1906980 (Refugee)

[2019] AATA 6136

1906980 (Refugee) [2019] AATA 6136 (24 June 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906980

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jason Pennell

DATE OF DECISION:  24 June 2019

DATE CORRIGENDUM

SIGNED:29 January 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words “the Tribunal accepts that the applicant has a subjective fear of being harmed in the event that he returns to India” in paragraph 50 of page 19 should be replaced by the words “the Tribunal accepts that the applicant has a subjective fear of being harmed in the event that he returns to Sri Lanka”.

2. The words “the Tribunal has considered whether persecution claimed by the applicant relates to all areas of India” in paragraph 82 of page 25 should be replaced by the words “the Tribunal has considered whether persecution claimed by the applicant relates to all areas of Sri Lanka”.

3. The words “in the event that he returns to her local area in India” in paragraph 92 of page 27 should be replaced by the words “in the event that he returns to his local area in Sri Lanka”.

4. The words “as a necessary and foreseeable consequence of the applicant being removed from Australia to India” in paragraph 97 of page 28 should be replaced by the words “as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka”.

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906980

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jason Pennell

DATE:24 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2019 at 12.10pm

CATCHWORDS

REFUGEE – Safe Haven Enterprise visa – Sri Lanka – race – Tamil – imputed political opinion – particular social group – family members in the Liberation Tigers of Tamil Eelam (LTTE) – fear of arrest – fear of killing – location of LTTE assets – extortion – failed asylum seeker – employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
Januzi v SSHD [2006] 2 AC 426
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZSCA (2014) 254 CLR 317
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 March 2019 to refuse to grant the visa applicant a Safe Haven Enterprise Visa (Class XE) Subclass 790 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 March 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s.36(2)(a) or s.36(2)(aa) of the Act).

3. The applicant appeared before the Tribunal on 30 May 2019 and 14 June 2019 to give evidence and present arguments. The applicant’s mother, [named] also gave evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

RELEVANT LAW

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, he or she 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.

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 because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country[2].

   [1] s.5H(1)(a) of the Migration Act 1958

   [2] s.5H(1)(b) of the Migration Act 1958

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. 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 the 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 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'). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

6. An applicant is considered not to be at a real risk of suffering significant harm in a country if:

   ·it is reasonable for the applicant to relocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or

   ·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]

   [3] Migration Act 1958 s36(2B)(a). SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

   [4]    Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ migration history

1. According to the delegates decision dated 20 March 2019[5] the applicant arrived in Australia as an undocumented air arrival (UAA), without any identity document. He provided his name and stated that his date of birth was [date]. He stated on arrival that he is a Sri Lankan citizen of Tamil ethnicity.

Country of Reference

[5]AAT File No1906980 @ f.16

1. Subsequent to lodging his SHEV application, the applicant provided copies of the following documents:[6]

   (a)  Sri Lankan ID Card written in Sri Lankan script.

   (b)  Sri Lankan birth certificate written in Sri Lankan script

   (c)   Sri Lankan drivers licence written in English.

   [6]    Op Cit @ f.15

2. The delegate’s decision[7] notes that the accredited Tamil interpreter engaged for the purposes of the applicant’s SHEV interview, translated the biological details of the ID card and birth certificate which confirmed the applicant’s name and birth date, as does the applicants drivers licence written in English.   

   [7]    ibid

3. Therefore, based on the applicants oral evidence to the Tribunal and the documentation provided to the department, the Tribunal accepts and finds that the applicant was born on [date], in [his home town in] Sri Lanka and that his nationality is Sri Lankan. Accordingly his protection claim will be assessed against Sri Lanka as the country of reference and as the 'receiving country'.

The applicant’s protection claims

1. The applicant’s claims are summarised in the delegates decision dated 20 March 2019[8] as follows:

   [8] AAT File No1906980 @ f.15

   (a)The applicant’s parents were members of the Liberation Tigers of Tamil Eelam (‘LTTE’). His mother was in [Section 1]. His father was in [Section 2].

   (b)The applicant’s father was beaten by soldiers and he became sick, and eventually died in 2013.

   (c)The applicant’s parents were reported on after the war.

   (d)The applicant father was then beaten by the army but his mother escaped to Australia.

   (e)The applicant’s brother was then harassed by the CID as a result one of his [relatives] organised a trip for him to go to [Country 1] where [a Relative A] lives in 2014.

   (f)The applicant was not harasses until he sat his exams.

   (g)That applicant claims that one of the people who work for the LTTE now works for the CID. That person told the CID that his mother knows about where weapons are and she should return to Sri Lanka.

   (h)The applicant stated they harassed and threatened him and told him they would kill him if his mother does not return to Sri Lanka so he had come to Australia. He thinks they know they know he has left so he returns he will face harm.

   (i)The applicant stated when they started to harass him, he told his [relative] in October 2018.

2. On 15 March 2019 the applicant provided a written statement of his protection claims[9] which was summarised by the delegate as follows:[10]

   [9] Department file ([number])

   [10] Delegates decision @ p.3; AAT file 1906980 @f.15

   (a)The applicant was born in Kilinochchi, a Tamil area that was under control of the LTTE.

   (b)After the Sri Lankan Civil War ended in 2009 with the defeat of the LTTE the Sri Lankan military took control of Tamil areas. The applicant was [age] years old at the time. The applicant knew both his parents had worked for the LTTE but did not know their duties.

   (c)After the war the applicant saw his parents questioned by the Sri Lankan security forces at home, and sometimes taken away. Neither his parents disclose details of what happened.

   (d)The applicant’s father was severely assaulted and he became paralysed, and died in 2013.

   (e)The applicant’s mother was unable to stay with the continued attention and fled to Australia by boat with [family members]. The applicant, his father and brother remained in Sri Lanka.

   (f)When his mother left he was [age] years old.

   (g)After she left the interest in her by the security and intelligence forces continued. This was done to ex-LTTE cadres or villagers giving information because his parents did not go to detention as had some of them. Many did not believe she had fled the country, but was living elsewhere. The authorities started questioning him and his brother about her.

   (h)Also because she was sending money to the family others were jealous, and demanded money from them, threatening them if this causes them to live in fear.

   (i)Because of his age, the applicant’s brother faced more problems than him, eventually leaving Sri Lanka and going to [Country 1].

   (j)After he left the applicant faced difficulties, and became the focus of attention from the Army and military groups who were working with the army.

   (k)With the help of agents, relatives made arrangements for the applicant to leave the country, by obtaining a passport and documents for travel.

   (l)With their efforts he travelled to [Country 2], [Country 3], [Country 4] and [Country 5]. As they could not send him away however he needed to return to Sri Lanka as his documents were with the agent.

   (m)The applicant faced constant threats, intimidation and demands for money, as well as attention from the authorities. He did not get involved in activities for which he was arrested or detained, however he was aware this could happen any time. He was threatened by the CID that they would pick him up. This happened to young people who were part of the [Gang 1] group.

   (n)Because of the risks his relatives made expedited arrangements for him to leave the country and not return. In Sri Lankan, apart from some extended relatives he has no immediate family and is totally dependent on his mother for a living.

   (o)Although a lot has been said about improvements in Sri Lanka, for someone like him he was associated with the LTTE, very hard and dangerous.

   (p)The Army is working to keep Tamil areas under control and they do not want LTTE activity or the group to gain ground. They are bringing Tsinghua relatives to settle in Tamil lands, forcing them out of business.

   (q)The applicant fears returning in these conditions. Like his mother [and family members] he fears he will be persecuted and suffer significant harm because of his effort ethnic background, his political opinion that is to be free from the Tsinghua government, and for being associated with the LTTE.

3. In support of his claims, the applicant has provided a document, written in Sinhalese, dated [in] January 2019 reporting to be from the Sri Lankan Criminal Investigation Department (CID).[11] The delegate refers to the fact that prior to the applicant’s SHEV interview; the interpreter provided an unofficial translation of the document. The delegate notes that interpreter stated that the document advises that the applicant was required to report to the CID office in Colombo by [another date in] January 2019 and that he fails to do so an arrest warrant will be issued for him.[12]

   [11]  Department file ([number]). 

   [12] Delegates decision @ p.4; AAT File1906980 @ f14

4. At the hearing the applicant’s representative provided a copy of the document to the Tribunal. No translation of the document was provided to the Tribunal, however, the applicant’s representative during the hearing confirmed that the document instructs the applicant to report to the CID office in Colombo by [a date in] January 2019 and that he fails to do so an arrest warrant will be issued for him. As part of his own application, the applicant submitted a copy of his mother’s SHDV application, submitted in 2016[13] which included her written statement and is summarised as follows:

   [13]  Statement of [the applicant’s mother] dated 7 March 2016; Department file ([number])

   (a)The applicant’s mother was born on [date] in Kilinochchi, in the Northern Province of Sri Lanka. Her father was a farm and her mother was engaged in home duties.

   (b)The applicant’s mother is a Tamil woman of the Hindu faith.

   (c)The applicant mother is a widow and has two sons living in Sri Lanka [and specified family members] in Australia.

   (d)The applicant’s father died in 2013 after a long history of medical complications, following a severe beating he suffered at the hands of the Sri Lankan Army (SLA).

   (e)The applicant mother would work as [Occupation 1] from time to time to meet the family’s expenses.

   (f)The applicant’s family were displaced from Kilinochchi to [their home town] in 1996.

   (g)The applicant’s father had gone to check on the family house in Kilinochchi which he had not realised was under the control of the SLA when he was attacked by the SLA. They hit his head and he lost his teeth. He was taken into custody, beaten and accused of being with the LTTE. They threw him in a bunker and threatened to shoot him, he was crying and crying and eventually they released him. The applicant’s father was released into the LTTE controlled area and he returned home with many injuries.

   (h)The applicant’s father was not able to do much after being beaten. As a result, the applicant’s mother had to find other alternatives to make ends meet, as a result she took on [Occupation 1] jobs.   

   (i)The applicant’s father became severely ill and became paralysed in 2010 while he was in the IDP camp. The applicant’s father died in 2013.

   (j)The applicant’s mother’s [brother], [named], joined the LTTE after school. He was shot dead by the SLA in 1991.

   (k)The applicant’s [relative, named], was the [Position 1] in the LTTE’s [Section 3] helped her get a job. She stated that the Sri Lankan authorities were aware that he was in [Position 1] and would come to her home asking for him. He fled to [Country 6] in 2010 and now lives in [city].

   (l)The applicant’s family faced sever financial difficulties in 2003. As the applicant father could not work, his mother was forced to seek alternative employment. Prior to commencing work for the LTTE the applicant’s mother had helped provide food parcels and assist in conducting meetings. She had good Tamil language skills and had explained family’s situation to the LTTE. As a result her brother assisted in her in getting a job with the LTTE [Section 3].

   (m)The applicant’s mother commenced working to the LTTE in 2003, when her youngest daughter was very little. The applicant’s mother claimed that her role required that she [perform specified duties]. She worked for the LTTE for a period of six years, until the end of the war in 2009. She paid a small salary.

   (n)The SLA officers would come to the LTTE controlled area where the applicant’s mother worked to collect information. They would then visit [Section 1] to pass the information onto the LTTE.

   (o)The LTTE [Section 1] would pass money onto to people in the area it had received from the diaspora and [perform strategic duties].

   (p)The applicant’s mothers duty involved [specified duties].

   (q)At the end of the war the applicant’s mother and father avoided being screened, and ended up in an IDP camp, [named]. At that time they were not aware they had worked for the LTTE.

   (r)The applicant’s mother claims that in 2008 she and her family were displaced and staying in various places. On 13 May 2009 a few days before the end of the war they were making their way to a bunker for safety during a shelling raid when her sister was killed. On 16 May 2009 they appeared and surrendered.

   (s)The applicant’s mother claimed that after she continued to be harassed by the army after the war. The applicant’s neighbours knew she had helped the LTTE during the war and she believes they passed this on to the authorities who came to know about this, and wanted her to come into the army camp for interrogation. During interrogation she was asked about what people were doing such things as whether she knew certain people and where they are now. They also started coming to her house for interrogations.

   (t)They wanted her to go to the camp twice a month and [threaten] her. She said that she would not come back for questioning as they confiscated her ID card. This was about one month before she left the country.

   (u)The applicant’s mother claimed that although she was not assaulted, she was threatened with harm and claimed that if she did not come up with the things they wanted they would arrest her. Because she was afraid of what might happen to her and her daughters she arranged to flee to the country.

   (v)The applicant’s mother claimed that they could not afford to take all the family. In addition, because of her husband’s illness he could not travel. As a result, [specified family members] remained back to take care of him.

   (w)Since she has been in Australia her family told her that the SLA/CID still came and asked about her. Her family said she had gone to Colombo, but they have also now come to know she had fled to Australia. They have told her family if she returns they will come for her because they suspect she was with the LTTE.

   (x)In Australia she has also participated in the Marty’s day’s events which are forbidden in Sri Lanka.

1. Prior to the hearing the applicant provided the Tribunal with a Statutory Declaration which had not been executed by the applicant. As a result during the hearing and under oath the applicant confirmed the contents of the Statutory Declaration as being true and correct. The applicant’s evidence was as follows:

   (a)The applicant requested that the information provided by the applicant at the time he arrived at [the Australian] airport requesting asylum and stating why he fled from Sri Lanka be taken into consideration along with his claims for protection.

   (b)The applicant claims he was born in Kilinochchi on [date] in the Tamil dominated Northern Province of Sri Lanka which was controlled by the LTTE. The area was in constant term for decades with all civilians of Tamil ethnicity collectively targeted for retaliation to suppress the LTTE.

   (c)The LTTE is a militant group but revered by the Tamil population, as their freedom fighters struggling to free them from the atrocities of the Sri Lankan and government.

   (d)Sri Lankan government was determined to eliminate the LTTE but in doing so, its full intention was to erase the political will of the Tamil people to have a separate or federal state through self-determination, which caused the LTTE to take over to fight military.

   (e)The war ended in May 2009 by the defeat of the LTTE, with several casualties and crimes against Tamils. Since then the Sri Lankan forces took control of the Tamil areas to suppress the political will of the Tamil people. As usual, the Sri Lankan government went back on promises to address the grievances of the Tamil people and is on a program to weed out Tamil activists, ex-LTTE cadres or their family members and dilute the the province of Sinhala migrants, imposing Buddhism with the support of the forces to cement a single state solution.

   (f)When the war ended in 2009, I was [age] years old and depended on my parents. I live with my parents and they looked after [our family]. I knew both my parents were working with the LTTE but did not know their actual functions with them.

   (g)My parents suffered, in the hands of the Sri Lankan forces after the end of the war. I saw my mother and father being questioned by Sri Lankan forces at home and sometimes taken away, and knew it was about the LTTE, but did not know what was actually discussed. Neither my father nor mother disclosed the details, but we always sense there was trouble with the SLA.

   (h)My father was severely assaulted by which he became paralysed and then died in 2013.

   (i)My mother [and family members] were unable to stay in Sri Lanka due to the constant attention and risk to [them] from the SLA. As a result they fled to Australia. This was the only way she could deal with the situation as she and my [family members] were in an immediate [danger]. My father, my brother and myself remained in Sri Lanka.

   (j)At the time my mother came to Australia I was only [age] years old and totally depended on her, particularly given the shattered physical condition of my father. I request that the protection be given to me as one dependent of my mother and as a member of her family

   (k)The interest by security forces and their intelligent agencies on my mother continued even after my mother left the country and my father died. This arose largely out of ex-LTTE or villages giving information to the SLA out of anger that my parents did not go to detention like some others. Some believed that she was living elsewhere in the country and visiting us secretly, and so started questioning my brother and me about her. Others however, were jealous that she had travelled overseas in that they are suffering without a home, work or money to buy food, but we were living off money sent by her. Very often these people felt my family overseas is in good financial status and demanded money, and if it was not given, threatened us, forcing us to live in fear not knowing what happened next, because of their closeness to the forces.

   (l)My mother [and family members] efforts since they went to Australia and after our father died focused on taking my brother and I to safety my brother face more difficulties due to his age. With help from some people he left the country and finally managed to enter [Country 1] where he liked me has a claim has claimed asylum.

   (m)When my brother also left, I faced difficulties became focused of attention from the Army and more commonly from former militant groups who were now working for SLA.

   (n)As I was young since the end of the war I was not on the list of the Army in the area, unlike my parents. However local people saw us as part of the LTT family and informed on me and my brother to the forces when our mother [and other family members] were not to be seen in the area.

   (o)With the help of certain agents arrangements were made for me to leave the country my relatives made the these local arrangements and may attempt attended to obtaining passports and other documents for my travel I simply accompany and follow directions of the agents and was helpless I had to rely on them and had to do as I was told. In these efforts they took me to [Country 2] to buy [Country 4] and later [Country 5] but as they could not send me away took me back to Sri Lanka. I had to obey the directions they gave me as my passport and other documents were with the agent.

   (p)I faced constant threats and intimidation is no demand for money and attention by forces but I did not get involved in any activities over which I was arrested or produced in courts or kept in detention. Intimidation and threats made me aware this could happen at any time because at the time, many young people were pointed out as belonging to [Gang 1]. They were being picked up regularly and I was also threatened that the CID will pick me up soon enough. Many were simply pointed out as being a [Gang 1] age group people with no evidence whatsoever.

   (q)It is then my relatives pleaded to expedite the arrangements for me to get me out of the country and not return me to Sri Lanka except for some extended relatives I have no one of my immediate family and trying to I’m totally depended on my father mother for my living

   (r)Although a lot is said about improvement of Sri Lanka since the end of the war the situation on the ground for people like me who are associated with the LTTE is very hard and dangerous. The end of the war simply stopped or out fighting and violence but the subsequent period was localised intensive suppression of ex-LTTE card raise which she was unbearable and painful the Army was working to keep Tamil areas under their control and does not want to allow any activity for LTTE to regroup or gain ground they are bringing in their Sinhalese relatives from their areas and resettling on lands belonging to Tamils forcing them out of their businesses, fishing areas and from earning a livelihood. If you show disquiet about these activities or resisted that itself is seen as a threat or LTTE activity and those concerned are arrested or detained.

   (s)I fear to return to the country in these conditions and plead to be protected to live with my family in Australia.

   (t)I fear that like my mother [and family members], if I was forced to return to Sri Lanka I will be persecuted or suffer significant harm because of my ethnic background; my political opinion; to live free from shingle our government and my membership of a particular social group, that being Tamils who are associated with the LTTE.

The Applicant’s evidence to the Tribunal.

1. The applicant’s evidence to the Tribunal as that he was born in Kilinochchi, Sri Lanka on [date]. His mother now lives in Australia with his  [family members, ages specified] and his father passed away in 2013. The applicant’s brother (aged [age] years) has lived in [Country 1] since 2015.

2. The attended completed his primary and high school education at his local [school in] Kilinochchi, Sri Lanka and completed his [specified] exams in [year]. He stated that he had enrolled in a [college] but did not commence his studies. The applicant’s evidence was that while he was studying he was supported by his grandparents and by money his mother sent for Australia. The applicant has not worked.

3. The applicant’s evidence was that both his mother and father were LTTE cadres. In relation to his father, the applicant evidence to the delegate was that up until 2009 his father was working LTTE [Section 2], [with specified duties].[14] The applicant evidence was that his father was no seriously injured during the war apart doe some shrapnel in the leg. He stated to the delegate that his father had become paralysed after they had returned home for the IDP camp. The delegate put to the applicant that his account of his father’s LTTE participation was different to the claims made by his mother. The mother made no claim that the applicant’s father was a member of the LTTE. Instead she stated that the father had become seriously incapacitated as a result of being beaten in 1996 and was not able to work from 2003. 

   [14] Delegates decision @ p.6; AAT File No 1906980 @ f.13

4. The applicant lived with his [grandparents] until October 2018. He claims that the reason for his return from [Country 3] to Sri Lanka in October 2018 was due to the death of his [grandfather]. His grandmother continues living in Sri Lanka. The applicant’s evidence was that his two [Relative Bs] continue live in Kilinochchi, Sri Lanka together with [other relatives].[15] The applicant’s [grandmother] and one of his [Relative Bs] live in [his home town].

   [15] Delegates decision @ p.6; AAT File No 1906980 @ f.13

5. The applicant confirmed that he had made the following trips in and out of Sri Lanka:

   ·January 2018 – [Country 5] (4 or 5 days).

   ·May 2018 - [Country 2] (40-45 days).

   ·August 2018 – [Country 3] – [Country 4] - [Country 3] (returned [in] October 2018).

   ·[January] 2019 – [Country 5] – Australia. 

6. The applicant’s evidence to the delegate was that on each occasion when he had travelled in and out of Sri Lanka he had travelled on his own Sri Lankan passport which he had obtained by attending the Sri Lankan passport office in [town].[16]  In addition he confirmed to the Tribunal that in January 2019 he had travelled from Sri Lanka to [Country 5] on his own passport but stated that an agent had arrange for ‘all his documentation.’

   [16] Delegates decision @ p.5; AAT File No 1906980 @ f.14

7. The applicant stated that each time he returned to Sri Lanka he passed through immigration clearance alone and without any assistance. The applicant’s evidence to the Tribunal was that when he left Sri Lanka in February 2019 he travelled to [Country 5] by aeroplane, on his own passport. He stated that his agent arranged all his travel documents and plans. He said that when he was in [Country 5] a representative of his agent took his passport and the returned giving him similar documentation and directed him to the airline counter to obtain a boarding pass. The applicant said the passport provided to him had his photo and name on it but was not able to say conclusively if it was his original passport he used to leave Sri Lanka.  He was informed by the agent that he was to provide his travel documentation to his representative when required. As such prior to arriving in Australia the applicant was approached by a representative of the agent and advised to hand over his passport. As a result the applicant arrived in Australia without a passport claiming he is a refugee. 

8. The applicant stated that he wanted a protection visa because he cannot live in Sri Lanka. He said that in or about February 2017 a man, known as [Mr A], who worked for the LTTE with his mother had started harassing and threatening him saying that he knew his mother knew the whereabouts of [assets] hidden by the LTTE. The applicant claimed that [Mr A] is an ethnic Tamil who has aligned himself with the DIC. The applicant claimed that because his mother worked with the LTTE, [Mr A] believes that she knows where the LTTE hid [specified assets] at the end of the war. The applicant’s and his mother both said to the Tribunal that they had no knowledge of any [assets] hidden by the LTTE.

9. The applicant said that [Mr A], had come to the applicant’s [grandparent’s] home 5 occasions demanding that the applicant tell him where the [specific asset] was hidden. His evidence was that [Mr A] had first threatened him in February 2017. He then retuned two or three months later, in or about April 2017, with three or four men demanding that he tell them were the [asset] was hidden. The applicant said that he threatened and assaulted him. As a result the applicant enquired with his mother about the [assets] to which she said she had not knowledge of any [assets] being hidden by the LTTE. The applicant mother gave evidence before the tribunal and confirmed that she had no knowledge of any such [assets].

10. The applicant claimed that [Mr A] returned in July 2017 with two or three men, however, the applicant was not home. The applicant said that [Mr A] spoke to his grandfather and shouted at him and threatening to report him to the CID. His evidence was that they assault his grandfather and left.

11. The applicant’s evidence was that in or about March 2018 [Mr A] returned with two or three others men demanding to be told where the LTTE had hidden its [assets]. The applicant’s evidence was that [Mr A] threatened to report to the authorities that the applicant was a member of the Tamil gang known as [Gang 1] and have him arrested.  The applicant claimed that [Mr A] wanted money and that they had threatened to harm him and assaulted him.

12. In or about August 2018 the applicant travelled to [Country 3]. While he was away [Mr A] and his men returned and threatened the applicant’s grandfather. The applicant said that his grandfather told them that he had gone away to study in Jaffna. The said that his grandfather had given them some money and they left.

13. The applicant’s father died in October 2018 and as a result he returned to Sri Lanka from [Country 3]. He claimed that on or about 22 October 2018 [Mr A] returned to his home with three men. The applicant said that they spoke Singhalese and that he was told by [Mr A] that the three men were from the CID. However, they did not show him any identification. The applicant’s evidence was that [Mr A] again threatened him and demanded the location of the [assets]. He said that [Mr A] kicked him to the ground before threatening to kill him.  The applicant claimed that during his attack [Mr A] had a rifle attached to his hip under his shirt. However, when asked how [Mr A] had managed to threaten and assault the applicant with a rifle under his shirt and attached to his hip, the applicant said that the gun was small and able to be carried on his hip and under his shirt. The applicant said that he told [Mr A] that he his mother did not know anything about the [assets] upon which he became angry and left. 

14. The applicant’s evidence was that after the attack [in] October 2018 he went to live with his [Relative B] in [his home town] to hide from [Mr A] and his associates. The applicant’s evidence to the delegate was that [in] January 2019 his grandmother called him to say that he had received a letter from the CID. The applicant said that the letter was written in Singhala. He claimed that he had it translated for him and said that the letter required him to report to the [office] of the CID office by [a date in] January 2019. The applicant provided a copy of the letter to the Tribunal but did not provide any translation from Singhalese to English.

15. The applicant’s evidence to the delegate was that when he departed Sri Lanka because he was concerned about having received the CID letter. The applicant was not able to say if the letter was authentic from the CID office or a forgery. His evidence was that notwithstanding it might be forgery, upon receiving the letter he feared for his safety and fled.  The applicant’s evidence was that [in] January 2019 men arrived at his [grandmother’s] home and searched the house and telling his grandmother that the applicant was to surrender. The applicant said that he had paid an agent to arrange for his departure from Sri Lanka and arrived in Australia [in] February 2019.38.       

16. The applicant specifically confirmed to the Tribunal that the reference in his claim to him having ‘received constant threats, intimidation and demands for money, as well as attention from the authorities’’ referred only to the threats by [Mr A] and his associates as detailed in his evidence to the Tribunal. He specifically confirmed that he had not received any threat from the authorities or any other group or individual.  While he claimed that [Mr A] had aligned himself with the CID and would them to have him picked up in the vent he returned to Sri Lanka, he had never been threatened or harasses by any officer or official of the CID or any other authority. Finally, when questioned if he feared any harm from the government or the authorities in the event that he returns to Sri Lanka, the applicant merely repeated that he feared being harmed by [Mr A] and his associates. He claimed that in the event he returned [Mr A] would cause the CID to kidnap and shoot him.  The applicant otherwise did not provide any evidence of harm that he may suffer from the authorities in the event he is returned to Sri Lankan

17. The applicant claims that if he is returned to Sri Lanka he will suffer harm by being kidnapped and shot by [Mr A] and his associates or upon their instructions to the CID.

COUNTRY INFORMATION

1. Along with other publications the Tribunal has considered the Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report- Sri Lanka dated 23 May 2018 (‘the DFAT Report’) which states:

   Tamils[17]

   [17] DFAT Report @ p.13

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

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

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

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

   Monitoring, harassment, arrest and detention[18]

   [18] Op Cit @ p.14

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

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

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

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

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

   Liberation Tigers of Tamil Eelam (LTTE)[19]

   [19] DFAT report @ p.18

   3.35 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.

   3.36 Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.

   3.37 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.

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

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

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

   Low profile former LTTE members[20]

   [20] DFAT Report @ p.21

   3.53 ‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.

   Family members of LTTE[21]

   [21] Op Cit p.22

   3.59 The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.

   Conditions for Returnees[22]

   [22] DFAT Report @ p.42

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

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

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

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

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

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

   Passports[23]

   5.52 The Department of Immigration and Emigration issues passports in Sri Lanka, and Sri Lankan diplomatic and consular missions issue passports to Sri Lankans overseas. Current requirements for adult passports are an existing passport (if available), an original birth certificate, an original NIC, a marriage certificate (to confirm change of name after marriage), biometric data and a letter, and a professional certificate or licence to confirm the applicant’s profession. Biometrics, including fingerprint data and the internationally accepted photograph standard, were introduced to passports in 2015. Passports are machine-readable and are typically valid for ten years. Electronic passports are planned in 2018.

   5.53 Sri Lankans without passports can re-enter the country on temporary travel documents, also known as an Emergency Passport or a Non-Machine Readable Passport, issued by diplomatic and consular missions. Temporary travel documents are valid only for re-entry to Sri Lanka.

   Prevalence of Fraud[24]

   5.54 The Central Registrar issues identity documents, including to populations in the north and east during the conflict. Most official records in Sri Lanka are kept in a centralised location in hard-copy format: government departments lack computerised information databases.

   5.55 Genuine identity documents can be obtained with fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported. In recent years, the Criminal Investigation Department disrupted an organised crime group that produced high quality European identity documents and visa labels on an industrial scale.

   5.56 Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.

   5.57 DFAT assesses that document fraud is prevalent in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.

   [23] Op Cit @ p.45

   [24] Op Cit @ p.45

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[25]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[26]

   [25] s.5AAA Migration Act 1958.

   [26]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[27] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [27]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[28] However, such a benefit should 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.

Accepted Facts

[28]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Based on the evidence provided by the applicant, the Tribunal accepts and finds that:

   (a)The applicant was born in Kilinochchi, Sri Lanka on [date].

   (b)The applicant is an ethnic Tamil who grew up in the Norther Province Sri Lanka, a former LTTE controlled area.

   (c)The applicant’s mother now lives in Australia with [family members, ages specified].

   (d)The applicant’s father passed away in 2013. In or about 1996 he was severally injured as a result of a beating by the Sri Lankan Army (SLA).  

   (e)The applicant’s brother (aged [age] years) has lived in [Country 1] since 2015.

   (f)The applicant completed his primary and high school education at his local school Kilinochchi, Sri Lanka and completed his [specified] exams in [year].

   (g)The applicant enrolled in a [specified college] but did not commence his studies.

   (h)The applicants mother worked for the LTTE as a [Section 1] officer

   (i)After the war the applicant and his family were housed in an IDP camp for displaced Tamil civilians. The applicant’s mother and father have not been identified as LTTE cadres by the authorities.

   (j)The applicant’s mother [and family members] arrived in Australia as unauthorised maritime arrivals [in] November 2012 and were granted a SHEV on 10 July 2017. 

   (k)The applicant lived with his [grandparents] in Kilinochchi, Sri Lanka until October 2018.

   (l)The applicant’s two [Relative Bs] continue live in Kilinochchi, Sri Lanka together with [other relatives].[29]

   (m)The applicant’s [grandmother] and one of his [Relative B] live in [his home town].

   (n)The applicant made the following trips in and out of Sri Lanka:

   ·        January 2018 – [Country 5] (4 or 5 days).

   ·        May 2018 - [Country 2] (40-45 days).

   ·        August 2018 – [Country 3] – [Country 4]- [Country 3] (returned [in] October 2018).

   ·        [January] 2019 – [Country 5] – Australia. 

Applicant’s Refugee Claim

Relevant Grounds

[29] Delegates decision @ p.6; AAT File No 1906980 @ f.13

1. The applicant submits that his claim falls within the scope of the s.5J(1) of the Act and s.5L by reason of his membership of a particular social group, specifically as a family member to the LTTE.

2. For the applicant to be a member of a particular social group it is necessary that he share a certain characteristics or elements that are innate or immutable and so fundamental to the identity or conscience of the group members that it distinguishes it from society at large.[30] The applicant claims that he was threatened by [Mr A] and his associates as a result of him being a family member of the LTTE. The applicant claims that his mother and father were both members of the LTTE

   [30] Section 5L of the Act

3. In this case the Tribunal is prepared to accept that as a family member of the LTTE the applicant is part of a particular social group and as such does fall within the scope of s.5J(1) of the Act.

Applicant’s well-founded fear.

1. In Chan v MIEA[31] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[32]

   [31] (1989) 169 CLR 379 at 396.

   [32] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed in the event that he returns to India.

3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [33]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [33]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[34]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [34]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. Accordingly, the applicant claims that he that is a person who has a well-founded fear of persecution, pursuant to s.5J(1) of the Act by reason of his membership of a particular social group as a result of being a family member of the LTTE.  Based on the applicant’s evidence, the Tribunal it accepts the applicant has a subjective fear of being persecuted for a reason mentioned in s.5J(1) of the Act.  

Consideration of the Applicant’s claims

1. While the Tribunal is prepared to accept some elements of the applicants claim, the applicant did not present to the Tribunal as a creditable witness and it appeared he had either embellished or fabricated evidence in support of his claim.

   The Applicant’s Family

2. The applicant’s mother holds a SHEV in her own right which was granted before the applicant arrived in Australia. The applicant cannot be granted a SHEV simply because he claims to be a dependent of his mother. The applicant has lodged his own SHEV application, separate from his mother’s application. Therefore, save for the impact that his mother’s profile may have on his claim for protection, the applicant’s claim is otherwise independent of his mother’s application for protection.  In the hearing the applicant and his mother both confirmed to the Tribunal that the applicant’s mother’s claim was based on the fact that she [and other family members], were subjected to [specific threats] by the SLA. As a result, the applicant, his father and his brother all remained in Sri Lanka as there was no a real [chance] they would suffer serious harmed at that time.

3. The applicant claims that his parents were members of the LTTE. However, the applicant’s evidence despite his claims as to his parents activities was that he was very young at the time of his parents involvement with the LTTE and was not able to say in any details what involvement they had with the LTTE. The applicant’s mother’s claim has already been assessed and accepted by a delegate of the minister. Accordingly, the Tribunal accepts the applicant’s mother’s evidence that due to his father’s inability to work, as a result of being beating by the SLA in 1996, she started work for the LTTE in or about 2003. The applicant’s mother did not claim to have been the head of the [Section 1] or to have held any position of responsibility within the LTTE. Rather she worked in the LTTE’s [Section 1] unit as a low to medium level civil servant employee for approximately six years. Her tasks[35] included [specified duties]. The applicant’s mother did not claim to be a member of the LTTE. Therefore, while the Tribunal accepts and finds that the applicant’s mother worked for the LTTE, it finds that she worked for the LTTE as a low level employee and does not accept that she held any position of responsibility or that she was ever member or cadre of the LTTE.

   [35] Statement of [the applicant’s mother] dated 7 March 2016 @ [12]-[16]

4. As to the applicant’s claim that his father was a member LTTE and had worked in [Section 2] of the LTTE appears to be either embellished or a complete fabrication of the evidence to support his claim. The applicant’s evidence was that he was too young at the time to have any knowledge of his parent’s involvement with the LTTE. Therefore based on his mother’s statement the Tribunal accepts that the applicant’s father was captured and beaten by the SLA when checking his house in Kilinochchi. While he was accused of being in the LTTE there is no evidence to suggest that the applicant’s father had any involvement in the LTTE. In fact, the applicant’s mother’s evidence was that after the attack the applicant’s father was released with many injuries and not able to work. The reason she took the job with the LTTE in 2003 was to support her family due to the fact that her husband was not able to work at all. In such circumstances it is difficult to see as a result of his injuries, how the applicant’s father could have been actively involved with the LTTE. Therefore, the Tribunal finds that the applicant’s father was not involved with the LTTE and as such not a member, or cadre, of the LTTE as claimed.

5. Nevertheless, given the applicant mothers worked for the LTTE and her brother’s involvement with the LTTE, it is possible that the applicants’ father may have been perceived as a member of the LTTE. However, any perceived involvement in the LTTE by the applicant’s father does not appear to be relevant to the applicant’s claim by reason of the fact that the applicant and his father did not have any fear of persecution at the time his mother left Sri Lanka and the fact that his father passed away prior to him receiving the threats by [Mr A] and his associates. The threats received by the applicant are based on [Mr A] believing that his mother’s has knowledge of the location of [assets] hidden by the LTTE and not because of any perceived involvement in the LTTE by his father. As a result the Tribunal finds that there is no real chance of the applicant being seriously harmed as a result of his father perceived involvement in the LTTE.

6. After a large number of LTTE members were arrested and detained with most being sent to rehabilitation.[36] However, despite having disclosed her work for the LTTE between 2003 as 2009 the applicant’s mother was not detained for questioning or sent to rehabilitation. Nevertheless she states that she was interrogated, harassed and threatened as a result of her involvement with the LTTE. While the interrogation and threats that she states that she received were as a result of her involvement with the LTTE, her claimed reason for seeking protection was that she and [other family members] were receiving [threats] from members of the SLA who were requiring her to attend for questioning.  Therefore while the applicant’s mother’s involvement in the LTTE appears to have been an excuse for questioning this mother [and family members], it was not the real reason for her being required for integration, but rather she feared the interrogation due to the [threats] by the SLA. As [it did not concern them,] there was no real chance the applicant, his father and brother would be seriously harmed at the time his mother departed Sri Lanka. Accordingly the tribunal finds that there is no real chance the applicant will be seriously harmed as a result of his mother having been interrogated and harassed and threatened as a result of her involvement in the LTTE.

   [36] DFAT Country Information Report- Sri Lanka dated 23 May 2018.

7. The applicant and his mother confirmed to the Tribunal that the reason why the applicants mother fled Sri Lanka was that she and [the other family members] were facing [threats] from the Sri Lankan Army.  As such, the applicant, his father and brother remained in Sri Lanka as they did not fear any harm at that time. 

8. The applicant claimed that after his mother departed for Australia his brother had been harassed by [Mr A] and his associates. The applicant’s evidence to the delegate was that the authorities had been ‘making problems’ for his brother. His evidence was that the authorities had mentioned his mother and had harassed and threatened him. The applicant confirmed to the Tribunal that his brother had been the target of threats and harassment by [Mr A] and his associates causing him to depart for [Country 1]. Save to say that [Mr A] had aligned himself with the DIC the applicant did not provide any supporting or independent  evidence that his brother had been threatened or harassed by the authorities in Sri Lanka as claimed. The applicant did not provide any specific detail of the alleged threats [Mr A] to his brother, including the location, circumstances and frequency of the threats. In addition, the Tribunal notes that the applicant’s brother did not provide any statement or evidence in support of the applicant’s claims. Finally, the Tribunal was not provided with any independent evidence of the applicant’s brothers protection claims he may have made elsewhere after leaving Sri Lanka. Nevertheless, his evidence was that as a result of his brother’s departure [Mr A] and his associates then turned their attention to him.

9. In any event, based on the applicant’s own evidence of the threats by [Mr A], it appears that any threats by [Mr A] toward his brother were at a relatively low level of harassment and as such did not amounted to serious or significant harm.Nevertheless, given the lack of independent and supporting evidence, the Tribunal places no weight on the applicant’s evidence that that his brother was threated and harassed by [Mr A] and his associates.

   The Applicant’s Threats by [Mr A].

10. The applicant’s claims that he has received threats and harassment from [Mr A] and his associates over approximately two year period who demanded to know the location of money and [assets] believed to be hidden by the LTTE. The applicant claims that [Mr A] worked with the applicant mother in the LTTE and believes she knows the location of the money and [assets]. The applicant says that his mother does not know the location of the [assets] and this was confirmed by his mother in her evidence to the Tribunal. The applicant claims that in the event he is returned to Sri Lanka [Mr A] would arrange for the CID to kidnap and shoot him.

11. However, the Tribunal has serious concerns about the applicant’s evidence in relation to the alleged threats by [Mr A] and his associates. The Tribunal has found that the applicant’s mother worked for the LTTE’s [Section 1] unit as a low to medium level civil servant employee for approximately six years. There is nothing to suggest in either the applicant’s evidence or his mother’s evidence that she held such a position within the organization to have information as to where it ‘hid’ any of its financial assets. In fact her specific evidence was that she had no such knowledge. [Mr A] having worked with the applicant’s mother would have known that she was a low level employee and as such would not have had any knowledge of the location of the [assets] as claimed. In addition, the Tribunal finds it extremely unlikely that a person pressing to have certain information would continue to do so for a period of approximately two years without carrying out their threats. By the applicant’s own evidence the visits by [Mr A] and his associates was infrequent. Despite the applicant’s evidence that his grandfather was assaulted, the Tribunal does not accept that they would have visited the applicant’s home on such an infrequent basis and over such a long period of time for the purposes of discovering the location of the [assets]. Accordingly the Tribunal does not accept that the applicant was threatened or harassed by [Mr A] and his associates or any member of the CID for the purposes of discovering the location of the LTTE [assets] as claimed.

12. The applicant’s evidence was that on one occasion his grandfather had paid them some money. It was suggested by the Tribunal that the reason why [Mr A] and his associates continued to return to the applicant’s home was to get more money rather than the [assets] as claimed. The applicant conceded that [Mr A] and his associates did want money but maintained they ask about the [assets] on each occasion. However, the applicant’s evidence of the attacks on him by [Mr A] was so improbably that they lacked any credibility. The applicant’s description of [Mr A] attacking him while having a rifle under his shirt and attached to his hip was bordering on being physically impossible. When questioned about the rifle he altered his evidence to state that it was about the size of pistol but maintained that the attacked occurred in the manner as described to the Tribunal. For an event which must have been confronting for the applicant and clearly etched into his mind the applicant’s evidence concerning his attack was vague and uncertain and lacked any credibility.  Accordingly, while the Tribunal accepts that [Mr A] and his associate’s may have from time to time approached the applicant for money, it does not accept that the applicant was threatened and harassed as claimed. In particular, it does not accept that the applicant was attacked by [Mr A] [in] October 2018 as claimed.

1. Finally the Tribunal notes that the applicant travelled to [Country 2] in May 2018 and [Country 3] in or about August 2018. On each occasion the applicant returned to Sri Lanka. The applicant’s evidence was that he returned to Sri Lanka for [Country 3] as a result of his grandfather passing away. The fact that the applicant returned to Sri Lanka on each occasion indicates that on an objective basis he did not hold a well-founded fear of persecution upon his return. Objectively, if the applicant held such a fear he would not have returned to Si Lanka on each occasion.

2. Finally, in relation to the CID letter the Tribunal gives this no weight. The applicant conceded that the letter may not be genuine, but rather may have been done to scare him into divulging the location of the [assets]. The letter purports to require him to report to the DIC in Colombo. This seems improbable for the purposes of him divulging the information as to the location of the [assets]. Given the fact that the letter may not be genuine, the fact that the Tribunal does not accept that the applicant was threatened as claimed in relation to the [assets] and that it does not accept that the applicant was attacked by as claimed [in] October 2018, the Tribunal gives the letter no weight in assessing the applicant’s claims. 

3. Therefore, given that the Tribunal has found that the applicant was not threaten by [Mr A] and his associates as claimed and that he did not have a well-founded fear upon his return from [Country 2] and [Country 3], the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he returns to Sri Lanka as a result of any threat from [Mr A] and his associates as claimed.

   Threat as a Family Member of LTTE.

4. The applicant claims that as a result of being a family member of the LTTE he has been threatened by [Mr A] and his associates. During the hearing the Tribunal questioned the applicant if he feared any harm from the Sri Lankan authorities as a result of being a LTTE member. The applicant confirmed that his fear was only as a result of the threats and attacks by [Mr A] and his associates. For the reason expressed above the Tribunal has found that there is no real chance he will suffer serious harm from [Mr A] and his associates upon his return to Sri Lanka.

5. Nevertheless, the Tribunal notes the country information which states that the Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials.[37] DFAT[38] understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. Based on the applicant’s and his mother’s evidence the Tribunal finds that the applicant’s mother was low level employee of the LTTE and not a combatant. Further it accepts and finds that father was incapacitated in 1996 by the SLA and as a result was of no real interest to the authorities. In addition, it accepts that his mother’s brother, [named] was killed by the SLA in 1991 and that her [relative] worked as [Position 1] for the LTTE but now resides in [Country 6]. The Tribunal accepts that close relatives of high profile former members of the LTTE may be subjected to monitoring by the government. However, in this case the applicant’s mother had only a low profile within the LTTE and as such he is unlikely to be monitored on his returned to Sri Lanka. Even if his [Relative A] is considered high profile as the [Position 1] of [Section 3] (which is not accepted by the Tribunal), and the applicant is monitored by the authorities, it does not amount to serious harm. In any event, there was no evidence that the applicant was monitored in Sri Lanka as a result of his [Relative A’s] and mothers involvement with the LTTE.

   [37] DFAT Report @p.22

   [38] DFAT Report @ p.21

6. The applicant’s mother’s evidence was that the authorities did detained and interview her, but not for any political or strategic purpose, but rather for [other] reasons not related to her involvement in the LTTE. The fact that his mother and her father were not detained for questioning or sent to rehabilitation indicates that they were of no great interest to the authorities. It is therefore unlikely that the applicant and/or his brother are of any interest to the authorities.Therefore, based on the applicant’s own evidence and the available country information, the Tribunal finds that there is no real chance he will be seriously harmed in the event he returns to Sri Lanka by reason of being a family member of the LTTE.   

   Threat as a Refugee Returnee.

7. The applicant claims that as a result of being returned to Sri Lanka he will be harmed by [Mr A] and his associates. During the hearing the applicant was asked if he feared returning to Sri Lanka as a refugee. The applicant responded that he feared returning as he feared being kidnaped and killed by the DIC on the instructions of [Mr A] and his associates. The Tribunal accepts that [Mr A] and his associate’s may have from time to time approached the applicant for money, it does not accept the applicant’s evidence that he was threatened and harassed by [Mr A] as claimed. In particular, it does not accept that the applicant was attacked by [Mr A] [in] October 2018 as claimed. Given that the Tribunal does not accept that the applicant was threatened by [Mr A] as claimed, it finds that it is unlikely that he will be threatened upon his return to Sri Lanka. As such the Tribunal finds that there is no real chance he will suffer serious harm from [Mr A] and his associates upon his return to Sri Lanka.

8. Nevertheless, the Tribunal has considered the country information in relation to refugee returnee to Sri Lanka. The Tribunal notes that the government of Sri Lanka has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. Nevertheless, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka including significant expenses or debt, limited reintegration assistance, stable employment and reliable housing on return.[39] DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. It also assesses that returnees may be put under surveillance which may contribute to a sense of mistrust within communities.

   [39] DFAT Report @ p.21

9. The applicant’ evidence was that he had not been involved in any political activities and as such did not identify any fear of the authorities in the event he returns to Sri Lanka. There was no evidence to suggest that he had not become involved in any political activities by reason of any fear for the authorities. The applicant’s evidence was that he was young at the time of the end of the war and presumably not likely to become involved in such activities.

10. The applicant stated that he had no immediate family in Sri Lanka and that he will find it difficult to obtain employment. However, the Tribunal notes that his evidence was that he had been living with his grandparents in Sri Lanka. While his grandfather passed away his grandmother, two [Relative Bs] and [other relatives] continue living in Kilinochch, Sri Lanka.[40] In addition, his evidence was that his [grandmother] and one of his [Relative Bs] live in [his home town]. Therefore, while the Tribunal acknowledges that while his mother [and some family members] are in Australia it will be difficult for him, he is an adult and he does have family remaining in Sri Lanka.

    [40] Delegates decision @ p.6; AAT File No 1906980 @ f.13

11. The applicant’s evidence was that he had not worked in Sri Lanka and that he was supported by his grandparents and his mother. Despite not working the applicant was able to pay an agent and travel overseas to [Country 2] and [Country 3] prior to arriving in Australia. Nevertheless, the applicant is young and resourceful and capable of being able to find work in Sri Lanka. There appears to be no reason why he would not be able to travel to Colombo for the purposes of obtaining work. While the Tribunal accepts that he will find it difficult to obtain employment in Sri Lanka there is no evidence that the family support he has enjoyed in the past would not be extended to him during the time he is looking for work. In any event, the prospects of finding work in Sri Lanka based on the applicant’s circumstances does not amount to him facing harm that amounts to serious harm, in the sense that the applicant or his family will experience significant economic hardship or deny them capacity to earn livelihoods that threatens the person’s capacity to subsist or that the applicant and his family will be denied access to basic services, where the denial threatens the person’s capacity to subsist.[41]

    [41]   The instances of serious harm as referred to in section 5J(5) of the Act are not s case the instances of harm

12. Finally, the applicant claimed that people in his community believed that his family overseas were in a good financial position and as a result would demand money from him. He said that if he refused they would threaten him, forcing him to live in fear not knowing what happened next, because of their closeness to the forces. While the Tribunal accepts that [Mr A] and his associates may have approached the applicant for money as a result of their belief that he was receiving money from his family overseas, the applicant did not provide any other supporting evidence of such discrimination or treatment against him or his family. While the Tribunal accepts that there may have been some people in his community who would be jealous of the fact that he received money for overseas, and would want him to give some money to them, it does not accept that he received threats and harassment from members of the community to the extent that it would constitute serious or significant harm.

13. The applicant claimed that he faced constant threats, intimidation and demands for money, as well as attention from the authorities. However, the applicant did not provide any evidence of such threats and intimidation. In fact his evidence was that the only threat he had received was from [Mr A]. As such, the Tribunal does not accept that the applicant received any other threats from anyone else in the community or from the authorities, in particular the CID, as claimed.

14. Accordingly, while the Tribunal accepts that the applicant may face some societal discrimination upon his return to Sri Lanka it finds that there is no real chance he will be seriously harmed in the event he returns to Sri Lanka by reason of being a refugee returnee.

    Threat as an Ethnic Tamil.

15. The applicant claimed he will be persecuted and suffer significant harm as an ethnic Tamil in the even he is returned to Sri Lanka. He states that he wishes to be free from the Tsinghua government as it encourages Sinhalese and others from different areas to resettling on lands belonging to Tamils forcing them out of their businesses, fishing areas and from earning a livelihood. He claims that if one shows disquiet about these activities or resisted that itself is seen as a threat together with LTTE activity and those concerned are arrested or detained. The applicant claimed that since SLA had taken control of the Tamil areas, they have suppressed the political will of the Tamil people. He claims that the Sri Lankan government have gone back on promises to address the grievances of the Tamil people and are on a program to weed out Tamil activists, ex-LTTE cadres or their family members and dilute the province of Sinhala migrants, imposing Buddhism with the support of the forces to cement a single state solution. However, the applicant did not provide any evidence of land which he or his family may be disposed or any business or employment from which he may have been forced. In fact the Tribunal notes that there is nothing in country information which suggests he would not be free to relocate anywhere in the country for the purposes of securing employment.    

16. The applicant claims that in the area from where he is from, being the Northern region of the country, the Tamil population is subjected to being monitored, harassed and detained by security forces. The applicant provided an article by International Crisis Group entitled ‘Sri Lanka’s Transition to Nowhere’ dated 16 May 2017 in support of his claims. However, DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government. Surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. The applicant evidence was that he did not have strong political affiliation and there is no evidence of him being involved in any political activates. As such there appears to be limited risk of him being monitored by authorities. The applicant did not provide any evidence of him having been the object of surveillance or any other activities by the authorities. Accordingly, the Tribunal finds that there is no real chance that the applicant will suffer serious harm by reason of being an ethnic Tamil upon his return to Sri Lanka.  

Does the applicant’s alleged persecution relate to all areas of Sri Lanka

1. However, in the event that the applicant was threatened as claimed (which the Tribunal has specifically found he was not), the Tribunal has considered whether persecution claimed by the applicant relates to all areas of India. Section 5H(1), as qualified by s.5J(1)(c) of the Act requires that the real chance of persecution relate to all areas of the receiving country.[42] This means that unlike the relocation principle as developed under the Convention,[43] there is no scope to consider the reasonableness of requiring a person to move to an area that is free from a real chance of persecution.

   [42] Section 5H(1), as qualified by s.5J(1)(c) of the Act.

   [43] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1. In SZATV v MIAC (2007) 233 CLR 18 the High Court confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution

2. Therefore, for the purposes of s.36(2)(a) in determining whether the applicant is  a person in respect of whom Australia has protection obligations under the Act, it is necessary to consider if there is a real chance the applicant will be persecuted in all areas of the relevant receiving country.

3. The DFAT report[44] on Sri Lanka notes that its Constitution provides for freedom of movement for all citizens and no official restrictions apply to internal relocation in Sri Lanka. In 2011, a fundamental rights petition lodged in the Supreme Court ended the military’s forced registration of residents in Jaffna and Kilinochchi. The military no longer compels registration of Tamils living in the south. The 2012 census states that 18 per cent of Sri Lankans were born in a different district to their current residence. The census reported the top five districts to which people had internally migrated were Colombo, Gampaha, Kurunegala, Anuradhapura and Puttalam. An absence of family connections or a lack of financial resources can limit internal relocation options. Nevertheless, DFAT assesses[45] that individuals seeking to relocate internally to minimize monitoring or harassment by local-level officials for petty issues can safely do so. 

   [44] DFAT Report @ p.40

   [45] DFAT Report @ p.40

4. The applicant claims to face the risk of being persecuted by [Mr A] and his associates in all areas of Sri Lanka and as such it would be unreasonable for him relocate to another area or city such as Colombo. He says that it would not be possible for him to relocate because he does not have any relatives or connections in other parts of Sri Lanka and that it would difficult and dangerous for him to do so. He states that [Mr A] and his associates will be able to find him and harm him anywhere in Sri Lanka. However, the applicant evidence was that [Mr A] worked with his mother in [Section 1] of the LTTE. It is not suggested by the applicant that [Mr A] was an influencual figure in the LTTE. Rather he had similar responsibilities as the applicant’s mother as a low ranked worker. Therefore, in the event that [Mr A] and his associates are threatening the applicant as claimed (which the Tribunal has specifically found he is not) the Tribunal finds that such threats are limited to the applicant’s local area and are carried out in the hope to finding some [assets] left behind by the LTTE. In such circumstances, the Tribunal does not accept that [Mr A] would have the resources or the connections to locate the applicant in a large urban area such as Colombo.

5. Finally, the applicant’s position was that relocation was not open to him because he does not have any relatives or connections in other parts of Sri Lanka and as such does not have the support or financial resources to relocate and accordingly his employment opportunities would be limited. However, the applicant is young and resourceful. While the Tribunal accepts he will find some difficulty in obtaining employment based on his particular circumstances it would not amount to serious harm in the sense that his life or liberty would be threatened, suffer significant harassment or physical ill treatment or suffer economic hardship, denial of basic services or loss of capacity to earn a living in the sense that it would threaten his capacity to subsist or in any other sense.  While the Tribunal acknowledges the applicant will face difficulties and challenges arising from establishing himself in a new city and finding work, it notes the country information which reports that Sri Lanka has strong economic growth and low unemployment rates.[46]  It therefore finds that he will be able to find paid employment into the reasonably foreseeable future. Therefore, on an objective basis it is reasonable to expect the applicant to be able to relocate to another area in Sri Lanka such as Colombo where there is no real risk that he will suffer serious harm.

   [46] DFAT Report p.7

6. 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 Act for the reasons mentioned in s.5J(1)(c).

7. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for these purposes.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that she faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that he has been threatened by [Mr A] and his associates as a result of his mother’s connection to the LTTE.

1. 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 the Refugee Convention definition.[47] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.  Therefore, based on the findings above the Tribunal finds that there is not a real risk that the applicant will suffer significant harm by [Mr A] and his associates in the event that he returns to her local area in India.

Is it reasonable to relocate to Colombo?

[47]  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 Jagott JJ at [297], Flick J at [342].

1. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. The High Court approved of the following explanation:

   [I]f a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.[48]

   [48] Januzi v SSHD [2006] 2 AC 426 at 440, cited with approval in SZATV v MIAC (2007) 233 CLR 18 at [19]; the Court declined to reconsider its approach in MIBP v SZSCA (2014) 254 CLR 317 per French CJ, Hayne, Kiefel and Keane JJ at [23]-[24]; see also Gageler J at [40]. The joint judgment in SZATV indicated at [20] that the reference in that passage to the unavailability of protection is best understood as referring not to the phrase ‘the protection of that country’ in the second limb of the definition, but to the broader sense of the term identified in MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [20], namely, the international responsibility of the country of nationality to safeguard the fundamental rights and freedoms of its nationals. In SZATV, Kirby J observed that other textual foundations for the relocation test had also been suggested: at [50]-[63].

2. At hearing the Tribunal discussed with the applicant the possibility that he could safely relocate to another part of the country in particular Colombo. The applicant’s position was that relocation was not open to him because he would be found by [Mr A] anywhere in Sri Lanka. However, before traveling to Australia, the applicant was able to remain in [his home town] without being detected by [Mr A]. He stated that he travelled to Australia as a result of having received the DIC letter which had been sent to his former address in in Kilinochchi. In any event for the reason stated above the Tribunal does not accept that [Mr A] would be able to find the applicant in an urban centre such as Colombo.

3. In addition the applicant stated that relocation was not open to him because does not have any relatives or connections in other parts of Sri Lanka and as such does not have the support or financial resources to relocate and accordingly his employment opportunities would be limited. While the Tribunal accepts that the applicant will have difficulty finding employment, any such difficulty based on his particular circumstances would not amount to significant harm in the sense that he would be deprived of his life, be tortured, be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment.  While the Tribunal acknowledges he will face difficulties and challenges arising from establishing himself in a new city and finding work if he was to returns to Sri Lanka, based on the available country information[49] it finds that he will be able to access paid employment into the reasonably foreseeable future. Therefore, on an objective basis it is reasonable to expect the applicant to relocate to another area in Sri Lanka where there is no real risk that he will suffer significant harm.

   [49] DFAT Report @p.7

4. Therefore, the Tribunal in the event that there is a real risk the applicant will suffer significant harm on his return to Sri Lanka (which the tribunal specifically finds there is not) it finds that there is no real risk the applicant will suffer significant harm in Colombo and that in all the circumstances it would be reasonable for the applicant to relocate Colombo to avoid the real risk of significant harm.

5. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk she will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

DECISION

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

Jason Pennell
Senior Member