1832969 (Refugee)

[2019] AATA 5933

1832969 (Refugee) [2019] AATA 5933 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832969

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Ann Duffield

DATE:24 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 24 June 2019 at 1:25pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – imputed political opinion – LTTE – ethnicity – Tamil – social group – failed asylum seeker – credibility issues – no real chance of serious harm – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa on 23 November 2012 and the delegate refused to grant the visa on 22 August 2013.

3. The applicant appealed that decision to a differently constituted Tribunal on 28 August 2013. That Tribunal affirmed the delegate’s decision on 31 January 2015. The applicant then appealed that decision to the Federal Circuit Court which upheld the Tribunal’s decision. The applicant subsequently appealed that decision to the Federal Court which remitted the application back to the Tribunal [in] November 2018.

4. The Federal Court remitted the application for reconsideration as it found that the Tribunal should have given the applicant more than one week to respond to an invitation to respond to adverse information under the provisions of s.424AA of the Migration Act.

5. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

   RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for 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

8. 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).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. 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.

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

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. 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’).

19. ‘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.

20. 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

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

    BACKGROUND

22. The applicant provided the Tribunal with copies of the previous decisions in relation to his case and his agent also sought and gained access to copies of the Tribunal’s files which contained these decisions. In any event, in the light of the applicant’s claims to have been denied procedural fairness in the past, the Tribunal also provided him with copies of all of those decisions at the outset of the hearing.

23. The applicant is a citizen of Sri Lanka. At no time has either the delegate or the previous Tribunal, or indeed the applicant, made any claim that he is other than a citizen of Sri Lanka or that he can be returned to a third country.

24. The Tribunal accepts that the applicant is a citizen of Sri Lanka and that he cannot return to a third country.

25. The applicant is a citizen of Sri Lanka born on [date]. He is currently [age]. He first arrived in Australia as an unlawful maritime arrival in July 2012.

26. The delegate and the previous Tribunal found the applicant’s evidence unreliable. The previously constituted Tribunal, for example, found the applicant to be untruthful about his accounts of events prior to his departure from Sri Lanka.

27. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 23 November 2012 and the delegate refused to grant the visa on 22 August 2013.

28. The applicant appealed that decision to a differently constituted Tribunal on 28 August 2013. That Tribunal affirmed the delegate’s decision on 31 January 2015. He appealed that decision to the Federal Circuit Court which upheld the Tribunal’s decision. The applicant subsequently appealed that decision to the Federal Court which remitted the application back to the Tribunal [in] November 2018.

29. This Tribunal has had regard to the previous findings of the delegate, previous Tribunal and the courts. This Tribunal has also had regard to a submission dated 27 January 2015 which is on the previously constituted Tribunal’s file. The applicant also provided the Tribunal with a submission prior to the hearing along with other printed information about the political and security situation in Sri Lanka.

30. The Tribunal also received substantial submissions from the applicant’s representative, both pre and post hearing, on behalf of the applicant. Having regard to all of this information and the applicant’s oral evidence before it, the Tribunal does not accept his claims for the following reasons.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in this case is whether the applicant is a refugee and therefore entitled to Australia’s protection as such, or alternatively, whether he meets the criteria for complementary protection and is entitled to the protection of Australia on that basis.

32. The applicant has asked the Tribunal to rely on his original claims and has since added to them. In summary the applicant claims to have a well-founded fear of persecution if returned to Sri Lanka for the following reasons:

    a.   The applicant cannot return to Sri Lanka and live with safety, security, peace or dignity;

    b.   As a returned failed asylum seeker the applicant fears incarceration , harassment and harm from the Sri Lankan authorities;

    c.   The applicant will be pursued by unscrupulous agents of the people smugglers and government forces who will become aware of him being a returned failed asylum seeker;

    d.   He fears violence and threats from authorities and others as having an imputed political opinion as a person with links to the LTTE;

    e.   The applicant fears being killed by the army or their allies because of his imputed links with the LTTE;

    f. The applicant claims that as a member of a particular social group of “young Tamil, failed asylum seeker male being involuntarily returned to Sri Lanka as a failed asylum seeker” he will be persecuted, interrogated, beaten and tortured by the army or their allies; and

    g.   It is not safe for him to return to Sri Lanka even after 7 years

33. The applicant provided the Tribunal with an “information Report: Sri Lanka: Second edition, January 2018”. This report disputes DFAT country information and states that it is unsafe to return any failed asylum seeker until the rule of law and security of minorities is implemented in Sri Lanka amongst other conditions. The Tribunal notes in this regard the applicant’s submission to the Tribunal that it should not rely overly on the DFAT reports and should also take into account the contradictory information contained in the information he has provided to the Tribunal. The Tribunal has considered and weighed all the information before it carefully and places greater weight on the DFAT material, including the following.

    COUNTRY INFORMATION

    Country information

34. The following information is provided by DFAT Country Report, May 2018.

    3.4Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.

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

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

    3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints. [1]

    [1] DFAT Country Information Report Sri Lanka, May 2018, Pages 13-14

35. Furthermore, in relation to the applicant’s religion and ethnicity, the DFAT report notes the following which the Tribunal put to the applicant during the hearing:

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

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

    Hindus

    3.29 Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information. [2]

    [2] DFAT Country Information Report Sri Lanka, May 2018, pages 14-17

36. The applicant does not claim to be a member of the LTTE, only that he was accused of unknowingly [helping] some LTTE [members]. The Tribunal notes the following information from DFAT in relation to LTTE membership or association and put aspects of this information to the applicant during the hearing:

    3.38 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.

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

    3.40 Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.[3]

    [3] DFAT Country Information Report Sri Lanka, May

1. The Tribunal has also considered the applicant’s claim that he will be targeted because of an imputed membership of LTTE. Again, DFAT information indicates that unless the applicant has links with high profile members or the like, he would be of no interest to the authorities. The applicant has not claimed that he has any direct links with the LTTE nor has he claimed any other involvement in the organisation.

   3.48 In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:

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

   ·former LTTE combatants or ‘cadres’;

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

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

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

   ·persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. [4]

   3.49 Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.

   [4] DFAT Country Information Report Sri Lanka, May 2018, pages 19-20

   Returned failed asylum seekers

2. The applicant also claims that because he has been of adverse interest to the government of Sri Lanka in the past, his detention and questioning as a result of his failed asylum claim in Australia will lead to his persecution. The Tribunal notes in relation to those matters the following information from DFAT and put a summary of it to the applicant during the hearing.

   5.37 Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.

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

   5.39 Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN organisations and international NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan government promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.

   5.40 While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.

   5.41 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.

   5.42 DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities. [5]

   [5] DFAT Country Information Report Sri Lanka, May 2018, pages 40-43

3. The Tribunal put summaries of this country information, at relevant times during the Tribunal hearing, to the applicant and sought his response. Those responses are included where relevant in the findings and reasons below.

4. The Tribunal put to the applicant its specific concerns in relation to his evidence including his credibility and informed him that, depending upon his response, these would be the reason or part of the reason for affirming the decision before it. The Tribunal asked the applicant if he needed more time to consider his responses and he indicated that he wanted more time to prepare a written submission. That submission was received on 26 April 2019 and where relevant, included in the tribunal’s findings and reasons below.

   TRIBUNAL HEARING

   LTTE links

5. The Tribunal asked the applicant why he feared returning to Sri Lanka and he said that the CID would be looking for him because he was associated with the LTTE.

6. The Tribunal put to the applicant the country information in relation to the response of the Sri Lankan government and authorities to prior LTTE members or those who may have been associated with LTTE members. The Tribunal put to the applicant that he did not appear to have the profile that would attract the negative interest of the authorities.  The Tribunal put to the applicant that it did not even appear that he would come to the attention of the authorities, particularly as 7 years had passed since the alleged incident with the CID.

7. The applicant told the tribunal that after the alleged assault by the CID wherein he claims he was beaten and threatened with death, the applicant nevertheless completed his  [work] and did not subsequently seek medical attention either at a hospital or with a doctor. He claims that after this his parents arranged his passage to Australia with a smuggler.  The Tribunal asked the applicant if his family was approached by the CID or harassed or harmed in any way as a result of the alleged incident with the CID and he said that nothing happened to them.

8. The Tribunal reminded the applicant that he told the delegate and the previous Tribunal that people visited his family and threatened them. The applicant said that he forgot his previous evidence. He later said that his father was required to report to the police station.

9. The applicant said that he can’t return to Sri Lanka because the incident where he was accused of [helping] LTTE members would still be on the system. He said that as a young, male, Tamil, failed asylum seeker who left illegally and his being a person of interest to the CID he would be detained and tortured.

10. The Tribunal is not satisfied that the applicant would be persecuted upon his return to Sri Lanka for his alleged assistance of the LTTE.

11. The Tribunal put to the applicant the country information which indicated that his profile would not raise the interest of the authorities. The Tribunal also put to the applicant on a number of occasions its concerns relating to his credibility on this matter, something that he has acknowledged in his written response to the Tribunal. The applicant maintains that his account was detailed and plausible and should be considered by the Tribunal to be a reliable account.

12. The Tribunal does not find the applicant’s account of his alleged assault by the CID to be plausible. He claims that the CID came to see him at work and accused him of [helping] a group of LTTE members who were also carrying weapons. The applicant claims he did not know these people were LTTE members until the CID told him. He claims the CID beat him and were about to kill him but they were interrupted by a group of people. He claims the incident occurred in around April 2012, some 4 years after the end of the war.

13. The applicant told the Tribunal that after the beating he still made his scheduled [work] run and then went to his Aunt’s house until he left to come to Australia two or so months later. He did not go to hospital or see a doctor.  His aunt lived in the same village where he and his parents lived. He said he could not go home because his parents were being harassed by the CID. The Tribunal put to the applicant that the CID would surely be in a position to find him, if they were indeed looking for him, if he was at a relative’s house in the same village. The Tribunal put to the applicant that his account lacked credibility. The applicant said that they were after him and would kill him because he was a Tamil man and he helped the LTTE.

14. The Tribunal does not accept that the applicant was harassed or otherwise harmed in any way for any reason by the CID, or indeed anyone else prior to his departure from Sri Lanka. His account of the alleged incident, as well as the timing of it some four years after the end of the war, lacks credibility.

    Tamil ethnicity

15. The applicant claims he will be persecuted as a Tamil if he returns to Sri Lanka. The Tribunal put to him the country information that indicates that, whilst there may be a level of discrimination against Tamils, this did not amount to persecution and discriminatory laws had been repealed.

16. The applicant submitted to the Tribunal that the Easter Sunday attacks on Christian churches and several hotels indicate that the security forces have no interest in protecting or warning citizens. He claims that the increase in security measures and these ongoing attacks have exacerbated his fear of returning to Sri Lanka as tensions between communities are increasing. He claims that as a young Tamil he will be targeted.

17. However, as discussed at hearing, country information indicates that a person being of Tamil ethnicity would not of itself warrant international protection. Neither would a person such as the applicant whose connection with the LTTE was only incidental, if the applicant’s account is to be believed. The applicant has made no claims that he himself was involved with the LTTE in the past and has not given evidence that he has been active in any way in the Tamil diaspora since he departed Sri Lanka. The Tribunal does not accept that the applicant has a profile that would lead to him coming to the adverse attention of the authorities should he return to Sri Lanka.

18. The Tribunal does not accept that the applicant will face persecution as a Tamil if he returns to Sri Lanka either now or in the foreseeable future. The country information put to the applicant indicates that Tamils in Sri Lanka are protected by the law and whilst discrimination exists, it does not amount to persecution. There is no evidence to support a conclusion that the Tamils, or that the applicant in particular, would be singled out by the government in enforcing any additional protective measures which may have been put in place following the Easter attacks. These measures apply to everyone equally.

19. Given these considerations, the Tribunal finds the applicant’s risk of serious harm to be remote for imputed political opinion grounds as a young Tamil man, even when considered cumulatively with other aspects of the applicant’s profile, considered separately below. The Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka by the authorities on the basis of an imputed (pro-LTTE) political opinion and/or his Tamil ethnicity in the foreseeable future. His fears of persecution on imputed political opinion grounds and on the basis of his Tamil ethnicity and alleged LTTE connections are not well founded.

20. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution or serious harm either now or in the reasonably foreseeable future by reason of his Tamil ethnicity if he returns to Sri Lanka.

    Failed asylum seeker

21. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on his return to Sri Lanka as a failed asylum seeker. The Tribunal understands that the applicant’s fear is that he would be imputed with an anti-government political opinion on this basis and face persecution as a result.

22. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

23. At hearing the Tribunal discussed the latest DFAT Country Information Report on Sri Lanka.

24. In that report, DFAT assesses that returnees are treated according to standard procedures, regardless of the returnees’ ethnicity and religion. DFAT further assesses even if he is detained at the airport upon his return, detainees are not subject to mistreatment during processing at the airport.

25. As discussed at hearing, the DFAT report also states that during 2008-2015, over 1,500 failed asylum-seekers were returned from Australia to Sri Lanka, in addition to the many Sri Lankan asylum seekers who have been returned from other countries, including the US, Canada, the UK and other European countries.

26. While the Tribunal accepts that the applicant, as a Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka and may even be detained, taking into consideration his particular profile the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker who departed illegally.

27. The Tribunal finds that the chances that the applicant would be imputed with an anti-government political opinion on the basis of these matters or seriously harmed by the authorities as a result on return, even when combined with other aspects of his profile such as being Tamil, a worker for an international agency, associated with the LTTE, being a failed asylum seeker and departing illegally, are remote.

28. The Tribunal does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or anyone else on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason. His fear of persecution on membership of a particular social group (‘failed asylum seekers’) and imputed political opinion grounds are not well founded.

    Illegal departure

29. As discussed with the applicant in relation to his fears of facing persecution as a failed asylum seeker noted above, the Tribunal equally does not accept that the applicant faces a real chance of persecution if he were detained upon his arrival, given its findings that he is not of any adverse interest to anyone. Any period of questioning or detainment would be the result of the general law of application rather than for any Convention related reason.

30. The Tribunal does not accept that the applicant being detained for a short period and possibly fined constitutes serious harm, as defined in s.91R(2).

31. For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with his other claims.

    Conclusion – Refugee grounds

32. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

33. 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).

    Complementary protection

34. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), and whether 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 as defined in subsection 36(2A) of the Act.

35. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, as a Tamil, failed asylum seeker, person associated with the LTTE, for his illegal departure or for any other reason.

36. For reasons above the Tribunal does not accept that the applicant was of any adverse interest to the Sri Lankan authorities prior to his departure from Sri Lanka for any reason and would not be upon his return. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and possible detention, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

37. Having considered the applicant’s claims individually and cumulatively, for these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for a Convention-related, or any other reason. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

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

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

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

   DECISION

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

   Ann Duffield
   Senior Member

   
   
   

 2018, pages 17-19