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1004202 [2010] RRTA  752  (13 August 2010)

Last Updated: 14 September 2010

1004202  [2010] RRTA 752  (13 August 2010)

DECISION RECORD

RRT CASE NUMBER: 1004202

DIAC REFERENCE(S): CLF2010/15390

COUNTRY OF REFERENCE: Sri Lanka

TRIBUNAL MEMBER: Diane Barnetson

DATE: 13 August 2010

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention; and

(ii) that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, being a member of the same family unit as the first named applicant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Protection (Class XA) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants claim to be citizens of Sri Lanka. The primary visa applicant (“the applicant”) arrived in Australia in 2010. The secondary applicant arrived one month earlier. They applied to the Department of Immigration and Citizenship for Protection (Class XA) visas. The delegate decided to refuse to grant the visas and notified the applicants of the decision and their review rights by letter.
3. The delegate refused the visa application on the basis that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention. The delegate found the applicant’s claims were genuine, but also found that “relocation in Sri Lanka was a safe and reasonable option which would enable the applicant to avoid persecution”.
4. The applicants applied to the Tribunal for review of the delegate’s decisions.
5. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicants have made a valid application for review under s.412 of the Act.

RELEVANT LAW

6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.
7. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to 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).
8. Section 36(2)(b) provides as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen (i) to whom Australia has protection obligations under the Convention and (ii) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 for the purposes of the definition.
9. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994.

Definition of ‘refugee’

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to 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.

11. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 and Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387.
12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
17. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
19. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

20. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
21. The applicants appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
22. The applicants were represented in relation to the review by their registered migration agent.

Protection visa application

23. In the protection visa application, the applicant indicated that she was a citizen of Sri Lanka, born in Jaffna. She is Tamil. Her passport was issued in 2009. From 2000 to 2007 she lived at Location A and then from 2007 in various different addresses in Columbo. She lived in Location B when she arrived in Australia and moved to Location C. The passport shows that she entered Australia on a valid visa, which was granted in 2009.
24. She had a number of years of education, attaining tertiary level qualifications. She gave her occupation before arriving in Australia as “[occupation]” Prior to that she had worked as a clerk, as well as being a student. She indicated that she was undertaking a tertiary course in Sri Lanka which was not complete at the time of the application.
25. She indicated that she was married.
26. The second applicant indicated that he was a citizen of Sri Lanka, born in Jaffna. He is Tamil. He had a number of years of education, including at a tertiary institution in Sri Lanka, where he obtained a tertiary level qualifications. He has been studying for another tertiary qualification since arriving in Australia and was continuing at the time of the application.
27. The two applicants are married to each other.
28. The applicants provided their birth certificates, translated, and their marriage certificate, translated, with their applications, together with identity cards and information on Sri Lanka.
29. The applicant submitted a written statement with the protection visa application, setting out her claims:
    
    1. My name is [name]. I am a Sri Lankan by nationality and a Tamil by ethnicity.
    2. I was born on [date] in [hospital], Jaffna in the Northern Province of Sri Lanka.
    3. My family live in [address], [Location A], Jaffna.

My Family

4. My father, [name] was a [occupation] and my mother [name] is a [occupation]. I am the only child of my parents. My father died due to a [medical condition] he suffered in [year] as a result of an inhuman treatment of the Liberation Tigers of Tamil Eelam (LTTE).
5. I married to [secondary applicant] on [date]. My husband [name] is [studying] on a scholarship offered by [institution] on a research project [title].

My Education.

6. I studied at [institution] in [Location A] in Jaffna up to Grade six and then, went to [Location A] [institution] for my Grade 6 and 7 education. In [date], I joined with a prestigious College in Jaffna, namely, [institution] to complete my secondary education. I successfully completed my Ordinary Level and Advance Level studies at [institution].
7. I have successfully completed [qualification] and [qualification] with [institution]. Due to my sincere commitment in studies, I was admitted as an Associate Member of the [association] in[date].
8. In addition to that I was offered a place to undertake [course] at [institution] in [date].

Professional Record.

9. Having successfully completed my secondary education, I worked as an [occupation] at [company], [Location A] from [date] to [date].
10. Thereafter, from [date], I worked as [occupation] at the [Institution] in [location].

Chronology of events.

11. My family and I suffered immense and life threatening dangers especially at the hands of the Sri Lanka security forces solely due to my Jaffna Tamil minority ethnicity.
12. I can still vaguely recollect the memories we suffered during the 1987 Operation Liberation Military activities conducted by the Sri Lanka security forces to capture the northern part of Jaffna. When the Sri Lanka military was about to capture our village, my parents took me in their hands and ran for miles to save my life. My father told that the Sri Lanka security forces indiscriminately killed Tamils especially youths during that military operation.
13. The above Liberation operation military activities ended due to the Intervention of the Indian government. In 1987, my father told that the LTTE commenced its military activities against the Indian Peace Keeping Forces which resulted in huge human loses. My father told me that during that military operation, one of my father’s friend who was an ambulance driver of the Jaffna Teaching Hospital, namely [name] was killed when the Indian forces attacked the Jaffna teaching hospital in October 1987.
14. My father who is a god fearing [occupation] always advised me to concentrate in my studies to become a good citizen. During that time, my father told that the Indian forces in order to filter out the LTTE harassed the innocent Tamils. Fortunately, due to a regime change both in India and Sri Lanka, the Indian forces left our soil.
15. However, due to the military activities of the LTTE again in 1990 and 1995, we underwent tremendous hardships. In 1995 when the Sri Lankan security forces about to capture the Jaffna district, the LTTE had ordered all the people in the Jaffna district to vacate the place. As there were no options, several thousands of people including my family left Jaffna and took refuge at a place call Chavachcheri.
16. We were able to return to our habitual home after six months. After the Sri Lanka security forces captured the Jaffna district, we faced untold problems at the hands of the Sri Lanka security forces. Abductions, disappearances and killings were a normal part of life of the Jaffna people.
17. In 2002, due to the ceasefire agreement entered between the government led by Mr.Ranil Wicremesinghe and the LTTE, the LTTE was allowed to open their political offices in the Jaffna peninsula to conduct political activities. However, the LTTE used this opportunity and started to intimidate people and to force youths to join their movements. My father who was a [occupation] spoke against that which angered the LTTE.
18. The LTTE in [date] came to our home in the evening and called my father’s name to come out from home. As we realised the danger, my mother warned my father not to go outside. When my mother went outside to talk to the LTTE cadres, the beat my mother and entered our home. The LTTE cadres then dragged my father outside and beaten him in front of us. They severely warned him that they would abduct me if my father continued to speak against the LTTE. After beating my father mercilessly the LTTE members left our place.
19. Though, my father recovered from the bodily harm inflicted upon by the LTTE, nonetheless, he could not recover from the mental shock. My father started to get up in the nights and cry. He was psychologically affected by the attack because some of the LTTE cadres who beat my father were [relationship]. Thus, my father was unable to get from that incident. As a result of that his health condition started to deteriorate. Though, we tried hard to save his life, nonetheless, he died due to a [medical condition] [date] at our home.
20. My father’s sudden death had immensely affected our family. My mother and I underwent severe mental stress due to the loss of my father. Thus, in order to get from the mental stress, I decided to focus on my work as an [occupation] which I started from [date] at [company], [Location A], Jaffna.
21. In the meantime, the situation in Jaffna started to deteriorate after Mahinda Rajapakse became the President of Sri Lanka in 2005. The LTTE and the Sri Lanka security forces Since end of 2005 then the hostilities between the LTTE and the Sri Lanka Security forces had gradually increased and in particularly by mid of 2006.
22. Due to that, on the advice of my mother I left Jaffna to pursue higher education in [date] leaving my mother with our close relatives in Jaffna. In Colombo I initially stayed at [address] in a rented place. On the order of the Sri Lanka security forces I registered my name at the [location] Police Station.
23. Due to the widespread arrest, abduction and disappearance targeting Jaffna Tamils in Colombo, I restricted my movements in Colombo for my safety. During that time, police used to come to the residences of Tamils and arrest Tamils even though they had registered their name with the Police. I as a studious student in order to fulfil my father’s dream to become an educated citizen, I started to follow [name] course at a nearby private institution known as [institution].
24. In [date] during the Maaveerar Day (Great Hero’s Celebration) of the LTTE, the police cordon off the surrounding areas of the [ address] and searched the places of Tamils. They arrested Tamils including me and took to the [location] Police Station. Fortunately, the Tamil Member of Parliament for the Colombo district, [name] intervened the matter and got us released in the evening.
25. After that incident, I was scared to go outside and decided to look for a safer place to stay in Colombo. Fortunately, I secured a hostel place known as [ name] at [address]. I moved to that hostel in [date] and stayed there till my marriage in [date].
26. Despite the arrests and abduction in the Colombo district targeting minority Tamils, I had managed to stay in Colombo without going outside unnecessarily and concentrating only in my studies.
27. In the meantime, in early [year] I was offered a place at [institution], Sri Lanka to follow a [name] Course. I was so happy because it was my dream to become a qualified [occupation]. I registered my name with the institution on [date] and commenced my studies there.
28. I was the only Tamil in that training course which consisted of personnel from Navy and Army. I travelled everyday to my class from Colombo in a bus. On 10 March, due to the LTTE suicide bombing in Mattara more than 10 people were killed and several people including a powerful Minister of the Government, namely Mahinda Wijesekera sustained injuries. Due to that attack, I did not go to my class thereafter for two four (amended orally at interview) days because after the attack Sinhala mob had attacked the Tamils who were travelling to Southern Sri Lanka.
29. When I went to the class again on [date], a Police team from the [location] Police division came there and ordered me to come with them for an inquiry. When I asked them for the reason, they said that they had arrested a LTTE cadre in [location] who had confessed that there were several LTTE members hiding in the [location] division. They said that they suspected me as a LTTE member from its [type] wing.
30. They in front of my colleagues and teachers ridiculed me and dragged me into the police vehicle. I was scared to go with the police alone because the Sri Lanka police is known for notorious behaviour. Thus, I pleaded with my colleagues and teachers to rescue me from an imminent danger. Despite my plea none of my colleagues and teachers gave me a helping hand.
31. In the police station, I was severely interrogated and beaten by the Terrorism Investigation division of the Sri Lanka Police. The Police officers told that I did not come to the class after the bomb blast, hence they said that they suspected me for the bomb blast. They warned me that they would kill me because they had the right to kill any Tamils in Sri Lanka like a dog. They further told that Tamil dogs have no right to come to the South of Sri Lanka.
32. I begged for help from them and told them that I never involved in any anti government activities and further told them that I am a peace loving person. The Police officers without believing me, asked me to stand for several hours as part of their torture methods.
33. I begged the police officers to contact my hostel to inquire about me. I gave my hostel number and begged them to call the hotel warden. The Police officers after making inquiries from the hostel warden, released me in the afternoon. They warned me that I should not tell anything about this to any human rights organisations.
34. I came to the hostel and did not utter any words about that incident except my mother. My mother who was already mentally suffering from my father’s death, started to cry. I consoled my mother and told her to not to worry as there would not be any further troubles.
35. However, after that incident I was very hesitant to go to my [name] course because the police interrogation severely affected my human dignity and mental capacity. However, in order to fulfil my father’s dream, I started to go to classes again. Though, I started to attend the classes after incident, nonetheless, I noticed a change of environment and treatment towards me in the training.
36. As I was the only Tamil studying there among the Sinhala students, the Sinhala colleagues looked at me differently and used to pass hints about my ethnicity. They used to yell me as a LTTE female cadre and pass hints in filthy words. It was a very hard time and experience for me to study there.
37. Despite all those odds, I was determined to complete the studies with flying colours and to establish my career. During that time, my mother and my relatives started to look for a marriage partner for me. Finally, they found [secondary applicant] who was [studying] at [institution] as my life partner by end of September and made arrangements for my marriage.
38. I, in order to make my mother happy, accepted her marriage proposal. My mother and relatives arranged my marriage on [date]. Hence, with my mother and other relatives’ blessings, I married [secondary applicant] on [date] at my native place, [Location A].
39. After the marriage, my husband and I came to Colombo and stayed at my uncle’s place in [location]. My husband advised me to concentrate on my studies and said he will be back to Sri Lanka soon. He left Sri Lanka on [date].
40. On [date], when I was staying at my uncle’s home in [location], several police officers came to my home around 8 p.m and ordered me to come with them. When my uncle politely asked for the reason, a police officer slapped my face and told that they were from the Special Task forces of the [location] Police and accused me as a LTTE sympathiser.
41. The police officers told that they received a letter accusing me as a LTTE cadre because I did not attend the classes for several days in my [name] class. Thus, they said they have strong suspicion on me and accused me without any substantial evidence as a LTTE sympathiser who was planning to plant bomb in Colombo. I was shocked by this accusation and told the officers that I duly informed the institution about my leave as I wanted to go to Jaffna for my wedding.
42. The police officers told that they received information that I went to Jaffna to bring a LTTE cadre to Colombo. They without listening to my explanation dragged me to the police vehicle and took me to the [location] Police Station. In the Police station, I was kept in a dark room without giving any food or water. In the early morning, three people in civilian clothes came to my cell and spoke me in Tamil. They said that they were from Karuna group of the paramilitary cadres.
43. They throw hot water on me and accused me as a LTTE sympathiser. I vehemently denied it and said I am a married girl and a good citizen of Sri Lanka. They further accused that my husband participated in anti-Sri Lankan campaign in [Location B], Australia I told them that he is studying for [course] at a leading [institution] in [Location B] and only concentrated in his studies. I further told them that he even had no time to involve in any extracurricular activities because he is fully engaged with his research activities.
44. The Karuna group members beat me and said that they would kill me and threw in the Bolgoda lake in Colombo. In the mean time, other police officers also joined with them and beat with me batons. They left me only after I fell unconscious. When I gained conscious, I cried god to help me out of that danger.
45. On next day morning my uncle came to the [location] Police Station with a lawyer and spoke to the police officers there. After some time, the police officers took signatures of mine in papers and released me from the cell. My uncle took me in his vehicle to Colombo. During the travel, the lawyer told that they had paid a large sum of money to the police officers in order to secure my release. Further, he told that I should take immediate steps to leave Sri Lanka soon because the Karuna cadres and the police will again target me.
46. I immediately contacted my husband in [Location B] and told him about this and asked him to take me. He spoke to my uncle and told him to take necessary steps to send me to Australia. After I was relased from the police custoday, I had noticed that some unknown people and vehicles were roaming around my uncle’s place in the nights. That had prompted my uncle to search for a safe house for me. I on the advice of my uncle used to stay in several places in order to save my life.
47. During that time my husband sent me necessary documents to apply for a [type] visa and I applied for a visa on [date]. I was granted the visa on [date]
48. I was so happy on the day I got my visa and pleaded with my uncle to help me to get out from Sri Lanka. My uncle booked the ticket and requested one of his friends who is an Anglican priest to help me to get out from Sri Lanka. On the day of my departure, the priest took me in his vehicle and dropped me at the airport. I was so scared till I got into the plane as I know that the Karuna Cadres who were famous for the notorious actions would target me. Prior to my departure, my uncle warned that I should not return to Sri Lanka until suitable environment is created probably after a regime change.
49. I took my flight on [date] and landed in [Location B]. Only when I touched [Location B], I was able to have a good breath and was able to enjoy the freedom. Though, I landed in a safe country, nonetheless, I could not peacefully sleep due to the past memories and mental torture I underwent in Sri Lanka. I started to get up in nights and cried loudly in dream to save my life. Seeing my condition, my husband took me to [Location C] and placed me with one of my family friend in order to ease my mental suffering.
50. Though, I am getting back to normal gradually, nonetheless, whenever I think that I have to return to Sri Lanka, I get mental depression and stress. Whenever I think about Sri Lanka, my body started to shiver and causes mental depression and stress. I have a genuine and widespread fear that I will be certainly targeted, arrested, tortured and killed in Sri Lanka. There is a greater danger for my life in Sri Lanka. I am afraid that my right to life and enjoy the life with dignity will be seriously compromised, if I go back to Sri Lanka.
51. Hence, under the above circumstances I am earnestly requesting the Government of Australia to grant me protection in order to save my life and live in this great country.

Review application

30. The Tribunal received written material from the applicants’ representative. This included a copy of the applicant’s statement, reproduced above; information about the Tamil situation in Sri Lanka, specifically Jaffna; letters (translated) from the applicant’s mother and a former teacher; a report from a psychologist; and a submission from the applicant’s representative.

Hearing

31. At the hearing, the Tribunal confirmed with the first applicant and her representative that the second applicant would not appear at the hearing and did not wish to give evidence. The representative told the Tribunal that the second applicant’s claim for protection was as a member of the family unit of the first applicant and that he did not have any claims to make himself.
32. The Tribunal took the first applicant through the protection visa application. She said that she had been assisted by someone who translated her oral information into English and filled in the form with her answers.
33. She confirmed the information about her date and place of birth, her addresses, education and employment.
34. The applicant recounted to the Tribunal what had happened in Sri Lanka. She said that she had terrible experience of mistreatment. They have taken her details including her name. They have a strong suspicion of her. They have gone to her mother’s house and questioned her about the applicant. They will arrest her again and she will be killed.
35. The Tribunal asked whom she meant by “they”. She said the Sri Lankan army. They suspect she is in LTTE. She was accused of this. She is not in LTTE and neither is her family. She was badly affected both times she was arrested.
36. The Tribunal asked why the army would think that she was in LTTE. She said that she went to do tertiary training and the course was held in a Sinhalese area. She was a Tamil from Jaffna and there is then an automatic assumption that she is LTTE. The others in the course said that she was linked to the bombings and she was accused of coming from a LTTE medical unit to do the course. Many of those doing the course were from the military.
37. She went back to Jaffna for her wedding. When she returned the others were even more suspicious. She was suspected of being a bomber from Jaffna. She was told that someone had written saying she was a LTTE bomber. She stopped going to classes for two weeks. She was taken again and suffered immense torture which she cannot describe; she suffered a lot.
38. Then after the bombing in 2009 she did not attend classes because of her fear. She went back one week later.
39. She could not complete the tertiary course.
40. Her husband was in Australia as a student. He came here after the marriage. She had not planned to come to Australia. She is an only child, her mother is alone. She had a good job in Sri Lanka. After the marriage the idea was that her husband would come and visit her and when his course finished in Australia they would live in Sri Lanka. However, after the arrests in Sri Lanka, her husband arranged for a visa for her, which was granted in 2009. She left in 2010.
41. The Tribunal asked when she was arrested. She said November 2007 and November 2008.
42. The applicant said that the army has questioned her mother twice and she is very scared. Her mother wrote about this situation.
43. The Tribunal referred the applicant to the letter from a teacher who knew her and asked how he would know about the information in the letter. She said that he is from the same village and so he knows what has happened.
44. The Tribunal raised the issue of the present situation in Sri Lanka and asked whether the applicant could live safely in a Tamil area such as Jaffna. She said that if she returned there would be checkpoints all the way and she could be arrested as they have her name. Even now there are abductions and killings in Jaffna. As a suspect she would not be left alone. They are still asking questions about her. In her village some armed men killed a girl there. Her mother said that she was killed because of the suspicions about her.
45. The applicant’s representative referred to the new information available. This shows that there is a policy implemented of registering Tamils in Colombo. Even landing at the airport the applicant would be arrested. She would be killed.
    

FINDINGS AND REASONS

46. The Tribunal finds that the applicants are citizens of Sri Lanka, as shown in their passports. They are outside the country at this time.
47. The Tribunal is required to determine whether the applicants have a well-founded fear of persecution in Sri Lanka and, if so, whether this is for one or more of the convention reasons. When determining whether an applicant is entitled to protection in Australia, a decision-maker must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility. When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are genuinely credible but unable to substantiate all of their claims. That said, the Tribunal is not required to accept uncritically any or all allegations made by the applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Indeed the Tribunal is not obliged to accept claims that are inconsistent with independent evidence regarding the situation in the applicant’s country of nationality. Randhawa v Milgea (1994) 52.FCR.437 at 451, per Beaumont J, Selvadurai v MIEA and ANOR (1994) 34.ALD.347 at 348 per Heerey J and Kopalapilli v MIMA (1998) 86.FCR.547.
48. The Tribunal is required to make a determination as to whether the first applicant has a well-founded fear of persecution for a convention-related reason if she were to return to Sri Lanka.
49. The Tribunal has taken into consideration the evidence that the first applicant has provided to the Department that formed the applicant’s claims for protection, independent information and the material submitted to the Tribunal at review.
50. Having considered all the information before it and, having had the opportunity to obtain information about the claims from the applicant at a hearing, the Tribunal is of the view that that the applicant is a reliable and credible witness. The claims which she has made have remained consistent. There is nothing to indicate that she has exaggerated or embellished her claims. Her claims are also supported by the evidence of her mother and a former teacher, both of whom provided letters.
51. The report from the psychologist, indicates that the applicant and her husband consulted her recently. The report contains a summary of the applicant’s claims and concludes that, according to the World Health Organisation International Classification of Diseases-10th edition, the applicant is diagnosed with post traumatic stress disorder (PTSD). She has symptoms of depression, anxiety, psychosomatic pains, including headaches and dizziness, weight loss, nightmares, lack of concentration.
52. The Tribunal is of the view that this report indicates strongly that the applicant has been harmed in Sri Lanka.
53. The applicant claims to be Tamil and born in the Jaffna area of Sri Lanka. The Tribunal accepts that this is the case.
54. Essentially, the applicant claims that she has been harmed in Sri Lanka because of her perceived connection to the LTTE, a terrorist organisation.
55. The applicant claims that her parents were beaten by the LTTE. Her father was psychologically affected by this experience, to the extent that he died shortly afterwards. The Tribunal accepts this.
56. The applicant claims that she was arrested by Sri Lankan security forces, along with others in 2007. She was released the same evening. The Tribunal accepts that this was the case.
57. The applicant claims that during March 2009 she did not attend class in her course in Colombo for four days, because of her fears of being targeted after the LTTE suicide bombing when over ten people were killed. When she returned to class a week later she was taken from the school and questioned by police who suspected her of being an LTTE member. She was dragged into a police vehicle, taken to the police station, interrogated and beaten. They threatened to kill her. After the police made enquiries of her hostel manger they released her.
58. The Tribunal is satisfied that the claims made are genuine.
59. The applicant was married in an arranged marriage in 2009 in her village. She and her husband returned to Colombo and then her husband left for Australia. The Tribunal is satisfied that these claims are true.
60. The following day police came to the applicant’s uncle’s home where she was living and told her that she had been accused of being a LTTE sympathiser and planning to plant a bomb in Colombo, which the applicant denied. She was taken to a police station, where she was ill-treated until she became unconscious.
61. The next day after her uncle and a lawyer came she was released. Her uncle took her to Columbo. The lawyer said that they had paid a large sum of money to have her released.
62. The Tribunal is satisfied that these claims are true.
63. The Tribunal then considered the question of the possibility of relocation in Sri Lanka. There is extensive information before the Tribunal which shows that abductions and disappearances of civilians is on-going; that a state of emergency was still in place as at 9 June 2010 due to the perceived threat from the LTTE; that police had reportedly detained, beaten and severely mistreated people; abducted and killed Tamils; attacked young Tamils men and women; that there were checkpoints throughout the country.
64. There is also information that enforced returnees were routinely interviewed at the airports, and those suspected of being LTTE were questioned by police. Returnees had been assaulted and imprisoned.
65. Given this information, the Tribunal is of the view that there is a significant risk that, even in a Tamil area of Sri Lanka, the applicant is likely to face serious harm. Relocation is therefore not reasonable.
66. The Tribunal finds that the applicant would experience serious harm as defined in the Migration Act upon return to Sri Lanka. The Tribunal accepts that the applicant would face a real chance of persecution for a Convention-based reason if she was to return to Sri Lanka. It follows that the applicant does have a well-founded fear of persecution for a Convention-based reason.
67. Subsection 36(2) of the Act, which refers to Australia’s protection obligations under the Refugees Convention, is qualified by subsections 36(3), (4) and (5) of the Act. These provisions apply to protection visa applications made on or after 16 December 1999.
68. Under these provisions, where a non-citizen in Australia has a right to enter and reside in a third country, that person will not be owed protection obligations in Australia if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4) or (5) are satisfied, in which case the s.36(3) preclusion will not apply.
69. In determining whether these provisions apply, relevant considerations will be: whether the applicant has a legally enforceable right to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; whether he or she has a well-founded fear of being persecuted for a Convention reason in the third country itself; and whether there is a risk that the third country will return the applicant to another country where he or she has a well-founded fear of being persecuted for a Convention reason.
70. There is no information before the Tribunal to indicate that the applicant has a right to enter and reside in a third country.
71. The Tribunal has before it a copy of the applicants’ marriage certificate. Based on this evidence, the Tribunal is satisfied that the second applicant is the husband of the applicant.

CONCLUSIONS

72. The Tribunal is satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a) for a protection visa and will be entitled to such a visa, provided she satisfies the remaining criteria for the visa.
73. The Tribunal is satisfied that the first applicant’s husband, the second applicant, is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. As the first named applicant satisfies the criterion set out in s.36(2)(a), it follows that the other applicant will be entitled to a protection visa provided he meets the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa.

DECISION

74. The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention; and

(ii) that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, being a member of the same family unit as the first named applicant.