1903314 (Refugee)

[2023] AATA 1589

1903314 (Refugee) [2023] AATA 1589 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Roz Germov, Australian legal Practitioner

CASE NUMBER:  1903314

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Windsor

DATE:9 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2023 at 3:57pm

CATCHWORDS
REFUGE – protection visa – Sri Lanka – Federal Circuit Court remittal – imputed political opinion – fear of harm from supporters of governing political party – involvement in incident in which friend supporting opposition party killed – anonymous phone threats and brief detention by police – returned failed asylum seeker – inconsistent claims and evidence – supporter but not actively involved – delay in departing after claimed incident – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), 65

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

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 on 11 September 2013 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 12 November 2012.  A summary of the relevant law applicable in this case is at Attachment A.

3. In his Protection visa application the applicant indicated he was born on [Date] in [Village] (part of [Town 1]) in the Galle district of the Southern Province of Sri Lanka.  He stated he is of Sinhalese ethnicity, the Buddhist religion and had been in a de facto relationship since 2005.  He indicated that he departed Sri Lanka without authority by boat [in] June 2012 and arrived at Christmas Island, Australia [in] July 2012.[1]

   [1] See the Departmental file.

4. In a statutory declaration dated 1 November 2012 included with the application, the applicant indicated he left Sri Lanka because he feared being harmed or killed by supporters of the then President, Mahinda Rajapaksa, because he was involved in an incident which resulted in the death of a close friend, [Mr A], when [Mr A] was attacked by Rajapaksa supporters while putting up posters in support of the opposition presidential candidate, General Fonseka.[2]

   [2] See the Departmental file.

5. While accepting that the applicant’s friend may have been beaten and subsequently died as claimed, and that the applicant may have been threatened not to tell police what he had seen, the delegate refused to grant the visa because they did not accept that the applicant had any problems for this reason after early 2011.  The delegate also found there was no material evidence to satisfy them that the applicant would be considered by the Sri Lankan authorities to have been involved in the people smuggling venture (involving the vessel codenamed [Name]) through which he travelled to Australia. 

   Previous merits review by the Tribunal

6. The applicant sought review of the delegate’s decision on 15 September 2013.[3]  He provided the Tribunal with a copy of the delegate’s decision record.  The applicant appeared before the previous Tribunal (differently constituted) on 28 January 2015 to give evidence and present arguments.

   [3] See Tribunal case 1313634.

7. On 8 April 2016 the previous Tribunal affirmed the decision not to grant the applicant a Protection visa.  The previous Tribunal accepted that [Mr A] was attacked and later died, but was concerned about inconsistencies in the applicant’s evidence and did not accept that the applicant was a close friend of [Mr A] or that he was a witness to the incident where [Mr A] was attacked.  The previous Tribunal commented: ‘I have formed a view that the applicant scripted a role for himself in an incident which occurred in his home area and was widely publicised in order to fabricate his claims for protection’.  The previous Tribunal also did not accept that the applicant’s limited role in facilitating people to leave Sri Lanka (helping to steer the boat for an hour or less after it left Sri Lanka) and his return to Sri Lanka as a failed asylum seeker and illegal departee would give rise to a real chance/risk that he would face serious/significant harm.

   Judicial review

8. On 1 February 2019 the Federal Circuit Court of Australia (FCCA) set aside the previous Tribunal decision and remitted the matter to the Tribunal directing that the application for review be determined according to law.  The court found that the hearing had been adversely affected by poor quality interpreting, commenting: ‘The errors of translation in this case lead to the conclusion that the hearing was unfair as there are material errors that may have resulted in the Applicant being unable to convey his story and respond to questions in a clear way’.[4]  The court found, therefore, that there was error which is jurisdictional in nature.

   [4] CGQ15 (File No: MLG2444/2015)

9. The applicant appeared before the current Tribunal on 20 September 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

10. The applicant was represented in relation to the review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

11. The applicant’s initial claims were set out in the statutory declaration of 1 November 2012 included with his Protection visa application.  His claims from that statutory declaration are summarised as follows:

    ·He left Sri Lanka as he feared harm from, or being killed by, political supporters of the party he and his friends were opposing.

    ·He was helping a close friend, [Mr A], who was a member of the Janatha Vimukthi Party (JVP) and was supporting General Fonseka, the opposition candidate in the 2012 (later corrected to 2010) elections.

    ·On 24 or 25 Jan 2012 (later corrected to 2010) they were out very late at night putting up posters in [Mr A]’s area ([Location]).  He was sitting in the drivers’ seat of their vehicle when 5-6 supporters of the President’s party came and shouted abuse at them.  One poured a bucket of paste over [Mr A]’s head, put the bucket over his head and hit him on the head with an iron bar.  Two had pistols and threatened his other friends.  One came to the van and threatened him.  He had a gun in his hand and said ‘we are not going to let you win, we will do the same thing to you as your friend on the ground’.  Then they left.

    ·His group took [Mr A] to the hospital, admitted him, and informed his family.

    ·He witnessed the fatal blow and was afraid he might be identified as having been with [Mr A] as one of the JVP supporters.  He feared they would find him and shoot him.  As he was afraid he might be identified as a witness to the incident he went to stay at his uncle’s place.

    ·[Mr A] was in hospital for approximately 2-3 weeks.  Soon after he was discharged and came home, he passed away, apparently from a heart attack.  It was common knowledge that his death was related to the beating and his wife lodged a complaint and went to court.

    ·He received around 4-5 threatening calls on his mobile phone telling him not to give any statements to police, or his life would be in danger.  So did the others he was with.

    ·After a couple of months he went to his home-town.  He was waiting in a bus to go to Colombo when he was taken off the bus by a uniformed officer and two others in civilian clothes.  One in civilian clothes called someone and gave a description of him.  He was taken to the police station and was then released after around half an hour without being questioned or asked for a statement.  He believes this incident may somehow be related to the political situation he got himself into, and there is political influence to keep him quiet about the situation.

    ·He fears if he returns to Sri Lanka he may be harmed, either by supporters of the President’s party or the authorities under their influence, because he witnessed this incident of political violence which is a black mark on the President’s party.

12. The applicant’s then representative provided a submission to the previous Tribunal dated 6 March 2014 in support of the review application.[5]  This included legal argument and country information regarding the political situation in Sri Lanka; returnees to Sri Lanka; and ‘Unprotected witnesses in Sri Lanka’.  It was submitted that the applicant can be considered to be a member of two particular social groups: ‘returnee asylum seeker/returnee from a western country’ and ‘member of the UNP’.

    [5] See Tribunal file 1313634.

13. Following the hearing with the previous Tribunal, held on 28 January 2015, the previous representative made a submission received on 3 February 2015.  This included further country information in support of the applicant’s claims comprising articles referring to the incident where [Mr A] was assaulted and his subsequent death.  Also attached was an unsworn statement, in English, purportedly from [Mr A]’s widow. In this statement it is claimed that the applicant was present at the scene of the assault and, as a result of what he witnessed, became the victim of repeated threats on his life by government supporters.  It is stated that, because of the intimidation and threats received by all the eyewitnesses, they all refused to come forward with testimonies in support of a case she filed in court against those responsible for her husband’s death, had to flee Sri Lanka to protect their lives, and still face death threats and danger to their lives in Sri Lanka.

14. On 13 September 2022, the current representative made a pre-hearing submission to the current Tribunal.[6]  This included 14 attachments comprising a death certificate for [Mr A]; a police request for a post mortem into the death; various news articles regarding the assault on and death of [Mr A]; a copy of the letter of 10 October 2013 purportedly from [Mr A]’s widow; a further letter of 8 September 2022 purportedly from [Mr A]’s widow; translations of articles from [Newspaper 1] of [Day] October 2016 in tribute to [Mr A] (including inserts of comments from his widow and [Mr B]); copies of various articles/reports on the JVP, human rights and corruption in Sri Lanka; a copy of the December 2021 DFAT Country Information Report for Sri Lanka; and a copy of the 2021 US Department of State Human Rights report for Sri Lanka.

    [6] See the Tribunal file.

15. Relevant additional matters raised in the representative’s submission are summarised as follows:

    ·The applicant is not currently in a relationship. His previous de facto relationship did not continue after he left Sri Lanka.

    ·His father, who used to run [a] shop is now running a [business].  His mother is a housewife.

    ·His elder brother is married and lives in Colombo where he works in a [Workplace 1].  His younger brother is single and lives in [Town 1] in Galle District where he helps his father in his business.

    ·The applicant has a post-secondary school vocational qualification in [Subject].  He worked in Dehiwala for less than five months, [doing Job task 1].  In 2006 he worked as [an Occupation 1] in [Town 2], [doing Job task 2].  He also earned income from his [Group].  They [did an Activity around 10 times] per month all over Sri Lanka, as well as making TV and radio appearances on TV, so he was recognisable on the street.

    ·Although 12 years has passed since the death of [Mr A], the murder remains unresolved and the applicant still fears for his life and safety from those responsible, who were Rajapaksa supporters.

    ·The applicant was not involved in politics to any great extent.  His father used to be a JVP member but had ceased involvement many years ago.  No other close family members are politically active.  The applicant and his family continue to support the JVP albeit they are not politically active.  The applicant fears he will be harmed by supporters of the Rajapaksas because he supports a different political party but primarily because he witnessed the assault on [Mr A].

    ·The applicant recognised the attacker who beat [Mr A], [Mr C], who was the [Occupation 2] at a local [Workplace 2].

    ·Soon after the attack on [Mr A], the applicant received threatening phone calls at his family home.  They were made on the land-line initially and later on his mobile phone.  The callers, always male and always different, would threaten that if he went to the police, the same fate would befall him as had happened to [Mr A].

    ·Shortly after the attack on [Mr A], the applicant was accosted by a police officer while waiting to put his girlfriend on a bus.  He was collared by a police officer and taken to the [Town 1] police station.  He had long hair at the time and the officer pulled him by the hair roughly and swore at him.  He was not actually questioned about anything and was released three hours later after his father attended the police station.  Apparently, he was mistaken for another person of interest to the police who they believed was on the bus.  While he is unsure whether this incident was linked to the [Mr A] incident it is an example of the arbitrary and lawless way police behave in Sri Lanka even towards members of the majority Sinhalese community.

    ·The applicant moved around regularly to evade the persons who threatened him.  He decided he could not continue to live in a state of fear and his father made arrangements for him to leave Sri Lanka.

    ·The complaint made by [Mr A]’s widow has been accepted but nothing has been done due to lack of evidence.  The applicant would like to give his evidence to the authorities to get justice for [Mr A] but is too distrustful of the Sri Lankan authorities to do so.

    ·The applicant has not kept in contact with any of the persons present at the attack and does not know what has happened to them.

    ·The Rajapaksas return to government resulted in some of the more conciliatory measures taken by the previous Sirisena Government being wound back and their mismanagement of the economy has created both an economic and a political crisis.  While they have resigned from government their legacy remains.

    ·The economic crisis has prompted public protests which have been met with violent suppression by the security forces.  Emergency regulations approved on 17 July 2022 have given the police wife powers to search, arrest and detain suspects without due process.

    ·While the applicant is not likely to engage in protests, the political and security situation is highly volatile.

    ·The applicant cannot avoid harm by relocating as Sri Lanka is a small country and he is well known because of his [Group].

    Evidence from the hearing

16. At the hearing the applicant indicated that his parents and two brothers are living in [Town 1] in Galle district.  He confirmed his father was a businessman, most recently involved in selling [Commodity], but commented that his business is not very active at the moment.  He confirmed his mother is a housewife.  He said his elder brother, who lives separately close to [Town 1], works at a [Workplace 1], while his younger brother has finished his studies and helps his father.

17. The applicant indicated that, after completing his schooling, he undertook a vocational training course and then worked for a [company] for a few months from late 2015 until early 2006.  He then worked as [an Occupation 1] in [Town 2] zone, close to the town of Galle in Galle District.  He said he also worked as [an Occupation 3] and [did an Activity] in a [Group].  He indicated he [did an Activity] mainly as a hobby but also earned some money from it.  When queried what work he was doing after June 2008 (in his application it stated that he received 50,000 Sri Lankan rupees per month from his [Group] from December 2003 until June 2012 - his only apparent source of income after June 2008), the applicant said after that time he was funding his living expenses through [doing an Activity] with his [Group].

18. The applicant indicated that in Australia he has worked in a [Workplace 3], done [Job task], worked as [an Occupation 3] and is currently working at a [Workplace 4].

19. Noting that the applicant indicated in his statutory declaration that his friend, [Mr A], was a member of the JVP, the Tribunal asked the applicant if he also was involved with the JVP.  He indicated he was.  He commented that his elder brother established contacts with the JVP while he was studying at university and he got involved with the JVP through his brother.  He added that his father also was a JVP sympathiser.  When asked what attracted him to the JVP, the applicant said it was their policies and attitude towards resolving the country’s problems.  When asked for examples, he said they talk about equal opportunities for every citizen and openly criticise and expose corruption in the country.  When asked, he said he was not a member of the party but campaigned for them.

20. The applicant indicated that he came to know [Mr A] because he was a family friend due to his friendship with the applicant’s father.  The Tribunal observed that the applicant was 24 years old while [Mr A] was 51 years old at the time of his death, and asked why he referred to him in his statutory declaration as being ‘a very close friend’…like a brother’.  The applicant said [Mr A] treated him like a son and a brother.  He confirmed that [Mr A] lived in [Location], which is about 20 minutes’ drive from [Town 1] where the applicant lived.

21. When asked about the incident on 25 January 2010, the applicant indicated they were putting up campaign posters in the [Location] area when [Mr A] was assaulted by political opponents.  He said they were putting up posters when a group of people, who came in three different vehicles, started assaulting [Mr A].  When asked, the applicant said there were five people in his group and he was driving the van they were in.  He indicated it was about 5 am on 25 January.  When asked why they were doing this so late, he said they started putting up posters at night-time and continued doing it for a long time.

22. The Tribunal asked the applicant when the election was being held.  He said he can’t remember the exact date but it was close to the time of the incident.  When the Tribunal observed that it understood the election was the next day – 26 January[7], the applicant said, ‘it’s possible’.

    [7] Sri Lankan presidential election, 2010, Lanka Election | Presidential Election Result - 2010

23. When asked to recount what happened when the other people drove up in their three vehicles, the applicant said the people got down from their vehicles, approached his vehicle and then started assaulting [Mr A].  He indicated his group had a plastic ‘pulp’ bucket which they were using for pasting up posters and the others grabbed that bucket and put it over [Mr A]’s head.  One of the men then started hitting [Mr A] to the head with an iron bar.

24. The Tribunal asked the applicant if the other people said anything.  He indicated that they threatened his group.  When asked what they said, the applicant commented that they mainly said that ‘what we expect, what we are campaigning for, is not going to happen’.  The applicant added that the same group had threatened [Mr A] two weeks prior to the incident.  When asked, the applicant said three other members of his party who were putting up posters also were assaulted.  He said they were threatened and hit by the other group members using their hands.  When asked, the applicant said they did not suffer major injuries.  When asked, he indicated that, while he is not sure, the whole incident might have taken 10-15 minutes.  He said after the assault the other group threatened them then left the scene.  He said he did not get out of the van at all, commenting that a person from the other group who had a pistol in his hand did not allow him to.  When asked if this person said anything to him, the applicant said he was threatened that if he got out of the van he would be shot.

1. The Tribunal asked the applicant what they did after the other group left.  He said as soon as the other group members left they took [Mr A] to the [Town 3] hospital, a 20-30 minute drive away.  When asked if they reported the matter to the police, the applicant said there were police officers at the hospital.  He said they tried to talk with these officers but without success because the other group had lodged a complaint with the police.  When asked what the nature of the complaint was, the applicant said he did not know.

2. The Tribunal asked the applicant about the timing of his departure to go to his uncle’s home.  He indicated that, after [Mr A] was admitted to hospital, he went to the home of his father’s elder brother in [City 1], around 5-6 hours from his home.  When asked, he said he went there by himself because the other group had lodged a complaint with the police and he was scared the other group would look for him and arrest him.  When asked how long he stayed there for, the applicant commented that it was quite a long time.  He said for the first 3-5 months or so he did not go anywhere but after that he used to visit his parents and others in his village area.  When asked how long he stayed with his uncle in total, the applicant said about a year, to his recollection.

3. The Tribunal asked the applicant about the incident documented in his statutory declaration where he states he was taken off a bus by police officers.  The applicant said he thought this occurred about 6-7 months after the incident where [Mr A] was assaulted.  He indicated that he was on a bus in his hometown with his girlfriend, during a visit there.  He said he was going to accompany her to Colombo where she was taking a class.  He said two people entered the bus, one wearing a police uniform and one in civilian clothes.  He said they grabbed him by his shirt collar but did not say why they were taking him.  When asked, he said they took him to a small police post at the bus stand in [Town 1].  He said he was not told why they had detained him and was not questioned.  He said he was then taken to the [Town 1] police station where he was held for 3-4 hours.  He indicated they gave no reason or indication why he was released.  When queried that they did not say anything to him over the 3-4 hours he was detained, the applicant commented that they used rough language to abuse him whenever he asked why he had been detained.

4. The Tribunal asked the applicant if anyone intervened on his behalf.  He asked what the Tribunal meant.  The Tribunal commented that it seems strange that they would hold him for such a period, not question him and then just let him go.  The applicant said such incidents are not unusual in police stations in Sri Lanka, adding that the police are highly corrupt.  The Tribunal asked if he was able to make any calls.  The applicant said he was not.  When asked if his girlfriend alerted anyone about what had happened, the applicant said she informed his father and her father.  When asked if they did anything, the applicant said his father went to the police station but he was being held in a separate place and did not see his father.  He said after his father went to the police they released him.  The Tribunal commented that that was what it meant when it asked if anyone intervened on his behalf.  The applicant apologised, commenting that he did not understand what the Tribunal had meant.  The Tribunal observed that in her recent submission, his representative had indicated that he was ‘collared’ by a police officer and taken to the police station, pulled by the hair roughly and sworn at, not actually questioned about anything and released three hours later, after his father attended the police station, and commented that is why the Tribunal had been asking the questions it had asked.  The applicant indicated the police pulled him by the hair and swore at him while they were taking him from the police post to the police station.

5. The Tribunal also observed that his representative had indicated that he apparently was mistaken for another person of interest to the police who they believed was on the bus.  The applicant commented that they said later that they had arrested him by mistake.

6. The Tribunal asked the applicant when he first received a threat call.  He said he can’t recall exactly but thought it was a few days after [Mr A]’s death he started receiving calls.  When asked, he said they were both to his mobile phone and to his home landline phone.  When queried that he had indicated that he went to his uncle’s home immediately after he had taken [Mr A] to the hospital, he said the calls he got were to his mobile while those received at his home were aimed at his family members.  When asked what the caller said, the applicant commented they were mainly death threats and threatened him that he should not give any evidence in relation to [Mr A]’s death.  When asked how long the calls continued for, the applicant said he thought he received about 20-30 calls, after that he decided not to respond to any calls to numbers that were not familiar to him.  When again asked how long a period the calls continued for, he said he can’t remember.  When asked approximately how long, he said he thought it would have been for more than six months.

7. Observing that he indicated he spent about a year living at his uncle’s home in [City 1], the Tribunal asked the applicant whether he returned to live at his home after that time.  He acknowledged it was about a year but said he did not return to his home village, because he was still concerned about death threats, so he went to stay with a friend living in [City 2], about 3-4 hours’ drive from his home.  When asked, he said he stayed there for quite a long period but while living there he still used to visit his home village.  When asked if he ever returned to live at his home on a full-time basis, the applicant indicated he did not, commenting that he thought that would be too risky and dangerous.  He added that, while he is not sure if he has been charged, it is well known that the person who killed [Mr A] was involved in three separate murders.

8. The Tribunal discussed with the applicant some inconsistencies it had observed in his accounts.  The Tribunal indicated it acknowledges that the date of 25 January 2012, in his statutory declaration of 1 November 2012, is a typographical error and the correct date of the incident where [Mr A] was assaulted is 25 January 2010. 

9. The Tribunal observed, however, that there are other matters in his statutory declaration that are inconsistent with his subsequent evidence.  While he stated that he went to stay with his uncle after the incident, which is consistent with what he had told the Tribunal at the hearing, he indicated in his statutory declaration that it was after ‘a couple of months’ that  he went to his hometown and was waiting in a bus to go to Colombo when he was taken off the bus by a uniformed officer and two in civilian clothes.  He stated that one of the people in civilian clothes called someone and gave a description of him over the phone.  He stated he was taken to the police station and then released after around half an hour without being questioned or asked for a statement.  He also stated that he believed this incident may somehow be related to the political situation he got himself into, and there is political influence to keep him quiet about this situation.  The Tribunal commented that the timeframes in his statutory declaration are different to what he has told the Tribunal today where he indicated that he didn’t go anywhere for 3-5 months after he went to his uncle’s home, that the bus incident occurred 6-7 months after the first incident and that he was held for 3-4 hours.  The applicant commented that there were a lot of interpreting errors at the previous Tribunal hearing and he also was very confused when he attended the interview.  The Tribunal commented that the information it has put to him is from his statutory declaration included with his Protection visa application.  The applicant said he thinks there must be some mistake because at the previous hearing he said the same thing. 

10. The Tribunal also observed that the copy of the delegate’s decision record, which he provided to the Tribunal, indicates that he told the delegate at the Departmental interview that he stayed with his uncle for 2 months after the assault incident.  The Tribunal also noted that at the hearing today he said there were two officers who took him off the bus, whereas in his statutory declaration he stated there were three.  The applicant said the reason for the inconsistencies is that at the previous hearing he was asked to give approximate timings.

11. The Tribunal observed that, in relation to his claim to have received threat calls, in his statutory declaration he stated he received around 4-5 threat calls on his mobile phone; the delegate’s decision record indicates he said at the interview that he received up to 10 threat calls from February 2010 until late 2010 or early 2011; and at the hearing today he said he received 20-30 threat calls.  The applicant commented that his father was scared to tell him about the calls received on the home landline so he was not aware of these calls at the time.

12. The Tribunal also observed that there are some inconsistencies between his accounts and what is in the documents that have been provided to the Tribunal, including the press reporting he has submitted.  The Tribunal commented that he has consistently indicated (including in his statutory declaration) that he drove [Mr A] to hospital.  He also indicated in his statutory declaration that [Mr A] was discharged from hospital after 2-3 weeks and then passed away soon after he returned home, apparently from a heart attack.  The death certificate, request for a post-mortem and some of the press reports, however, indicate that [Mr A] was in hospital for [Number] days (discharged on [Day] January 2010) and died [in] February 2010, [Number] days after the assault. The press reports also indicate that [Mr A] was taken to the police by the assailants, rather than to hospital by the applicant and his colleagues, and that a PSD (Presidential Security Division) officer lodged a complaint against [Mr A].  [Newspaper 2] (Attachment 4) reported on 5 February 2010 that the JVP General Secretary said PSD and MSD (Ministerial Security Division) officers assaulted [Mr A] and handed him over to the police, the police did not inquire as to who assaulted him but, when his condition worsened, police admitted him to [Town 3] Hospital.  The article in [Newspaper 1] (Attachment 7) of 23 October 2016 states that, after [Mr A] and one other person were brutally attacked, instead of taking action to hospitalise [Mr A], the police had him remanded, declined to record a statement from his side until the intervention of a solicitor and [Mr B], and [Mr A] was only admitted to the hospital in [Town 3] after the intervention of the solicitor and Mr Perera.  The Tribunal commented that this is very different to his account as it indicates [Mr A] was taken by the people who assaulted him to the police and the police subsequently admitted him to hospital once his condition worsened, not that the applicant took him to hospital.  The applicant commented that he thinks they are talking about the police post at the hospital.  He added that he is not aware of a complaint the other group lodged at the police station against [Mr A].  He said his group took [Mr A] to the hospital and admitted him, and the lawyer and other person arrived after that.

13. The Tribunal commented that the article submitted from [Newspaper 1] indicates that two people were brutally attacked, the assailants themselves took [Mr A] to the police station and made a false statement involving him.  In response, the applicant maintained that his group took [Mr A] to the hospital.

14. The Tribunal also commented that the timeline provided by the applicant is different to that in the death certificate which has been submitted, and which is referred to in the press reports, which indicates [Mr A] spent 4 days in hospital and then died on 2 February 2010, four days after he was discharged.  The applicant asked who had indicated [Mr A] died 2-3 weeks after the assault.  The Tribunal observed that he had indicated this in his statutory declaration of 1 November 2012.  The applicant said that is a mistake. 

15. The Tribunal observed that the report of 5 February 2010 from [Newspaper 2] quoting [a JVP spokesperson] also was referenced in a submission dated 30 December 2014 (actually lodged on 3 February 2015) by his previous representative to the previous Tribunal. The applicant stated that he still thinks this refers to the police located at the hospital.  He said when they took [Mr A] there, the police did not allow them to make a statement or a complaint.  He commented he thinks that was because the PSD officers had informed them to do so.  He added that the statement by [his previous lawyers] also contains some mistakes.  He said they did not submit to the previous Tribunal a number of the documents he had provided to them (and that he should have received a ‘court book’ as has now been produced).  He added that he understands that there are no inconsistencies between the evidence provided to the previous Tribunal and current Tribunal.

16. The Tribunal observed that the assault incident occurred on 25 January 2010 and he did not depart Sri Lanka until 27 June 2012, approximately 2 years and 5 months later.  Over that time he was not corruptly charged with any offences and was not attacked by the people who attacked [Mr A] and now a further ten years have passed since he departed Sri Lanka.  The Tribunal asked what he fears now should he return to Sri Lanka.  The applicant commented that the main reason he was ‘saved’ is because he was in hiding and took a lot of precautions so as not to be exposed.  He added he fears there is still a possibility that these people could harm him and he is also very scared of the Sri Lankan police and other intelligence agencies, who were responsible for the assault on and death of [Mr A].  The Tribunal commented that he has not provided anything to indicate or suggest that he and the other three surviving members of the group have been tracked down by police or intelligence agencies, or harmed by those responsible for [Mr A]’s death.  The applicant said he can’t comment on whether the other three people had any problems with the police or had threats because he did not have any contact with them after the incident.  The Tribunal queried the applicant regarding why he was not interested in their experiences.  The applicant said he took every precaution for his own safety and did not want to contact the others as it might increase the threat to his security.

17. The Tribunal also discussed with the applicant his role helping to steer the boat in which he travelled to Australia, and concerns expressed regarding returning to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally.  The Tribunal observed that the previous Tribunal, after considering relevant country information, including the advice from DFAT at the time, concluded that he did not face a real chance/risk of serious/significant harm as an organiser of the venture due to having helped steer the boat.  This is because it appears he only helped to steer the boat for about an hour, on one occasion only, his doing that would not be something that would be readily apparent to the authorities and, in any event, the focus of the criminal penalties for facilitating persons to leave Sri Lanka is on people who were involved in organizing the people smuggling operation and who received financial remuneration for that, which does not apply in his case.  The applicant commented that if he was deported back to Sri Lanka there is a risk that officials would arrest him at the airport and question him on why he departed illegally.  In the process of questioning him, if they undertook a security check they would find out that he has track-record of being politically active and politically accused.  He added that, at the moment, the Sri Lankan President has used the emergency security regulations and if he was arrested under these regulations he could be detained for up to 18 months.  He said they also may demand quite a big financial ransom because he has been living in Australia and if he can’t meet that demand they could retaliate against his family members.  He added that they could make bogus allegations, arrest and remand him and he could face a lot of problems.  This could be life threatening and include torture, disappearance and sexual abuse.

18. The Tribunal commented that press reporting indicates that, while the new government under President Wickremesinghe extended the last state of emergency by 28 days on 18 July 2022, it was not extended beyond mid-August 2022 and no longer applies.[8]

    [8] ‘Sri Lanka will not extend emergency as protests tail off’, Reuters, 17 August 2022, Sri Lanka will not extend emergency as protests tail off | Reuters

19. The Tribunal commented further that current DFAT advice confirms that it remains an offence to depart Sri Lanka without authority.  The most recent DFAT Country Information Report indicates that, after being interviewed by the Chief Immigration Officer, unsuccessful asylum seeker returnees who have departed Sri Lanka illegally will be referred to the police Criminal Investigation Department (CID) at the airport and charged accordingly under the Immigrants and Emigrants Act (1948) (the I&E Act).[9]  Sections 34 and 35(a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport.  DFAT indicates that, once charged, those who departed illegally are taken to the courts at Negombo where they are bailed and released.  DFAT states that it is not aware of detainees being subjected to mistreatment during processing at the airport.  DFAT indicates that facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

    [9] DFAT Country Information Report, Sri Lanka, 23 December 2021, sections 5.17-5.32

20. Those charged with illegal departure, after being bailed, are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings.  DFAT comments that, while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice local sources suggest a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400).  Sources suggest those who are unable to pay the fine are permitted to pay in instalments.

21. The applicant commented that, despite the international reporting, law and order is not maintained in Sri Lanka.  He added that Sri Lanka faces a financial crisis and recently a number of people have been shot and killed.  The applicant queried how such incidents can happen, when countries like the USA are watching and expressing concerns about what is happening in Sri Lanka, if Sri Lanka is listening to the international concerns.  He added that the international community has put the blame on Mahinda and Gotabaya Rajapaksa and Ranil Wickremesinghe regarding ruining the country’s economy, the breakdown of law and order and the curtailing of democratic rights in the country.  The Tribunal observed that the Rajapaksa have both resigned so are no longer involved, although Wickremesinghe is now the president, because he had the backing of the majority of MPs.  The Tribunal added that Wickremesinghe has not extended the state of emergency and is negotiating with the International Monetary Fund over an economic bailout package to address the economic crisis.[10] 

    [10] Department of Home Affairs Country of Origin Information Services Section, Situational Update, Sri Lanka Economic and Political Crisis 2022, 17 August 2022.

1. The applicant commented that the Rajapaksas still have a lot of power and are putting pressure on/exerting influence over Wickremesinghe, who did not become president through a popular mandate at an election.  He added there are serious allegations of financial mismanagement and corruption against Wickremesinghe and that he maintained a torture camp during the 1980s.  He said at least 30-40 people have been killed in the last month and the political thugs in the country are taking the opportunity to retaliate against people.  The applicant added that he has seen media reporting indicating that political thugs are getting weapons from the army, commenting that this shows the situation on the ground is very different to what the international community is told.  He also indicated there are allegations that the Rajapaksas were behind the Easter 2019 terrorist attacks in Sri Lanka, so that they could return to power.

2. The applicant also raised the current shortage of medicines, food items and fuel as a consequence of the economic crisis, commenting that a quarter of the population can only afford to eat one meal a day.  He said living conditions in Sri Lanka are very difficult at the moment.  The Tribunal commented that it appreciates the economic crisis is having a very significant effect on a large number of people in Sri Lanka.  The Tribunal observed that, as it had indicated in its introductory remarks, the Refugees Convention requires that the harm be for one or more of the five convention grounds and, under the complementary protection criterion, it is a requirement that the significant harm be as a consequence of an act or omission intended to cause the person to suffer significant harm.  The Tribunal commented that matters affecting the entire population equally and laws of general application, affecting the entire population equally, are not grounds for protection under those criteria.

3. When asked if there was anything else he wished to raise, the applicant commented that he is concerned about political thugs.  He said he is worried that the people who assaulted [Mr A] may still pose a risk of harm to him.

4. The representative commented that, in her initial letter of 10 October 2013, [Mr A]’s widow states that those who witnessed her husband’s death had to flee the country to protect their lives, due to intensifying threats by government supporters.  She commented that is the only evidence they have regarding what happened to the other witnesses to the incident.  The representative added that in her letter of 8 September 2022, [Mr A]’s widow states the witnesses could not live a normal life as the situation escalated to an extent where it became a risk for them to continue living in the country and some have already fled the country, and indicates the incident is brought up during every election, resulting in conflicts between the parties.  The representative submitted that the guilty parties are still active in Sri Lanka and have an interest in avoiding being brought to justice; that, as noted in her submission, the death of [Mr A] was still being raised in October 2016 and August 2018; Sri Lanka is politically volatile; and it appears that Wickremesinghe’s commitment to the rule of law is not much better than that of the Rajapaksas, suggesting that the applicant could still be at risk.  The representative also commented that the applicant had a reasonable life in Sri Lanka where he had a popular [Group], which also gave him a public profile.

   Post-hearing submission

5. The representative requested two weeks to provide a post-hearing submission addressing matters raised at the hearing regarding the attack on [Mr A] and who admitted him to hospital (the time allowed for this subsequently was extended by a further two weeks).

6. On 18 October 2022, the representative made a submission indicating that she has been instructed it has not been possible to find the hospital records from 2010 relating to [Mr A]’s admission.  The representative advised that [Mr A]’s widow has provided a letter confirming the applicant’s evidence.  She indicated that [Mr A]’s widow did not wish to be video-ed about the issue as she is traumatised by the matter and fearful of the Sri Lankan authorities.  Copies were provided of the birth certificate, marriage certificate and National ID card of [Mr A]’s widow to verify ’as best he can’ that the applicant is in contact with her and known to her.[11]

   [11] See the Tribunal file.

7. Relevant additional matters raised in the most recent letter purportedly from [Mr A]’s widow, dated 2 October 2022, are summarised as follows:

   ·The assailant was [Mr C]. The applicant and the three others with him told her that [Mr C] hit her husband many times on the head with an iron bar.

   ·The applicant and his mates took her husband to the Base Hospital, [Town 3].  Meanwhile the group of thugs had attended the police station in [Town 1] and made false allegations against her husband and his mates.  The police post at the Base Hospital, [Town 3] were aware of this and hence, acting in connivance refused to entertain any complaints from the applicant and the three others.  Their complaint was recorded only after leaders of the JVP and the solicitor intervened.

   ·She filed a court case but, by way of numerous death threats to the witnesses and threatening phone calls to her, they made sure no witnesses came forward to give evidence.  Due to the corrupt nature of the Sri Lankan police, it cannot be expected that the witnesses will be protected or safeguarded by the police.  Reliable sources from the JVP therefore advised any legal action temporarily be put on hold.  The JVP indicated that if they proceeded with the case it could cost their lives.

   ·She is suffering depression due to the loss of her husband and various death threats.  She has declined to make an on-line statement as she has been medically advised to rest as she suffers from hypertension.

   ·She believes there is a threat to the applicant’s life, as the main eye-witness to the incident, and because of this she is at risk of death threats.  The JVP has informed that the thugs involved in the murder are on the alert and gathering information regarding any risks of them being exposed.

   Findings and reasons

   Identity

8. Considering the copies of his Sri Lankan birth certificate, driver’s licence and national identity card provided to the Department,[12] and noting the delegate’s findings in this regard (which are not contested), the Tribunal finds that the applicant’s identity is as he claims it to be and that he is a citizen of Sri Lanka as claimed. Accordingly, the Tribunal finds that Sri Lanka is the applicant’s country of nationality for Refugees Convention purposes and is his ‘receiving country’ for complementary protection purposes.

   Key Issues

   [12] See the Departmental file.

9. The key issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Sri Lanka; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

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

    Credibility

11. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

12. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

13. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

14. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

15. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    Claimed fear of harm from supporters of Mahinda and Gotabaya Rajapaksa

16. The applicant claims to fear harm because he is a JVP supporter and was involved in an incident where a JVP [member],   [Mr A], was assaulted while putting up campaign posters in support of General Sarath Fonseka, who was running as an opposition candidate, endorsed by the JVP, against the incumbent president, Mahinda Rajapaksa.  [Mr A] subsequently died.  It is claimed variously that the assailants were from/supporters of Rajapaksa’s United People’s Freedom Alliance (UPFA) or members of the Presidential Security Division (PSD) and the government’s Ministerial Security Division (MSD).  The applicant indicates that he fears harm from the assailants involved or from police/security authorities corruptly acting on instructions from politicians loyal to or influenced by the members of the Rajapaksa family.

17. In considering the applicant’s claims, the Tribunal notes that, according to the Political Handbook of the World 2012, the JVP was formed as a Maoist political party in the mid-1960s. Historically, the JVP led armed insurgencies attempting to overthrow the government both in 1971 and during 1987-89.  The JVP disavowed violence in the mid-1990s and joined conventional politics.  From that point the JVP has formed various alliances and had varying degrees of political success.  During the height of the JVP’s political prominence the party held 39 seats in the 2004 UPFA government. The JVP further lent its support to political candidates in both the 2005 (Mahinda Rajapaksa) and 2010 presidential elections (Sarath Fonseka).[13]

    [13] Lansdorf, T ed., 2012, Political Handbook of the World 2012 – Sri Lanka, CQ Press, 1 March, pp.1345-59, at p.1355 < <CIS961F9401962>

18. In its 2013 Country Information Report,[14] DFAT indicated Mahinda Rajapaksa was elected president in November 2005 and re-elected for a second term in January 2010.  DFAT commented that Sri Lanka has a diverse political landscape, with 64 registered political parties.  It was noted that democratic elections have been held on a regular basis since independence in 1948.  DFAT commented that, while elections have not been marred by large-scale violence or rigging, they cannot always be described as entirely free and fair.  DFAT assessed that there are no official laws and policies that discriminate on the basis of political opinion nor is there systemic discrimination against particular individuals or groups.

    [14] DFAT Country Information Report, Sri Lanka, 31 July 2013, sections 2.8,3.19, 3.21-3.24, and 3.26-3.27.

19. The Sri Lankan Constitution guarantees freedom of speech and expression, freedom of peaceful assembly and freedom of association.  DFAT commented, however, that space for dissent in Sri Lanka is shrinking.  While there are currently no banned political parties, under the Prevention of Terrorism Act (PTA) certain actions by political parties or groups can be restricted.  According to the PTA, any person who “causes or intends to cause commission of acts of violence or religious, racial or communal disharmony…” can be sentenced to a maximum of five years imprisonment.

20. DFAT stated that political parties in Sri Lanka are largely free to operate as they wish and commented that this applies to representatives, office holders, members and general supporters or volunteers, including people putting up fliers or handing out leaflets. There is no evidence to suggest this differs between Sinhalese, Tamil, Muslim or other representatives, office holders, members, supporters or volunteers of the various parties. DFAT indicated there are no widespread or systematic attacks against opposition political activities, but stated that attacks against specific individuals are frequently reported by credible sources.  Violent confrontations between members of the same coalitions or same parties (including the ruling party) are also reported.

21. The current DFAT report comments that the Prime Minister (at the time of the report) Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest and disappearance of government critics. The current government (at the time of the report) of (President) Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the Liberation Tigers of Tamil Eelam (LTTE) and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks.  Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20^th Amendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears.[15]

    [15] DFAT Country Information Report, Sri Lanka, 23 December 2021, section 2.33.

22. Since the most recent DFAT report was issued, the Economic and Political Crisis in Sri Lanka sparked widespread protests against the government, beginning in March 2022.  Prime Minister Mahinda Rajapaksa resigned on 9 May 2022 and President Gotabaya Rajapaksa resigned on 14 July 2022 after fleeing Sri Lanka on 13 July 2022.  Ranil Wickremesinghe subsequently became the new president after winning a vote in parliament.[16]

    [16] Department of Home Affairs Country of Origin Information Services Section, Situational Update, Sri Lanka Economic and Political Crisis 2022, 17 August 2022.

23. Noting the various press reporting submitted regarding this matter, the Tribunal accepts that [Mr A] died on 2 February 2010.  The Tribunal accepts that [Mr A] was a member of the [JVP].  The Tribunal accepts that [Mr A] sustained injuries when he was assaulted on 25 January 2010, the day before the Sri Lankan presidential election held on 26 January 2010 and eight days before his death.  The Tribunal accepts that the cause of death, listed as thrombosis on the death certificate submitted, was as a consequence of the assault.

24. The Tribunal accepts that it is possible that [Mr A] was a friend of the applicant’s father and was known to the applicant but does not accept that he was a very close friend of the applicant’s. 

25. The Tribunal does not accept that the applicant was with [Mr A] at the time of the assault or that he was threatened by the people involved or by others associated with them or associated with the then president, Mahinda Rajapaksa, and his party (the UPFA).

26. In general, the Tribunal found the applicant’s evidence regarding his claimed involvement in the incident which lead to [Mr A]’s death and the aftermath to be vague, stilted/lacking in spontaneity, inconsistent in significant and material respects and ultimately unconvincing.  For the following reasons, considered cumulatively, the Tribunal does not accept that the applicant was actively involved with the JVP in Sri Lanka, witnessed the assault on [Mr A] or that he subsequently was threatened as a consequence.

27. Firstly, although the applicant described [Mr A] (a JVP [member]) in his statutory declaration as a ‘very close friend’ of his and ‘like a brother’, when asked about how he became involved with the JVP and what attracted him to that party, the applicant did not mention [Mr A] at all.  Instead, he spoke of getting involved through his brother who established contacts with the JVP while studying at university and of his father being a JVP sympathiser.

28. Second, although the applicant claimed to have been the driver for the group including [Mr A] who were pasting up campaign posters in support of Sarath Fonseka, the presidential candidate backed by the JVP, when asked, the applicant did not know that the presidential election was the next day.  The Tribunal expects he would be readily aware of this if he was actively supporting the JVP and [Mr A] as claimed.

29. Third, while it is clear from the documentary evidence provided that [Mr A] died on 2 February 2010, eight days after he was assaulted on 25 January 2010, in his statutory declaration the applicant stated [Mr A] was in hospital for approximately 2-3 weeks, was discharged and came home, and soon afterwards he passed away.  When queried about this at the hearing, the applicant indicated that what was written in his statutory declaration must be a mistake.  The Tribunal notes, however, that his statutory declaration was prepared with the assistance of a solicitor and that an English/Sinhalese language interpreter ‘faithfully translated the contents’ of the statement to him before the applicant signed the statement.

30. Fourth, the applicant has consistently claimed that, after the assault incident, he drove [Mr A] to the hospital and admitted him.  This is not supported, however, by any of the documentary evidence submitted, apart from the most recent letter, purportedly by [Mr A]’s widow, which was submitted after this matter was raised with the applicant at the hearing.  The press report of 5 February 2010 from [Newspaper 2] submitted by the applicant (Attachment 4) cites [a JVP spokesperson] as stating that PSD and MSD officers assaulted [Mr A] and handed him over to the [Town 1] police, lodging a complaint against him, and that the police admitted him to hospital when his condition worsened.  The article from [Newspaper 1] of 23 October 2016 (Attachment 7) also states that ‘The attackers themselves had taken [Mr. A] to the police station and had made a false statement involving him’.  It further states that ‘…instead of taking action to hospitalise the brutally assaulted [Mr. A] they had him remanded’…The police declined to record statements from [Mr. A]’s side, but…with the intervention of a Solicitor and [Mr. B], a statement had been recorded in the CIB [Number] of the police station, [Town 1].  Also, because of their intervening, the gentleman was admitted to the hospital in [Town 3] and was subsequently transferred to the hospital in [Suburb] as his condition became serious’.  The article indicates that no legal action has been taken against [Mr CC], who it is stated had previously threatened to kill [Mr A] and, despite ‘the numerous complaints’ against [Mr CC] and his group. 

1. In his insert to this article, [Mr B] indicates that when he arrived at the [Town 1] police station, the police had handcuffed ‘the victim of assault going by the other complaint they made’ and that police were only compelled to record a complaint by him ‘because of the intervention of a Solicitor’.  The article of 2 February 2010 from [Newspaper 3] submitted by the applicant (Attachment 3) indicates that a JVP spokesman said that [Mr A] made a statement in which he provided details of the assault, including the names of some of the people involved in the assault.

2. The Tribunal finds that the press reports do not support the applicant’s statements at the hearing that the reports are referring to the police post at the hospital – it is clear they are referring to the [Town 1] police station.

3. Fifth, the Article from [Source 4] dated 24 August 2018 submitted by the applicant (Attachment 8) indicates that as well as [Mr A], two others were also injured in the attack and the injuries to the victims were severe.  The article also states that ‘There was a case heard at [Town 3] Court on the death and eye witnesses gave their evidence, but thereafter the case was halted’.  This reporting is significantly and materially different to the evidence given by the applicant, who indicated at the hearing that, while the three other member of the party were assaulted (using hands) they did not suffer major injuries.  It is also contrary to the advice in the letters submitted purportedly from [Mr A]’s widow, which state that all of the eyewitnesses refused to come forward with testimonies in support of the case she filed in court.

4. Sixth, the applicant has claimed that, shortly after the assault on [Mr A], he went to stay at his uncle’s home in [City 1] (which is in the North Central Province of Sri Lanka).  In his statutory declaration he stated that, after ‘a couple of months’ he came home to his town, and it was then that, while waiting in a bus to go to Colombo, he was taken off the bus by police officers.  The delegate’s decision record also indicates that, at the Departmental interview, the applicant indicated that he lived with his uncle for a period of two months after the incident and then returned to Galle and lived in hiding.[17] At the hearing, however, the applicant initially was vague regarding how long he stayed with his uncle, but after prompting indicated he stayed there for about a year.  He indicated that for the first 3-5 months he did not go anywhere but after that he used to visit his parents and others in his village area.  He indicated that the bus incident occurred around 6-7 months after the assault incident. 

   [17] See the third paragraph on page 13 of the delegate’s decision record.

5. Contrary to what he stated at the Departmental interview, the applicant also indicated at the hearing that he did not return to live in his home area in the Galle district because that would be too risky and dangerous, so went to live with a friend in [City 2] (which is in the Western Province of Sri Lanka), although he indicated that, while living there he still used to visit his home village.  In the pre-hearing submission, the representative stated that the applicant moved around regularly to evade the persons who threatened him, but this is not supported by his own evidence, which most recently is that, over the period of nearly two and a half years from late January 2010 until he departed Sri Lanka in June 2012, he stayed with his uncle in [City 1] and then with a friend in [City 2].  The Tribunal considers these are significant and material inconsistencies.  

6. The Tribunal also finds the applicant’s evidence to the Tribunal that he visited his home village regularly while both staying with his uncle and with his friend inconsistent with his claim to have been in hiding and fearful of being located and harmed either by the people who assaulted [Mr A], supporters of President Rajapaksa’s party (the UPFA) or the Sri Lankan authorities (he stated the main reason he was ‘saved’ was because he was in hiding and took a lot of precautions).  His claim to have been in hiding from late January 2010 is also inconsistent with the advice in his statement that he earned a living from his [Group] from 12/2003 until 6/2012 (that is, until he departed Sri Lanka), although the Tribunal notes that the delegate’s decision record indicates that, when queried about this at the Departmental interview, the applicant responded that he was in hiding, suggesting he had ceased working with the [Group].[18]

   [18] See the first paragraph on page 13 of the delegate’s decision record.

7. Seventh, there were also significant and material inconsistencies in the applicant’s evidence in relation to the claimed incident where he was taken off a bus by police officers.  In his statutory declaration he stated a uniformed officer and two in civilian clothes took him off the bus, put him in a vehicle and took him to the police station where he was held for around half an hour without being questioned or asked to make a statement, and then told he could go. He speculated that he believed the incident may have somehow been related to the ‘political situation’ he had got himself into and there was political influence to keep him quiet about it.  At the hearing, however, he said two officers took him off the bus, he was first taken to a small police post at the bus station before being taken to the [Town 1] police station where he was held for 3-4 hours, before being released without any explanation regarding why he was detained.  Initially he did not indicate he was released because his father went to the police station, even though the Tribunal prompted him by asking firstly, if anyone intervened on his behalf, and then commenting that it seems strange that he would be held for such a long period, not questioned and then let go.  As the applicant’s representative had indicated in her pre-hearing submission that the applicant was released after his father attended the police station and that apparently he was released because he was mistaken for another person of interest to the police, the Tribunal asked further, direct questions that resulted in the applicant indicating that his father, who he said had been called by his girlfriend (when specifically asked if either he or his girlfriend called anyone), had attended the police station.  The Tribunal notes that the applicant had not previously indicated that his father attended the police station after being called by his girlfriend.

8. Eighth, there were also significant and material inconsistencies in the applicant’s evidence regarding the number and timing of threat calls he received.  In his statutory declaration he indicated that after [Mr A]’s death he received threatening calls on his mobile phone around four or five times, telling him not to give any statements to police or his life would be in danger.  The delegate’s decision record, however, indicates that he stated at the Departmental interview that he received up to 10 threatening phone calls from between February 2010 and late 2010/the beginning of 2011.[19] At the hearing, however, he stated he received 20-30 threatening phone calls, the first being a few days after [Mr A]’s death (which occurred on 2 February 2010).  In the representative’s pre-hearing submission it was  stated for the first time that the threat calls initially were made to the family’s the home land-line and later to the applicant’s mobile.  When asked at the hearing, the applicant stated the calls were both to his mobile phone and to the home land-line.  When asked how he could have received threat calls on his home land-line if he had gone to his uncle’s home immediately after the assault incident, the applicant said the calls received at his home were aimed at his family members, something that had not been raise previously.  He indicated he could not remember how long the calls lasted for, but when pressed, said it would have been for more than six months.  The Tribunal found unconvincing the applicant’s explanation for why the number of threat calls he claims to have received has changed so dramatically - that his father had not previously told him about the threat calls made on the home landline because he was scared to.  The Tribunal considers that the applicant’s father would want to warn him if there were calls indicating that his life was in danger.

   [19] See the first paragraph on page 13 of the delegate’s decision record.

9. Nineth, the Tribunal considers that, if a false case had been made against the applicant as he claims to fear, and he was being sought by police or security/intelligence officers, he would not have been released when he claims to have been detained by police when on a bus in [Town 1] waiting to go to Colombo.

10. In making its findings above, the Tribunal has focused on significant and material inconsistencies and does not accept that the inconsistencies outlined above can be explained by the applicant being asked to give approximate dates and timings or having difficulties recalling precise dates and timeframes (which have not been requested).  Noting the court findings regarding the issues with the interpreting at the previous Tribunal hearing, the Tribunal has not given weight to the oral evidence provided to the previous Tribunal in making its findings

11. In making the findings above, the Tribunal has given careful consideration to the three letters submitted, purportedly from [Mr A]’s widow.  Given the recent provision of copies of her birth and marriage certificates and her Sri Lankan identity card, the Tribunal accepts the letters may have been signed by [Mr A]’s widow.  The Tribunal notes they are not sworn statements and does not know whether [Mr A]’s widow is the author of the contents of the letters or whether they were written by others or under the influence of others.  The Tribunal has not been able to question her about the letters.  The Tribunal also does not know her motives in signing and providing the letters to the applicant.  The Tribunal considers that the content of the letters is significantly and materially inconsistent with other evidence in some key regards: the applicant has not claimed to be an active member of the JVP as she states; none of the reporting supports the claim that the applicant took her husband to hospital, and does not support the statement that all the eyewitnesses declined to give evidence in relation to her husband’s death; the applicant has not indicated that, as well as receiving threat calls, he was repeatedly harassed and intimidated.  In her first letter dated 10 October 2013 [Mr A]’s widow indicated that all the eyewitnesses to her husband’s death had to flee the country to protect their lives, but the letter of 8 September 2022 just stated ‘some’ have already fled the country.  Despite this, she indicates that the eye witnesses have ongoing death threats in Sri Lanka, which again is not something the applicant has claimed.  The most recent letter of 2 October 2022 states that the applicant is ‘the main eye witness to this incident’ but does not explain why that is the case.  Reference is also made to information she has received from the JVP but no supporting information or advice from the JVP has been submitted to the Tribunal.  In light of this and the Tribunal’s findings above, the Tribunal gives little weight to the letters.  The Tribunal does not accept the representative’s contention that the letters confirm that the applicant was present at the assault, took [Mr A] to the hospital and subsequently was threatened not to make a police report or give evidence in relation to the matter.

12. As the Tribunal does not accept that the applicant witnessed the assault on [Mr A], the Tribunal finds he is not a member of a particular social group comprising unprotected witnesses.

13. As the applicant has never claimed to be a member of, or supporter of the UNP, the Tribunal finds he is not a member of a particular social group comprising UNP members.

14. The Tribunal has significant doubts that the bus incident ever occurred but if it did, considers it was a case of mistaken identity as indicated in the representative’s pre-hearing submission, rather than an indication of the authorities harassing the applicant because of the ‘political situation‘ he got himself into, as stated in the applicant’s statutory declaration.

15. The applicant has indicated he is not a JVP member but states that he and his family support the JVP.  As the Tribunal does not accept the applicant was with [Mr A] when he was assaulted, the Tribunal does not accept that he campaigned for the JVP.  The representative has indicated that while the applicant and his family continue to support the JVP they are not politically active.  Noting the country information which indicates that the JVP is a legal political party in Sri Lanka and that there is no widespread or systematic attacks against opposition political activities, the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm due to his political opinion should he support and vote for the JVP in the future, on his return to Sri Lanka.

16. The Tribunal accepts that there was a political and economic crisis in Sri Lanka in 2022.  The Tribunal acknowledges that the government responded to large-scale anti-government protests by declaring a State of Emergency on a number of occasions from April 2022.  The Tribunal accepts that violent clashes between supporters of the then government and protesters resulted in some deaths and injuries and some protesters were arrested. Reporting indicates that security forces have largely shown restraint in their efforts to control protests and keep order, although there were reports of incidents of violence.  Police have used tear gas, water cannons and rubber bullets against protesters.[20]  Recent reporting from the BBC indicates that anti-government protests have ceased but economic hardship persists pending finalisation of a US2.9 billion IMF bailout and financing assurances from China and other bilateral creditors.[21]  Noting the representative’s comments in the pre-hearing submission that the applicant is unlikely to engage in protests, the country information indicating that there is no longer a State of Emergency in place in Sri Lanka, and the Tribunal’s findings that the applicant was not a witness to the killing of [Mr A], the Tribunal does not accept that there is a real chance the applicant would face persecution involving serious harm in the form of arrest, long term detention and mistreatment by the police or security personnel, or physical violence from political thugs or Rajapaksa supporters, should he return to Sri Lanka now or in the foreseeable future.

    Risk of harm due to illegal departure, having helped steer the boat, and return as a failed asylum seeker from a western country

    [20] Department of Home Affairs Country of Origin Information Services Section, Situational Update, Sri Lanka Economic and Political Crisis 2022, 17 August 2022.

    [21] ‘Sri Lanka’s anti-government protests have gone silent – for now’, BBC News, 8 January 2023, Sri Lanka's anti-government protests have gone silent - for now - BBC News

17. The Tribunal accepts that the applicant departed Sri Lanka illegally and that he would return to Sri Lanka as an unsuccessful asylum seeker from a western country.

18. The Tribunal also accepts his evidence that, on one occasion, he helped steer the boat for about an hour.  As discussed with the applicant at the hearing, the Tribunal does not accept that his having done this, if it became known to the Sri Lankan authorities, would result in him being charged with people smuggling offences under s 45C (1) of the I&E Act, because he was not involved in the organisation of the voyage and did not receive any remuneration for steering the boat.

19. The Tribunal accepts that the country information indicates that the applicant will be presented to Sri Lankan immigration on arrival in Colombo and will be interviewed by the Chief Immigration Officer and, depending on the circumstances of his departure, may be interviewed by other agencies including the CID.  As there is nothing to indicate or suggest that the applicant has had any false charges brought against him, the Tribunal does not accept that he would be detained on the basis that he has outstanding criminal matters.  Given the Tribunal’s findings above, the Tribunal does not accept the applicant’s concern expressed at the hearing that security checks would result in authorities finding out that he has a track record of being ‘politically active’ and ‘politically accused’.

20. The Tribunal accepts that the applicant, as someone who departed illegally in breach of the I&E Act, will be referred to the CID at the airport and charged accordingly.  Once charged he will be taken to the courts at Negombo, bailed and released.  The Tribunal notes DFAT’s comment that it is not aware of detainees being subjected to mistreatment during processing at the airport.  The Tribunal considers there is no evidentiary support for the applicant’s claimed fear that authorities could demand a big financial ransom because he has been living in Australia or that bogus allegations could be made against him, he could be arrested, remanded in custody and suffer torture, sexual abuse and/or disappearance.

21. The DFAT advice indicates that, in the case of those convicted of illegal departure, which would be the outcome in the applicant’s case, a fine is always imposed, which typically is LKR 50,000-200,00 (the equivalent of AUD 350-1400), which could be paid in instalments.  There is nothing in the DFAT reporting to indicate or suggest that someone in the applicant’s circumstances, returning to Sri Lanka as a failed asylum seeker from a western country who departed Sri Lanka illegally, would face a real chance of suffering treatment amounting to persecution involving serious harm as a consequence of their illegal departure from Sri Lanka and/or returning as a failed asylum seeker from Australia.

22. The Tribunal concludes that there is not a real chance that the applicant would suffer persecution involving serious harm from the Sri Lankan authorities and/or or members of the Sri Lankan community as a consequence of his illegal departure from Sri Lanka and return as a failed asylum seeker from Australia.

    Cumulative consideration

23. The Tribunal has also considered the applicant’s claims against the refugee criterion cumulatively.  Having regard to the findings of fact set out above, the Tribunal concludes that there is not a real chance that the applicant would suffer persecution involving serious harm from the Sri Lankan government and/or its authorities, including the police, intelligence, security and military authorities, political thugs, Rajapaksa supporters or anyone else, as a consequence of his political opinion, his illegal departure from Sri Lanka by boat and/or his status as a failed asylum seeker from Australia.  Accordingly, the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

24. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. 

100.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[22]

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

101.   Significant harm 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.

102.   Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

103.   Considering the applicant’s individual circumstances and his claims singularly and on a cumulative basis, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as set out in s.36(2A) from the Sri Lankan government and/or its authorities, including the police, intelligence, security and military authorities, political thugs, Rajapaksa supporters, or any other authority, agency, group or person.

104.   In making this finding, the Tribunal has given careful consideration to whether the applicant would be detained and face a real risk of being subjected to torture; cruel and inhuman treatment and punishment; and/or degrading treatment or punishment as a consequence of his illegal departure from Sri Lanka and his return to Sri Lanka as a failed asylum seeker from Australia.  As noted above, based on the available country information, the Tribunal found that, if returned to Sri Lanka, the applicant would be detained at the airport for a brief period until he could be brought before a magistrate whereupon he would be released on bail, and would not suffer mistreatment while being detained pending his being brought before a magistrate and released on bail.  On being convicted for illegal departure, he would be fined and could pay the fine in instalments.  The Tribunal considers that the process and penalties, which constitute lawful sanctions that are not inconsistent with the Covenant, do not constitute significant harm.

105.   In making this finding, the Tribunal also accepts that the applicant might suffer some economic hardship if removed to Sri Lanka, including as a consequence of the Sri Lankan economic crisis. The Tribunal does not accept, however, that any severe pain or suffering, including mental pain or suffering, or extreme humiliation the applicant might suffer as a consequence of his economic circumstances and the impact of the economic crisis would constitute significant harm for the purposes of the Act, as it would not be pain or suffering that has been intentionally inflicted, or be an act or omission which was done with the intention of causing him extreme humiliation which is unreasonable.

Conclusions

106.   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.  Accordingly, the applicant does not satisfy the criterion set out in s.36(2)(a). 

107.   Having found 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).

108.   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

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

Paul Windsor
Member
  Relevant law

ATTACHMENT A

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

   Refugee criterion

2. 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).

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. 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’).

13. ‘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.

14. 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

15. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken 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.

    Member of the same family unit

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