1730123 (Refugee) [2019] AATA 6488 (9 August 2019)

Last Updated: 3 March 2020

1730123 (Refugee) [2019] AATA 6488 (9 August 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1730123

COUNTRY OF REFERENCE: Sri Lanka

MEMBER: Brendan Darcy

DATE: 9 August 2019

PLACE OF DECISION: Melbourne

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

Statement made on 09 August 2019 at 5:31pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party – failed asylum seeker – feared harm by People’s Alliance Supporters – inconsistent evidence – credibility issues – unreliable witness – fabricated claims for migration purposes – no real chance of serious harm – decision under review affirmed

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

CASES
CEA15 v MIBP & Anor [2017] FCCA 2699
Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Thiyagarajah (1998) 80 FCR 543
MZRAJ v MIMIA [2004] FCA 1261
NAGV & NAGW v MIMIA [2005] HCA 6; (2005) 222 CLR 161
Osman v United Kingdom (1998) 29 EHRR 245
Prasad v MIEA (1985) 6 FCR 155
S1573 of 2003 v MIMIA [2005] FMCA 47
Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 4 December 2012 and the delegate refused to grant the visa on 16 December 2013.
3. The matter is before the Tribunal because of a Court order. The applicant validly applied to have the Tribunal’s decision made on 26 June 2015 (differently constituted) judicially reviewed.
4. On 27 October 2017, Justice Riley at the Federal Circuit Court remitted the matter to the Tribunal for re-determination. According to the written reason for the judgement, CEA15 v MIBP & Anor [2017] FCCA 2699, the remittal was on the basis that the Tribunal had made irrational or internally inconsistent findings.
5. On 30 November 2017, the Tribunal notified the applicant via his then representative that the Federal Circuit Court remitted the application for review.
6. The applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
7. The applicant was represented in relation to the review by his registered migration agent.

RELEVANT LAW

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

Refugee criterion

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

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

11. 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.
12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
14. 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.
15. 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.
16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

19. 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’).
20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Background

24. The following information was provided by the applicant in his submitted 866B and 866C forms at the time of application on 4 December 2012.
25. The applicant claimed he was born on [a certain date] and that he is a citizen of Sri Lanka.
26. No copies of the applicant’s passport were submitted. However there are non-original copies of his Sri Lankan birth certificate and national identification card on the Departmental file ([specified]).
27. The applicant claimed that his religion is Catholic; that he belongs to the Sinhalese ethnicity or race; and that he speaks, reads and writes Sinhala.
28. With regards to his family composition, the applicant’s parents [and siblings] remain in Sri Lanka, living in their home area of [City 1]. The applicant’s [siblings] are married. Furthermore he claimed not to be married, engaged or to have lived in a de facto relationship. He did not claim to have any children or dependents.
29. The applicant claimed he was educated at the [Named] School, [completing] the equivalent of Year 11.
30. From 2005 to September 2011 he was employed at the [City 1] fish market as a fish seller. Between 2005 and 2009 he worked for a man called [Mr A] and from 2009 he was self-employed. From September to December 2011 he went fishing with his [cousin]. From December 2011 to May 2012 he was not employed returning to the [City 1] fish market from May to June 2012. He was then unemployed until he departed for Australia in July 2012.
31. The applicant claimed to have departed Sri Lanka by boat en route for Australia in July 2012. [In] July 2012, the applicant arrived in Australia as an irregular maritime arrival.
32. The applicant was granted a bridging visa on 23 October 2012 before applying for a protection visa and was granted an associated bridging visa on the same day.

Written claims for protection

33. In his statutory declaration dated 4 December 2012 and attached to his Form 866, the applicant claimed that he is unable to return to Sri Lanka because of his political opinion, as a supporter of the United National Party (UNP).
34. The applicant’s problems first started, it is claimed, in August 2010 in relation to the local council elections when he was assisting a candidate, [Mr B], who was with the UNP. He was assisting with the publicising of his campaign, including putting up posters and banners, going house to house distributing leaflets, canvassing, talking to people and persuading them to vote. He also attended party meetings for the election. [Mr B] was personally known to him and his friends were involved in the campaign. He wanted to help [Mr B] come to power so [Mr B] could assist him if he ever had problems with the police or for financial assistance if he needed it. His father was also a supporter of the UNP and encouraged him in his political activities. The majority of people in the fish market were supportive of the government party, the People’s Alliance (PA) and after the 2010 election he was verbally abused in the fish market for his support of the UNP. There was another election in October 2011 for town council and he worked for [Mr C] who was the UNP candidate. Again he was involved in distributing election propaganda, such as posters and banners and canvassing for votes. He worked on this campaign every day in the month leading up to the election. He would finish his work at 9am in the fish market, working on the election until the afternoon. [In] September 2011, at night, about eight people, including himself went to put up posters and a group of people started beating them. He did not recognise them but believes they are from the same village and this was later confirmed by [Mr C]. They had wooden poles with them and were hitting them with these poles, telling them not to put up posters. Three were severely injured and taken to hospital while the remaining 5, including himself, went to [Mr C]’s house where they stayed for two days. [Mr C] advised them not to go to the fish market and to stay at home because he could not guarantee their safety. He lodged a police complaint about the incident and the police discovered the identity of the men. The police discovered that it was supporters of [Mr D] who attacked them. [Mr D] secured bail for them and no further action against them was taken. He went to work with his cousin on his fishing boat. He ignored [Mr C]’s advice and in November 2011 he went to the fish market as he had to take the fish. He was beaten badly with a pole by PA supporters and [was] injured. He was taken to hospital. Out of fear he did not return to the fish market for four months and [Mr D]’s supporters would go to his house and threaten him. He needed to support himself so decided he had to go back to the fish market, but as soon as he returned he was told by PA supporters that he should not be at the market selling fish. He managed to stay for one month but then realised it was not possible to remain in the market. His parents advised him his only option was to leave Sri Lanka and he made plans to depart for Australia. On his arrival in Australia he found other UNP supporters from the same fish market had arrived here. If he returns to Sri Lanka he will continue to suffer harm from the PA supporters in his village. They will prevent him from earning a living as he has to go to the fish market as there is no other way for him to earn a living. It is important for the PA supporters to retain control of the fish market and they are threatened by the UNP supporters. The people in his village who have been supporting the UNP have not been able to have a normal life. He is unable to relocate as he has no financial support and it would not be possible for him to get a job. He has no money and all his family and support are in the village. The PA dominates Sri Lankan politics and if he relocates they will know and find him. The authorities cannot protect him as they took no action when he was beaten.
35. As documentary evidence, the applicant provided a copy of a letter of support from [Mr C] stating he had actively participated in the common public welfare activities in his village. The letter refers to the [City 1] Municipal Council elections scheduled to be held [in 2011] in which he contested the election [as] a candidate for the UNP, and he was backed by a number of youth supporters including the applicant. On [a date in] 2011 while the applicant and another four youths were canvassing for him, they were attacked by unidentified persons and he was informed that the following day he received an anonymous telephone call threatening him. He gave him protection in his residence for two days.
36. On file is a copy of letter of support from [Mr C], then a [City 1][senior official].
37. The Department of Immigration and Border Protection (the Department) conducted an interview with the applicant on 26 July 2013. The applicant had been assisted by an interpreter in the Sinhala and English languages.
38. A delegate on behalf of the Minister refused to grant the applicant a protection visa on 16 December 2013.
39. The applicant applied to have the applicant’s delegate’s refusal decision reviewed by the Tribunal, differently constituted, on 19 December 2013. A copy of the delegate’s decision was not attached to the application for review. .

First review

40. On 19 December 2013, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal, differently constituted.
41. On 9 January 2015, the applicant submitted a second statutory declaration.
42. The applicant noted in this statement that he continued to rely on his statement dated 4 December 2012. The applicant claimed he clarified during the protection visa interview that the first time he campaigned for the UNP was in 2009 and prior to this he helped his father campaign for the UNP candidate [Mr B] without issues. He claimed his problems started during his campaign for the UNP candidates during the [Elections] in 2011, particularly he and others who were putting up posters were assaulted by opposition supporters [in] 2011. He maintained that he was assaulted at the market in November 2011 and hospitalised. He claimed that Mr [C] may have not recalled this information in his support letter because he had many young supporters and he also claimed that he omitted this information during his entry interview because he was nervous and spoke generally. The applicant claimed that following his assault in November 2011 he went fishing with his cousin and during this period some people smashed the windows at his parents’ house and told them that he should not return to the market or be involved in politics. He claimed that he will continue to support the UNP if he returned to Sri Lanka.
43. Accompanying this statement was a legal submission on behalf of the applicant.
44. The applicant appeared before the Tribunal for the first time on 14 January 2015 to give evidence and present arguments. The applicant was assisted by an interpreter in the Sinhala and English languages. He was also represented by a registered migration agent or [lawyer] in relation to this part of the review application.
45. On 10 February 2015, the applicant’s representative submitted a legal submission in support of the applicant’s claims, which included addressing inconsistencies in the information provided by the applicant in his entry interview, this statutory declaration, the protection visa interview and in his statement dated 9 January 2015.
46. On 26 June 2015, the Tribunal affirmed the decision not to grant the applicant a protection visa and the applicant validly applied to have the Tribunal’s decision judicially reviewed. As mentioned above, the applicant was successful in his appeal to the Federal Circuit Court and the matter was remitted to the Tribunal for re-determination: CEA15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2699.
47. On 23 August 2018, the applicant appeared before the Tribunal for a second time for re-determination. The applicant was assisted by an interpreter in the Sinhala and English languages. He was also represented by a registered migration agent or [lawyer], whom the applicant appointed on 31 January 2018.

Section 424A letter

48. Out of an abundance of caution, the Tribunal noted that significant political events occurred in Sri Lanka since his scheduled hearing. In order to provide the applicant with a fair opportunity to respond to specific developments, the Tribunal issued a letter on 12 July 2019 which covered three specific topics: offences under the Immigration and Emigration Act (I&E Act); Sri Lanka’s 2018 constitutional crisis; and the 2019 Easter Sunday bombings.
49. The applicant was invited to respond by 26 July 2019 which he did (without any representative). It is noted the written response was not accompanied with any independent country information. The country information and the applicant’s responses are discussed below.

Non-Disclosure notices

50. There were no non-disclosure notices issued to the Tribunal attached to the applicant’s Departmental file.

ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference

51. The applicant has claimed to be a citizen of Sri Lanka.
52. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided copies of a certificate of birth and national identity card issued by Sri Lankan authorities to the Department which is on the Departmental file.^[1]
53. On the basis of this evidence and with no evidence to the contrary, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that Sri Lanka is the applicant’s country of origin under s.36(2)(a). On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).
54. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

Credibility concerns and findings

55. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
56. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547).

Limited accepted personal circumstances

57. It is accepted that the applicant was born [in City 1] in Sri Lanka’s [Province 1]; that his religion is Roman Catholic; that he speaks, reads and writes Sinhalese and that his ethnicity is Sinhalese.
58. It is accepted the applicant’s parents [and married siblings] continue to reside in [City 1]; and that the applicant is the youngest of the siblings. It is also expected that the applicant has never married or been engaged or has been in a de facto spousal relationship either in the past or at the time of the scheduled hearing, and that he does not have any children, biological or otherwise.
59. It is accepted the applicant was educated at [Named] School [where] he completed the equivalent of Year 11.
60. It is accepted the applicant, from 2005 and September 2011 had been employed at [City 1] fish market as a fish monger and that he had worked for a man called [Mr A] between 2005 and 2009. It is also accepted the applicant went fishing with his cousin between September 2011 and December 2011; and that from December 2011 to May 2012, he was not employed. The applicant then returned to the fish market in [City 1] between May 2012 and June 2012 and that he was unemployed until he departed for Australia.
61. It is also accepted the applicant departed Sri Lanka [in] July 2012 without lawful permission and arrived in Australia as an irregular maritime arrival [later in] July 2012.

Credibility concerns: incidents of past harm

62. Overall the applicant presented significantly inconsistent accounts of incidents of past harm when comparing his written claims and those presented at the scheduled hearing on 23 August 2018.
63. During the hearing, the applicant outlined his dispositive claims relating to his claimed political opinion. However the Tribunal was able to identify a number of inconsistencies in those oral claims compared to earlier written and oral claims.
64. The applicant claimed that while he was working at a fish market in [City 1] in 2012 he had been threatened by a number of persons. He did not recall the month. He further claimed that the persons threatening him opposed his support and activities in favour of two local candidates, [Mr C] and [Mr B], both from the UNP. He had invariably claimed that his political activities began in 2009 and 2010. The applicant claimed that he assisted with posting political posters and hanging banners and canvassing others to support these candidates. The applicant explained that he supported these candidates because they supported youth activities in his village including supporting sporting activities and employment opportunities. The applicant claimed that he was threatened and assaulted by [Mr D] from the UNP’s then rival, the PA (The PA was merged into the United People’s Freedom Alliance (UPFA) in 2004 and has been a coalition of other parties, including the Sri Lankan Freedom Party or SLFP. It is accepted that PA and UPFA are used interchangeably).
65. The applicant also stated that he was attacked by four or five PA supporters which led to the applicant being hospitalised. After a [hospitalisation] period, he resided with [Mr C] for a few days before returning to his home. The applicant claimed he made a report to the police personally and that [Mr C] and his brothers also went to the police. He claimed the police warned all the parties involved that such incidents should not happen again. No one was detained or custody. The Tribunal asked whether he or member of his family had been threatened or harmed again. The applicant responded that they came to house to threaten him but he was not physically threatened and that no-one else from his family had been threatened. The applicant said soon after this he had heard of a boat going to Australia and he worked towards that. The Tribunal asked why the situation was so threatening that he had to leave for Australia, The applicant responded that he was determined to leave and his parents supported the decision.
66. The Tribunal pointed out to the applicant there were numerous inconsistencies with his written statement of claims. In paragraph 7, the applicant provided a specific date ([in] September 2011) for the incident of harm at the fish market. However the applicant said the incident occurred sometime in 2012 and he could not recall the month. In paragraph 8 of the statement, the applicant does not mention hospitalisation. Instead, it states that he took refuge at [Mr C]’s residence for [some] days and he had to remain at home because he could not guarantee security. In paragraph 9, the applicant wrote that the [Mr D] and other PA members who had attacked the applicant and the other UNP supporters had been placed into custody and that [Mr D] had secured bail. In paragraph 10, the applicant claimed to have experienced a second incident of harm at the fish market. However the applicant failed to mention this at the scheduled hearing.
67. The Tribunal notes that in the submission dated 10 February 2015, the applicant’s representative stated that the applicant did not provide any information about the September 2011 incident at an entry interview with Australian authorities soon after the applicant’s 2012 unauthorised arrival in Australia. The submission states that the applicant did not receive any legal advice prior to this interview and that the applicant had only explained his fears in generalised terms. Ordinarily, the Tribunal would place no weight on inconsistencies or omissions provided at these unrepresented entry interviews. However in the context of the Tribunal’s other credibility concern, it cannot overlook this and it has further invited the Tribunal to consider that the applicant’s claims about past harm for the reasons claimed to have been fabricated.
68. Furthermore the supporting letter from [Mr C] (dated 22 November 2012) did not mention that the 2011 incident of assault included the hospitalisation of the applicant.^[2] Instead it mentioned providing the applicant and other young supporters refuge at his own residence. The applicant’s 2015 statutory declaration states he cannot explain why Mr [C] did not include the incident in his letter and suggested it was because Mr [C] was unable to recall because there were so many violent incidents surrounding the election campaign. Yet the letter mentioned the specific detail that he and the applicant had received anonymous phone calls. In the context of the Tribunal’s other credibility concerns, these discrepancies have invited the Tribunal to further consider that the incident of both assault and hospitalisation did not occur. Had Mr [C] been involved in the specific incident in which one or more of his supporters required hospitalisation and that there had been a formal complaint to the authorities about political violence against political rivals, it would be reasonable to have recorded that in the 2012 letter of support.
69. The applicant claimed that he was unable to remember these details of his written claims because of the passage of time over six years. However, it is the Tribunal’s assessment that these inconsistencies were not minor discrepancies but significant and numerous. The Tribunal enquired whether there were any medical reasons for his lack of memory. The applicant said that he had never been to a doctor about these problems.
70. The Tribunal pointed out to the applicant that he provided a specific date for the incident, [September] 2011, in his statutory declaration dated 4 December 2012. The date was also repeated in the applicant’s more recent statutory declaration dated 9 January 2015 which set out to clarify a number of inconsistencies noted in the delegate’s decision.
71. The applicant was also provided with an opportunity to provide a post hearing submission to substantiate or support his claims and to do so by 7 September 2018. However he did not. He was also provided with an opportunity to provide any further information as part of an invitation to comment on 12 July 2019. While he did respond, he did not provide any further information or documentation about his past political memberships, activities or incidents of harm. The Tribunal places some weight on this lack of responsiveness to a specific request or opportunity to provide additional information during the scheduled hearing to invite further credibility concerns about claimed incidents of harm for the reasons claimed.

Credibility concerns: political opinion

72. The Tribunal enquired into the applicant’s knowledge about the UNP. While he was able to identify the symbol of the UNP (a green elephant), he could only describe the party’s platform in platitudes, such as stating that the UNP would be ‘good for the country’. He claimed that his father has supported or worked for them.
73. The Tribal further enquired whether the applicant could outline the changes that took place in Sri Lanka. The applicant claimed that he has not been there so he cannot say and that he cannot comment on them. The Tribunal asked if he was aware of changes in the government in 2015. The applicant responded that the previous government had changed from the Freedom Party (used to be the PA) to UNP. This was correct: in 2015 Maithripala Sirisena as the UNP candidate was elected leader and the UNP led by Ranil Wickremesinghe won a majority in the parliamentary elections. When the Tribunal asked whether the applicant could receive the protection from a government led by the same party he claimed to have supported, the applicant said that he would not garner the protection of the police as the seat of [City 1] is controlled by the Freedom Party opposition. He stated he feared the same people who harmed him in the past would harm him again, despite the passage of time. He claimed that he had no recent or current contacts with anyone in the UNP. He did not claim to have received any recent threats. Although the government changed, he does not accept the economy has improved and given that his only skill is in the fishing industry, he could not reasonably relocate to another part of Sri Lanka, such as Colombo. He has a fear of the same people in [City 1] harbouring negative feelings towards the applicant and finding him throughout his country of nationality and origin.
74. The Tribunal has considered it plausible that the only interest the applicant has in the UNP was its support for local sports and/or youth groups or facilities or because it was the party which his father supported and that this was sufficient motivation for him to associate with and support UNP candidates, as claimed.
75. However, in the context of the Tribunal’s considerable credibility concerns as outlined above, the Tribunal finds that the knowledge demonstrated by the applicant was general and he was not able to provide satisfactory reasons as to reasons the UNP would be good for the country. It would have been reasonable to expect that he could outline how the UNP was better for fishermen or the economy in general. However the applicant did not do this. The Tribunal found the reasons he could not be provided with effective or adequate protection from the authorities since 2015 and the now dominant role of the UNP in national government to be weak and unconvincing, indicating to the Tribunal that he had not anticipated a dramatic change of government in Sri Lanka that would undermine his claims for protection.

Adverse cumulative credibility findings

76. The credibility and reliability of the applicant’s claims about political opinion and past incidents of harm are central in determining whether he faces a real chance of serious harm or a real risk of significant harm, if he were to return to Sri Lanka.
77. When cumulatively considering the numerous and significant inconsistencies as outlined above, the Tribunal is unable to provide the applicant with any benefit of the doubt those claims about his political opinion, past political activities, past incidents of harm or that those fears of further harm based on these claims are well-founded or foreseeable, should he be returned to Sri Lanka. Overall, the Tribunal finds the applicant to have been an unreliable witness lacking in credibility who fabricated these claims solely for migration purposes and not because he holds any genuine fears of persecution arising from these fabricated claims regarding political opinion and activities.
78. Accordingly the Tribunal does not accept the applicant had ever participated in any campaign activities in the past while he resided and worked as a fisherman in [City 1] or anywhere else in Sri Lanka including in 2009, 2010 or 2011 as variously claimed, or that he participated in such activities with his father. It does accept the applicant had ever posted or placed any posters or banners for the UNP or specific candidates of the UNP or any other political party whatsoever. Neither does it accept that the applicant ever undertook canvassing constituents or distributing leaflets for the UNP or any of the claimed candidates, as claimed.
79. Based on the same adverse credibility findings, cumulatively considered, the Tribunal does not accept the applicant had ever argued or altercated any rival supporters or members of any other rival political parties at the [City 1] fish market either at any time in 2011 or 2012, as variously claimed. It does not accept the applicant lost consciousness due to injuries sustained by him or that he was hospitalised. Neither does it accept that the applicant provided refuge by a political candidate or that he had been subsequently threatened or harmed in November 2011 or at any other time or that these were the triggering events for the applicant to illegally depart for Australia.
80. Nor does the Tribunal accept that those accused of assaulting the applicant and others had been reported to the police or that they were subsequently warned, arrested or held in custody by the police.
81. It does not accept the applicant did not mention the November 2011 incident of harm in his entry interview as he kept his claims to generalised claims, or that he could not recall the incident at the most recent scheduled hearing having occurred in 2011 and not 2012.
82. The Tribunal accepts that the supportive letter submitted to the Department had been genuinely signed by the UNP candidate that the applicant claimed to have supported. However, in the context of the Tribunal’s overall adverse credibility finding and the absence of detail about the claimed 2011 incident, the Tribunal does not accept it genuinely reflected the applicant’s actual involvement or support in UNP, or that the applicant had even met the candidate. Such letters of support from parliamentarians and candidates are easily obtained and not much thought is given to whether they are provided solely for migration purposes, as they are assumed to helpful towards electors and constituents. Accordingly the Tribunal does not find the content of this letter to be reliable evidence of his political opinions or his past activities on behalf of UNP candidates or of the past incidents that the applicant has inconsistently claimed for the reasons claimed.
83. Furthermore, arising from this overall adverse credibility finding, the Tribunal does not accept the applicant had ever credibly held any membership, support, associations or affiliation for the UNP for the reasons claimed prior to his departure from Sri Lanka. While the applicant can demonstrate some knowledge about recent political events in Sri Lanka, the Tribunal’s adverse credibility findings are so deep it does not find this knowledge credibly demonstrated any genuine political opinions in favour of the UNP, as claimed.
84. It does accept the applicant, should he return to Sri Lanka in the foreseeable future, will be a person of interest for the reasons claimed since his arrival in Australia in 2012 based on his fabricated claims about political opinion and activities and having been singled out for acts of intimidation and harm by claimed rival political actors.
85. Based on these findings, the Tribunal further finds based on these cumulative findings that he did not have any genuine or deep or urgent subjectively held fears of being killed or tortured or any other serious harm amounting to persecution based on his claimed political opinion and activities or for any related Convention or non-Convention reason, either at the time of departure from Sri Lanka, when the applicant applied for a protection visa, or at the time of his scheduled hearings with the Tribunal. Neither does the Tribunal accept the applicant had any subjective or objective fears of persecution based on Convention reasons, including his claimed political opinion and activities or any other related Convention or non-Convention reasons if he were to return to Sri Lanka in the reasonably foreseeable future.
86. This is because the applicant has deliberately set out to contrive claims about holding well-founded fears of political persecution solely for migration purposes.
87. In this regard, the applicant does not have any credible claims in which the Tribunal is satisfied that he has a well-founded fear of persecution for any Refugees Convention reasons, based on his specific claims for protection, if he were to return to Sri Lanka, now or into the reasonably foreseeable future.
88. Based on the Tribunal’s same overall adverse credibility findings about his political opinion and past political activities, cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment.

Failed asylum seeker

89. On 12 July 2019, the applicant was invited to comment on the following country information from the most recent DFAT report on Sri Lanka (date 23 May 2018):

5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.

5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.

5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.

5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.

[...]

5.35 DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.

90. This information was provided to the applicant in a s.424A letter on 12 July. The Tribunal notes that the applicant provided comment. The applicant claimed ‘The DFAT country information you provided in paragraph 5.30 and 5.35 should not be applied to my case.. It would be unfair for the Tribunal to assume that I would be treated the same way in which “most cases” are allegedly handled. My circumstances are unique, considering my political views and ideologies.’ He further states, ‘It would be unfair for the Tribunal to assume that I would receive the penalty of a find, simply because that is what occurs “in most cases”’. He claimed that the authorities will consider him a member, sympathiser or supporter of the Liberation Tigers of Tamil Eelam, which is not the case, and this will lead to him having a real chance of serious harm or a real risk of significant harm.
91. However, as outlined above, the Tribunal finds the applicant’s claims regarding his political opinion to be lacking in credibility and that he does not have a real chance or a real risk of harm arising from his political opinion, imputed or otherwise. The Tribunal is not satisfied the applicant as a forced returnee will be treated any differently from any other failed asylum seeker by the authorities, either on arrival or in the community. The applicant is a Sinhalese Sri Lankan and there was no suggestion by the applicant at any time that he had been involved in or facilitated people smuggling or had illicitly departed Sri Lanka more than once, indicating he will not run afoul of Sri Lanka’s I&E Act. Indeed there is no claim that he has any outstanding summons or court orders against the applicant. Considering these aspects and the passage of time since the end of the civil war in 2009, the Tribunal does not accept the applicant’s claim that he will face a real chance or a real risk of being imputed as a Tamil separatist, supporter or sympathiser, either on arrival or in the community, if he were to return to Sri Lanka as a forced returnee or failed asylum seeker.
92. The Tribunal accepts the applicant will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka. The Tribunal finds that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing, and then generally face a financial penalty (and not a custodial sentence). Country information indicates that people are released on personal bail. People who have been involved in people smuggling or had previous convictions and not complied with bail conditions may not be released on bail. The Tribunal places weight on the DFAT information, and is satisfied that the applicant will be held for a short period on arrival for questioning, and is likely to be charged with an offence under the I&E Act.
93. Given the applicant’s accepted circumstances and the ongoing support of his family, the Tribunal finds the applicant does not have a real chance of being interviewed that will lead to being physically ill-treated or harassed, to be detained for more than a short period or denied bail. The Tribunal considers that the applicant has the financial capacity to pay a fine that may be imposed and that a family member would provide the surety to bail him out. The Tribunal does not accept the submission that the laws are selectively enforced against failed asylum seekers, who are placed into the situation of having to depart illegally. The Tribunal considers that the laws are enforced against anyone who breaches them. The Tribunal therefore finds that the applicant's very brief remand by the authorities for questioning, and for the provision of pending bail at the airport or in prison will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.
94. With regard to complementary protection provisions, the Tribunal also does not consider that the applicant's detention in these conditions for a short period of time constitutes significant harm. The Tribunal finds that the applicant does not face a real risk of significant harm while being detained on remand. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, the Tribunal finds that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, the Tribunal finds that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally under s.36(2B)(c), this is taken not to be a real risk that the applicant will suffer significant harm.
95. In these circumstances, the Tribunal finds the applicant faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, the Tribunal also finds that the applicant does not face a real risk of significant harm due to his illegal departure, taken alone or in combination with his other circumstances.
96. In short, the applicant will be treated in a manner consistent with ‘most cases’ of failed asylum seekers returning or forced to return to Sri Lanka, and in this regard he neither satisfies the refugee criteria in the Refugees Convention or s.36(2)(aa).

Recent Events in Sri Lanka

97. As mentioned above, on 12 July 2019, the Tribunal corresponded with the applicant to invite comment on whether the applicant had a real chance of serious harm for any reason and specifically based on his religion as a Roman Catholic or his claimed political membership arising from the political tensions evoked during Sri Lanka’s 2018 constitutional crisis and the 2019 Easter bombings. In accordance with the Act’s adverse information provisions, the Tribunal said that subject to the applicant’s comments it may make this the reason or part of the reason to affirm the decision not to grant the protection visa. The applicant was invited to comment by 26 July 2019, which he did.

2018 Constitutional crisis

98. On 26 July 2019, the applicant responded to the invitation to comment by providing a submission in which he claimed that the constitutional crisis that occurred in the last six months of 2018 led to frequent political violence. Specifically the applicant claimed he was aware that people were targeted, especially from minority groups, and that he did not agree that there were few reports about the deterioration of political violence stemming from the crisis. The applicant claimed to be a person with political ties who was once active within UNP before his departure and to have a greater chance of being persecuted due to the unrest and ever-increasing political violence and the breakdown of effective ‘checks and balances’ within Sri Lanka’s political framework.
99. The Tribunal acknowledges that this is a foreseeable event within the next 12 months. Indeed Mahinda Rajapaksa was briefly, albeit unconstitutionally, appointed by President Sirisena as Prime Minister on 26 October 2018. Amid reports that Rajapaksa lacked majority support in parliament, on 28 October 2018 Sirisena suspended parliament and, on 9 November 2018, abruptly dissolved parliament and declared a snap election on 5 January 2019. On 13 November 2018, Sri Lanka’s Supreme Court temporarily suspended the dissolution of parliament ahead of a final decision. Following the suspension of the dissolution order, Sri Lanka’s parliament reconvened, where two no-confidence motions against Rajapaksa were passed despite the efforts of his supporters to disrupt proceedings. However, the results of these motions were not recognised by either Rajapaksa or Sirisena, both of whom claimed that they took place in violation of parliamentary procedure. In an interim judgement on Monday 3 December 2018, Sri Lanka’s Court of Appeal temporarily barred Rajapaksa from acting as Prime Minister while it heard a petition challenging his refusal to step down. Following an extension of the interim injunction, Sri Lanka’s Supreme Court subsequently ruled that the President’s decision to dissolve parliament was unconstitutional and illegal on 13 December 2018. Having lost the constitutional argument, the President reinstated Wickremesinghe as Prime Minister when he and his Cabinet Ministers took their oaths before the President on 20 December 2018.^[3] Since this time (more than six months), the Tribunal has not noticed any reports about a notable increase in political violence between the major parties, despite the arousal of tensions that the constitutional crisis triggered.
100. At some point in the next months, Sri Lanka will undergo both a presidential and a parliamentary election. While the Tribunal is unable to make a firm prediction about the outcome of these elections, it accepts there is a real chance and a real risk of Mahinda Rajapaksa and the coalition of parties led by the Freedom Party achieving control of parliament.
101. According to the situational update prepared by the Department about Sri Lanka’s political crisis (CR239EC81237), while analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three-decade long civil war, there is only limited evidence to date to support this. Similarly, there are few reports at present of political violence stemming from the political crisis, or of related violence towards minorities, with the possible exception of Sri Lankan Muslims facing some reprisals for their perceived association with Islam. The report further states that there have been few reports to date of threats or political violence stemming from Sri Lanka’s political crisis, or of related violence towards minorities. On 19 November 2018 – in the midst of this political and constitutional crisis – police used tear gas and water cannons on monks from the Sinhalese nationalist Bodu Bala Sena (BBS) organisation protesting in front of the Presidential Secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently serving a six-year prison sentence for contempt of court. President Sirisena expressed his regret over the incident.^[4] At the time of issuing this decision, no general election has been called and the President, who supported Rajapaksa as Prime Minister, has been careful to continue post-conflict reconciliations, albeit at a pace considered too slow for some international observers. The President has notably resisted providing support for Sinhalese and/or Buddhist extremists. In the context of the civil war ending now more than 10 years ago, the available country information appears to be either insufficient or too speculative to support a claim of a sudden or even gradual increase in political violence. It accordingly assesses that, if the Tribunal were to accept the applicant’s political opinion claims to be credible, the information before it is an inadequate basis for it to accept that the political situation will significantly deteriorate due to a change in government in favour of Mahinda Rajapaksa and the coalition he leads.
102. However the Tribunal has already made a number of adverse credibility findings that it does not accept the applicant to have been a member or supporter of the UNP or any other political party or movement and that he did endure past incidents of harm. Furthermore it does not share the assessment of the applicant that the political situation arising from Sri Lanka’s political crisis as one that is deteriorating into further political violence, leading to the applicant to have a real chance of serious harm or a real risk of significant harm. Such an assertion is not supported by the available country information. While it accepts the applicant has a chance of serious harm or a risk of significant harm arising from the generalised political violence for non-Convention reasons, the Tribunal finds that chances or risks are remote and far-fetched and that they do not amount to a real chance or a real risk.
103. Based on these considerations and having found that the applicant does not have a real chance of serious harm arising from his political opinion, imputed or otherwise, it follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for the claimed political reasons or any other Convention reason or that he has a real risk of significant harm, if the applicant were to be returned to Sri Lanka, either now or into the foreseeable future, arising from Sri Lanka’s constitutional crisis or any further election campaigns or political rallies, should the applicant return to his country of nationality.

2019 Easter Sunday bombings

104. With regard to the general security environment in Sri Lanka, the Tribunal noted in its July 2019 letter that the Easter 2019 terror outrages targeting Catholic worshippers and hotel clientele have created a level of fear about further terrorist attacks and triggered a higher degree of internal security in Sri Lanka by the authorities.
105. As part of his written response, the applicant expressed his fears that further bombings of the kind that occurred on Easter Sunday of this year were highly likely and that the chances of serious harm are high, should he return to Sri Lanka.
106. It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.^[5] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.^[6] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.^[7]
107. What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens.^[8] The appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.^[9] The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.^[10] The obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.^[11]
108. It may be noted that, regardless of the content of the relevant ‘international standards’, where the issue of state protection is considered in relation to whether a fear of persecution is well-founded, what is relevant is whether the protection that is available is sufficient to remove a real chance of persecution. However, on the majority view in S152/2003, even where state protection is not sufficient to remove a real chance of serious harm from non-state actors, Convention protection might not be engaged if the level of protection provided meets international standards.^[12]
109. Authorities in Sri Lanka have stated that the attacks were carried out by two little-known Muslim organisations, the National Thowheeth Jama’ath (NTJ) and Jammiyathul Millathu Ibrahim, with help from international militants.^[13] Sri Lankan security forces have killed or arrested most of those linked to the Easter suicide bombings,^[14] including 15 suspects in a shoot-out on the following Friday.^[15] More than 10,000 troops have been deployed across the island in an effort to uproot NTJ’s countrywide network, with Islamic religious groups reported to be lending their support to authorities.^[16] While NTJ’s leader has been killed, and scores of further arrests have weakened the group,^[17] US officials have warned that the terrorist threat is ongoing, with members of NTJ still active.^[18]
110. Although Sri Lankan government officials have acknowledged that foreign intelligence agencies provided domestic security officials with a detailed warning of possible threats to churches by the NTJ at least 10 days prior to the attacks,^[19] President Sirisena and Prime Minister Wickremesinghe claim not to have been informed of the warnings prior to the attacks.^[20] The fallout from the attacks may also have further political and legal ramifications. Prime Minister Wickremesinghe has pledged to enact new counter terrorism laws, calling for the speedy presentation of the proposed Counter-Terrorism Act (CTA) to Parliament, itself designed to replace the Prevention of Terrorism Act (PTA).^[21]
111. In any event, the Tribunal is satisfied that the current level of insecurity from Islamic terrorism does not mean that the applicant would not receive a level of protection commensurate with international standards. The level of insecurity appears to be due to external forces and the Tribunal is satisfied that the Sri Lankan authorities have taken reasonable measures that accord with international standards.
112. Noting that it is accepted that he is Sinhalese and Catholic as claimed, the Tribunal accepts the applicant’s personally held fears of serious harm arising from such an attack are genuinely held. However the applicant, who is not a Muslim, does not have a real chance of being targeted for investigation in relation to these attacks by the authorities, including Sri Lanka’s security and intelligence agencies, either on arrival or in the community. Furthermore the Tribunal finds that the applicant only has a remote and far-fetched chance for a Convention reason, including based on his religion as a Catholic, or a remote and far-fetched risk of being killed or maimed or otherwise seriously or significantly harmed by any future attack to be perpetuated by radicalised violent Islamists within Sri Lanka.
113. The Tribunal similarly assesses there not to be a real risk that the applicant will suffer significant harm in his country of reference as it is satisfied the applicant could obtain protection from further Islamic attacks, by the authorities, such that there would not be a real risk as required by s.36(2B). For these reasons, the Tribunal does not have any substantial reasons for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to anywhere within Sri Lanka, will suffer a real risk of significant harm of any kind arising from further terrorism outrages of the kind endured in the Easter 2019 incidents.

Residual claims and cumulative findings

114. At no stage did the applicant claim he held any well-founded fears arising from his Sinhalese ethnicity or any other Convention or non-Convention reason or based on his economic circumstances. Nor did he advance any other reasons relating to the complementary protection provisions, including his economic circumstances.
115. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:

In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

116. The Tribunal is satisfied there are no more residual claims to consider in this review application.
117. Having considered the applicant’s claims, both cumulatively as well as individually, the Tribunal finds that there is no real chance that should he return to Sri Lanka, now or in the reasonably foreseeable future, that the applicant will encounter serious harm capable of amounting to persecution. The Tribunal does not accept on the evidence before it and based on its findings above, that the applicant has a well-founded fear of being persecuted for any Refugees Convention reason, if he returns to his home country of Sri Lanka, now or in the reasonably foreseeable future.
118. Accordingly the applicant does not satisfy s.36(2)(a).
119. Having considered the applicant’s claims cumulatively as well as individually, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subject to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s.36(2)(aa) of the Act.

Conclusion

120. 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).
121. 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).
122. 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 any of the criteria in s.36(2).

DECISION

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

Brendan Darcy
Member

---

^[1] [File number].
^[2] [File number].
^[3] New Cabinet Ministers sworn-in before President, Official government website, 20 December 2019, <http://www.president.gov.lk/new-cabinet-ministers-sworn-in-before-president/> .
^[4] ‘President Sirisena Expresses Regret Over Tear Gas And Water Cannon Attack On Bodu Bala Sena Monks; Says He Was Unaware of Protest’, Asian Mirror, 19 November 2018, CXBB8A1DA39190.
^[5] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566–7; MIMA v Prathapan (1998) 86 FCR 95 at 104–5 per Lindgren J, Burchett and Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA [2005] HCA 6; (2005) 222 CLR 161.
^[6] [2004] HCA 18; (2004) 222 CLR 1 at [26].
^[7] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [117].
^[8] Ibid, at [26].
^[9] Ibid, at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.
^[10] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]–[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]–[34].
^[11] Osman v United Kingdom (1998) 29 EHRR 245 at [116].
^[12] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [28]. As noted above, McHugh J at [83] disagreed; however the difference between his Honour’s approach and the majority view will be significant to the outcome only where there remains a well-founded fear of serious harm notwithstanding that the country in question provides the level of protection required by international standards.
^[13] ‘What We Know and Don’t Know About the Sri Lanka Attacks’, The New York Times, 22 April 2019, 20190423102213; ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357.
^[14] ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357.
^[15] ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357; ‘US warns of more attacks in Sri Lanka by active members of terror group still at large’, The Economic Times, 30 April 2019, 20190501140918; ‘Sri Lanka lifts social media ban imposed after Easter attacks’, Al Jazeera, 30 April 2019, 20190501145953.
^[16] ‘Five things to know a week after the Sri Lanka bombings’, Nikkei Asian Review, 28 April 2019, 20190429105125.
^[17] ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.
^[18] ‘Sri Lanka: 15 killed as police raid militant house’, Deutsche Welle, 27 April 2019, 20190429173222.
^[19] ‘What We Know and Don’t Know About the Sri Lanka Attacks’, The New York Times, 22 April 2019, 20190423102213; ‘‘These Attacks Could Target Catholic Churches’: The Warning That Sri Lankan Officials Failed to Heed’, The New York Times, 22 April 2019, 20190501103309; ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.
^[20] ‘The suicide bombs in Sri Lanka might have been prevented’, The Economist, 27 April 2019, 20190426144009.
^[21] ‘New counter terrorism laws to be enacted’, News.lk, 29 April 2019, 20190429171626; ‘Premier wants Counter-Terrorism Act fast-tracked’, Daily FT, 29 April 2019, 20190430132741.