ALQ16 v Minister for Immigration and Border Protection

Background 3 The appeal arises in the context that the appellant was a citizen of Sri Lanka. He applied for a protection visa in December 2012. A delegate of the Minister refused to grant the visa in December 2013. The Tribunal affirmed the delegate's decision in February 2016. 4 Although the appellant made a number of claims for protection, the sole ground on which this appeal is based derives from his claim that if he returned to Sri Lanka, he had a well-founded fear of persecution for reason of his being an ethnic Tamil and that, for the same reason, he was entitled to complementary protection. Thus, the issue posed by the appeal depends upon the way in which the Tribunal arrived at its rejection of the appellant's claim for a protection visa by reason of his Tamil ethnicity on the bases provided in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth). 5 The Tribunal recorded that, in accordance with Ministerial Direction No 56 made under s 499 of the Act, it had been required to take account of policy guidelines prepared by the Minister's Department, including the PAM3 Refugee and Humanitarian Complementary Protection Guidelines, the PAM3 Refugee and Humanitarian Refugee Law Guidelines and any country information prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for those purposes. 6 The Tribunal summarised a number of aspects of country information in pars [35]-[43] in its statement of decision and reasons immediately prior to the heading above par [44] of its reasons, "Consideration of claims and evidence". It referred to information contained in a DFAT country report for Sri Lanka dated December 2015 and earlier DFAT reports dated October 2014, being a thematic report relating to people with links to the Liberation Tigers of Tamil Eelam (LTTE), and February 2015, being a country report. It noted various issues in relation to the country reports that were relevant to the appellant's claims, including that the Sri Lankan government was publicly claiming that the involvement of the military in civilian activities in the north and east of the country, whence the appellant hailed, had changed. The Tribunal's summary stated that the reports indicated that the security situation in Sri Lanka had: greatly improved since the end of the conflict in 2009 and that this included in the north and east of the country which is the traditional Tamil homeland. 7 The Tribunal referred to the reports indicating that DFAT had assessed that there were no official laws or policies in Sri Lanka that discriminated on the basis of ethnic extraction or language and that there was "… only a low level of discrimination in the implementation of laws and policies". The Tribunal also noted that, historically, many Tamils had faced barriers to education and employment and that that had caused a sense of discrimination against Tamil people, but that successive Sri Lankan governments had made some efforts to address those ethnic and linguistic tensions. 8 The Tribunal's summary noted that many Tamils, particularly in the north and east of Sri Lanka, had expressed a fear of monitoring, harassment, arrest and detention by security forces "and that this activity was largely due to LTTE members and supporters almost all being Tamil". 9 However, the DFAT reports noted that the cessation of forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The Tribunal summarised the December 2015 report as indicating DFAT's assessment that the monitoring and harassment of Tamil people: … has decreased under the current government and … on a day-to-day basis the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities if such activities occur. 10 The appellant focused on aspects of the Tribunal's summary of conditions applicable to Tamils in Sri Lanka described in the DFAT reports. Those included that the number of incidents of extrajudicial killings and associated activity had fallen considerably since the end of the conflict and that there were credible reports of torture having been carried out by Sri Lankan security forces, which the Tribunal summarised those as having come: from a wide range of actors and including political activists and suspects held on criminal charges and from people held under suspicion of LTTE connections. The reports indicated that the Department was aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka but the Department assessment overall is that the risk of torture or mistreatment for the great majority of returnees is low including for those suspected of offences under the Immigrants and Emigrants Act. 11 The Tribunal noted that the country reports confirmed there was no law or government policy in Sri Lanka that hindered access to State protection on the basis of, relevantly, ethnicity. The Tribunal noted at par [40] that the December 2015 DFAT report had referred to the parliamentary elections in August 2015 in Sri Lanka and that the current government had a more proactive approach to human rights and reconciliation than the previous government. It noted that that report also referred "to the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka and that those Guidelines link the level of risk to people who had real or perceived links to the LTTE". The Tribunal noted that Tamils were not nominated as being at risk per se on the basis of their ethnicity, in accordance with those Guidelines. In the next paragraph, the Tribunal referred to the October 2014 report in relation to persons with links to the LTTE and repeated its earlier observation that the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka indicated that people with real or perceived links to the LTTE may be at risk and added: As noted earlier those Guidelines do not indicate that Tamil people are at risk per se in Sri Lanka on the basis of their Tamil ethnic extraction. 12 At par [42], the Tribunal recorded part of the questioning in which it had engaged with the appellant about his circumstances and his claim that he had been released in July 2009 by the police after one day's interrogation about his suspected involvement with the LTTE. The Tribunal noted that he did not claim that he had experienced any further incidents with Sri Lankan authorities about that issue. The Tribunal said that it: … indicated that it did not perceive the applicant as having a risk profile in Sri Lanka in accordance with the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka. Those Guidelines did not nominate Tamil people as being at risk per se on that basis. 13 The Tribunal also indicated to the appellant that the DFAT reports to which it had referred to did not support many of his claims regarding his fear of harm on the basis of his Tamil ethnicity. It noted that he had claimed, in response, that because he was a Tamil his life would not be safe if he returned to Sri Lanka, that there were still informants working in that country and those people gave information to the government, from whom he feared harm. 14 At the conclusion of its hearing, the Tribunal allowed the appellant two weeks in which to make further submissions. He responded to that request by providing it with other country information, including material specifically relating to persons with real or perceived links to the LTTE, but none that dealt specifically with his claim to fear harm, were he returned to Sri Lanka, merely on the basis of his ethnicity. 15 In the "Consideration of claims and evidence" section of its statement of decision and reasons, the Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution if he returned to Sri Lanka based on any of his claims and his evidence to it. The Tribunal made adverse findings as to his credibility, which is not relevant to the particular claim that is alive in this appeal. 16 The Tribunal found at pars [46] and [47]: The applicant's claims to fear harm are referred to elsewhere in these reasons. The Tribunal has considered the applicant's claims that he fears harm on the basis of his Tamil ethnic extraction. The Tribunal has considered the applicant's evidence and is [sic] also had regard to available and relevant country information and submissions made on the applicant's behalf. The Tribunal accepts that the recent DFAT reports that have been referred to in these reasons provide comparatively recent and credible country information relevant to a number of the applicant's claims. The Tribunal notes the country information that has been referred to and including the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. Those guidelines as indicated do not nominate Tamil people as being at risk per se on that basis. They do link the risk to people to factors such as a real or perceived link to the LTTE. The Tribunal after considering the overall evidence does not accept that the evidence indicates that the applicant has a real or perceived link to the LTTE that could place him at risk if he returned to Sri Lanka. The applicant also said he had not been involved in any political activities since the municipal elections in early 2011. He told the Tribunal that apart from the one incident on one day in July 2009 where he had been detained and questioned about the LTTE and mistreated by the authorities he had not had further difficulties with the authorities about any suspected LTTE connections or in connection to his Tamil ethnic extraction. The country information contained in the DFAT country reports indicates that successive Sri Lanka governments have made efforts to address ethnic and linguistic tensions in relation to historical conflict between Tamil and Sinhalese people and particularly in relation to education and employment. The December 2015 country report indicates that the current Sri Lankan government has a more proactive approach to human rights and reconciliation. The Tribunal notes that the country information that has been referred to also indicates that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The Tribunal notes that the applicant was able to obtain his passport in 2006 and travel without difficulty in Dubai in 2011 and return without difficulty. The Tribunal after considering the evidence and the country information and the submissions made on the applicant's behalf does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his Tamil ethnic extraction. The Tribunal does not accept that the evidence and available and relevant country information that has been referred to supports the applicant's claims in relation to this issue. The Tribunal also does not accept that the DFAT country information indicates that Tamils are unable to get decent employment and would never get a job working for the government as claimed by the applicant. (emphasis added) 17 When the Tribunal subsequently discussed the appellant's claim to fear harm, were he to be returned to Sri Lanka, because he had left as an illegal immigrant in breach of the country's Immigrants and Emigrants Act, it referred again to having noted elsewhere in its reasons that he "does not have a risk profile in accordance with the 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka". It then referred to the December 2015 DFAT report that indicated that DFAT had assessed that the risk of torture or mistreatment for the vast majority of returnees was low. The Tribunal was not satisfied that there was a real chance that the appellant's membership of a particular social group of failed asylum seekers who had left illegally and sought asylum in a western country placed him at risk of serious harm for the purposes of the Refugees Convention should he return to Sri Lanka then or in the reasonably foreseeable future. 18 The Tribunal then accepted the DFAT reports that had been referred to in its reasons in relation to Sri Lanka which it found provided recent and credible information relevant to the appellant's claims. It said: The 2012 UNHCR Eligibility Guidelines for people at risk in Sri Lanka do not indicate that Tamil people are at risk per se on that basis but link the risk of harm to other factors such as a real or perceived link to the LTTE. The applicant has no such risk profile. (emphasis added) 19 Then, in par [57], after considering the appellant's claims both individually and cumulatively on the basis of the evidence and materials and information before it, the Tribunal found that it did not accept that the appellant faced a real chance of serious harm for a Convention-based reason if he were returned to Sri Lanka either then or in the reasonably foreseeable future. And, on the same basis, the Tribunal was not satisfied that Australia owed the appellant complementary protection obligations.