ALU15 v Minister for Immigration and Border Protection

Background to proceedings 10 The background facts to the current proceedings are set out in the decisions of the Federal Circuit Court and the Tribunal, and are not controversial. 11 The applicant is of Tamil ethnicity and a citizen of Sri Lanka. He arrived in Australia on 20 June 2012 by boat without valid travel documents. In applying for a Protection visa on 13 November 2012 he made the following statement: I fear that I will arrested, kidnapped and killed if I return to Sri Lanka because I am a Tamil and have a case pending in Sri Lanka for suspicion of involvement with the LTTE. My situation now is worse than when I was in Sri Lanka because I no longer have the money to bribe the local police and because the authorities will come to know that I left the country illegally and sought asylum in another country. They can do whatever they want to me because I am Tamil. 12 In summary, the applicant claimed that he operated a boarding house, at which stayed a person who the police discovered was carrying "LTTE materials". I note that LTTE is an acronym for the "Liberation Tigers of Tamil Eelam" which is considered a terrorist group. The applicant claimed that he was taken by the police to the police station and beaten over a period of fourteen days. The applicant managed to be released from the police with the assistance of his brother, and went to Dubai for work for at least a year. Two years later (in 2011) he left Sri Lanka seeking a safer life in Malaysia and Europe, but returned to Sri Lanka in December 2011. He claimed that on his return he was threatened many times by the police for incidents involving, among other things, the sale of a car to a Tamil man, and fled the country by boat in June 2012. His family subsequently moved from their home in Sri Lanka to a Tamil area elsewhere in that country. 13 The applicant's application for a Protection visa was rejected by the Minister and he sought review of that decision in the Tribunal. The Tribunal found, inter alia, that it had serious credibility issues with the applicant, and raised these issues with him at the hearing. The primary Judge summarised a number of the Tribunal's concerns as follows: 26. Thereafter in its reasons the tribunal discussed and made findings about each of the claims made by the applicant. It is not suggested in these proceedings that the tribunal did not understand the claims being made by the applicant or that it did not deal with any of the particular claims made by him. 27. The tribunal did not accept that the applicant was arrested, detained and beaten for 14 days in 2008. The tribunal rejected the applicant's claims that he had forgotten to register his boarder and that the one person he forgot to register happened to be a LTTE member. The tribunal found that curious. It determined that the applicant's claims about that lacked credibility. Further, the tribunal did not accept that a LTTE affiliated person would choose to live in the applicant's property, which according to the evidence, was next door to the police station. The tribunal considered that the applicant's account of his detention was cursory and lacked detail or description of what happened over the 14 days of his detention. 28. The tribunal found that the document that the tribunal referred to as the police clearance certificate that had been provided to it by the applicant, or at his request, was not a genuine document. There were several reasons given by the tribunal for that finding. Those reasons included: a. that there were errors in the document (identified by the tribunal) which went beyond mere typographical errors. Spelling and capitalisation are some examples; b. the form of the document; c. the assertion in the document that the applicant was still wanted by the police, which seemed to the tribunal to be inconsistent with the applicant's own evidence that prior to his final departure from Sri Lanka: i. he drank and socialised with the police regularly and lived next door to the police station; ii. he continued to manage two rental properties and buy and sell three wheeler vehicles; iii. the applicant was able to travel in and out of Sri Lanka via the airport with his own passport on four occasions. 29. The tribunal recorded in its reasons: 30. The tribunal is of the view that the police and authorities were well aware of where he lived and if interested in him could have contacted him. He had had two passports issued, visas issued to Dubai and Malaysia and travelled in and out Sri Lanka four times. Country information is that there are stop and watch lists at the airport for LTTE suspects, criminals and anyone wanted by police, intelligence or CID. If he were on any of those lists he would have been stopped. And then later at: 32. The applicant has not been in hiding and has continued to have work and live in the same area. In fact, on his evidence even when he came back from Dubai, he told the police and brought them some alcohol and drank with them. On his evidence he regularly socialised and drank with them. If he was of interest to them, they had regular access and would have arrested him at any time, but did not. 33. The tribunal does not accept that if he did not drink with them or bribe them with alcohol that he would have been arrested or accused of LTTE. The tribunal does not accept he was fearful of them. If he were, it does not make sense that he would engage socially with them or remain managing a rental property next door to the police station. Further, given their regular socialising, it is not credible that the police would then accuse of him of being LTTE, as it would reflect poorly on them given he lived next door to the police station and that they had· continued socialise with him. 34. At the end of the hearing, the applicant said it was the Kotenaha police station he had problems with and not the one in his area. However, the tribunal considers the applicant was making up his story and added this as an afterthought in response to tribunal concerns that he could socialise with police but still be "wanted". Further, the tribunal confirmed with him that the police station where he was supposed to register his guests in 2008 was next door to the, rental property. 35. In addition, country information is that at the end of the conflict many thousands of LTTE, suspects were rounded up, arrested, detained and sent to rehabilitation camps. The fact that the applicant was not so detained suggests he was not suspected LTTE. The fact that he and his family could continue with their businesses also suggests they were not of interest to authorities. The tribunal does not accept he (or his family) was accused or will be accused of being LTTE. 30. The tribunal did not accept that the applicant was questioned about the vehicle he sold in 2011 and found his evidence in that regard vague and inconsistent with his statement. 31. The tribunal considered the country information set out by it in its reasons. It did not accept that because the applicant was Tamil, or a young single male Tamil, or because he lived next door to and associated or drank with police that he was, or would be, perceived or accused of being an LTTE supporter or having LTTE links. 32. The tribunal also considered country information in relation to the treatment of returned failed asylum seekers and did not accept that the applicant would face a real chance of serious harm if he returned to Sri Lanka. 33. The tribunal did accept that the applicant would be charged for his illegal departure under a Sri Lankan law and that he would be bailed and fined up to 50,000 rupees. However, it did not accept that the applicant faced a real chance of torture, interrogation or mistreatment upon arrival or during any questioning process to establish his identity and bail. The tribunal did not consider that the applicant was at risk of being detained under the Prevention of Terrorism Act (Sri Lanka). Nor did the tribunal consider that the applicant faced a real chance of serious harm from other Sinhala prisoners given that he would be in remand for a short period of time. The tribunal did not consider that what was likely to be a short period of time in detention upon his return would amount to serious harm for the purposes of the Migration Act. 34. The tribunal found the Sri Lanka departure laws are laws of general applicant and therefore the enforcement of those laws did not constitute persecution. The tribunal assessed the applicant's eligibility for complementary protection and it considered that there was no real risk of significant harm to him.