1825967 (Refugee)

[2019] AATA 6583

1825967 (Refugee) [2019] AATA 6583 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825967

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:James Silva

DATE:12 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2019 at 1:33pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity – Tamil – religion – Roman Catholic – imputed political opinion and activities – family’s links to Tamil Tigers – visible injury and scarring as civilian during civil war – siblings’ service, death and disappearance – period in internally displaced persons’ camp and army camp – interrogation and beatings – illegal departure – relatives granted protection visas, but one voluntarily returned to home country – fear of harm as failed asylum seeker – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his early [decade] from northern Sri Lanka. He claims to be a citizen of that country.

2. The applicant claims to have left Sri Lanka in July 2012 by boat, without authorisation; he arrived at [an external territory] [in] August 2012 and Christmas Island [two days later in] August 2012.

3. The applicant applied for a Protection (Class XA) visa on 5 December 2012. He attended an interview with the delegate of the Minister for Immigration on 19 August 2013. On 11 October 2013, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal, differently constituted (the ‘first Tribunal’), on 21 August 2015, to give evidence and present arguments. On 25 March 2016, the Tribunal affirmed the decision not to grant the applicant a Protection visa. The applicant applied for judicial review of the decision. The Federal Circuit Court dismissed the application. On further appeal, [in] August 2018, the Federal Court set the Tribunal decision aside and remitted the matter for reconsideration. The Federal Court found that the Tribunal had erred by relying on out-of-date country information that was relevant and material to its decision, without demonstrating an ‘evaluation process’ as to why it relied on that material.

6. This matter is now before the current Tribunal pursuant to the Court’s order. 

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

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is at the attachment to this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

9. The applicant is a Tamil man from northern province, Sri Lanka. He claims to fear that the Sri Lankan authorities, in particular the army and the Criminal Investigations Department (CID) will subject him to persecution or significant harm if he returns to Sri Lanka. This will occur during their processing of him as a failed asylum seeker, and in particular in their prosecution of him for having departed Sri Lanka illegally. They will target him because of his Tamil ethnicity, his past residency in the Vanni (an area previously held by the Liberation Tamil Tigers Eelam (LTTE) during the civil war) and the visible injuries he has from a shelling incident. His Roman Catholic faith and claimed anti-government political activities heighten the risk of him being subject to persecution or significant harm.

   Background

10. The applicant is a [age] year old man from [Location 1], [Town 1], Jaffna, Northern Province.[1] He is a Tamil and a Catholic.

    [1] The name of this location, as recorded in the notes of the Irregular Maritime Arrival Entry Interview, appears unaltered in successive decision records and notes, and the Tribunal uses it in this decision. The Tribunal has been unable to find a location with this exact name. Allowing for variations in Tamil pronunciation and transliteration into English, it appears to be [Alternative spelling 1] or [spelling 2], in the small town of [Town 1] (also known as [alternative name]). The applicant’s description of its location compared to nearby towns and villages confirms this.

11. The applicant lived in [Location 1] until 1996. He attended a Catholic school there until [year], completing Year [Number]. From 1996 to 2012, he mainly worked as a fisherman. After the tsunami in 2005, [an organisation] provided him with a fishing boat. Before his departure for Australia, he also did casual work, as a labourer.

12. The applicant and his family left [Location 1] in 1996, due to the ongoing conflict, and moved to [the Vanni], where he stayed until 2009. He later lived in the military-run IDP camp [Name] in [Location 2] (2009-2010). From 2010, he lived in [Location 3] (a housing scheme), in [Town 2] (near [Town 3]) until his departure from Sri Lanka in 2012. According to Google Maps, [Town 2] ([Town 3]) is some 25km to the north of [Location 1].

13. The applicant is married, with [a number of children]. His wife is originally from [Town 4], north of Jaffna city. His wife and children lived in [Town 2] until about two years ago, and have now returned to [Town 4], about 20 km to the west. The applicant said that they have been given a house there; he mentioned both the UNHCR and the government as having provided it. The applicant is in contact with them via [social media]. The oldest boy is [age] years old, and currently studying his O Levels, and hopes to complete his A levels next year. The applicant said at hearing that his older son plans to open a hair salon or laundry in the future (the applicant linked this with his fears of being targeted, and unable to support his family, if he returns to Sri Lanka). The applicant said that his wife is currently doing manual labour, as he has been unable to remit money to them for the past two years.

14. The applicant’s father and siblings are in Sri Lanka. His father is now in his late [decade] and, according to the applicant, in poor health. His mother died in the 2005 tsunami. In his protection visa application, the applicant named [a number of] siblings, born between [year] and [year]. These include three brothers. One, born in [year], was killed during the war; and another, born in [year], has been missing since [year]. A third brother, [number] years older than the applicant, lives in [Village 1], about 5 km to the east of [Town 2]. Before the current Tribunal, the applicant claimed that he had [one more] sibling, a sister named [Ms A] who was born in [year] and died in [year].

15. The applicant travelled from Sri Lanka to [an external territory], from where he was transferred to Christmas Island. He travelled together with two brothers-in-law (his wife’s brothers). The applicant advised that the two brothers-in-law have received protection in Australia, although one has since returned to Sri Lanka for family reasons. He indicated on his protection visa application form that another brother-in-law is living in [one Australian city], and that a sister-in-law is married and settled in [another Australian city].

16. The applicant said that in Australia he does not have permission to work (or at least is unable to show a visa that satisfies employers); that he suffers some health problems ([details deleted]); and that employers are unwilling to give him work due to his [injury] and other health issues. He lives in a share house with other asylum seekers, and relies on assistance from charity groups.  

    Evidence

17. The evidence before the Tribunal includes the following relevant material: -

    §Notes from the applicant’s Irregular Maritime Arrival Entry Interview [in] September 2012.

    §The applicant’s protection visa application form lodged on 5 December 2012, attached to which was a statement of claims dated 30 November 2012.

    §Documents relating to the applicant’s identity, nationality and family (for the most part untranslated, but annotated).

    -Birth certificate, national ID card, marriage certificate, drivers licence (issued in February/March 2012).

    -Birth certificates for wife and children, family portrait.

    -Death certificates for mother and brother, with translations provided to the first Tribunal. The latter shows that the brother died [in] March 2009.

    §Documents relating to the applicant’s protection claims:

    -Medical record of injury suffered in shell blast in August 2006, prepared in May 2010 for the purpose of the applicant receiving assistance from the Ministry of Rehabilitation and Reconstruction. It indicates that the applicant suffered injuries from a shell blast on [a date in] August 2006.

    -Letter confirming that the applicant was in an army refugee camp.

    -Family ration card for displaced persons.

    -Letter from the applicant’s wife to the Divisional Secretary, dated [August] 2012.

    -General letter of support from [a] Fishermen’s Cooperative, dated [October] 2012.

    §A Protection visa interview (‘Department interview’) held on 19 August 2013.

    §The delegate’s protection visa application (‘delegate’s decision record)’ of 11 October 2013.

    §The application for review, dated 18 October 2013, attached to which is a copy of the delegate’s decision record.

    First Tribunal

    §Further supporting documents to the first Tribunal:

    -Affidavit from the applicant’s wife, dated 2 March 2014.

    -Translations of some documents previously provided without translation.

    -Australian medical reports (xrays) addressing the applicant’s injuries.

    §Post-hearing submission to the first Tribunal, 4 May 2015, accompanied by a statement from the applicant.

    Current Tribunal

    §Further statement from the applicant, dated 22 August 2019, which appears to be combined with a submission from his representative. The statement refers to documents that were previously submitted. It includes a range of country information, mostly press articles concerning violence against Catholics in Sri Lanka. It includes new information about a further sister who had been an LTTE [officer], and was killed in June 2000.

18. The applicant appeared before the current Tribunal on 25 September 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. [Name deleted], a registered migration agent, is the applicant’s representative and authorised recipient. He did not attend the hearing.

19. The Tribunal has had regard to country information, including from the delegate’s decision, references in the applicant’s submissions and other sources. In accordance with Ministerial Direction No. 84, the Tribunal discussed at hearing and has taken into account the Department of Foreign Affairs and Trade (DFAT) Sri Lanka Country Information Report. At hearing on 25 September 2019, the Tribunal drew on the report issued on 23 May 2018. Following the release of an updated report on 4 November 2019, the Tribunal wrote to the applicant to bring this to his attention. It noted that the report was broadly consistent with information discussed at hearing, in particular on the treatment of Tamils, security conditions in the North-East and the treatment of returnees, although there was updated information on the general security situation following the Easter Sunday terrorist attacks. The applicant advised, through his representative, that he did not wish to make any further submissions or raise any new issues in light of the new report. (The Tribunal refers to these as the May 2018 DFAT report and the November 2019 DFAT report.)

    Country of reference and receiving country

20. The applicant claims to be a Sri Lankan national. Although he does not hold a Sri Lankan passport, he presented copies of his Sri Lankan birth certificate, identity card and other documents; he speaks Tamil; and he has shown his familiarity with that country. The Tribunal assesses the applicant’s refugee claims against Sri Lanka as the country of reference, and his eligibility for complementary protection against Sri Lanka as the receiving country.

    Credibility

21. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The following factors are potentially relevant.

    §  The applicant and his representative have, at various times, claimed that at the entry interview he was told to keep his answers brief; that he was not sure what he had to disclose; that he is generally unfamiliar with migration processes and interviews; that he has a general fear of the authorities that may have influenced his dealings with Australian officials; and that he failed to disclose some information about his family’s links with the LTTE, for fear that the Australian authorities would view it negatively.    

    §  An issue of concern in this review has been the chronology, or even sequence of events, in the applicant’s accounts. The applicant commented at the most recent hearing that he now cannot recall some information. The Tribunal appreciates the difficulty applicants may face in providing successive accounts over a period of years, especially in trying to clarify discrepancies. It is also conscious that there is also a risk that advisors’ efforts to record applicants’ claims in statements, sometimes prepared in short timeframes, may not capture the details or nuances that become relevant in later discussions.

    §  The applicant was educated to Year [number], and has worked only in the informal sector. He does not appear to have strong presentational skills, and, as noted above, his representative did not accompany him to the hearing.

    §  Also, the Tribunal gained the impression that the applicant’s prolonged separation from his family and his limited integration into the Australian community have weighed heavily on him. He added that his [injuries] have reduced his prospects of employment, in Australia and (prospectively) in Sri Lanka. He expressed disappointment with not having been granted protection in Australia when other Sri Lankans, some of whom relied on less severe scarring as part of their protection claims, had succeeded.

22. The Tribunal does not necessarily accept all of these factors at face value, or that they adequately address problematic aspects of his claims. Overall, the Tribunal has significant concerns about the applicant’s account of his experiences in Sri Lanka, particularly his activities between his release from the military-run IDP camp in early 2010 and his departure from Sri Lanka in 2012 (and specifically, the period in which he was allegedly in hiding); as well as his recent claims that certain family members were LTTE members. Its full assessment is below.  

    Experiences during the civil war  

23. Sri Lanka’s civil war started with the Liberation Tigers of Tamil Eelam’s (LTTE, Tamil Tigers) armed insurgency in 1983. The LTTE established and maintained de facto control of Tamil-populated areas in the north and east, and engaged in a civil war that ended in May 2009, costing about 100,000 lives and the displacement of more than 900,000 people.[2] Against this background, the Tribunal accepts the applicant’s account of his family’s move from [Location 1] in 1996, when they were displaced to [Town 2]. One brother went to [Village 1], a coastal village about 23km to the north of [Location 1] (and 5 km from [Town 2], the applicant’s most recent place of residence), where he continues to live.

    [2] See November 2019 DFAT report, para. 2,2. The May 2018 DFAT report summarises the conflict in similar terms, albeit without statistics.

24. The Tribunal also accepts that the applicant’s mother was killed in the 2004 tsunami (she passed away in early 2005).

    Shelling injury in 2006

25. The applicant claims to have suffered [injuries] ([details deleted]) and to [other parts], during a shelling in 2006. He presented a medical report dated [May] 2010, confirming that the shelling occurred [in] August 2006. It is a pro forma for the Ministry of Rehabilitation and Reconstruction, recommending that the applicant receive compensation for loss of 20 per cent of his earning capacity.[3] The Tribunal accepts that the applicant was injured as a result of shelling, and that he has visible wounds.

    [3] The applicant wrote on Form 866B that he received a one-off government payment of [amount] ‘for disability sustained as a result of shelling,’ although he told the first Tribunal that he did not submit any application and never received any compensation. The Tribunal does not consider the issue of whether or not he obtained compensation to the material to this decision.

    Other incidents during the war

26. The Tribunal accepts that the applicant and his family were displaced during the war, and that it had a measurable physical and emotional impact on their wellbeing.

27. Disappearance of brother in 2007: The applicant has consistently claimed that a younger brother ([Mr C], born in [year]) disappeared in 2007, after leaving for work one day. He told the first Tribunal that his family sought assistance from the ICRC[4] and UNHCR[5], to no avail. At the recent hearing, he responded less certainly that family members had made enquiries and even protested. To date, there has been no word. The Tribunal accepts, on the basis that it is plausible and consistent with general information about the war, that the applicant’s brother disappeared in 2007.

    [4] International Committee of the Red Cross

    [5] United Nationals High Commissioner for Refugees

28. Death of brother in 2009: The applicant claimed that an older brother ([Mr C], born in [year]) was killed in a shelling incident [in] March 2009. The applicant submitted a copy of the death certificate, and the death is mentioned in the wife’s affidavit. The Tribunal accepts that this older brother died during the conflict.

29. According to the applicant’s original statement of claims, he and [Mr C] had been hiding in a bunker. His brother was standing just 15 metres from the applicant when he was hit by a shell; he died the following day in hospital. The family fled the area about five days later (hence, around [a date in] March 2009). The applicant confirmed this claim at the recent Tribunal hearing, and said that his brother had been a civilian.

30. In a statutory declaration dated 7 May 2015, sent to the first Tribunal following the hearing, the applicant wrote that this brother had been a [Rank] in the LTTE, and was in fact killed in combat in 2009. He wrote that he and his family had lied about the cause of death, as the Sri Lankan authorities would have only issued documents referring to a ‘shelling incident’; and the family had been afraid of ‘negative repercussions’ if they had revealed the real circumstances of the death. He went on to state that he had also feared the Australian authorities would treat him unfavourably (implicitly, he may receive an adverse security assessment) and that his family might also suffer if he disclosed this information in Australia. The applicant’s pre-hearing submission of 22 August 2019, to the current Tribunal, also makes passing reference to this brother’s LTTE membership. However, at the most recent hearing, the applicant said that he had no recollection of this claim, as the first review took place ‘a long time ago’.

1. The Tribunal accepts that this brother was killed by shelling in March 2009, as stated in his original application and at both Tribunal hearings. It prefers the applicant’s evidence to the Department and at the most recent hearing, and the implication in his wife’s affidavit, namely that this brother was a civilian. It rejects the claim in the statutory declaration of 7 May 2015 and the submission of 22 August 2019 that he was a [Rank] in the LTTE and was killed in combat. The Tribunal is not satisfied that the applicant’s inconsistent evidence is attributable to confusion or fear of the consequences of revealing the brother’s LTTE membership, given his most recent claim that he in fact had a sister who was an LTTE officer. Rather, the Tribunal considers that these discrepancies raise questions about the credibility of these claims.

2. Death of a sister in 2000: The applicant claimed for the first time in the submission of 22 August 2019 that another sibling - an older sister, [Ms A], born [in year] – had served in the LTTE for about eight or nine years, and was killed in 2000. He presented a printout of what looks to be a collage in the form of a LTTE tribute, with untranslated text in Tamil, showing the image of a woman and some symbols suggesting that she is considered an LTTE martyr. There is no other documentation relating to this sister.

3. The applicant wrote that the solicitor representing him during the first review had omitted mention of this sister in his statutory declaration of 7 May 2015, as he did not have documentary evidence to support the claim. He claimed that he spoke about this sister, her LTTE membership and her death at hearing before the first Tribunal, and was surprised that the first Tribunal’s decision made no mention of it. The Tribunal has listened to the audio recording and found no reference to such a person. At hearing in September 2019, the Tribunal asked the applicant why he had not listed any sister born in [year] in his protection visa application, despite listing other brothers and sisters, both alive and dead. In reply, he said that he has no documents relating to [Ms A], as they were destroyed during the tsunami. He also suggested that, when he listed family members on his application form, he had meant to indicate that there were eight siblings plus him, in other words a total of nine children, rather than eight. The Tribunal finds these explanations unpersuasive. Also, both the provenance and relevance to the applicant of the image of a female LTTE combatant are unclear. The Tribunal does not accept that the applicant had a sister named [Ms A] who died in 2000; or that she was a [Rank] in the LTTE.

4. In sum, the Tribunal accepts that the applicant and his family were displaced during the war; that the applicant suffered serious wounds [from] a shelling; that one brother was killed; and that another went missing. The Tribunal rejects the claims that the applicant’s deceased brother was an LTTE [Rank] killed in combat; that he had an older sister who was an LTTE [Rank], similarly killed in combat’; and that he is, as a consequence, ‘a member of an LTTE martyr family’[6]. It does not accept that the applicant had any direct relatives who were LTTE officers or cadres.

   [6] As stated in the submission of 22 August 2019

   Surrender to the authorities  

5. The applicant claims that from about 1996, he had been working as a fisherman in the [Town 2] area. About five days after his brother was killed, in March 2009, his family fled the area by sailing from [Town 2] to [Town 3], in a flotilla of some 30 to 40 boats. They surrendered to the Sri Lankan Navy.

6. The applicant told the first Tribunal that he and family members – including his father and siblings - boarded his brother-in-law’s boat. They headed to [Town 3] on the Jaffna Peninsula, where they surrendered to the Sri Lankan Army. They were initially held in a camp where the military photographed and videoed them, and gave them food. The following day, the military transported them by bus to the SLA camp in [Location 2], where they lived for about the next ten months.

7. The Tribunal accepts the applicant’s account of his family’s flight from [Town 2] to [Town 3] by boat; their surrender to the Sri Lankan military; and the military’s processing of them.

   Life in the military-run IDP camp, 2009-2010

8. The applicant has consistently claimed that he and his family remained in the [Name] camp for the best part of a year, although his estimates have varied between about five months and 12 months. It appears that they were released in early 2010.

9. In the camp, the applicant and all residents there were questioned, in particular about their involvement with the LTTE. The applicant claims that his injuries aroused the authorities’ suspicions, and CID officers interviewed him two or three times, several hours each time. They asked about his activities in the Vanni, and the reasons for his (and his family’s) surrender at that particular time. He told them that they had been unable to travel earlier, but they were eventually forced to leave when conditions became intolerable. He said that he was not beaten in the camp, but they started questioning him more intensively because of his injuries. In response, he explained to CID the cause of his injury, and presented a medical report[7]. The applicant confirmed at the most recent hearing that he was able to satisfy the military that he had been a civilian victim, and not a combatant. But, he added, they remained ‘100 per cent suspicious’ of him.

   [7] This is presumably not the medical record of May 2010, which was prepared following the applicant’s release from the camp, for the purpose of obtaining compensation.

10. The applicant said that they did not ask about his missing brother. The family had already reported his disappearance to ICRC and UNHCR, while living in the Vanni.

11. The Tribunal accepts the applicant’s account of his experiences in [Name] IDP camp, including that his injuries prompted the CID to question him in some detail. The Tribunal notes country information that the Sri Lankan Government managed a large-scale rehabilitation process for former LTTE members after the war.[8] It considers that the applicant’s continued stay in the IDP camp, and his eventual release in early 2010, along with other family members, are strong indicators that the CID and Sri Lankan Army had satisfied themselves that he had not been a LTTE cadre or combatant.

    [8] See for instance, November 2019 DFAT Report, para. 3.61.

12. Given that the applicant’s brother died [in] March 2009; that the family fled [Town 2] about five days later; and that the estimated period in [Name] IDP camp was about a year, the Tribunal finds that the applicant and his family left the camp in early 2010, most likely sometime in the period between January and March 2010.   

    Move to [Town 2]: CID and Army enquiries

13. On their release from the IDP camp, the applicant and his immediate family (wife and children) went to [Town 2], where his wife’s family had already settled from [Town 4], which is to the north of Jaffna city. Meanwhile, his father and sisters returned to their home village in [Location 1], some 25-30 km to the South.

14. The applicant’s wife’s family had been regularly visiting them in the IDP camp, and arranged for a bus to transport the applicant and his family to [Town 2].

15. The applicant said that he had abandoned his boat in [Town 2] in 2009, but managed to get it back in 2010. It appears that, after he had left [Town 2], some people had sailed the boat to [Town 3]. The applicant came across it there and, with the help of the fishermen’s cooperative and some witnesses, was able to repossessit.

16. The applicant wrote in his original statement of claims that he (and his family) had to register with the authorities in [Town 2], and they did so about three months after leaving the camp. The applicant has consistently claimed that he had to register with the local authorities, and also with the army; that the CID took a particular interest in him because of his visible injuries (and as a Tamil male who have lived in [Town 2], the Vanni); and that they took him to the [Name] army camp for interrogation, where they physically mistreated him.

17. Accounts of these events have varied somewhat over time, particularly in relation to the timeline and sequence of events.

    §  In his original statement, the applicant wrote that he registered with the army about three months after their arrival in [Town 2] (hence, in around June 2010). A month later (July), the CID came to their home and verified the registration details; they questioned the applicant about his involvement in the LTTE (implicitly, at his home).

    -   In July, the same men took the applicant to the [Name] army camp one morning for interrogation. They quizzed him about his injuries and whether he had been in the LTTE. They whipped him with electrical cables, on his head and body; and threatened to shoot him. They were trying to force him to confess to something. They released him in the evening, after forcing him to sign some papers in Sinhalese. They warned him to stay in the area. The applicant’s wife and relatives were outside, crying; they took the applicant to hospital for treatment.

    -   The same men took the applicant to the camp again in August and September and quizzed him, but did not beat him on those occasions.

    -   Scared, the applicant went into hiding, between [Town 2] and [Location 1], and also staying with his brother in [Village 1].

    §  As noted in the delegate’s decision record, a copy of which the applicant attached to his application for review, he stated at interview that he was taken to an army camp several times, interrogated and subjected to torture. He was ordered to report to the army camp monthly, sometimes weekly. He was also forced to sign papers in Sinhalese. His wife took him to the hospital after his release.

    §  Before the first Tribunal, the applicant said that the CID first took him in for interrogation about a month after his arrival in [Town 2]. He initially said that he was in hiding the whole time, but later said he went into hiding only after the third interrogation. He outlined three interrogations at the army camp.

    -   Some two to three months after his arrival in [Town 2], Army personnel came and took him by motorbike to the camp. They held him there for two to three hours, before releasing him.

    -   Some three months or so later, they again took him to the camp, questioned him for three or four hours, and hit him with a cable, two or three times. They also threatened him with a pipe. They ordered him to report regularly, and ‘sign in’.

    -   Another two months or so later, they collected him from home a third time. The detention, interrogation and beating took place again; this time, they also kicked him. They released him, ordering him to sign in once a month. (The applicant implied that it was this third occasion, rather than the second, that the CID ordered him to report in regularly.)  

    §  The applicant told the current Tribunal that he could no longer recall the details of his interactions with the Army and CID during this period. He said that the first time, they came to his home and left a message for him to attend the camp. He complied. Once there, they questioned and released him, without incident. On the second occasion, they took him from home to the camp, interrogated him about any LTTE links, and struck him on the head with cables. He suffers headaches as a result of this beating. Similarly, on the third occasion, they interrogated and assaulted him. The applicant said that he was able to resume work as a fisherman, but his injuries from the beatings made his work more difficult.

18. The applicant’s narratives over time bear many similarities. While the Tribunal acknowledges that it would be unreasonable to examine such accounts with forensic detail, particularly when it involves allegations of severe beatings, there is a marked contrast between his initial written claims (of an assault on the first occasion, and later interrogations) and his more recent oral evidence. Asked about these apparent discrepancies at the most recent Tribunal hearing, the applicant said that his memory is now not good.

19. The Tribunal also asked the applicant whether he had needed any hospital treatment following his interrogations. He replied vaguely that he cannot remember; he thinks he might have just needed painkillers. Again, while the Tribunal does not expect the applicant to provide a detail account, it is concerned that he did not appear to engage with the questions concerning what if any injuries he suffered, and whether or not his family took him to the hospital for treatment.

20. The Tribunal accepts, taking into account country information about the Sri Lankan authorities’ efforts to identify LTTE combatants, that the applicant attracted scrutiny when he registered with the military authorities in [Town 3], and that they questioned him about any past involvement with the LTTE. While he may have been drawing to some extent on such exchanges, he struggled to provide a coherent, persuasive account of the alleged beatings and threats. The Tribunal formed the impression that he was not speaking from personal experience, but rather drawing on third party accounts and his imagination. As a result, it has significant concerns about the reliability of the claimed interrogations and harm.

    Period in hiding and departure

21. As noted above, the applicant claimed in his protection visa application that during his third visit to the army camp, he had to sign papers in Sinhalese and promise to stay in the area. At the Department interview, he added in that he was told he had to report to the army camp, monthly and sometimes weekly.

22. The applicant claimed that he decided to go into hiding rather than comply with the reporting requirements and risk further mistreatment. As he put it to the first Tribunal, he was worried that sooner or later – perhaps after ten visits to the army camp to sign on – he would find himself in trouble, and be abducted.

23. The Tribunal has a number of concerns about the applicant’s claim to have been in hiding up to his departure from Sri Lanka in July 2012, and hence whether he remained a person of interest to the Sri Lankan authorities after his initial registration and questioning in [Town 2] and at the army camp.

24. First, the applicant has been uncertain about the actual period he spent in hiding. At the most recent hearing, he stated vaguely that he was in hiding for about two or three months, although he seemed to qualify this by adding that is how long he stayed with his older brother, implying that he may have also spent other periods elsewhere. Asked whether any important family dates could help him identify the period, he replied that his wife told him that the youngest child was [age]. According to his protection visa application, his youngest child was born in [month year]. This suggests that the applicant was referring to the date of his departure from Sri Lanka, rather than directly addressing how long he remained in hiding.

25. The Tribunal has accepted above that the applicant and his family left the Vanni in March 2009, and that they were in [Name] IDP (refugee) camp until early 2010, when they moved to [Town 2]. The applicant’s timeline of claimed events in [Town 2] – his registration with the local and military authorities, and the three incidents in which he was questioned and, allegedly abused – is also unclear, but appears to involve a period of up to ten months. On this version of events, he would have been in hiding for about 18 months, from about late 2010 until July 2012. In the Tribunal’s view, the applicant’s uncertainty about how long he was in hiding – for instance, even by reference to family or annual events – casts doubt over this claim.

26. Second, the applicant claims to have been hiding between his home village of [Location 1], his brother’s home in [Village 1]; and his own home in [Town 2] during this period. He also mentioned to the current Tribunal that he stayed with a friend. At face value, these stays – mainly with family members and/or relatively close to [Town 2] – do not suggest that he was in hiding from the Sri Lankan authorities.

27. Third, the applicant’s account of his activities whilst in hiding was vague and changeable.  He wrote on his application form that he worked as a fisherman from March 2010 to August 2012, and that he undertook casual labour from March 2012 to August 2012. He told the first Tribunal that he used to fish for about one day a week, and he or his wife used to sell the fish at an (informal) market near the beach. However, his more recent evidence was that he used to work with his brother in [Village 1], doing odd jobs; and that he used to send money to his family via his brother.

28. The applicant’s ownership of a boat, and whether he used it for fishing while supposedly in hiding, adds to the Tribunal’s doubts. He claimed that after abandoning the boat in [Town 2] in 2009, he located it again in [Town 3] ([Town 2]) in early 2010, and managed to get it back with the support of the fishermen’s cooperative and witnesses. Asked recently whether he undertook fishing activities in his own boat, the applicant replied obliquely that he used to work with his brother in [Village 1]. He claimed to have used his own boat for only a week or so, as he was under pressure from the authorities. Nonetheless, his evidence to the Tribunal that his wife sold his boat to help fund his travel to Australia indicates that he kept possession of it up to his departure from Sri Lanka. The Tribunal notes that the applicant also presented a driver’s licence issued by the Department of Motor Traffic in February or March 2012, although the applicant told the first Tribunal that he had applied for the licence after his release in early 2010, and it had not been issued till much later.  

29. In the Tribunal’s view, the applicant’s uncertain, changeable account of this period raises broad questions, first about whether he was in hiding, and second, about the events leading up to that, such as ongoing or recurrent Army/ CID monitoring, detention, interrogation and/or physical abuse, or any related threats.

30. Finally, the Tribunal considers the Sri Lankan authorities’ failure to place the applicant in a rehabilitation centre in 2009, or detain him as a suspected LTTE cadre, or subject him to more rigorous monitoring, indicates that he was not a person of interest to them. The two most recent DFAT reports[9] state: ‘Towards the end of the war, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government activity.’ The reports also note that ‘[t]he [Sri Lankan] government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement with the LTTE, period of involvement and activities’.

    [9] May 2018 DFAT Report, at paras 3.36 and 3.47; and November 2019 DFAT Report, at paras 3.56 and 3.70.

31. The Tribunal accepts that the applicant was questioned, in both [Name] IDP camp and after registering in [Town 2], and it accepts that he may also have been monitored for some period. It also accepts that his age, gender, Tamil ethnicity, his past residency in the Vanni and in particular, his physical injuries made him a person of initial interest to the authorities.

32. However, the authorities’ placement of him into an IDP camp (rather than a rehabilitation camp), his release in early 2010, and his further release after questioning by Army and CID personnel in [Name army camp] all indicate that he had been able to explain his activities, movements and physical injuries, supported by the medical report, such that the authorities did not impute to him LTTE membership or affiliation of any kind. At hearing, the applicant stated that the authorities were ‘100 per cent suspicious’ about him, and the fact that everyone knew about his sister’s LTTE membership reinforced their concerns. The Tribunal finds these assertions unconvincing, and in relation to the sister, untruthful. In light of this analysis, the Tribunal does not accept that the Sri Lankan authorities regarded the applicant as a person of ongoing adverse interest (including as a suspected LTTE member or sympathiser or through any family links, to siblings or his wife’s family); that he was physically abused or threatened in [Town 2]; or that he went into hiding after being ordered to report regularly to the military authorities.

    Departure from Sri Lanka

1. The applicant departed Sri Lanka by boat, without travel documentation or permission. He gave the current Tribunal some information on how he funded the travel. For instance, his wife sold his boat; the family pawned some of the children’s jewellery; and they took out a loan, which he said has now been paid off. As noted elsewhere, he travelled to Australia with two brothers-in-law, both of whom were granted protection in Australia. One of these has since returned to Sri Lanka, for family reasons.

2. The Tribunal accepts that the applicant departed Sri Lanka illegally, in contravention of the Immigrants and Emigrants Act 1948. The departure arrangements do not of themselves offer insight as to the reasons why he left the country. The Tribunal has rejected above the applicant’s claims that he had been in hiding for the previous 18 months or so; and, taking into account the above findings, it does not accept that he fled imminent danger. It accepts, however, that he has more general concerns about the Sri Lankan authorities’ historical and ongoing treatment of the Tamil population. It also accepts that the applicant’s uncertainty about his community’s and his family’s economic and security outlook may have informed his decision to join his brothers-in-law in seeking to establish himself in Australia.  

   Political activities

3. The applicant claimed before the first Tribunal that he had attended anti-government political protests on two occasions, raising flags on Martyr’s Day. He claimed that he had forgotten to mention this to the Department. At the recent hearing, he said that he attended flag-raising ceremonies in the Vanni ([Town 2]) and in Jaffna. He believed that people had informed on him (and others). Asked why he did not mention this to the Department, he replied that he was concerned that such a claim could create more problems (which the Tribunal took to mean that he worried the Australian authorities might view political activists unfavourably), and his lawyer had reassured him that he could present further claims later. The applicant has no photographs or other evidence to support his claimed attendance at these political events.

4. At hearing, the applicant said that he has not participated in any political activities in Australia. In response to the Tribunal’s follow-up question about on-line activities, he briefly said that he has shared photographs and commented on protests in Australia and other countries, but did not elaborate or offer any examples of such materials.

5. The Tribunal does not accept that the applicant has any past involvement in political activities, including Tamil protests in Sri Lanka (the Vanni or Jaffna). It takes into account, among other things, his failure to present any such claim to the Department; his uncertain, unpersuasive explanations for such omissions; and the absence of any indication that he has a political opinion or conviction (beyond a general view that the Tamil minority has been poorly treated in Sri Lanka). The Tribunal also does not accept that the Sri Lankan authorities perceive him to be a political activist.

   Events following the applicant’s departure

6. The applicant told the first and current Tribunals that his wife and children are worried about him, but the authorities have not bothered them. Nonetheless, they live in great uncertainty.

7. Towards the end of the most recent hearing, the applicant claimed that officials came to his home in [Town 2] once or twice, asking after him and threatening to kill him if they saw him. The applicant’s wife told them, for her safety, that the couple have separated. The Tribunal prefers the applicant’s earlier evidence, taking into account its findings above that he did not have an adverse profile with the Sri Lankan authorities. It does not accept that the authorities have come looking for him.

   Family links

8. The applicant said that one brother continues to live in [Village 1]. He said that this brother did not accompany the family to [Town 2] in 1996, but instead settled on the coast and has a family there.  (The Tribunal notes that the brother would have been around [age] years old at the time of the family’s move to the Vanni.) As a result, the brother has not faced the same problems as other family members.

9. The applicant claims that one of his wife’s brothers was a member of the LTTE, and that the applicant was once questioned about him. Two brothers-in-law who accompanied the applicant to Australia with him were granted protection in Australia, although the applicant has not provided details or supporting evidence concerning their claims. He said that one of them has returned to Sri Lanka. Apart from being fined for his illegal departure, the applicant gave no insights as to this brother-in-law being subject to any other adverse attention. The Tribunal proceeds on the basis that one brother-in-law may have been in the LTTE; but it does not accept that the Sri Lankan authorities – including those in [Town 2] or [Town 4], where his in-laws have lived – have formed an adverse view of the applicant as a result of his marriage into that family, or his activities with them.

   ASSESSMENT: REFUGEE CRITERION

10. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Sri Lanka, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

11. The Tribunal does not have a single comprehensive, updated summary of the applicant’s protection claims. They have emerged piecemeal, and tend to overlap. The Tribunal’s summary of these is.

    §  A key claim is that the Sri Lankan authorities will subject him to serious harm as a failed asylum seeker, and in particular because he departed the country illegally and faces prosecution under the Immigrants and Emigrants (I&E) Act 1948.

    §  The applicant claims that if he returns to Sri Lanka, the Army and CID will detain, assault, torture and perhaps kill him, as a Sri Lankan Tamil male and a person suspected of having been worked for the LTTE. He claims that his visible injuries put him at particular risk. His past residency in the Vanni, his dealings with the Sri Lankan authorities; his involvement in protest activities in the Vanni and Jaffna;  and his association with the LTTE through his family and his in-laws, all add to his adverse profile.

    §  The applicant also claimed that, in the wake of the Easter Sunday terrorist bombings, he will feel unable to practice his Catholic faith freely.

    §  The applicant referred to his reduced employment prospects, in both Australia and Sri Lanka, due to his [injury].

    §  The applicant has presented these claims as based on the Convention grounds of face (Tamil ethnicity), political opinion (imputed LTTE supporter/anti-government), and various putative particular social groups, based on attributes such as his Tamil ethnicity, past residency in the Vanni, physical injuries, as a failed asylum seeker, and as a person who departed the country illegally).

12. At the recent hearing, the applicant said that one of his brothers-in-law who had been granted protection in Australia returned to Sri Lanka in 2015, due to family problems. The applicant did not know about the brother-in-law’s protection claims, but had some information about his processing on his return to Sri Lanka in light of his illegal departure. The applicant did not know the extent of any overlap in their claims (aside from their Tamil identity and illegal departure), but emphasised that his (the applicant’s) physical injuries distinguish him from his in-laws, and put him at greater risk.

13. The applicant stressed at hearing the risks he would face if he returned to Sri Lanka, and only indirectly gave some insight into his likely future conduct. He said that about two years ago, his wife returned to her original hometown, [Town 4], and he expects that he would join her and the children there, or in a nearby part of the Jaffna Peninsula.  

    Tamil ethnicity and background

14. The applicant claims that he is at risk of serious harm, as a male Tamil who has lived in Northern Province and in the Vanni. At hearing, he said that the Sri Lankan authorities want to eliminate Tamils, and that he has experienced this firsthand since 1996 (when his family left [Location 1]). Tamils, he asserted, have no permanent place to live in Sri Lanka, and their lives are at risk.

15. The applicant acknowledged that Tamils are the largest group in Northern Province; they comprise 93.8 per cent of the population. The Tribunal put to him DFAT’s assessment[10] that Tamils face a low risk of official and societal discrimination (as do Sri Lankans of all backgrounds), and that, broadly speaking, this did not appear to amount to a real chance of serious harm. As noted in the first Tribunal’s decision, the 2012 UNHCR Eligibility Guidelines for Sri Lanka[11] recommended individualised merits assessments for Sri Lankan asylum seekers, and identified certain risk profiles, such as persons suspected of having links with the LTTE, as requiring careful assessment. This is consistent with current country information indicating that Tamil males from the north and east do not automatically have a well-founded fear of persecution. The applicant’s advice that his brother lives in [Village 1] without significant problems, and that a brother-in-law returned to Sri Lanka, without reports of persecutory (or similar) harm, tends to support this.

    [10] The DFAT reports from May 2018 and November 2019 are consistent on these points.

    [11] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

16. At hearing, the applicant noted that the Easter Sunday bombings took place under the current government, and suggested a parallel with Tamil deaths during the war. The pre-hearing submission of 22 August 2019 echoes this. It includes excerpts of articles from 2018 about the projected return of former president Mahinda Rajapaksa, and the potential impact on investigations into past human rights abuses. More recently, the recent election victory of Mahinda’s brother, Gotabaya Rajapaksa, who was sworn in as president on 18 November 2019, reinforces the point made in the submissions. As the BBC recently noted[12]: Mr Rajapaksa, who has positioned himself as a strong figure who can assure Sri Lankans' security, is a highly controversial figure among the country's more than two million Tamils. He and his brother Mahinda Rajapaksa, the former president, spearheaded the defeat of separatist Tamil Tiger rebels in 2009, ending a decades-long war in which at least 100,000 people died.’ The Tribunal appreciates that the Rajapaksas’ stridently pro-Sinhalese campaigns and their track records of dealing harshly with political opponents and journalists, have unsettled Sri Lanka’s minorities, particularly Muslims, but also Tamils and others. However, the Tribunal is not satisfied on the basis of this general country information that the applicant, as a Tamil, faces a real chance of being subject to serious harm amounting to persecution.

    [12] BBC On-line, 17 November 2019, Sri Lanka election: Wartime defence chief Rajapaksa wins presidency:

17. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of his Tamil ethnicity and other relevant factors (such as being a Tamil man from the north, who has also lived in the Vanni).

    Discrimination – Physical injuries

18. The applicant also mentioned at hearing that his [injury] also reduces his ability to find work in Sri Lanka and, incidentally, also in Australia.

19. The Tribunal accepts that Sri Lankan medical experts assessed the applicant in May 2010 as having a 20 per cent reduction in his earning capacity as a result of his disability, in the course of assessing his eligibility for compensation.[13] By the applicant’s own account, he worked for various periods after 2006 as a fisherman and a casual labourer, in the informal sector, and mostly with family members. He claimed not to be working in Australia, although the Tribunal found his evidence about his activities here to be brief and uninformative, and has doubts about its reliability.

    [13] For the purpose of this decision, it is not necessary for the Tribunal to determine whether or not he in fact received compensation.

20. Looking ahead to his prospects if he were to return to Sri Lanka, the Tribunal accepts that the applicant would be likely to resume work as a fisherman or labourer, with extended family or his in-laws. It accepts that his physical injuries affect his productivity and, if he were to seek employment on the open labour market, his job prospects. It is also possible that other factors, such as his age, fitness and/or recent work experience (or lack thereof) may affect his ability to find paid work, although it is difficult for the Tribunal to assess these. In any event, the Tribunal notes that the applicant indicated some forward planning for such events, when commenting that his son, now in his late teens, plans to open a small business to help support the family.

21. Taking into account the applicant’s past work as a fisherman or casual labourer, and his future prospects, the Tribunal finds there is no real chance of him being subject to discrimination on the basis of his injuries or any associated disability, that will result in serious harm, such as ‘significant economic hardship that threatens [his] capacity to subsist’ or ‘denial of capacity to earn a livelihood of any kind, where the denial threatens [his] capacity to subsist’.[14]  

    [14] Section 91R(2) provides these as two instances of serious harm; these and the other instances set out in s.91R(2) are non-exhaustive.

    Roman Catholic

22. The applicant did not present any claims based on religion to the Department or the first Tribunal. At the most recent hearing, he claimed that his Roman Catholic faith adds to his risk of being persecuted. He referred to the ‘Easter Sunday terror attacks’ on 21 April 2019, and claimed that the targeting of Roman Catholics is an added dimension to the campaign against Tamils. He believed that the Sinhalese used the Muslims to attack Tamils (namely Tamil Christians), and that the Sri Lankan authorities (the army and the CID) were involved in these acts.

23. The applicant presented copies of several press articles about the Easter Sunday terror attacks, and a copy of an article dated 24 July 2019, in Tamil with an English translation, concerning the vandalisation of a statue of St. Antony in the Jaffna Fort region, part of the ciy of Jaffna, some 32 km south-east of [Town 3].

24. Country information indicates that a series of coordinated bombings on Easter Sunday, 21 April 2019, struck eight places in Sri Lanka, killing at least 253 people and wounding about 500 more.[15] Drawing on general country information and the DFAT report of 23 May 2018, the Tribunal put to the applicant at hearing that the Roman Catholic community in Sri Lanka was well-established, and made up about 82 percent of Christians. It noted DFAT’s assessment as of May 2018 that ‘Christians in Sri Lanka face a low risk of official and societal discrimination’, even though there had been a low but steady incidence of violence, discrimination and intimidation of Christians generally. While the April 2019 attacks had shocked the country and the Catholic minority, the Tribunal was not aware of reports indicating that the Catholics in general were at risk of repeated acts of terror, or subject to persecutory harm. Asked about his wife and her family’s continued practice, the applicant replied that they are still able to practice in the village, but he believes Catholics in the towns face a higher risk.

    [15] This information is from reports shortly after the attacks:

25. DFAT’s November 2019 report addresses the aftermath of the Easter Sunday terror attacks, and confirms the gist of the Tribunal’s observations at the hearing. It states: ‘The NCEASL has documented over 50 incidents of anti-Christian violence and intimidation in 2019 to date, including the Easter Sunday terrorist attacks. Christians were deliberately targeted as part of these attacks. Most of those killed were parishioners attending Easter services at the St Anthony’s Roman Catholic (Colombo), St Sebastian Roman Catholic (Negombo) and Zion evangelical (Batticaloa) churches. Public church services were suspended across Sri Lanka immediately following the attacks. They have since resumed, but with heightened security. Private Catholic schools reopened on 14 May.’ The report repeats its earlier assessment that Christians in Sri Lanka face a low risk of official discrimination and of societal discrimination (with the exception of evangelical Christians, who face a moderate risk of societal discrimination). It goes on to state that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if these groups were to expand their membership or strengthen their international links.

26. In sum, the Tribunal accepts that the Easter Sunday terror attacks have added to the applicant’s concerns about returning to Sri Lanka, perhaps amplified by media reports that do not reflect his family’s own experiences in the village. Country reports indicate that the Catholic community has resumed its activities with heightened security, but there has been no sustained violence against them. The applicant did not substantiate his claim, and the Tribunal has found no credible evidence to indicate that Sinhalese Buddhists or the Sri Lankan authorities instigated, were involved in or motivated Muslim extremists to carry out the attacks as part of a campaign against Tamils (in particular Tamil Catholics). The Tribunal finds the applicant’s concerns about anti-Catholic violence amounting to persecution are not well-founded.  

    Political interests

27. The Tribunal has found above that the applicant has not been involved in any political activities, in Sri Lanka or Australia; that the Sri Lankan authorities do not perceive him to be a political activist; and that the applicant has no political conviction that motivates him to engage in such activities. The Tribunal accepts that the Sri Lankan authorities may presume him to have particular attitudes, shaped by his experiences as a Tamil who was displaced during the war and suffered injuries, but it finds there is no real chance of targeting and inflicting serious harm on his for reason of any political opinion, actual or imputed.

    Failed asylum seeker and consequences of illegal departure

28. The Tribunal accepts for the purpose of this decision that the applicant’s return to Sri Lanka would be on an involuntary basis. It accepts that, having never held a Sri Lankan passport, he would travel on a temporary travel document. Although the Australian authorities will not reveal the fact of the applicant’s protection visa application, the Tribunal also accepts - on the basis of the applicant’s profile, the timeline of his travel to Australia and return to Sri Lanka, and common knowledge about Sri Lankan asylum seekers - that the Sri Lankan authorities would assume that he unsuccessfully sought protection in Australia.

29. The applicant claims that the Sri Lankan authorities will jail and possibly kill him if he returns to Sri Lanka, as a Tamil and a suspected LTTE member. He claims that his injuries and his (claimed) family links will heighten the authorities’ perception of him as an LTTE member, and it will be difficult for him to convince them otherwise.

    Treatment on return

30. The material before the Tribunal raises questions about the applicant’s prospects as a failed asylum seeker from several overlapping perspectives: (a) whether the Sri Lankan authorities draw adverse inferences from the mere fact that a person is suspected of having sought protection; (b) whether Tamil returnees, or those with particular characteristics, face a real chance of persecutory harm (or significant harm); and (c) whether the processing of failed asylum seekers exposes them to particular risks. The submission of 22 August 2019 raised a further concern, namely that the authorities may seek to extort the applicant on his return to Sri Lanka, as he is coming from a rich country.

1. The Tribunal discussed with the applicant the experience of his brother-in-law, whom he said had been granted protection in Australia, and returned to Sri Lanka in 2015. The applicant gave background information on the reasons for his brother-in-law’s return, and spoke about his prosecution for illegal departure. The applicant said that he did not know about the brother-in-law’s protection claims, and had not been in direct contact with him following his return. Nonetheless, he noted that his brother-in-law had previously held a Sri Lankan passport, and that his (the applicant’s) case was more serious due to his injuries. In sum, the applicant had very little information about his brother-in-law’s return to Sri Lanka, and appears to have made no enquiries. Nonetheless, the applicant’s comments do not suggest that the authorities targeted or punished his brother-in-law as a failed asylum seeker, Tamil returnee, and/or for any imputed LTTE links.

2. The Sri Lankan authorities’ treatment of the applicant on his return to Colombo Airport, and his subsequent actions, was the subject of discussion at the most recent hearing, and was addressed in the pre-hearing submission. As noted above, the Tribunal drew largely on information from the May 2018 DFAT report, but considers that the November 2019 DFAT report is consistent with the information discussed at hearing.

3. The Tribunal accepts that the applicant would return to Sri Lanka on a temporary travel document and, for the purposes of this decision, that he would do so involuntarily. They state that various Sri Lankan agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the CID and, at times, the Terrorism Investigation Division process returnees at Colombo’s international airport. They check travel documents and identity information against immigration databases, intelligence databases and records of outstanding criminal matters. This process can take several hours, depending on administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot leave until they are all processed.   

4. The DFAT reports also both state, in identical terms:

   For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

5. The pre-hearing submission evidently draws on this material. It contends that the applicant ‘will be at the mercy of the Sri Lankan authorities’, given his profile. It goes on to state that during the course of criminal and security checks, ‘the CID and the authorities in his home area will again be notified of his return and possibly those Tamil militant groups will come to know of his return and would link his family links to the LTTE. [sic]’

6. The Tribunal accepts that the authorities will interview the applicant, and that he will be required to remain at the airport during this process. In light of the above findings, the Tribunal does not accept that the applicant has any adverse criminal or security profile with the authorities in [Location 1], [Town 2] or anywhere; and therefore does not accept that he is at risk of having his clearance delayed for any such reasons. The Tribunal now addresses below whether other factors – his return as a failed asylum seeker, as a Tamil and/or (claimed) LTTE suspect – may give risk to adverse treatment on his return.  

   Failed asylum seeker

7. The applicant and his representative implied that the applicant’s status as a failed asylum seeker – that is, the presumption he applied for protection in Australia – will cause the Sri Lankan authorities to suspect that he is linked with the LTTE.  As the applicant put it at hearing, they will ask him why, if he was not in the LTTE, he chose to leave Sri Lanka. The first Tribunal noted in its decision some sources claim that ‘failed asylum seekers are at a heightened risk of torture and arbitrary detention immediately upon return simply on the basis of their status as failed asylum seekers’.[16] Relevantly, these comments, like those of the applicant and his representative, arise almost exclusively in the context of discussing the Sri Lankan authorities’ treatment of Tamil returnees.

   [16] This quote from the first Tribunal’s decision is from the organization Tamils Against Genocide, now available on-line only as a quote in a Dutch-language court decision of 18 October 2012. Human Rights Watch, Freedom from Torture and Amnesty International have echoed these concerns. See, for instance: Amnesty International, Urgent Action: Asylum Seekers at risk of return to Sri Lanka, 9 July 2014:   

100.   The Tribunal noted that many Sri Lankans leave for overseas, for a variety of reasons. The Sri Lankan authorities will be aware of these motivations, and know that a significant proportion of those who go to Australia, the US, Canada, the UK and other European countries do so to seek asylum and permanent residency. The Tribunal also noted the Sri Lankan government’s official position that refugees are welcome to return,[17] while acknowledging that human rights groups view such assurances with some caution.

[17] See DFAT’s May 2018 report, para 5.38; and the November 2019 report, para 5.44.

101.   The Tribunal accepts as likely that the Sri Lankan authorities will presume that the applicant has sought protection in Australia. However, it is not satisfied that the applicant’s status as a failed asylum seeker gives rise to a well-founded fear of persecution.

Tamil returnee and suspected LTTE affiliation

102.   The representative’s submissions and the applicant’s evidence at hearing focussed very much on the risks to the applicant as a Tamil returnee, and in particular as a person suspected of having LTTE affiliations. As noted in the first Tribunal’s decision, the mere fact of being Tamil or of having lived in an area under LTTE control ‘does not of itself result in a need for international refugee protection’[18] In late 2012, the UNHCR identified the kind of previous links with the LTTE, real or perceived, that could put a Tamil returnee from the northern area at risk of persecution on return to Sri Lanka. Although the guidelines are now seven years old, they were an important part of the applicant’s case and remain relevant. They refer to, amongst others, ‘former LTTE combatants or cadres’, and ‘persons with family links or who are dependent on or otherwise closely related to persons with the above profiles’. The applicant and his representative implicitly accepted these points in their submissions.  

[18] UNHCR, 21 December 2012: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.

103.   The applicant claims that the Sri Lankan authorities will suspect him of having links with the LTTE before he left that country, most particularly because of his injuries. He claims that his departure from [Town 2], in defiance of the order to report regularly, and the Sri Lankan authorities’ likely presumption that he has sought protection in Australia, will reinforce their suspicions. He also claims that he is at further risk of being linked with the LTTE through his family’s involvement (his brother and/or his sister’s positions as LTTE [ranks]) and through his in-laws (as two brothers-in-law obtained protection in Australia).

104.   For the reasons stated above, the Tribunal accepts that the Sri Lankan authorities in the [Name] camp and later in [Town 2] ([Town 3]) questioned the applicant about his links with the LTTE, and that he attracted greater scrutiny because of his injuries. The applicant stressed that these injuries expose him to a much higher risk of mistreatment as a suspected LTTE member. As discussed at hearing, DFAT’s recent reports state that it ‘is aware of reports that people with war-related scarring are more likely to attract adverse attention from the Sri Lankan authorities’.  The reports go on to mention that Freedom From Torture reported in 2011 that the authorities detained an unidentified number of people because they deemed their scarring to be evidence of LTTE membership, although DFAT is unaware of more recent evidence of such detentions. 

105.   The Tribunal accepts that the Sri Lankan authorities will identify the applicant as a person of potential adverse interest, largely on the basis of injuries, and question him about the cause of his injuries and his involvement with the LTTE. The Tribunal appreciates that the applicant is apprehensive about such questioning. However, it finds that he has in the past explained to the authorities that he was not involved with the LTTE, by showing them his medical records and presumably accounting for his activities during the war. It is satisfied and finds, on the available material, that he will be able to explain his injuries in a similar manner, and also by referring to his past dealings with the military authorities in [Name] camp and in the [Name] army camp, who were evidently satisfied that he was not linked with the LTTE; and to his residence and activities in [Name] camp and later [Town 3]. The Tribunal finds there is no real chance of the Sri Lankan authorities perceiving the applicant to be linked with the LTTE by virtue of his scarring.

106.   The Tribunal has rejected the applicant’s claims that his deceased brother and/or a deceased sister were [officers] in the LTTE, and died in combat. It therefore does not accept that the Sri Lankan authorities will perceive him as ‘a member of an LTTE martyr family’, thereby putting him at risk of persecutory treatment. The August 2019 pre-hearing submission also mentions[19] the disappearance of the applicant’s younger brother [Mr B] in 2007, allegedly after the Sri Lankan navy fired at him. The relevance of this is not clear, but the Tribunal is not satisfied that this brother’s disappearance has in the past, or will in the future, cause the Sri Lankan authorities to view the applicant with suspicion.

[19] Paragraph 8

107.   The Tribunal finds that, even if one of the applicant’s brothers-in-law was a member of the LTTE (which it has accepted as plausible), the Sri Lankan authorities have not viewed the applicant as a person of adverse interest as a result of his affiliation with that family. Taking into account the one brother-in-law’s return to Sri Lanka in 2015, with no known adverse consequences, the Tribunal finds there is no real chance of the Sri Lankan authorities targeted him due to his association with his in-laws

108.   Having regard to the applicant’s background, profile and injuries, the Tribunal accepts that the Sri Lankan authorities will undertake routine questioning and investigations on his return, due to his Tamil ethnicity, his status as a failed asylum seeker, his illegal departure from Sri Lanka (see below); and that the applicant’s background and injuries may cause them to have some added suspicions. However, in light of the applicant’s past experiences, in particular his ability to explain his and his family’s movements and the cause of his injuries, the Tribunal finds there is no real chance that the authorities will subject him to sustained questioning, detention or other treatment that, individually or cumulatively, involves serious harm amounting to persecution.

Illegal departure

109.   The offence: Sri Lanka’s Immigrants and Emigrants Act (I&E Act) makes it an offence to depart Sri Lanka other than through an approved point of departure. Penalties for breaches include imprisonment of up to five years and a fine of up to LKR 200,000.[20] The Tribunal accepts that the applicant left Sri Lanka without a passport and that left from a place other than an approved place of departure.

[20] See Immigration and Emigration Act, s.45(1)(b), s.45(1)(o). 45http:// The December 2015 DFAT report sets out these figures. The May 2018 and November 2019 refer to custodial sentences (without mentioning the maximum period), and fines up to LKR 200,000.

110.   There was detailed discussion of this at hearing, and the pre-hearing submission addresses aspects of it. The Tribunal drew heavily on the May 2018 DFAT report, which is consistent with the more recent November 2019 DFAT report. The Tribunal considers the reports to be detailed and reliable, and notes that, where appropriate, they identify information that is anecdotal and/or unverified. The applicant commented that he thought the report was perhaps 50 per cent true, stating generally that there is ‘no guarantee for [his] life’, particularly due to his wounds and his Catholic faith.

111.   Arrest and charging: According to DFAT[21], the Sri Lankan Attorney-General’s Department has directed that all those suspected of involvement in irregular migration – including fare-paying passengers – be charged under the I&E Act. The Police Airport Criminal Investigations Unit at Colombo Airport makes most arrests. The police take photographs, fingerprints and statements from returnees, and make further enquiries about their activities abroad if they are former LTTE members (or suspected members)[22]. The Tribunal accepts that the Sri Lankan authorities will likely identify the applicant as a person suspected of breaching the I&E Act; that the police will arrest and process him; and that they may make further enquiries. For the reasons stated above, the Tribunal accepts the applicant may attract some additional scrutiny due to his background and injuries; but it does not accept that he has engaged in any activities in Australia or en route that will prolong or complicate his processing.

[21] May 2018 DFAT report, para. 5.30; November 2019 DFAT report, para. 5.34.

[22] Note: The May 2018 DFAT report refers to further enquiries of former LTTE members, whereas the November 2019 report adds the qualifier ‘suspected’. The Tribunal is of the view that, during the course of these enquiries, the police will act on their suspicions (or knowledge, as the case may be) and there is no practical difference between the two

112.   Custody at the airport and on remand: DFAT advises[23] that apprehended persons are held in custody in the CID’s Airport Office, for up to 24 hours after arrival. If a magistrate is not available – for instance, due to a weekend or public holiday – the person may be held for up to two days, in an airport holding cell. At the earliest opportunity, the police transport the person to the closest Magistrate’s Court. As noted above, DFAT understands that all returnees, regardless or ethnicity and religion, are subject to the same processing, and not mistreated at the airport. The Tribunal finds, on the basis of these reports and in the absence of any persuasive contrary evidence, that the applicant faces the prospect of being detained at the airport and then in remand for up to several days.

[23] May 2018 DFAT report, para 5.30.; November 2019 DFAT report, para 5.34.

113.   Court processing: DFAT advises[24] that all persons charged under the I&E Act, including passengers of people smuggling ventures, are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The most recent reports state, in relation to bail: ‘A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.’ The report goes on to state that the fines usually range from LKR 3,000 (approximately AUD 25) to LKR 200,000 (approximately AUD 1,633). The most recent DFAT report quotes sources as saying that a typical fine is between LKR 15,000 and LKR 30,000.

[24] May 2018 DFAT report, para 5.32; November 2019 DFAT report, para 5.37.

114.   Remand and bail: The pre-hearing submission contends that the applicant risks facing a prolonged period in prison, as he would be unable to secure bail. It states that he has no family members who could act as guarantors – his mother is deceased; his father is old and frail; his siblings have their own families and commitments; and his wife is in a parlous financial state. After a prolonged absence from Sri Lanka, the applicant now has no ‘social network’ or friends.

115.   The Tribunal has significant difficulties with the scenario outlined in the submission. First, by his own account, his brother-in-law went to court and paid LKR 50,000[25], after a week. Although the applicant had no further details, his description suggests that the brother-in-law pleaded guilty, paid a fine and has no outstanding issues. This appears to have been a pragmatic choice, and there is no suggestion that his brother-in-law experienced mistreatment, onerous conditions or prolonged uncertainty. The Tribunal considers it possible that the applicant may choose to follow suit. Second, the Tribunal notes country information that detainees may be released on the basis of personal surety, or sometimes bail is required from a family member. It is therefore far from certain that the applicant will have to arrange bail, even if he pleads not guilty. Third, whether the applicant can arrange bail depends on the financial capacity and priorities of family members, and potentially also on whether the court requires them to attend court in person. The Tribunal notes that the applicant has close relations with his in-laws, some of whom travelled to Australia with him and remain here; and he appears close to his brother in [Village 1]. Although the applicant stressed his current unemployment in Australia and his wife’s financial problems, the Tribunal has reservations about the accuracy of these accounts, particularly in light of the children’s continued schooling and the family’s accommodation in [Town 4]. On the evidence as a whole, the Tribunal finds that, even if the applicant pleads not guilty and the court requires more than a personal surety, he will be able to arrange bail and, if required, for a family member to attend the court in person. Having regard to all these factors, the Tribunal finds there is no real chance of the applicant having to remain on remand for a prolonged period.

[25] About AUD 430.

116.   Conditions in detention: The pre-hearing submission contends that individuals who are held in prison in Sri Lanka for anything other than a very short period of time ‘face a real chance of suffering cruel or inhuman and degrading treatment because of the extremely poor conditions of prisons in Sri Lanka’. Another paragraph states that ‘the very fact of imprisonment may lead to a real risk of further significant harm, as it gives rise to a real risk of that person being tortured,’ referring to ‘recent court authority’ (not cited) that any period of time in a Sri Lankan prison may amount to serious or significant harm […]’. It goes on to contend that the applicant, as a Tamil, ‘will be mistreated in prison to a degree greater than prisoners of other ethnicities’. Although the submission uses language associated with both the refugee criterion and complementary protection, the substance of this claim is relevant to an assessment under the refugee criterion.

117.   The Tribunal accepts that the applicant faces a real chance of being detained at the airport for several hours, and then on remand for possibly a few days. The Tribunal finds on the available evidence that there is no real chance of the applicant being held in detention for more than a few days, including the period on remand before he appears before a Magistrate.

118.   It is undisputed that ‘prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities’. The Tribunal acknowledges that the applicant’s detention during police investigations and while on remand will involve a loss of liberty, which is one of the examples of serious harm set out in s.91R(2) of the Act. In MIBP v WZAPN, the High Court rejected the Federal Court’s finding that under s.91R(2)(a), any loss of liberty, regardless of its duration, would amount to serious harm.[26] It held that whether the likelihood of detention rises to the level of serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In the present case, the Tribunal finds that the applicant’s detention at the airport and on remand, even if he arrived on the weekend and had to wait before he could appear before a magistrate and/or if he had to await for a guarantor to appear in court, would involve only a few days in overcrowded or unsanitary conditions.

[26] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 overturning WZAPN v MIBP [2014] FCA 947 (North J, 3 September 2014).

119.   The pre-hearing submission of 22 August 2019 states that ‘recent court authority has found that being detained for any period of time in a Sri Lankan prison may amount to serious or significant harm and […] a risk of that person being tortured. The fact that the remand period may be of short duration does not mitigate against that risk’. The text does not cite the court authority or country information to support the assertion that any form of detention in Sri Lanka may give rise to a risk of torture (or other serious harm). Having regard to DFAT’s advice about the treatment of returnees and the experience of the applicant’s brother-in-law, the Tribunal does not accept the suggestion that any detention in Sri Lanka’s prison gives rise to a risk of serious harm (including torture). Nor does it accept that the applicant personally faces a real chance of serious harm amounting to persecution during his brief period in detention.    

120.   Having regard to his treatment as a whole, including the duration of the applicant’s stay, the Tribunal finds that this does not rise to the level of serious harm, such as a threat to his life or liberty, or significant physical harassment or ill treatment, or any other form of serious harm.  

121.   Risk of extortion: The submission of 22 August 2019 posits that the Sri Lankan police and other authorities perceive returnees from rich countries as easy targets for extortion. It states that, ‘on occasions it is reported that’ this takes the form of false charges being laid against them, with demands for large payments as the only means of having these removed. The submission gives no details or references to support these assertions.

122.   Asked about this claim at hearing, the applicant said that it is ‘possible’, and spoke about the general lack of security and uncertainty in Sri Lanka, and his concerns for his family’s welfare if he is not granted protection in Australia. As noted above, the applicant was not aware of his brother-in-law having such problems. The Tribunal accepts that there is corruption in Sri Lanka, and that persons perceived to be rich may face some risk of extortion or demands from bribes. However, the submission does not reflect the applicant’s personal circumstances, as he is not wealthy and does not claim to present as such. It is also not supported by any reliable evidence to show that the Sri Lankan authorities in fact perceive returnees from Western countries as being rich, or that they proceed to extort them. In sum, the Tribunal finds that there is no real chance of the Sri Lankan authorities laying false charges against the applicant, or extorting or making similar threats to the applicant, either while he is in custody, or during other interactions, as a result of his return from a Western or wealthy country. For completeness, the Tribunal finds that there is no real chance of the applicant being subject to such treatment by the Sri Lankan authorities or others in the community, for such reasons.

123.   Pending court case: DFAT advises that those charged are required to appear in court in the place of their offending, and that the frequency of court appearances varies widely. Delays can be protracted, as court cases proceed only when all members of a people smuggling venture have been located. Once again, whether the applicant remains on bail for years pending the conclusion of any court process remains uncertain, and will depend on whether or not he opts to plead guilty to charges of illegal departure. However, the Tribunal finds that the expense and inconvenience of court proceedings do not amount to serious harm.

124.   Penalties: DFAT has consistently stated that the Sri Lankan authorities distinguish between fare-paying passengers and the facilitators and organisers of irregular migration. DFAT reports advice from the Sri Lankan Attorney-General’s Department that no mere passenger on a people smuggling venture has been imprisoned under the I&E Act. The applicant’s account of his brother-in-law’s experience tends to support this, and there is no material before the Tribunal to the contrary. The Tribunal finds, on the available material, that if the applicant pleads guilty he will have to pay a fine; and that if he pleads not guilty, he will likely spend years awaiting a final court date, with the eventual outcome also being a fine.

125.   Having regard to the totality of the treatment that the applicant will likely face as a person charged under the I&E Act – including possibly several days in detention, in overcrowded, unsanitary conditions; a possible requirement to post bail and comply with bail conditions (such as reporting); and the possible uncertainty/expense of a protracted court process - the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution. The Tribunal also finds that the I&E Act applies to all Sri Lankans. It has found no persuasive evidence that it is selectively enforced or applied in a discriminatory manner. The Tribunal concludes that the Sri Lankan authorities’ investigation, prosecution and punishment for illegal departure under the I&E Act is the result of a law of general application and does not constitute persecution.

Conclusion

126.   The Tribunal has considered the applicant’s claims individually and cumulatively. For the reasons set out above, it does not accept that if the applicant returns to Sri Lanka now or in the foreseeable future that there is a real chance he will face serious harm for reason of his Tamil ethnicity, any imputed links with the LTTE (including due to his injuries; as a past resident of the Vanni; any siblings’ role in the LTTE; or his in-laws’ affiliations); his Roman Catholic faith; any political opinion (actual or imputed); and/or his return as a failed asylum seeker. The Tribunal finds that his processing at the airport, and as a person charged with illegal departure, does not amount to persecution.

127.   The Tribunal that the applicant does not face a real chance of serious harm amounting to persecution for any Convention-reason (including his race, religion, political opinion or membership of any associated particular social group), now or in the reasonably foreseeable future, if he returns to Sri Lanka. It finds that he does not meet s.36(2)(a).

ASSESSMENT: COMPLEMENTARY PROTECTION

128.   The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

129.   The Tribunal has accepted above that there is a real chance of the Sri Lankan authorities detaining the applicant on his arrival at the airport, for several hours; and then, detaining him on remand pending bail, perhaps for several days; that the conditions in detention are overcrowded and unsanitary; and that he may be fined, and/or subject to lengthy court processes. Section 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: MIAC v SZQRB [2013] FCAFC 33. The Tribunal therefore finds that there is a real risk that the applicant will face such treatment.

130.   For the reasons that follow, the Tribunal is not satisfied that such treatment, individually or cumulatively, amounts to significant harm, in northern province or anywhere in Sri Lanka.

131.   First, based on country information about the treatment of detainees, the Tribunal does not accept that his treatment whilst in detention at the airport or in remand, or the duration of his detention over several days, amounts to significant harm as defined in s.36(2A). For the reasons stated above, it finds no persuasive country information to indicate that any period in prison in Sri Lanka gives rise to a real risk of torture, as a general proposition; and it is not satisfied having regard to the applicant’s personal circumstances that there is such a real risk.[27] The Tribunal is not satisfied that the applicant’s Tamil ethnicity, background, injuries or other circumstances (such as perceived wealth as a returnee from the West) give rise to a real risk of him being differently from other detainees, and being subject to significant harm.

[27] The Tribunal also notes that the applicant’s detention arises in the context of lawful sanctions, that is, the Sri Lankan authorities’ administration of the I&E Act. The definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ all include (among other things) a qualification for an act or omission that causes, or is intended to cause the relevant harm ‘only from, inherent in or incident to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.’ However, given its assessment that the applicant’s prospective treatment does not involve ‘significant harm’ as defined in ss.36(2A)(c), (d) or (e), the Tribunal does not need to determine whether it arises in the context of lawful sanctions consistent with the ICCPR.

132.   Second, in relation to the overcrowded and unsanitary conditions that the applicant will experience for a short while in detention, the Tribunal is not satisfied that these are the result of Sri Lankan officials’ acts or omission that are intended to cause severe pain or suffering, of a kind that amounts to torture, or cruel or inhuman treatment or punishment; or extreme and unreasonable humiliation that amounts to degrading treatment or punishment. Rather, country information indicates that poor conditions arise from the Sri Lankan authorities’ limited resources.[28]

[28] May 2018 DFAT report, para 5.18; November 2019 DFAT report, para 5.2/

133.   Third, the Tribunal does not accept that the applicant’s detention and ancillary processes involve the death penalty or arbitrary loss of life.

134.   Fourth, the Tribunal does not accept that the imposition of a fine as punishment for the applicant’s illegal departure, or any processes association with the grant of bail or any court proceedings (such as payment of bail, the appearance of a family member at the court, requirements to attend court at regular intervals, etc.), amount to significant harm.

135.   Finally, the Tribunal does not accept that there is a real risk that the applicant will face harm that amounts to significant harm, on the basis of his circumstances as a whole – including as a Tamil male; as a former resident of the Vanni; as a person with visible injuries; for any political opinion (including imputed); on the basis of his Catholic faith; as a failed asylum seeker; as an illegal returnee; or on the basis of any factors (such as his association with his family, his in-laws or others) give risk to a real risk of him being subject to serious harm.

136.   For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

137.   Accordingly, the Tribunal is 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 that he will suffer significant harm: s.36(2)(aa).

Overall conclusion

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

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

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

DECISION

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

James Silva
Member

ATTACHMENT: RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘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.

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

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Refugee and humanitarian - Complementary Protection Guidelines and Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

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