In this statutory declaration, the applicant set out his claim to the effect that he feared he would be killed by the Sri Lankan government or their agencies if he returned to Sri Lanka because “the Sri Lankan government thinks that all Tamil people are LTTE supporters or members”. The applicant confirmed that he was not an LTTE supporter or member and had never supported the LTTE. He outlined the circumstances leading to his claims as follows:

    (1)In 2005 he began working as a [occupation] in a [removed] shop in Vavuniya in the northern region of Sri Lanka. The owner of the [removed] shop, who he referred to as his boss, lived in the Vanni area which is about 300 km from Vavuniya. He worked with his brother-in law. The LTTE presence in the northern region of Sri Lanka was strong. The applicant was not born in Vavuniya but in Batticaloa, which was about four hours south of Vavuniya.  He worked in Vavuniya because this was where he was able to find work.

    (2)The shop owner was not an LTTE supporter or member. The applicant was invited to the shop owner’s home on occasion. The shop owner had a wife and adopted son and was wealthy. He owned farmland surrounding his home.

    (3)In May 2009 the applicant was visiting the shop owner’s home when there was shelling in the area. The shop owner’s wife and adopted son were killed. The shop owner was also injured. They left the village together and walked for several days in the jungle. In September 2009 the army ordered everyone in the surrounding areas onto a bus and they were taken to an army camp.

    (4)The applicant and shop owner were treated badly and remained in the camp for about four months. The shop owner was able to organise a bribe from one of his contacts and following this he and the shop owner were allowed to leave the camp through a gap that was made for them in the fence of the camp. The applicant disputed the record of his entry interview which stated that they were only allowed to leave because his employer needed to seek medical attention. The applicant asserts that the only reason they were allowed to leave was because the shop owner organised a bribe.

    (5)The applicant and the shop owner returned to the applicant’s home in Vavuniya. The shop owner then left after a few weeks to obtain treatment in India.

    (6)One day (the applicant does not nominate when) the CID came to the applicant’s house and asked him to go with them. He was questioned and beaten over a period of two days then he was released. The CID asked the applicant whether he was an LTTE supporter or member. According to the applicant, he told them that he was not.

    (7)The applicant states that he was working with his brother-in-law in the [removed] shop and one night in January 2010 after work he was approached by “people in a white van”. They blindfolded him, made him get into the van and drove him to a place where the blindfold was taken off. They asked the applicant “lots of questions” about why he was in Vanni and where he was living.  The CID said they knew the applicant was an LTTE member and that he was helping the LTTE fight against the army. The applicant said this was not true. The CID did not believe him and severely beat him. His family did not know where he was and his father lodged a complaint with the Human Rights Commission of Sri Lanka. After three days the CID told the applicant to call his father and tell him that he would only be released if his father paid money. His father borrowed money from the shop owner and paid the money. The applicant was released.

    (8)After his release the applicant went home to Vavuniya but was too scared to stay there. He stayed with a friend and then moved to Batticaloa and lived with his mother.

    (9)In approximately February or March 2010[7] some people came asking for the applicant in Vavuniya but because he was not there they took his father instead. His father was badly beaten and because his father had a heart condition he was admitted to hospital. His father was very anxious after this and started to drink alcohol.

    [7] This date seems to be in error given the later evidence given by the applicant, where he has consistently stated the date was February/March 2011.

    (10)After this the applicant stayed with his mother in Batticaloa and hid inside.

    (11)At the end of 2011 the applicant’s family received a letter from the CID saying that they wanted to interrogate him again. He was scared and wanted to leave Sri Lanka but did not have the money. The shop owner returned in March 2012 and gave him some money to pay for his passage to Australia.

    (12)The applicant knows the CID are still looking for him and if he returns they will interrogate him and force him to confess that he supports the LTTE even though he does not. The applicant did not explain how he knew the CID was looking for him.

1. The applicant was interviewed about his application by a delegate of the Minister in August 2013. The applicant provided further details about his claims. The interview was just over two and a half hours and was recorded. A summary of the interview is included in the delegate’s decision record. The following is a summary of the record of the interview that was set out in the decision record of the delegate.

2. According to the applicant, after the war ended in May 2009, he and the shop owner were held in a camp for displaced persons for about six months. They were released in December 2009. When they were in the camp, the applicant and the shop owner pretended that they were related as father and son. The applicant did not give his identity to the officials. The applicant’s mother visited him in the camp. None of the other applicant's family members were placed in the camp because they were not in the Sri Lankan army control area at the relevant time. The shop owner was able to pay a bribe to secure their release. When they were released, they both returned to the applicant's sister’s house in Vavuniya. The applicant returned to work with his brother-in-law. One day after work he was blindfolded and taken by people in a white van, who he believed to be the CID, for questioning. He was beaten and then later released and admitted to hospital for his injuries. About a week later the CID came to his home and took him to an unknown place where he was again questioned and accused of helping the LTTE. He was released after the payment of a bribe by his father and told that he had to come and report in with his signature every three months. The applicant stayed with friends for a period of time and then decided to live with his mother in her village in Ampara between March 2010 and March 2011. Nothing happened to him but in February 2011 his father was detained by the CID when they came looking for the applicant. His father was badly beaten and he was admitted to hospital for a month to recuperate. After this the applicant returned to Vavuniya to help look after his father. His brother-in-law helped him financially because he was too frightened to return to work. He stayed in Vavuniya until he left come to Australia.

3. The applicant was questioned by the delegate about some inconsistencies in his interview. This questioning and the applicant’s response is summarised in the delegate’s decision record. In particular, it was noted that in the early part of his interview the applicant stated that when he was released after the first occasion he returned home and rested for two days before returning to work. He later said that he was beaten so badly that he was admitted to hospital for four days. The decision record notes that the applicant was specifically requested to clarify his narrative in relation to the first incident with the CID. According to the decision record the applicant stated that he did not understand the question. He is then recorded as responding that he was detained a second time on Sunday and that all incidents involving the CID happened in the month of January 2010.

4. The delegate noted that it could be accepted the applicant may have been questioned and held for two days by authorities on two occasions but it was not accepted that he sustained injuries being inflicted from being beaten and this seemed to be “an additional thought” that the applicant responded to when questioned about the inconsistency. The delegate did not accept the applicant’s account about the circumstances of him entering the camp and not giving his identity.

5. According to the decision record, following his encounters with the CID in January 2010, the applicant returned to Ampara and spent time in his family home with his mother. He did not encounter any difficulties. In February 2011 when his father was badly beaten he returned to Vavuniya to look after this father. It is recorded that the applicant said he was moving around constantly and the delegate found it difficult to understand how he was still able to assist his sister with the care of his father after his father was beaten in these circumstances.

6. In summary, the delegate did not accept that the CID pursued the applicant because he was found to be Sri Lankan army control area and noted that he had been able to resettle back in his hometown for 12 months with no incidents between March 2010 and March 2011. Relevantly the delegate noted as follows:

   While he appeared to be a credible witness about some things there are discrepancies relating to exactly what took place, when these events took place, who was involved in where they happened. Specific information was slightly varied between interviews, particularly his involvement with the ‘suspected’ CID on the outcome of these meetings. I do believe he felt harassed and perhaps slightly intimidated times by whoever was questioning him. I do believe he may be fearful of authorities as many Tamils living in the military controlled areas of the North are. However his family home is in the eastern province and he is able to reside there where his mother and another sister live. I do not believe he has been targeted and directly linked to the LTTE causing his life to be placed in serious danger.

7. The applicant raised two matters in his interview which he did not raise in his statutory declaration of January 2013. These matters were that he was admitted to hospital and that he was told he needed to report to the CID. In other respects, the statements made by the applicant during his interview are broadly consistent with the statements made by him in his statutory declaration. However, it is relevant to note that in the interview, the applicant did not refer to the letter that he says was sent to his family in late 2011. In his statutory declaration he said that the CID came to look for him in February and March 2010 and took his father instead. In his interview he said that this did not occur until February 2011. I accept this was an error in his 2013 statutory declaration. I also note in the interview the applicant reversed the order of the CID incidents. In his 2013 statutory declaration, the applicant stated the CID first came to his home then stopped him on his way returning home from work on the second occasion. This does not of itself undermine the credibility of the applicant’s narrative. I accept the applicant may have been confused, even though this interview was just over a year after his arrival in Australia. Relevantly the account in his 2013 statutory declaration was consistent with the statements he made in his entry interview.

8. The case was listed for hearing on 30 April 2015 and the applicant gave evidence to a tribunal member of the former MRT-RRT. In that evidence the applicant spoke about his time in the camp. He said that he did not give his real name but gave his family name as being the name of the shop owner. The applicant also gave evidence about his escape and about the first incident with the CID. He said that the CID came to his home. The applicant was questioned about the how the CID came to know this address in the circumstances. The applicant's explanation about this was confusing. This issue was also the subject of questioning in the hearings in the current proceedings. As noted, the current review and hearings did not focus on questioning the applicant about inconsistencies between the evidence given by him in the various hearings before this Tribunal and the former Tribunal. As such, no negative inferences have been drawn about these matters other than to observe that the evidence given by the applicant at the first hearing on this aspect was confusing and did not shed light on how the CID knew of the applicant’s address.

9. Following the first hearing, the proceedings were adjourned for further hearing on 22 May 2015. Prior to this, the applicant provided a statutory declaration declared on 12 May 2015. In his statutory declaration, the applicant stated he was concerned that if he were to return to Sri Lanka, Sri Lankan authorities would still suspect him being involved with the LTTE and the CID would have a record of his name. He stated that when he was questioned by the CID during the time he was detained in 2010 he admitted to them that he had escaped from the camp and had given a false name. The applicant stated he believed the CID concluded he had done this to cover up his involvement with the LTTE. The applicant further stated the fact the CID had detained his father in 2011, almost a year after his initial questioning, led him to believe they would continue to look for him, they would interrogate him and they would force him to confess that he supported the LTTE even though he did not. The applicant explained the reason why he had no difficulties when he returned to live with his mother was that he did not register with the village officer at that time. He was concerned if he returned to the area he would be identified as an outsider, he would need to register and the CID would easily be able to locate him. He was also concerned that he would be investigated and punished because he had left Sri Lanka illegally.

10. At the resumed hearing on 22 May 2015, the applicant confirmed he had been detained three times, the first being in the camp, with the second and third incidents in January 2010 when he was questioned by the CID. The applicant gave evidence that he was questioned about his escape from the camp. He confirmed he had not given his own name but his first name and the shop owner's name as his family name. The applicant was questioned about how the CID came to his address given they did not know his identity. The applicant's evidence in this regard was again confusing but was not clarified during the hearing by further questioning so little can be drawn from this on its own. The applicant gave evidence that he was beaten with steel pipes and that he was held for three days. He said that he had swelling in the leg and was in a lot of pain. He went to the doctor and took some medicine. The applicant gave evidence that the second time he was detained by the CID was about a week or 10 days after the first incident. He said that he was returning from the shop to his home and was on his push bike. He was taken again and questioned then released. The applicant initially said he did not know why he was released but he later said that it was because he paid money. At the time he was released the applicant said the CID told him he had to sign in every three months. The applicant gave evidence that the beating was worse on the second occasion. He was hospitalised after this occasion. The applicant gave evidence that he went to live at his mother's house in about March 2010 and returned to Vavuniya in March 2011 to sign in with the CID. The CID attacked his father and after his father was released he was hospitalised. The applicant said that he was not approached by the CID after the two incidents in January 2010 but stated in his evidence at the hearing, consistent with his evidence in the statutory declaration, that he believed he was not approached because he had not registered while he was in Vavuniya.

11. This matter was reconstituted to another member after the amalgamation of the Tribunal and that member conducted a hearing in May 2016. As already noted, there were issues with the interpretation of the applicant’s evidence during this hearing and for the reasons previously outlined, I have not reviewed the evidence given in this hearing in any detail.

12. After the matter was remitted back to this Tribunal for reconsideration, the proceedings were reconstituted and scheduled for hearing on 17 July 2019.

13. The first hearing was lengthy and rather than set out the evidence in its entirety, set out below is a summary of the effect of the evidence.

14. The applicant gave evidence that he was born in Ampara which is in the Eastern province of Sri Lanka but moved to Vavuniya in the Northern province where he worked from 2004 in a [removed] shop. His mother lives in the Ampara district with his second sister. The applicant has four sisters and one older brother. Two of his sisters and his brother live in Vavuniya. When the applicant was living in Vavuniya he was living with his eldest sister.

15. The applicant speaks to his mother by telephone every day. He speaks to his sisters and brother once or twice a week. He is close to his family. When he worked in Vavuniya he worked with his brother-in-law. His brother also worked in the same area but in a different shop. Both his brother and brother-in-law are still working in [removed] shops in Vavuniya.

16. The applicant came to Australia by boat in 2012. The shop owner assisted him. The shop owner knew someone who was organising boats to come to Australia and paid the money for the trip. He did this because he treated the applicant like a son. Just prior to coming to Australia the applicant was living with a friend.

17. The applicant had been living at the shop owner's house between about August 2008 and May 2009 when the house was shelled. The shop owner's wife and son were killed and both the applicant and the shop owner sustained shrapnel wounds as a result of the shelling. The shop owner's injury was to his eye and the applicant sustained an injury to his leg. The applicant and the shop owner fled the area after the shelling and were on the road for a few days. The applicant could not return to his sister's house because the roads were closed. They walked for several days and they were picked up in the army controlled area and taken to an army detention camp.

18. In his statement the applicant said that he was detained in the camp on 17 September 2009. He was questioned about this evidence. He could not explain why he nominated this date nor how this could be the case given his evidence that he was detained within days of the shelling in May 2009. Having regard to the applicant's evidence at the hearing, which I accept, it seems that the date referred to in the applicant's statement is incorrect. Nothing turns on this and I accept that the applicant may have been confused about dates at the time that he prepared his statement.

19. The applicant gave evidence about what happened when he entered the camp. This evidence was both confusing and inconsistent. First, the applicant said he did not have his wallet, or any identification, at the time he entered the camp. He later said that he did have his wallet and identification but not but did not show officials in the camp. He said that when he and the shop owner arrived at the camp the shop owner told the soldiers that the applicant was his son. This was said to be because the shop owner was concerned that if the applicant had been registered as a young man alone, he may have been sent to another camp for suspected members of "the movement" (referring to the LTTE). The shop owner and the applicant stayed together in the camp. The applicant said that from time to time he was questioned in the camp by soldiers about whether he was involved in the movement. The applicant gave evidence that the soldiers would kick him if he denied he was a member. He said that the shop owner knew some officials and paid them money to arrange for their escape. The applicant and the shop owner escaped through barbed wire at the back of the camp. This was after about five or six months of being first detained in the camp. They left the camp in about December 2009.

20. After leaving the camp the applicant returned to Vavuniya to live with his sister. The shop owner lived with relatives in Vavuniya. The shop owner later went to India for treatment for his eye. He lived in both India and Sri Lanka over extended periods. The applicant continued to have contact with the shop owner from time to time after he left the camp until the time he came to Australia.

21. The applicant returned to working with his brother-in-law in the [removed] shop after he left the camp.

22. The applicant was asked about whether there was another incident that happened to him after his release from the camp. He said that one day when he was returning from work on his bicycle, the CID stopped him, blindfolded him and took him away in a white van to a big CID camp. He was questioned by about five or six officials who are asking him questions in Tamil. The applicant gave the evidence that the first thing the CID officials asked him was “How did you escape from the camp?”, “Why did you escape?”, “Are you - do you belong to the movement?” [8]

    [8] Hearing transcript 17 July 2019, p 38.

23. The applicant was asked how the CID knew he had escaped from the detention camp, how the CID would have known where to find him when he had not given his true identity to the officials at the camp, whether the CID had questioned the shop owner about these matters and why they only questioned him about the escape not the shop owner when both he and the shop owner had escaped from the camp. After some initial confusion about whether the applicant knew whether the CID had questioned the shop owner and whether he raised with shop owner the question of how the CID could have tracked him down, the applicant gave evidence to the effect that he did raise it with the shop owner but the shop owner did not respond to this question. He also said that the shop owner may have given this information to officials when they were in the camp. He could not explain why the shop owner would not respond to his questions. According to the applicant, the CID did not approach the shop owner for questioning. He said that the shop owner spent his time travelling between India and Sri Lanka.[9]

    [9] Ibid p 38.

24. According to the applicant, the CID held him for two or three days. He said that the CID beat him and hit him with wire and he sustained internal injuries and swelling but not external injuries. He did not break any bones. The applicant said he went to a private hospital for about a week after he was released by the CID. He was treated with bed rest and was given medicine to take. His sister paid for the treatment but he did not know how much the hospital charged. The applicant said that he gave the CID information about his name, address, his father and how he escaped with the shop owner. The applicant gave evidence that he was released by the CID because his father paid money to secure his release. His father borrowed from the shop owner.

25. The information about being admitted to hospital was not included in the applicant's 2013 or 2015 statutory declaration. The applicant said that he had never been to hospital before this occasion. He was questioned as to why he did not include this in his statement, particularly given this was an event that was out of the ordinary for him. He said that he did not know why and said this may have been because he was anxious at the time he prepared the statement.

26. The applicant said that his father made a complaint to the Human Rights Commission of Sri Lanka on 15 January 2010 after the applicant went missing. The applicant provided a receipt, apparently signed by the regional coordinator of the Human Rights Commission of Sri Lanka in Vavuniya dated 15 January 2010. The applicant was unable to say what happened as a result of the complaint but he said that his father told him this complaint was about his abduction by the CID.

27. After these incidents the applicant said that he lived with his mother in Batticaloa for 11 months, although he travelled back to Vavuniya "frequently". He stayed at his mother's place until 2011. He said that his father was living in Vavuniya with his older sister during this period. He gave evidence that the CID visited his father in 2011 at a time when his father was visiting the applicant's sister in Vavuniya. He said that the CID asked the applicant's father where the applicant was and when his father said the applicant was not there, he said that CID officials took his father. He said that the CID were looking for him because he was directed to sign in with the CID every three months and he had only done so once. The applicant said had failed to do this after the first occasion because he was scared they would come after him and assault him as they had done previously.

1. The applicant said that his father told him he was taken to the CID office and that his father was asked where he was. His father was assaulted by the CID and was admitted to hospital. The applicant said that because of the beating his father was not well and had frequent admissions to hospital. The applicant produced a certificate about his father's admission to hospital in June 2012. He also provided a death certificate which states that the applicant's father died in 2015 at the age of 63.

2. The applicant said he believes the CID has a file for him which remains open because he did not comply with the direction to report every three months. He is concerned that when he returns to Sri Lanka he will be again taken for questioning by the CID. The applicant also raised concerns about being able to obtain any new identity documents if he returned to Sri Lanka and this would make it difficult for him to work.

3. During the course of the hearing, I raised concerns with the applicant about the credibility of his evidence that he was taken by the CID, tortured, hospitalised and that he was in breach of reporting conditions. The applicant’s evidence was to the effect that his previous evidence was true.

4. At the end of the hearing the applicant's representative requested time to make post hearing submissions and noted that there seemed to be some confusion in the applicant's evidence, particularly based on the evidence that he had previously given to the first Tribunal and in his statements. The representative indicated she would provide particulars of his previous evidence in her submissions. In particular the representative observed that the applicant's evidence was "jumping" around and that she would go through the evidence and prepare a chronology of the sequence of events. The applicant was asked to provide any further evidence that may corroborate his claims.[10]

   [10] Ibid p 57-61.

5. Because there was confusion and inconsistency in the applicant's evidence at the hearing, I indicated that I would obtain a copy of the recording of the entry interview and would review both that recording and the audio of the interview given by the applicant to the delegate. I noted that this information would be provided to the applicant and his representative. The representative was directed to provide any further evidence or submissions by 7 August 2019 and it was noted that a further hearing would be scheduled.

6. No information was provided by the due date and an extension of time was sought and given to 9 August 2019. No information was provided by this date and the Tribunal contacted the applicant and his representative on numerous occasions following up this request.[11] The representative provided submissions and information on the morning of the adjourned hearing giving an overview of the applicant’s claims, a short “factual submission” of abouthalf a page of what the representative summarised the key aspects of the applicant’s evidence to be and legal submissions, referring to country information, about why the applicant was a person to whom Australia owes protection obligations.

   [11] The Tribunal wrote to the applicant on 17 and 18 September and 2 October 2019 and called the representative on 30 September 2019.

7. The resumed hearing was listed for 17 October 2019. A significant part of this hearing was spent clarifying evidence given by the applicant at the previous hearing.

8. One of the first issues discussed was the audio recording of the entry interview. I reviewed the audio recording of the entry interview, and a copy was also provided to the representative prior to the resumed hearing. As already noted, in the audio recording, the applicant said that the shop owner “used some of his influence” and “paid money” and that the applicant and the shop owner were released after six months. The representative confirmed that she had listened to the recording and observed the notes of the entry interview were different from the recording because the applicant is recorded to have advised department officers about the bribe. The representative took issue with the use of the word “released”. She submitted that this should have been interpreted as “escaped”. There was discussion about whether the representative would obtain expert evidence from an interpreter about this issue. Given the imprecision and the scope for error in interpreting this interview, I accept that the applicant told the department officials at his entry interview that the shop owner had paid money and as a result he and the shop owner were released from the camp. I also accept this could be characterised as an “escape” because the effect of what the applicant said in his evidence during the entry interview was that the release was not official or authorised.

9. The applicant and his representative were advised at the outset of the resumed hearing that I accepted the applicant’s evidence that he had escaped the camp and I further accepted that the record of the entry interview did not accurately record the substance of the information given by the applicant about his release from the camp.

10. A further issue that was raised at the beginning of the resumed hearing was the inconsistency in the applicant’s account at the previous hearing about his involvement with the CID and what was referred to in his 2013 statutory declaration. In the hearing on 17 July 2019 the applicant only related one incident with the CID where he was taken and questioned. As the applicant had referred to two incidents in his 2013 statutory declaration, in his evidence to the delegate, the previous Tribunals and in his entry interview, the applicant was asked to give evidence about this again at the second hearing.

11. The applicant initially repeated a similar narrative about the abduction by the CID on his way home from work but then said this evidence was incorrect and he had been confused. He also said he had been similarly confused at the previous hearing before me. The applicant said that the first incident with the CID actually happened when he was at his home. He was in his house and his father was outside when the CID came into his house and said “Who is [name 1]?” His father said “there is no [name 1] [name 2], [name 2] is my son’s name, [name 3], my name”. According to the applicant, [name 1] is the shop owner’s family name. The applicant said he went outside and the CID then “caught” him.

12. The applicant was questioned about why his father would say “that is my son” when the CID said “Who is [name 1]?” The applicant then corrected this evidence and said that the CID actually said “Who is [name 1] [name 2]?” There was a further change in the applicant’s evidence about what was said by the CID when they first came to his house as follows:

    Q: What I don’t understand is that they talked about someone with an entirely different - well, not entirely different - but with a different name to your, not using your family name and then, your father says, “That is my son”, when that person is not his son. Why would he say that?

    A: Are you asking why my father told like that?

    Q: Yes. Do you understand?

    A: Because my father knows my name is [name 2], so what my father told was, “[name 2] is my son”, but I don’t know who the other name is.[12]

    [12] Hearing transcript 17 October 2019 pp15 – 18.

13. The applicant said the CID then took him away in a white van. He was taken to a dark room and questioned. The CID officers asked him how he escaped from the camp. The applicant gave evidence that this was the first time he had been taken CID. He said he was questioned about how he escaped from the camp. He could not recall what he told the CID and was not sure why he was released. The applicant said, “I don’t know whether I accepted what they accused me of, because they beat me saying that we have to ask that you are member of the movement, but actually, I didn’t accept. But then, I accepted because I couldn’t bear the beating, so I don’t know whether they released me because of that.[13]

14. The applicant said the CID released him after a few days. He said that he was injured so badly that he went to hospital for a few days or possibly for a week. The applicant’s evidence about his treatment in hospital was given by the applicant at the previous hearing and he was not questioned about this again.

15. The applicant said that he was taken on the second occasion when he was on his way home from work riding his bicycle. He said the CID asked him similar questions to those asked on the first occasion. The applicant said he told them everything about how he and the shop owner escaped but denied "until the last" that he was in the movement. According to the applicant the CID said "we know you were in the movement" and only agreed to release him after his father paid a bribe, with the assistance of money provided by the shop owner.

16. After he was released, the applicant said he did not return to his sister's house but stayed with friends in Vavuniya and then went to stay with his mother in Batticaloa. The applicant said the CID told him that he needed to report after the second incident. He said that the CID sent a letter to his father saying that the applicant had not come for signing "so we will catch him whenever we see him". The applicant also said because his father did not respond to the letter, the CID came and took his father away. According to the applicant, his father was taken for a few days and was beaten. The applicant was asked to explain why the CID would beat his father when the applicant was the person they were seeking. The applicant said that the CID beat his father so the applicant would surrender himself.

17. The applicant was questioned about inconsistencies in his evidence and given the opportunity to explain or clarify those matters. These matters are outlined later below.

    [13] Ibid p 18.

100.   The applicant was also asked about his mental health issues and whether he had a diagnosis from a mental health practitioner. According to the applicant, he has memory loss. He said that he saw a doctor but was not currently seeing a mental health professional.

101.   The applicant said if he returned to Sri Lanka he would return to Vavuniya and he would probably live with his elder sister again. When asked whether he could return to work with his brother-in-law in the [removed] shop, the applicant said that he would be concerned about being questioned at the airport.

102.   There were no submissions provided after this resumed hearing.

103.   In submissions provided to the Tribunal before the resumed hearing and in evidence provided by the applicant during the hearings before me, an issue was raised about the applicant’s mental health issues and his poor memory.

104.   Other than the applicant’s own evidence, the only evidence about the applicant’s mental health issues is contained in reports provided by Foundation House.

105.   The Tribunal was provided with a report from Foundation House dated 17 March 2014 prior to the first hearing before the former MRT-RRT. This report is said to be an "Assessment Report". The report was prepared by Mr Sanjai Kissun, who is recorded in the report to be a qualified social worker with tertiary level training in criminology and trauma. It is noted that Mr Kissun has worked with survivors of torture and trauma in the health and community service sectors for the past nine years. The report provides an outline of the applicant's family history and trauma background as reported to Mr Kissun. The report refers to the applicant's period in the camp and refers to his kidnapping by the CID. It is relevant to note that the report does not refer to multiple incidents of kidnapping by the CID nor does it refer to the alleged kidnapping and beating of his father.

106.   According to the report, the applicant presented as a "vulnerable and emotionally fragile young man" who was "initially apprehensive but became more relaxed over the course of the assessment sessions". It was noted that the applicant displayed a range of symptoms of anxiety and worries frequently about being returned to Sri Lanka. It is noted that the applicant has intrusive memories about past traumatic events in Sri Lanka, particularly narrowly escaping a bomb and witnessing the death of his friends and work colleagues. It is stated that the applicant had difficulty falling asleep due to excessive worry about his future safety and displays strong emotional reactions associated with the loss of friends in Sri Lanka and his family's mistreatment by Sri Lankan authorities. It is also noted that the applicant expressed feelings of hopelessness and has lost interest in pleasurable activities since witnessing the death of two close friends in 2009. According to Mr Kissun, his assessment of the applicant indicates that he is experiencing symptoms consistent with refugee and war-related trauma. It was recommended that the applicant would benefit from torture and trauma counselling to assist with the management of trauma -related symptoms.

107.   There was an update provided by Foundation House by letter dated 20 May 2015. The letter noted that the applicant had been receiving counselling since October 2013. It was also noted that the counselling had been focused on grief counselling due to the recent death of his father. It was noted that the applicant's grief was complicated because he felt conflicted about being unable to return to Sri Lanka to grieve with his family. According to the author of the letter, since the death of the applicant's father, he presented as increasingly anxious. It was noted that the service would continue to provide grief counselling for the applicant as necessary.

RELEVANT COUNTRY INFORMATION

Introduction

108.   The country information in relation to Sri Lanka is complex. There have been a number of authoritative reports on Sri Lanka to which I have had regard, including the following:

·The DFAT country information report for Sri Lanka dated 4 November 2019;

·The Eligibility guidelines for assessing the international protection needs of asylum- seekers from Sri Lanka dated 21 December 2012 published by the United Nation’s High Commissioner for Refugees (UNHCR);

·Sri Lanka Situational Update: elections dated 29 November 2019 from the Country of Origin Information Services Section (COISS), Department of Home Affairs;

·The Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment on his mission to Sri Lanka in the period 29 April to 7 May 2016 dated December 2016; and

·Report of the UK Home Office fact-finding mission to Sri Lanka dated 20 January 2020.

109.   The applicant provided references to various reports and publications about Sri Lanka, including the US Department of State report published February 2014, the Human Rights Watch 2014 report published 21 January 2014, the DFAT Thematic Report on people with links to the LTTE (3 October 2014), the previous DFAT report on Sri Lanka dated May 2018 and a report written by Yasmin Sooka from the Foundation Of Human Rights entitled An Unfinished War, Torture And Sexual Violence in Sri Lanka, May 2007 to March 2014.[14] The applicant's former representatives also referred to various media reports in 2014 about the arrest of asylum seekers after deportation from Australia reported by both SBS and the Age online. In the most recent submission, the representative for the applicant referred to in article published in February 2017 by the Refugee Council of Australia in relation to the Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment entitled Tamils still at risk. I have reviewed these reports and articles as part of the consideration of the applicant's claims. My analysis and the conclusions I have drawn from these reports and articles is outlined later in these reasons.

[14] Refer to submission of Refugee & Immigration Legal Centre Inc, dated 28 April 2015, citing relevant country information.

110.   The country information in relation to Sri Lanka is not only relevant to the question of whether the applicant will face a real risk of serious or significant harm if he returns to Sri Lanka but it is relevant to the question of whether the applicant's account of what happened to him after the Civil War in Sri Lanka ended in 2009 is corroborated by reported events.

111. Under s.499 of the Act, the Tribunal must have regard to Direction 84 which provides, among other things, that the Tribunal must take into account, where relevant, any country information assessment prepared by DFAT.

112.   DFAT has published eight country information reports in relation to Sri Lanka since July 2013. The most recent assessment is set out in DFAT’s country information report dated 4 November 2019, which is an updated country information report replacing the previous DFAT report released on Sri Lanka published on 23 May 2018. I refer to the most recent DFAT report on Sri Lanka in these reasons as “the 2019 DFAT Report”.

113.   The 2019 DFAT Report is said to be informed by DFAT’s “on the ground knowledge and discussions with a range of sources in Sri Lanka”. Relevantly, it is noted that the report takes into account relevant and credible open source reports, including those produced by the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund, relevant UN agencies, including the office of the United Nations High Commissioner for Human Rights (OHCHR), the UNHCR and the International Organisation for Migration (IOM); leading human rights organisations such as Human Rights Watch, and Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs) and reputable news organisations.[15] This is apparent from a thorough review of the 2019 DFAT Report, where a number of the reports referred to by the applicants have been referenced.

[15] DFAT country information report for Sri Lanka dated 4 November 2019 at [1.4].

DFAT Country Information Report on Sri Lanka dated 4 November 2019

114.   Given the complexities in Sri Lanka and the changing political and economic environment, it is useful to set out in some detail background information about the Sri Lankan economy, politics, the demography and the human rights framework as well as information directly related to protection claims, such as persecution on the grounds of ethnicity, political opinion or being a member of a particular social group, being a returning Tamil asylum seeker.

115.   Sri Lanka is a democracy having gained independence from the United Kingdom in 1948. According to DFAT's most recent country information report at [2.1]:

Historically, relations between Sri Lanka's majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during the British rule, including in education and civil service employment. To address this imbalance, in the period following independence successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community…… These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil populated north and east of the country.

116.   A number of military groups emerged to advance the Tamil cause and the most prominent of these was the Liberation Tigers of Tamil Eelam (the LTTE) which was formed in 1976. By 1983, the LTTE, commonly known as the Tamil Tigers, established and maintained control of Tamil populated areas in the north and east. What followed was Civil War in Sri Lanka for over 26 years. There was a ceasefire between the Sri Lankan government and the LTTE in 2002 which broke down in 2005. Government forces took back control of the eastern part of the country from the LTTE in July 2007 and in 2008 launched a major offensive to capture the remaining LTTE controlled areas in the north. The LTTE surrendered in May 2009. According to DFAT, the UN and human rights organisations documented serious violations during the final stages of the war. In the 26 years of Civil War it is estimated that there were over 100,000 casualties with 900,000 people being displaced. [16]

Q:  Did your father sustain any injuries?

A:  Not injuries as such, but he had been assaulted and he was in severe pain, all over his body.

Q:  Did he have to go to hospital?

A:  Yes.  He was admitted in the hospital.

Q:  What was he treated for?

A:  He has all those things that he sustained from the beatings.  Also, he had his liver problems and because of that, he was not well.

Q:  You said he was in pain, but you said he had no injuries?

A:  Yes.

Q:  In your statutory declaration, you said he was beaten so badly he was admitted to hospital.

A:  That is what I am saying, that they have assaulted him, they have beaten him, but there were no external wounds as such that we could see, but he sustained severe pain inside the body.  Inside.

Q:  He was admitted to hospital, how long was he there?

A:  So, I don’t - thereafter, he was - he became unwell and there have been - he had been frequenting the hospital and he had been taking medical, all the time.[54]

[54] Transcript 17 July 2019, p 53.

201.   The applicant provided two documents relating to his father, the first being a letter from a doctor who stated that the applicant’s father had been in the Mental Health Unit General Hospital in June 2012 and the second being an English translation of a death certificate for the applicant’s father. The first document is consistent with the applicant’s evidence that his father had mental health issues and the letter notes that the applicant’s father had a diagnosis of bronchial asthma, alcohol dependence syndrome and generalised anxiety disorder. There is no evidence that this emanated from the applicant’s experiences or his father’s alleged beating the year before, although this cannot be discounted. This letter suggests the applicant’s father was an alcoholic as at June 2012. The applicant’s evidence is to the effect that this occurred as a result of the applicant’s detention and abductions. According to the death certificate provided by the applicant his father died on 24 February 2015 of a cardiorespiratory arrest, pneumonia and invasive carcinoma.

202.   There are inconsistencies in the applicant’s explanation about what happened to his father, particularly relating to his father’s medical conditions following the alleged beatings. It is apparent from the applicant’s evidence that his father was an alcoholic and had certain medical conditions but it is not clear, on the face of it, whether these conditions had anything to do with the events that the applicant alleges took place in 2009, 2010 and March 2011. In his evidence the applicant said his father was badly beaten but did not sustain any external injuries, only internal injuries. He said his father had “liver problems” and because of that he was unwell. He later said that his father’s health was good but after he was taken and assaulted his father became anxious, he was not mentally stable, his body became weak and he used to visit the hospital frequently.”[55] It is also apparent from the death certificate that the applicant’s father had cancer and a heart condition together with pneumonia. These statements are difficult although not impossible to reconcile. I accept that the applicant’s father was unwell for a period, but I am not persuaded that the applicant’s ill health was the result of beatings by the CID. This medical evidence does not, of itself, corroborate the applicant’s evidence that his father was interrogated and beaten in March 2011 because the CID was looking for the applicant. These health issues could have equally been attributed to long-standing alcoholism over a period beyond the two or three years that the applicant alleges.

[55] Ibid p 54.

203.   Having regard to the whole of the evidence about this incident, I am not persuaded that this occurred.

204.   The final issue of concern is the applicant’s evidence that in late 2011, over two years after he left the camp and nearly two years after he was said to have been abducted and questioned by the CID, his family received a letter from the CID stating that they wanted to interrogate him again. This was also said to be 8 or 9 months after they interrogated the applicant’s father. It is difficult to understand the why the CID would send a letter to the applicant’s family after such a significant delay.

205.   Having regard to the whole of the applicant’s evidence about his involvement with the CID, he presents a narrative that the CID either interrogated him or a member of his family four times over a period of at least a few days on three occasions and on a fourth occasion sent a letter to his family. This was over a period of just under two years. On the applicant’s evidence, the CID knew he had escaped from the camp with the shop owner but he did not admit to being a member of the LTTE. The CID did not detain him in a rehabilitation camp, as was done to other suspected LTTE members, nor did they question the shop owner or anyone else in his family except his elderly father. Despite this, the applicant says the CID repeatedly questioned and tried to monitor him and were still interested in interrogating him in late 2011.

206. Section 5AAA of the Act provides that it is the responsibility of the visa applicant to “specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim”. Despite this, it has long been recognised that the Tribunal has an inquisitorial role, particularly in relation to reviews in the Migration and Refugee Division, and it may inform itself of matters as it considers appropriate. The nature and extent of this role has been considered by the courts. Relevantly, it is accepted that this role does not extend to requiring the Tribunal to seek out evidence to support an applicant's claim, even though the Tribunal is entitled to do so (ABT16 v Minister for Home Affairs [2019] FCA 836) nor is the Tribunal obliged to prompt or stimulate an elaboration which the applicant chooses not to embark on (re-Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [57] – [58]).

207.   In this case, the applicant has sought to give particulars of his claims through his statutory declarations of 2013 and 2015, the oral evidence that he gave to the delegate during the Department interview and the documents and submissions provided to the delegate and the Tribunal by his representatives. The principal evidence provided by the applicant in support of claims is his own evidence, both in writing and oral, about what he says happened in Sri Lanka and what he fears will happen on his return. If the credibility of part or all of the applicant’s evidence is in question, this will have an impact on assessing the veracity of his overall claims for protection.

208.   In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 the Full Court of the Federal Court made some useful observations about assessments of credibility and, in particular, the use of inconsistency in assessing credibility. The court noted that a decision-maker is entitled to rely on inconsistencies in assessing a visa applicant's credibility but it is important that the processes be conducted fairly and reasonably, taking into account that the assessment of the reliability and credibility of evidence given by asylum seekers is well recognised as involving a number of particular features and considerations calls for a careful and thoughtful approach. The court also observed that the use of the term “inconsistencies” should be used with appropriate caution and should not be used to mask the need for deeper analysis. The decision-maker should assess the significance of the inconsistency and the weight that should be given, having regard to the the case as a whole.

209.   Unlike the delegate and the previous Tribunal, I accept the applicant’s account about the camp. The period following the end of the war was likely to have been chaotic and there is country information to support the applicant’s claims that he and the shop owner, together with a large number of persons who were displaced and were wandering in the fields and along the roads in the Northern province, were picked up and taken to a camp and confined in the camp for a period of time. Specifically, I accept that he entered a camp with the shop owner, he was registered with his first name and the family name of the shop owner and he escaped with the shop owner about six months after they were detained after bribing of officials.

210.   While it is possible the CID questioned the applicant at some stage after he left the camp, I do not accept that the CID searched for the applicant for a period of about two years, interrogating and beating him twice then releasing him on both occasions and interrogating and beating his father over a year later, who was at that time an elderly and possibly sick man. I have outlined my concerns about the applicant’s account and his evidence in relation to these incidents. I have taken in to account the passage of time, the fact that the applicant has been asked to give repeated accounts of these incidents and I accept, that in such circumstances, it is possible for a person to be genuinely confused when giving this evidence both in accurately recollecting events that have taken place many years ago and in understanding questions asked of him as interpreted by a third-party. I accept that when the applicant gave much of his evidence he was not being deliberately evasive or untruthful. I have also carefully considered the applicant's previous accounts. While I have found certain aspects to be consistent, I have found important aspects of his evidence to be vague, unconvincing and inconsistent in a material way.

211.   The fact the applicant gave a number of inconsistent accounts of the CID abductions raises doubts. These inconsistencies on their own, do not compel a conclusion that the applicant’s story about the CID is fabricated or contrived. Indeed, I am prepared to accept these inconsistencies may be explained by the applicant’s confusion, the passage of time and the possibility that he did not prepare for the hearings and refresh his memory by reference to his previous statements. It is nonetheless relevant to note that the applicant’s evidence about the CID incidents was not strong and this is simply one of the matters to be considered when assessing the overall credibility of the applicant’s claims and his evidence.

212.   Overall, I do not find the applicant’s evidence about the claimed treatment by the CID to be credible. The concerns raised above, when taken together, raise serious doubts about the credibility of the applicant’s evidence about the CID incidents and therefore about his purported profile with the CID.

213.   In making this assessment I have taken into account medical evidence provided by the applicant about his anxiety. The reports from Foundation House do not support the contention that the applicant has memory loss. There is no diagnosis to this effect, although the first report opines, based on the applicant’s account, that the applicant has experienced trauma from the war, including from his experience in the camp and with the CID. The reports do not refer to the applicant’s alleged hospitalisation or beating of his father by the CID. The most recent report focuses on the applicant’s grief following the death of his father. Relevantly, the reports do not provide any explanation as to why the applicant’s memory would be poor. I accept that the applicant may have experienced trauma as a young Tamil man living in a civil war zone and as a result of being detained. I also accept the applicant would be anxious about returning to Sri Lanka. However, neither of these matters independently corroborates the applicant’s claim that he was kidnapped and beaten by the CID, that his father was beaten by the CID or that he is at risk of being harmed on his return to Sri Lanka because of these matters.

Relevant findings on country information

214.   The situation in Sri Lanka is complex and the election of Gotabaya Rajapaksa in November 2019 and the appointment of Mahinda Rajapaksa as Prime Minister has raised concerns amongst the Tamil community, particularly in the north, about whether there will be harassment of Tamils through monitoring and arbitrary detention and torture.

215.   There are credible reports that this occurred during war and in the period following the war but there are also credible reports that this has decreased over time. According to both DFAT and the UK Home Office, the monitoring of Tamils has reduced, particularly since 2015. Tamils do not suffer persecution simply for being Tamil and, while low-profile former LTTE members or Tamils with imputed LTTE links may be monitored, it is generally accepted by DFAT and the UK Home Office that they are able to lead their lives without concern for their security. There are no laws or policies that discriminate against Tamils although Tamils, like other minorities, may face some discrimination. There is no evidence that Tamils face poverty based on persecution or discriminatory policies.

216.   Sri Lanka is an upper middle income country and the Sri Lankan unemployment rate is relatively low. There are limited opportunities in the north and east, where many Tamils live, resulting in higher rates of unemployment and the lowest median household income per capita. However, poverty rates in Sri Lanka are relatively low and extreme poverty is rare. Overall, Sri Lanka’s “social and human development indicators are among the best in South Asia.”[56]

[56] 2019 DFAT Report [2.12].

217.   There are credible reports of the CID detaining and torturing suspected LTTE members during and after the war to extract confessions, after which the suspects were held in detention on remand. There are also credible reports that these techniques of detention and torture continued until at least April 2016 in relation to suspects of terrorism and national security. However, it is also clear that the landscape has changed significantly since the end of the war. The LTTE is no longer active and there is little support for a resurgence of the LTTE. Notably the Sri Lankan government took decisive and proactive action after the end of the war to deal with LTTE members and associates. The preponderance of evidence is that Sri Lankan authorities focus on high-profile former LTTE members and not low-level participants. Both DFAT and the UK Home Office report that most LTTE members or former or imputed members have either been investigated or prosecuted or have undergone rehabilitation and have been released. Those who have not been investigated or sent to rehabilitation camps have been questioned and released. According to DFAT, most Tamils no longer advocate for a separate state and have more pressing concerns about housing, employment and the return of land or accessing information about relatives who have disappeared during the war.

218.   There has been intense scrutiny from the international community in relation to human rights abuses in Sri Lanka and according to DFAT; the Human Rights Commission of Sri Lanka has made “strong gains in consolidating its independence”. The UK Home Office observed that since the end of the war the focus of the Sri Lankan government has changed and from 2015 to 2019, with the Sirisena government in power, there were “improvements in the general feeling of personal freedom within the country”.

219.   After the Easter bombings in 2019, there was increased vigilance and monitoring and security checkpoints on the major roads re-established. Tamils reported concern about this. However, since this time the Sri Lankan government says it has killed and apprehended all of those involved in the attacks. The checkpoints have now been removed.

220. The Sri Lankan government under Mahinda Rajapaksa initiated steps towards reconciliation after the war but little progress was made. When the new Sirisena government was installed in 2015, further steps were taken towards reconciliation and the investigation of war crimes but progress was “slow and uneven”. The current Sri Lankan government has said it will not abide by the 2015 UN Human Rights Council resolution about the implementation of a range of reconciliation measures because this would “interfere” with its Constitution and sovereignty. However, it appears the government has not abandoned this entirely and has said this will be further reviewed.

221.   With the Rajapaksa family back in power, it seems likely that progress on the investigation of and accountability for war crimes will be stalled. This is clear from the government’s recent announcements. However, this does not mean that the progress made during the years of the Sirisena government will be reversed. The war finished over 10 years ago, the LTTE was comprehensively defeated and the country information suggests that most Tamils are focussed on the underperforming economy, which is one of the key issues that Gotabya Rajapaksa campaigned about. There has been intense and ongoing international scrutiny on the Sri Lankan government since the end of the war, including recent scrutiny on the Rajapaksa government, and a steady decline in the monitoring of Tamils. International scrutiny is likely to continue, as evidenced by the recent statement made by the UN High Commissioner urging the Human Rights Council to maintain “close” scrutiny of Sri Lanka in the absence of an internal driver, such as increased Tamil activism against the government, it is difficult to see why this would change.

222.   This change has apparently carried through to the Sri Lankan government’s approach to failed asylum seekers who return or are deported back to Sri Lanka and, according to the UK Home Office there has been a reduced level of screening at the airport since 2015.

223.   Asylum seekers who are deported from other countries and who have departed Sri Lanka illegally will generally be questioned at the airport by immigration officials then the CID, who make additional checks. According to the UK Home Office, if there are no criminal records or warrants, the person would generally be released after being interviewed by CID officers. According to DFAT, asylum seekers who depart Sri Lanka illegally may be charged under the I&E Act but fare paying passengers would normally be granted bail unless they were suspected of being involved in a more serious offence, such as people smuggling. If an asylum seeker is charged with illegal departure they will be brought before the closest Magistrate’s Court, but I accept that there may be a brief period of detention for up to two days in an airport holding cell if there are delays in appearing before the Court. Based on the 2019 DFAT Report, while it is accepted that conditions in Sri Lankan prisons are poor, there is no evidence that returning asylum seekers who are detained in an airport holding cell would be mistreated by authorities. Nor is there country information from DFAT or the UK Home Office that suggests Tamils, even where they are failed asylum seekers who have left Sri Lanka illegally, are treated any differently from other Sri Lankans returning from overseas who have left Sri Lanka illegally.

224.   Returning asylum seekers who are charged with illegal departure and plead guilty will be fined and allowed to return to their community. Asylum seekers who plead not guilty would generally be bailed. Bail can involve monthly reporting and persons charged under the I&E Act may appear in court every 3 to 6 months at the location where the offence occurred.

225.   According to DFAT, the Department of the Sri Lankan Attorney General claims, and there appears to be no evidence to the contrary, that no fare paying passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. Fines for returnees who plead guilty may be issued as a deterrent and the fine is usually approximately AUD 122 and AUD 163 which may be paid by instalments, after which time the defendant is free to go.

226.   Most failed Tamil asylum seekers who return home are not actively monitored on an ongoing basis. Bureaucratic inefficiency rather than official discrimination presents the biggest challenge for returning Tamils. It is possible that returnees may face financial difficulties reintegrating into their communities, but they face a low risk of societal discrimination upon return to their communities.

Refugee convention claims

227. In order to meet the refugee criterion under s.36(2)(a), the Tribunal must be satisfied the applicant has a well-founded fear of persecution, namely that there is a real chance the applicant will be persecuted and that this fear of persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion. The persecution must involve serious harm and systemic and discriminatory conduct. As previously noted, serious harm includes threat to life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the capacity to subsist, denial of capacity to earn a livelihood of any kind or denial of access to services such that the person’s capacity to subsist is threatened.

228.   In this case, it is alleged the applicant has a well-founded fear of persecution because of his Tamil ethnicity, because of his imputed political opinion and because he is a failed Tamil asylum seeker who left Sri Lanka illegally. Submissions about these claims are contained in the representations made by the applicant’s former and current representatives dated 28 April and 20 May 2015 and 17 October 2019. These submissions are based on the applicant’s account of what he says happened in Sri Lanka and reference to country information which is said to support the contention that the applicant will face serious, or alternatively, significant harm on his return.

229.   I am not satisfied that in the circumstances of this case that the applicant’s fear that there is a real chance he will face persecution is well-founded.

230.   Firstly, the fact that the applicant is a Tamil does not mean that he will be persecuted. The preponderance of evidence is that Tamils living in Sri Lanka, including in the north where the applicant is likely to return to live and work, do not face excessive monitoring, detention or harassment. There is no official discrimination against Tamils and they can freely participate in political life. Tamils living in the north may face low-level monitoring but I am not satisfied that this could be characterised as serious harm. The main difficulty for Tamils appears to be that there are limited employment opportunities in the Northern and Eastern provinces. The limited employment opportunities are not related to Tamil ethnicity but rather the nature of the work and the lack of industry in these regions. It should be borne in mind that Sri Lanka is an upper middle income country and unemployment rates are relatively low. There is no suggestion that Tamils are unable to subsist, nor is there evidence that there are laws or official policies directed to this.

231.   Secondly, for the reasons already outlined, I am not satisfied the applicant would be perceived by authorities to be a high-profile former LTTE member or even a low level former LTTE participant. I am not satisfied that he will be targeted and monitored on his return, other than possibly low-level routine monitoring when he first moves back to the Northern province. I am not satisfied that the applicant is the subject of a CID watch list or that he has a criminal record or an arrest warrant against him. I am not satisfied that the applicant would be considered by Sri Lankan authorities to have a political opinion or imputed political opinion that would make him the subject of torture, harassment and other forms of persecution. I accept that the applicant was confined to a camp for displaced persons for about six months at the end of the war. It seems he may have been in the wrong place at the wrong time. I also accept that he escaped with the assistance of the shop owner but I am not satisfied that this made him the subject of attention by authorities. Nor am I satisfied on the material before me that the applicant was subjected to questioning of the nature described by him in his evidence. Having regard to the applicant’s profile, I am therefore not satisfied that there is a real chance he will prosecuted or tortured and imprisoned on his return by reason of these matters.

232.   Thirdly, having regard to the most recent country information, I am satisfied that when the applicant is deported, it is likely he will be given some emergency documentation and he will be questioned by both immigration and CID officials at the airport. Because I am not satisfied the applicant has a criminal record, an outstanding arrest warrant or that he is on a CID watch list, I have concluded that it is likely he will either be released or charged under the I & E Act for having left Sri Lanka illegally. According to the country information from both DFAT and the UK Home Office, if the applicant is charged under the I & E Act he would be bailed to subsequently appear before the court. If the applicant is charged and pleads guilty, the relevant country information suggests the applicant will be fined a modest amount, which the applicant would be permitted to pay by instalments. There is no evidence before me that the applicant would be unable to pay a modest fine. He has close connections with his family and he has previously had the support of the shop owner who seems, on the evidence of the applicant, to be a man of means.

233.   The applicant’s representative submits that I should take into account a decision of the former Refugee Review Tribunal,[57] where the member stated that the applicant in that case was “the sort of person” who would be arrested at the airport and accused of people smuggling. I am not bound by previous Tribunal findings but perhaps more relevantly, it should be noted that the case referred to is over 10 years old and relates to different circumstances from the case of the applicant. I have found that the applicant does not have the type of profile where he would be arrested, detained and interrogated at the airport or when he returns to the Northern province because he is a Tamil or because he is imputed to have an association with the LTTE or because he has a record. I accept that the applicant may be questioned and charged under the I & E Act because he departed Sri Lanka illegally but I do not accept this would be persecutory in nature. Notably, the country information from DFAT and the UK Home Office, which I have found to be cogent and authoritative, suggests that failed returning Tamils asylum seekers who return are not treated differently from other returnees who have left illegally. In other words, there is no evidence that the I & E Act is applied in a discriminatory manner towards returning Tamils or returning Tamils that may be perceived as having an association with the LTTE. The applicant may be detained for a brief period before appearing in front of the Court but there is no evidence that he would be treated any differently in this regard from other returning Sri Lankans who have left Sri Lanka illegally. On the material before me, I am satisfied that the I & E Act is applied as a law of general application.

[57] 0902444 [2009] RRTA 1126 (4 December 2009).

234.   Given the applicant’s circumstances and having regard to the material before me, I am satisfied that after any issues regarding the I & E Act are resolved, the applicant will be able to return to either work with his brother-in-law and possibly his brother in the [removed] store or, he will live with his mother in the Eastern province.

235.   There is no claim made that the applicant will face persecution based on mental health issues. For completeness, I note that there is no medical diagnosis or expert evidence of any ongoing mental health condition suffered by the applicant. I am nonetheless prepared to accept the applicant has anxiety that may be exacerbated on his return to Sri Lanka. This does not on its own engage protection obligations, although I note that there is evidence Sri Lanka does have mental health facilities available to treat mental illness.

236. For the reasons outlined above, I am not satisfied that there is a real risk the applicant will be persecuted based on any of the grounds set out in the Refugee Convention. Accordingly, I am not satisfied that the applicant meets the refugee criterion in s. 36(2)(a) of the Act.

Complementary Protection claims

237. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I must consider whether the complementary protection criterion in s.36(2)(aa) is engaged. The claims made are based on the same grounds as those claimed in respect of the refugee criterion.

238. I am not satisfied that the applicant will be tortured or detained in a Sri Lankan prison because of any outstanding warrants for perceived associations with the LTTE or under the PTA but I accept that on his return to Sri Lanka the applicant may be questioned and charged under the I & E Act. I also accept that he may be detained briefly at the airport while waiting to be brought before the Court but I am not satisfied that any treatment that he will experience as a result of this would fall within the definition of “significant harm” as set out in the Act.

239. As already noted, “significant harm” is exhaustively defined in s. 36(2A) of the Act. There is no evidence that, if charged under the I & E Act, the applicant would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment. While I accept that prison conditions in Sri Lanka are generally poor and overcrowded, detention in and of itself does not amount to cruel or inhuman or degrading treatment or punishment. As there is no case law or legislative definitions providing guidance on what is meant by the words “cruel”, “inhuman” and “degrading” treatment, I have taken into account the guidance set out in Procedural Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’. Relevantly those Guidelines provide as follows at [3.4.8.3]:

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

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

…..

If an applicant claims that they face a disproportionately lengthy period of time in prison, this should be considered as a cumulative factor that may render other conditions they will face cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, but may do so if they face a lengthy prison sentence…..

240.   I accept this guidance, which is consistent with the plain meaning of the words. In the circumstances of this case, there is no material before me to suggest that the applicant would face treatment of that is cruel, inhuman or degrading or that there is something particular to his circumstances would make his brief detention of this nature. Furthermore, according to the available country information, DFAT is not aware of detainees at the airport pending court appearances being mistreated. Nor did the UK Home Office report this. The applicant did not provide any country information to the effect that there was or would be such mistreatment.

241.   It is also relevant to note that for harm to amount to torture or inhuman and degrading treatment or punishment, it must be intentionally inflicted by the perpetrator, in this case the Sri Lankan government and authorities at the airport, including CID officials. According to the High Court in SZTAL v Minister for Immigration and Boarder Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, the meaning of intentionally inflicted and intentionally causing requires an actual, subjective intention on the part of the perpetrator to inflict severe pain or suffering. There is no material before me that suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources. As such, the requirement that the treatment be intentional would not be satisfied in this case in any event.

242.   Accordingly, based on the material before me I am not satisfied that there is a real risk the applicant would be subjected to cruel or inhuman or degrading treatment or punishment if he was held on remand at the airport pending his court appearance.

243.   For the reasons outlined above, I am not satisfied 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 he will suffer significant harm.

CONCLUSION

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

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

246. There is no assertion made 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

247.   I affirm the decision not to grant the applicant a Protection visa.

Jan Redfern PSM
Deputy President