1911593 (Refugee)

[2022] AATA 3940

1911593 (Refugee) [2022] AATA 3940 (20 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1911593

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Peter Vlahos

DATE:20 September 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 20^th September 2022 at 7.45AM.

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – religion – Muslim – imputed political opinion – Liberation Tigers of Tamil Eelam supporter – particular social group – failed asylum seeker – Federal Circuit Court remittal – illegal departure – fear of detention – removal of halal food certification – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
WAEE v Minister for Immigration [2003] 75 ALD 630

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is [an age]-year-old male from [Village 1 in] Puttalam district, North Western Province, Sri Lanka. He seeks to invoke Australia’s protection obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis his Tamil ethnicity, his Muslim religion, his actual or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his relationship with his father and his profile as an individual who departed Sri Lanka illegally and who has sought asylum in Australia.

3. The issue in this case is whether the applicant meets any of the alternative criteria in s. 36(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person.

4. In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (PAM 3 Refugee and humanitarian – Complementary Protection Guidelines, and PAM 3 Refugee and humanitarian – Refugee Law Guidelines) and the country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to decision under consideration.

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

   History of Proceedings

6. The applicant arrived in Australia by boat [in] June 2012. He applied for a visa on 2 November 2012 and a delegate refused to grant the visa on 27 February 2013.

7. The applicant sought a review from the former Refugee Review Tribunal which affirmed the delegate’s decision on 16 August 2013.

8. The applicant sought review of the Tribunal’s decision from the Federal Circuit Court of Australia and [in] June 2016 the Court quashed the Tribunal’s decision and directed this Tribunal to reconsider and redetermine the review application according to law. The court order notes the former Tribunal failed to consider a claim of the applicant, namely that he claimed fear harm on the basis of his Tamil ethnicity.

9. The applicant sought review from the Administrative Appeals Tribunal on 20 November 2017 which affirmed the delegate’s decision on 26 February 2018.

10. The applicant sought review of the Tribunal’s decision from the Federal Circuit Court of Australia and [in] April 2019 the Court quashed the Tribunal’s decision and directed this Tribunal to reconsider and redetermine the review application according to law. The court order notes that the former Tribunal failed to consider a claim of the applicant, namely as he deposed in his Statutory Declaration dated 31 May 2017, that the Sri Lankan authorities visited his mother’s home in 2016 and had ‘assaulted her’ and ‘damaged property’, causing her to ‘move in with other family member.’[1]

    [1] Federal Circuit Court citing as authority for its conclusions the decision of WAEE v Minister for Immigration [2003] 75 ALD 630, see paragraph [47].

11. The applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

12. The applicant was unrepresented in his review application hearing before the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

17. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    Country of nationality

18. It is not in dispute that the applicant is a Sri Lankan national, and he has produced to the Department copies of his Sri Lankan birth certificate, national identity card and driver’s licence. The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

19. The applicant claims that if he is returned to Sri Lanka, he will face harm as a Tamil, as a Muslim, because of his relationship with his father and as a returned asylum seeker who illegally departed Sri Lanka.

    The applicant’s personal background

20. The Tribunal accepts that the applicant is of Tamil race and Muslim religion and he originates from [Town 1 in] Puttalam in Sri Lanka’s North Western Province, noting his Sri Lankan passport identifies his place of birth as ‘[Town 1].’

21. The applicant states in his visa application that his parents and two brothers remain living in Sri Lanka. He completed [grade at] school in [year] and worked as a casual worker in [industry 1] between [specified years].

22. The applicant departed Sri Lanka by boat [in] May 2012 and arrived on Christmas Island [in] June 2012.

    Assessment of claims

23. It was submitted by the applicant that if he is returned to Sri Lanka, the applicant faces a well-founded fear of persecution for the separate and/or combined reasons of his Tamil race, his Muslim religion, his imputed political opinion as a supporter of the LTTE and in opposition to the Sri Lankan government and his membership of a particular social group of ‘his family (relatives of his father) and ‘failed asylum seeker returning to Sri Lanka.’

24. It is further submitted that the applicant will suffer ‘significant harm’ as defined by s. 36(2A) of the Act if returned to Sri Lanka.

    Tamil race

25. For the reasons set out above, the Tribunal has accepted that the applicant is of the Tamil race and Muslim religion. The Tribunal noted that the available DFAT reports state that in Sri Lanka, being a member of the Muslim religion is seen as an ethnicity as well as a religion.[2] At the hearing the Tribunal discussed with the applicant his claim– why he held fears being of a Muslim of Tamil ethnicity while living in Sri Lanka? The applicant stated that being a ‘Tamil’ as such, he had ‘no concerns in Sri Lanka’. However, as Muslim and one ‘who speaks Tamil’ he was subjected to being treated differently, restricted in his willingness to worship his religion, and also subjected to the fear that he may be subjected to violence from other non-Muslims. It would seem that the applicant’s responses (as in other instances) appear to indicate that he considers himself as being of Muslim ethnicity rather than Tamil ethnicity, though he has maintained in his evidence – both written and oral that he is of Tamil ethnicity. More to the point, in his protection visa interview with the Department the applicant described his circumstances as that he lived in a village called [Village 1] which was near the town of [Town 1], and that the area had a population that was half Tamil and half Sinhalese and the a ‘small minority of Muslims was living in the area.’ According to the applicant his ‘village was predominately Muslim.’

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report Sri Lanka, 24 January 2017 at paragraphs [3.2] and [3.10]. Also see DFAT Country Information Report Sri Lanka, 23 December 2021 at paragraph [3.22].

26. In that interview, (as before the Tribunal) the applicant stated he had never experienced problems in his village because of his religion and that ‘he had never had any trouble practising his religion.’ However, the applicant explained to the Tribunal as he did to the Department, that in Sri Lanka in general, however, Muslims are treated badly and are ‘not taken seriously.’ The applicant provided an example to the Tribunal of a Muslim boy (he described as ‘[Child A]’ who had been abducted by ‘some Sinhalese people’, ‘beaten for three days’ and then ‘returned’. The applicant stated that Muslims cannot ‘seek justice in Sri Lanka’. The Tribunal has considered these comments of the applicant and have assessed the applicant’s claims on the basis that the applicant fears harm due to his Tamil ethnicity and as well because he is a Muslim in faith.

27. In considering the risk of harm to the applicant as a Tamil male from Puttalam, the Tribunal acknowledges the UNHCR’s most recent assessment in the 2012 guidelines which assesses that being Tamil in ethnicity and originating from an area that was previously under the control of the LTTE does not in itself create the preconditions in a need for international protection.[3] DFAT reports that since the end of Sri Lanka’s civil war in 2009, the security situation had improved to great extent in the north and east of the Sri Lanka.[4] This situation was further emphasised by the DFAT report published on 23 December 2021.[5] The latest DFAT report indicates that official surveillance of Tamils in the north and east continues, ‘with particular surveillance of those associated with politically-sensitive issues.’ DFAT also assesses that ‘physical violence against those being monitor is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.’[6] Also, in 2017, the UK Home Office stated that an individual being of Tamil ethnicity would not in itself necessitate international protection.[7] This approach is further emphasised by in its 2021, UK Home Office report on Tamil separatism.[8]

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

    [4] Department of Foreign Affairs & Trade, DFAT Country Information Report – Sri Lanka, 24 January 2017 at paragraphs [2.37] to [2.39].

    [5] Department of Foreign Affairs & Trade, DFAT Country Information Report – Sri Lanka, 23 December 2021 at paragraphs [2.48].

    [6] Department of Foreign Affairs & Trade, DFAT Country Information Report – Sri Lanka, 23 December 2021 at paragraph [3.13] at p.20.

    [7] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, 2017 at paragraph [3.1.2].

    [8] UK Home Office, Country Information and Guidance Sri Lanka: Tamil Separatism, June 2021 Version 7.0, see paragraph [2.4.2] and [2.4.3]- [2.4.4] at p. 6.

28. Overall, and after considering all the available information the Tribunal concludes that Tamils, including male Tamils living or having their origins from Puttalam, Sri Lanka do not face a real chance of serious harm solely on the grounds of their Tamil ethnicity or their profile as Tamil males. Therefore, the Tribunal concludes and finds that it does not accept that there is a real chance the applicant will suffer serious harm if he returns to Sri Lanka solely on the basis of his Tamil race or the fact, he is a young male from Puttalam in North Western Province.

    Family member of a person imputed with LTTE support

29. The applicant claims that if he returned to Sri Lanka, he would face harm from the Sri Lankan authorities because they held the view that the applicant’s father is (or was) involved with the LTTE and they will target him in an attempt to find the whereabouts of his father and induce him to surrender himself to the authorities.

30. The applicant stated in his protection visa application that during the civil war his father drove a three-wheeler and was paid by the LTTE to ‘assist the LTTE as a driver.’ The applicant claims that even after the civil war ended, his father continued to transport persons and goods all attached (as he claimed) to the LTTE. According to the applicant, his father’s transport activities included the transport of LTTE personnel.

31. At the hearing, the applicant was asked by the Tribunal to explain in detail – why was he compelled to leave Sri Lanka? The applicant explained that ‘at that time’ the applicant ‘had a problem’ because his ‘father was in hiding.’

32. The applicant was asked to explain – why his father was in hiding? The applicant said that his father was ‘in an organisation.’ The applicant went on to identify – the ‘organisation’ his father was involved with as the LTTE. The applicant also confirmed for the Tribunal his claims as set out in paragraph [30] above.

33. The Tribunal asked the applicant – was the applicant’s father a member of the LTTE? The applicant said that his father was a driver and did transport goods, materials, and personnel for the LTTE, but his father was ‘not a member of the LTTE’. According to the applicant, his father helped persons associated with the LTTE. In particular, the applicant told the Tribunal that one person (his father’s friend) who always accompanied his father (who he identified as an ‘LTTE member) he had met on a number of occasions. The applicant added that at a later occasion, it was his father who told him his friend was a ‘member of the LTTE.’

34. The applicant was asked by the Tribunal – did you come to know this person over a period of time? The applicant told the Tribunal that ‘he could tell his full name’ but his first name was ‘[Mr A]’.

35. The applicant was asked – what did his father transport with his friend’s assistance? The applicant explained that his father ‘transported food items’, ‘electrical goods’, and ‘people’ and ‘whatever else was needed.’ The applicant explained that his father told him about ‘his activities’ but could not provide any details to the Tribunal ‘because these matters happened many years ago.’ However, the applicant was clear in his belief that his father was transporting these goods and personnel for the LTTE. The applicant was unable to tell the Tribunal about the frequency of his father’s trips with ‘his friend.’ Nor was the applicant able to recall for the Tribunal any particular destination to which his father travelled with his friend transporting these goods or personnel. Again, the applicant said that these matters occurred a ‘very long time ago’ and he was unable to remember or recall specific details.

36. The Tribunal asked the applicant whether his father was still alive and if so, where was he and had the applicant regular contact with him? The applicant explained to the Tribunal that his ‘father was still alive’ and was still ‘in hiding’ in Sri Lanka. The applicant also said that he was in contact with his father – about ‘4-5 times a month’ by telephone. The Tribunal asked the applicant how has his father eluded being located by the authorities? The applicant explained that his father ‘lives in different places’. However, the applicant ‘did not know what his father was doing.’

37. The applicant told the Tribunal that his father had told him that the authorities ‘are still searching form him and that ‘it was not safe’ for the applicant to return to Sri Lanka. The applicant expressed the belief that the ‘authorities’ ‘continue to target suspected LTTE supporters and their families’ because he has seen this in the news and the situation in Sri Lanka in recent times has dramatically deteriorated.

38. The Tribunal asked the applicant why was he forced to leave Sri Lanka [in] May 2012? The applicant explained, without providing a timeline, that men came to his family home one day. These persons were from the authorities and ‘were looking for his father’. The applicant said that he believed the authorities had found out about his father’s relationship with his friend and about their activities and wanted to locate his father’s whereabouts. The applicant became very concerned that these people would return and that they would ‘take him away’ because ‘they could not locate his father.’ The applicant explained that this was a common occurrence with the police and the other authorities that is, ‘to take someone else if the person they are looking for could not be found.’

39. The applicant recalled that when he told his father what happened, his father told him ‘he should go into hiding.’ In the meantime, his father who was also incognito made all the arrangements required to have the applicant leave for Australia.

40. The applicant said that the authorities did not come again, and he believed that this was because villagers may have told them that he was no longer living there.

41. The Tribunal asked the applicant to explain why after several years having past, the authorities again visited his mother in 2016 at the family home in the village? The applicant said that the purpose of their visit was ‘because they (the authorities) were looking for his father.’ The applicant also said that they ‘asked questions’ and when his mother could not provide satisfactory answers about his father’s whereabouts – ‘they attacked her.’ Since that incident his mother has left the family home and is living with his grandmother at her home which is located 20KMs away.

1. The Tribunal asked the applicant – has his mother had similar visits from the authorities since living with his grandmother? The applicant said that his mother has had ‘no other visits from the authorities’ since the incident in 2016. The Tribunal asked the applicant why was this so? The applicant said that the authorities had not visited his mother again (since 2016) because ‘they do not know where she (the applicant’s mother) is living.’ In other words, the authorities ‘do not know where she is’ according to the applicant.

2. As for the authorities seeking the applicant’s father, the Tribunal was told that the authorities are still ‘searching for him’ and the applicant could not return to Sri Lanka because they (the authorities) will try to hold the applicant in detention until his father comes out of hiding.

3. The Tribunal noted that the applicant in his evidence has claimed that that the authorities are searching for him and his father because of his father’s activities in driving LTTE members and materials around during the civil war, and because of father’s activities driving one individual around even after the civil war had ended. He has claimed in his written and oral evidence that his father’s activities led to the authorities to come to the family’s home in early 2012 making enquires about him and later about the applicant. The Tribunal was also told that in 2016 after the father had ‘disappeared’ and the applicant had ‘escaped to Australia’ the same authorities came to the family home and, by brutal means inflicted on his mother, tried to extract information from her about the whereabouts of the applicant and his father. That being the case as submitted by the applicant, the Tribunal considers it implausible that the Sri Lankan authorities (civilian or military) or any other group or person would concentrate their attentions on a three-wheeler driver merely because that person drove for a person believed to be an LTTE supporter or operative in 2012, some three years after the end of the civil war in which the LTTE was the defeated party. The Tribunal also considers it implausible that the applicant’s father would remain and continue to remain in hiding in Sri Lanka for almost a decade or that any person’s targeting the applicant’s father would pose a threat to the applicant, in circumstances where the applicant’s family (his mother and his brothers) remain living in Sri Lanka.

4. Having considered these matters, it leads the Tribunal not to accept the applicant’s claims. On the evidence before the Tribunal, the Tribunal does not accept that in 2012 the applicant’s father came to the adverse attention of the Sri Lankan authorities for driving around persons believed to be LTTE members, either during or after the end of the Sri Lanka’s civil war. Also, the Tribunal does not accept that members of the Sri Lankan authorities or any other person searched for the applicant or his father at their home in 2012 for any reason connected with his father’s work as three-wheeler driver. Also, flowing from these conclusions and having listened to the applicant’s recollections concerning his mother’s encounters with the same authorities in 2016, the Tribunal does not accept the applicant’s claim and explanation that in 2016 – four years since the authorities’ ‘last’ enquiry, they would arrive at the applicant’s mother’s doorstep and brutalise her to extract information about the applicant’s father and the applicant. The applicant states in evidence before the Tribunal that since 2016 they (the authorities) have not bothered his mother. It was noted that it was the applicant’s evidence (on oath) that the authorities had not come again because they did not know where his mother was in residence. It stands to reason, from the country information available[9] that if the applicant’s father was a person of interest to the Sri Lankan army or intelligence as was claimed, the surveillance of his mother’s whereabouts and the applicant’s other family members would have been acute and sustained. The applicant’s father was of no security/intelligence significance. Nor does the Tribunal accept there to be a real chance the applicant himself will be imputed with a political opinion that is pro-LTTE or against the Sri Lankan government for any reason relating to his father or his father’s activities as a three-wheeler driver.

   [9] Department of Foreign Affairs & Trade – Country Information Report – Sri Lanka, 23 December 2021.

   The Applicant’s Muslim Religion

5. The applicant claimed that he will be harmed if returned to Sri Lanka because of his Muslim religion and because he is a Tamil Muslim.

6. In the statutory declaration dated 24 October 2012, attaching to his protection visa application, the applicant identified himself as a Muslim but did not suggest he feared harm in Sri Lanka for this reason.

7. At the hearing the applicant told the Tribunal that he had experienced problems because of his Muslim religion in the past. When the Tribunal asked about these problems, the applicant said that as a Muslim he was not free to worship openly at a mosque. The applicant also said that he could not ‘read the Koran (the Muslim holy scripture) in public.’ Also, the applicant said, that as a Muslim ‘he could not do anything he wanted’ (the applicant did not provide specific details). The Tribunal asked whether there were any other restrictions -being a Muslim that he had experienced while in Sri Lanka? The applicant said that there were controls on what he ate. When pressed by the Tribunal to explain further, the applicant said that there was a prevalence of a vegetarian diet everywhere else but not in his village which was predominately Muslim in its demographic composition.  

8. The applicant also recalled that a person from his village called ‘[Child A]’ was taken (one day, no timeline provided) by Sinhalese-speaking people. This person was held by these persons for days (without being specific), was beaten and then returned to his family. The applicant provided no detailed explanation for this person’s abduction except to say he resided in his village that was predominantly consisting of Muslims (Tamils). 

9. The applicant also referred to anti-Muslim disturbances which occurred in Sri Lanka, two years ago and these incidents indicated according to the applicant a society’s unacceptance of Muslims (Tamils).

10. The Tribunal notes in the documentation on file with the Tribunal and the Department that are now dated in the supporting information attached describing events that occurred during the civil war. The Tribunal also notes that the applicant has made claims relating to his Tamil race and Muslim religion that cannot be considered in isolation and will be considered not merely as a Tamil nor as a Muslim but as a Tamil Muslim, with persecution on one account contributing or adding to the impact of persecution on the other.

11. The Tribunal noted the country information available the DFAT report, of 23 December 2021 which advises that Muslims constitute the third largest religious group in Sri Lanka and that Muslims are represented in politics by the Sri Lankan Muslim Congress (SLMC) and the ALL Ceylon Muslim Congress (ACMC). The SLMC has 5 members of Parliament[10] and is part of the governing coalition. The SLMC’s leader is a member of the cabinet. The ACMC also has elected MPs and its leader holds a ministerial position.

    [10] Sri Lanka Muslim Congress - Wikipedia reference:

12. DFAT reports it is not aware of any evidence that Muslims are economically disadvantaged in Sri Lanka.[11] While most Muslims have sided with the Sinhalese government forces during the civil war, religious tensions between Muslims and the Sinhalese Buddhist majority have arisen in the post-civil war period and most especially since the 2019 Easter Sunday terrorist attacks but also earlier in 2014 and 2018.[12] DFAT reports that while there have been a number of incidents of verbal and physical attacks on Muslims and Muslim businesses and religious sites, there has been a significant reduction of over 60% of incidents in 2015 and 2014.[13] DFAT reports in its most recent country information that it is not aware of any significant episodes of anti-Muslim violence in 2021.[14] Overall, DFAT assesses that Muslims face a low risk of violence. Though DFAT acknowledges that Muslims face a low – but increasing risk of official discrimination and a moderate risk of societal discrimination, including a growing threat of freedom of religion.[15]

    [11] DFAT Country Information Report – Sri Lanka, 2017 and DFAT Country Information Report – 23 December 2021, see paragraph [3.31] at p.22. DFAT reports that “DFAT is not aware of any significant episodes of anti-Muslim violence in 2021. DFAT assesses that Muslims face a low risk of violence. DFAT also assesses – that Muslims face a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to their freedom of religion. DFAT further assesses that Muslims critical of the Government face a moderate risk of harassment and arbitrary detention.”

    [12] see, DFAT Report 2017, and 2021

    [13] Ibid

    [14] DFAT Country Information – Sri Lanka, 23 December 2021, see paragraph [3.31] at p.22.

    [15] Ibid DFAT report – Sri Lanka, 23 December 2021, see paragraph [3.31] at p. 22

13. At the hearing on 13 September 2022, the applicant told the Tribunal that he personally had not experienced any issues concerning his religion and went on to say that his village demographically consisted of a majority Muslim population. Nevertheless, the applicant expressed concerns with the way the situation was developing in Sri Lanka and how it could affect Muslim Tamils like the applicant.

14. The Tribunal has considered the applicant’s concerns which were expressed in general terms of fearing what the developing situation in his country of origin might have in store for the Muslim minority, but he did not address particular instances of harm he, as an individual, had experienced while in Sri Lanka. Considering the DFAT advice, as noted, it was not “aware of any significant episodes of anti-Muslim violence”[16] in recent times in Sri Lanka. DFAT also concluded that “Muslims faced a low risk of violence.”[17] In view of the information cited above about the situation for Tamils and Muslims in Sri Lanka, the Tribunal does not accept there to be a real chance the applicant will subjected to serious harm for the combined reasons of his Tamil ethnicity and/or ethnicity and his Muslim religion and/or ethnicity, if he is returned to Sri Lanka, now or in the reasonably foreseeable future.

    [16] Ibid DFAT report – Sri Lanka, 23 December 2021, see paragraph [3.31] at p. 22

    [17] Ibid DFAT report – Sri Lanka, 23 December 2021, see paragraph [3.32] at p. 22

    Halal food

15. The applicant claimed he will not be allowed to eat halal meat if he is returned to Sri Lanka and that since coming to Australia, he has experienced a different set of circumstances which he may not enjoy if he is returned to Sri Lanka. Given the available advice from DFAT that Sri Lanka ceased halal certification in March 2013 following public pressures from Sinhalese Buddhist nationalist groups for the removal of halal certification of food produced in Sri Lanka,[18] the Tribunal accepts that the applicant will not be able to access halal certified food if he returns to Sri Lanka.

    [18] Ibid DFAT report, Department of Foreign Affairs & Trade – Country Information Report – Sri Lanka, 24 January 2017, see paragraph [3.17]

16. The Tribunal has considered whether such treatment may or may not amount to serious or significant harm. Pursuant to s.91R(1)(b) of the Act, persecution must involve serious harm to the person. Subsection (2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. It lists the following as instances of “serious harm”:

    (a)  a threat to the person’s life or liberty;

    (b)  significant physical harassment of the person;

    (c)   significant physical ill-treatment of the person;

    (d)  significant economic hardship that threatens the person’s capacity to subsist;

    (e)  denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

17. The Tribunal concedes that the above list is a non-exhaustive list of matters that may constitute serious harm, however, the Tribunal does not accept the applicant’s inability to access halal certified food in Sri Lanka ascends to the level of serious harm.

    Political opinion

18. The applicant claims he will face persecution in Sri Lanka on the basis of his political opinion. The applicant claims this view of him will be attached to him as a result of a fusion of factors which include his Tamil ethnicity, his Muslim religion, his perceived support for the LTTE because of his father’s activities a three-wheeler driver, and his status as a failed asylum seeker who departed Sri Lanka illegally. In his evidence before the Tribunal, the applicant spoke of problems still existing in Sri Lanka for him (especially with the deteriorating political and economic situation) and he feared that he will be suspected of being an LTTE supporter because of his father’s activities, because his father is in hiding, because he is a Tamil Muslim and because people are still looking for him.

19. Considering the reasons set out above, the Tribunal accepts that the applicant is of Tamil ethnicity and Muslim religion and that he originates from Puttalam in the North Western Province of Sri Lanka. The Tribunal further concedes that the applicant departed Sri Lanka for Australia in June 2012 and that he has sought asylum in Australia. The Tribunal noted that the applicant is not in possession of a passport, and the Tribunal accepts that if he is returned to Sri Lanka the circumstances of his return may cause the Sri Lankan authorities to become aware of or indeed infer that he departed Sri Lanka illegally and has sought asylum in Australia.

20. The Tribunal accepts that Tamils in Sri Lanka faced harassment, discrimination, monitoring and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities and its immediate aftermath, and that some Tamils and non-Tamils face a persistent and continuing risk of persecution by the Sri Lankan authorities in the post-civil war period.

21. DFAT reports that since the end of the civil war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12, 191 former LTTE members (including 2,265 women) had completed rehabilitation.[19] Also, the UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka (the Eligibility Guidelines) identify a number of profiles requiring particular careful consideration, including persons suspected of links with the LTTE.

    [19]

22. Those Eligibility Guidelines state that some links to the LTTE may continue to expose individuals to treatment which may give rise to a need for international protection. Such links include persons who held senior positions with considerable authority in the LTTE civilian administration, former combatants or cadres, former LTTE supporters who were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists and family members who are dependent on or closely related to persons with such profiles.[20]

    [20] UNHCR, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 at p. 27.

23. For the reasons set out above, the Tribunal did not accept that the applicant’s father came to the adverse attention of the Sri Lankan authorities for working as a driver for the LTTE, either during the civil war or after the civil war. With the same reasoning in mind, the Tribunal does not accept the applicant’s claim that the applicant’s father will be perceived as a person who sheltered or transported LTTE personnel or goods, nor that the applicant himself will be perceived to have supported the LTTE for reasons of his father’s activities. Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Eligibility Guidelines.[21]

    [21] Also, the applicant’s father does not meet the description of persons which had a ‘high profile former LTTE members’ or that ‘low-profile former LTTE members’ as reported in the DFAT report on Sri Lanka, 23 December 2021 at paragraphs [3.47] at p.25 and see, paragraph [3.49] of the same report at p. 26.

24. It was also noted by the Tribunal when considering the available country information, the UK Home Office advises that the LTTE has not held any military or political authority since the end of the civil war in 2009 and assesses that being of Tamil ethnicity does not in itself attract international protection. It assesses that persons who have (or are perceived to have) a significant role or are otherwise active in post-conflict separatism may be considered a threat to Sri Lanka as a single state and may, depending on the circumstances, require international protection.[22] The applicant made no claims in his evidence before the Tribunal, written or oral to have played any role in post-civil war separatism and admitted to the Tribunal that he had no interest in the Tamil separatism issue or any interest in the politics for any reasons. Therefore, the Tribunal finds that the applicant has not played any role in post-civil war separatist activity and would not be perceived to have done so.

    [22] UK Home Office Operation, Country Information and Guidance about Tamil Separatism in Sri Lanka, 28 June 2017 at 3.1.1 – 3.1.11 and the new report, UK Home Office Country Policy and Information Note: Sri Lanka: Tamil Separatism, Version 7.0, June 2021 see in particular, paragraphs [2.4.2-2.4.11].

25. The Tribunal accepts that the applicant departed Sri Lanka by boat on a people smuggling vessel and without using a valid passport, the circumstances of his departure from Sri Lanka may be viewed as a breach of Sri Lanka’s Immigrants and Emigrants Act 1948 (the ‘I & E Act’).

26. DFAT reports that many thousands of asylum seekers have returned to Sri Lanka since the ending of hostilities in 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture and mistreatment, and it assesses the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected under the I & E Act.[23] Most Sri Lankan returnees from Australia are question by police on return to Colombo international airport and where an illegal departure from Sri Lanka is suspected, they are charged under the I & E Act.[24] It should also be added here, the concern (as reported by DFAT), that due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers.[25] According to IOM up to September 2021, there had been 107 returnees, 19 of these from Australia. However, DFAT is not aware of any returnee having been detained (for whatever reason, that is non-LTTE) being subjected to mistreatment during processing at the airport.[26] The Tribunal accepts there may be a real chance upon return of the applicant to Sri Lanka, the applicant will be charged with offences relating to his illegal departure in 2012.

    [23] Department of Foreign Affairs and Trade Country Information Report – Sri Lanka, 24 January 2017 at 4.21-4.22, 5.17-5.28; also see the updated country information report, Department of Foreign Affairs & Trade Country Information – Sri Lanka, 23 December 2021, see paragraph 5.18, 5.22-5.26, 5.27-5.32.

    [24] See Country Information Report – Sri Lanka, 23 December 2021 in particular, paragraph [5.21] – [5.22].

    [25] Ibid, see paragraph [5.18] (Country Information Report, 23 December 2021).

    [26] Ibid at paragraph [5.20] (23 December 2021 Country Report).

1. DFAT’s reports that during the processing of returnees, the Sri Lankan authorities hold checks against the immigration, intelligence, and criminal databases and that for returnees travelling on temporary travel documents police will seek to confirm a person’s identity by interviewing the returnee and conducting checks in a person’s home location. Persons charged with offences under the I & E Act are transported to the Magistrate’s Court at the first available opportunity, generally within 24 hours unless it is weekend or public holiday, in which case it may be a few days.[27]

   [27] Ibid, see paragraph [5.21] – [5.26].

2. The Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad. However, the Tribunal considers that such questioning, with access to intelligence reports, will establish without significant delay that the applicant was of no adverse interest to the Sri Lankan authorities at the time he departed Sri Lanka in 2012. Nor does the Tribunal accept that his status as a failed asylum seeker who sought international protection in Australia will cause the applicant to be imputed with a political opinion that is pro-LTTE or adverse to the Sri Lankan government and harmed this reason.

3. DFAT reports that if a person pleads guilty, they will incur a fine on a case-by-case basis and are then free to go and that fines may be paid by instalment. DFAT reports that in most cases if a returnee pleads not guilty, they are immediately granted bail by the magistrate on personal surety, with any bail conditions being imposed on a discretionary basis. DFAT advises while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000.00-200,000.00 (AUD$350-$1400). Sources suggest those unable to pay the fine are permitted to pay instalments but, if still unable, may be imprisoned for 14 days. DFAT also advises that it is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

4. On the evidence before the Tribunal, the Tribunal finds that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he will be required to appear before the Magistrate’s Court within a period of 3-6 months to answer his plea. It might be a long and tedious process, but the Tribunal does not accept the concerns of the applicant (on the information the Tribunal has read) that there is a real chance that the applicant will face harm during this process, either during his questioning at the airport or during any period he spends on remand. In making this assessment, the Tribunal notes DFAT’s advice that it assesses the risk of torture or mistreatment for a great majority of returnees is low, including for those suspected of offences under the I & E Act.[28]

   [28] Ibid, see paragraph [5.29] in particular.

5. The Tribunal accepts DFAT’s previous reports that prison conditions in Sri Lanka are generally of poor standard. On the evidence before the Tribunal, the Tribunal finds that the applicant will be fined if he pleads guilty to offences under the I & E Act and that if he pleads not guilty, he will be granted bail when presented to court. Given the applicant was merely a passenger on a people smuggling vessel and this was his first breach of the I & E Act, the Tribunal does not accept there to be a real chance he will be denied bail. For the same reason, the Tribunal considers that if convicted of charges under the I & E Act, the applicant will be fined, and the Tribunal does not accept there to be a real chance that he will be sentence to jail term.

6. Having regard to the advice contained in the DFAT report,[29] that returnees are treated in the same way regardless of their race or religion, the Tribunal does not accept that the applicant will be treated differently from other returnees who have breached departure laws for any Convention reason. The Tribunal is satisfied that the I & E Act is applied to all persons who have departed Sri Lanka illegally, regardless of ethnicity.

   [29] see DFAT Country Information Report – Sri Lanka, 23 December 2021, at paragraph [5.30] at p. 49.

7. The information the Tribunal has considered and referenced in order to arrive at this decision does not indicate that Sri Lanka’s immigration laws have a discriminatory intent or impact or that the law is being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal finds that any questioning, charge, conviction, or penalty to which the applicant may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way. As such, the Tribunal finds that any brief period the applicant may be required to spend in jail or any fine he may incur as a result of prosecution or penalty on conviction for an offence will not be directed at the applicant for any Convention grounds.

8. The Tribunal accepts that when the applicant returns to his home area in Sri Lanka, his arrival may be noted, and he may be questioned by the Sri Lankan authorities. However, given the Tribunal’s findings above, the Tribunal does not accept that there is a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia.

9. For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicant will face harm as a Muslim, nor does the information before the Tribunal indicate that Tamil-speaking Muslims are at additional risk of harm compared with other Muslims in post-civil war Sri Lanka. The Tribunal does not accept that the applicant has had any role in post-civil war Tamil separatism.

10. The Tribunal does not accept that there exists a real chance the applicant will suffer serious harm if returned to Sri Lanka, solely on the basis of his Tamil ethnicity or Muslim religion or the fact he is a young male from Puttalam in North Western Province. The Tribunal does not accept the applicant’s the claim that the applicant’s father has been imputed to be a LTTE supporter by the Sri Lankan authorities because of his work as a [occupation] or that the Sri Lankan authorities or any person or group will seek to harm the applicant if he returns to Sri Lanka for reasons of his relationship with his father. It follows that the Tribunal does not accept the applicant’s claim that he will be imputed with pro-LTTE political opinion because of his father’s activities as a three-wheeler driver. The Tribunal does not accept that there is a real chance that he will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis that the applicant is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia.

11. In these circumstances the Tribunal does not accept the applicant’s Tamil race and ethnicity, Muslim religion or ethnicity or the fact he left Sri Lanka illegally and has claimed asylum in Australia, separately or cumulatively, means that there is a real chance that he will be imputed with a political opinion such as that he would be perceived to be a sympathiser or supporter of the LTTE or an opponent of the Sri Lankan government if he returns to Sri Lanka, now or in the reasonably foreseeable future. For the same reasons, the Tribunal finds that there is no real chance the applicant will be targeted for harm because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity, or the fact he left Sri Lanka illegally and has claimed asylum in Australia, separately or cumulatively.

12. For the same reasons, the Tribunal does not accept the claim that there is a real chance he will face harm for reasons of his membership of a particular social group ‘failed asylum seekers returned to Sri Lanka’ if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    Possible denial of social and economic rights

13. Previously, it was submitted by the applicant to the Tribunal, differently constituted, the claim that if he was returned to Sri Lanka, he would be denied social and economic rights and this would constitute serious harm by way of significant economic hardship, denial of access to basic services, or the denial of a capacity to earn a livelihood of any kind, such as would threaten his capacity to subsist. It was also submitted previously to a differently constituted Tribunal by the applicant the claim that he feared being denied access to food, shelter, employment, and medical treatment to the extent that his ability to subsist or survive would be jeopardised.

14. At the hearing, the applicant told the Tribunal that for his entire time in Australia, he has been reliant on friends for his shelter, food, and day-to-day subsistence. The applicant also told the Tribunal that he would ‘sometimes’ assist his friends with their ‘cleaning duties’ in return for some money and continued assistance. At the hearing with a differently constituted Tribunal on 20 November 2017 the applicant told the Tribunal member that if he returned to Sri Lanka ‘now’, ‘he would have no Centrelink, no Medicare and no ability to study.’ Though the present Tribunal did not question the applicant in detail as to his means of subsistence in Australia since his arrival in 2012, it would seem from the much-guarded comments the applicant made to Tribunal that in the time he has been in Australia, he has displayed an ability to subsist even by limited means.

15. The applicant is a young man. He has completed [number] years of education (as recorded in his file) and worked casually in [industry 1] as a labourer for two years before travelling to Australia. His parents and two brothers remain in residence in Sri Lanka. On the evidence before the Tribunal, the Tribunal is not satisfied there is a real chance the applicant will face a denial of social and economic rights such as would constitute serious harm, for any reason, if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    Cumulative Finding

16. Given the Tribunal’s findings above, the Tribunal does not accept that there is a real chance that the applicant will be targeted for harm by Sri Lankan authorities on the separate or combined basis of his Tamil race and/or ethnicity, his Muslim religion and/or ethnicity, his political opinion or his membership of the particular social groups comprising of ‘his family (relatives of his father)’ or ‘failed asylum seekers returning to Sri Lanka’ or because he departed Sri Lanka illegally. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution on these bases, separately or cumulatively.

    Complementary Protection

17. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this instance, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal finds that Sri Lanka is the ‘receiving country’ for the purposes of s. 5(1) of the Act.

18. The Tribunal has not accepted that there is a real chance that the applicant would be targeted for harm by the Sri Lankan authorities or any other person or group for reasons of his father’s activities as a three-wheeler driver or his relationship with his father if he returns to Sri Lanka, now or in the foreseeable future. Nor did does the Tribunal accept there to be a real chance that the applicant will suffer harm if he returns to Sri Lanka, now or in the foreseeable future, on the basis of the applicant’s Tamil race, his Muslin religion, his political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum while in Australia.

19. 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.[30] For the same reasons, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

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

20. The Tribunal accepted that the applicant will not be able to access halal food if returned to Sri Lanka. As to whether such conduct constitutes ‘significant harm’, that term is exhaustively defined in s.36(2) of the Act. The Tribunal does not accept that the denial of halal food constitutes any of the types of harm set out in that section, including torture or cruel and inhuman or degrading treatment or punishment.

21. The Tribunal has also considered whether the applicant would be subjected to ‘degrading treatment’ and hence ‘significant harm’ through the denial of social and economic rights to Tamils and that he would be unable to access shelter, healthcare, or employment. However, as noted earlier on, the applicant has been resourceful while in Australia and prior to his leaving Sri Lanka was actively engaged in the workforce as a labourer at various [industry 1 venues]. He did not seem as one who would not return to some appropriate employment or not being able to subsist or survive. In such circumstances, the Tribunal does not accept that the applicant would be subjected to degrading treatment or punishment or any other form of significant harm on the basis of the denial of his social and economic rights if he returns to Sri Lanka, now or in the foreseeable future.

22. For the reasons set out above, the Tribunal accepts that the applicant will be questioned at the Colombo airport upon his return to Sri Lanka, that he will likely be charged with leaving Sri Lanka illegally, and that he could be held on remand for a brief period usually being less that 24 hours but possibly as long as several days while awaiting a bail hearing. The Tribunal does not accept on the information before it that there is a real risk that the applicant will face torture, cruel or inhuman or degrading treatment or punishment, either during his questioning at Colombo airport or during any period he spends on remand.

23. The Tribunal noted that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I & E Act, he will likely face a fine of between 5,000 and 200,000 rupees. The Tribunal does not accept that the applicant will be unable to pay such a fine if it is imposed on him. Nor does the Tribunal accept on the evidence before the Tribunal that there is a real risk the applicant would be subjected to treatment constituting significant harm, as that term is exhaustively defined in s. 36(2A) during his questioning at the airport.

24. In considering whether the applicant may face harm while on remand awaiting a bail hearing, the Tribunal has accepted (the country information reports) that prison conditions in Sri Lanka are generally poor. The Tribunal has had regard to PAM3 which sets out that detention is not of itself a breach of Article 7 of ICCPR although it may be in some instances, depending on the nature and context of the treatment, its duration, its physical and mental effects and other relevant factors. In this instance, the short period the applicant will spend in remand causes the Tribunal to be not satisfied there is a real risk he would face significant harm as a result of poor prison conditions. Nor does the Tribunal accept that there is a real risk the applicant would face significant harm from any other person or group during the short period he will be on remand.

25. For these reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Conclusions

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

27. 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).

28. 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

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

    Peter Vlahos
    Member