SZTDT v Minister for Immigration and Border Protection

Background 3 The appellant is an ethnic Tamil from the Eastern Province of Sri Lanka. He is also a Hindu who had departed that country illegally. The appellant had claimed that he was entitled to protection on a number of bases. The Tribunal accepted, by giving him the benefit of the doubt that, in 2005, the appellant had been detained by the Liberation Tigers of Tamil Eelam, or LTTE, for recruitment, but that he had escaped that detention after a short period. 4 The Tribunal also accepted that the Sri Lankan Army had conducted roundups and arrests in the Eastern Province during the Sri Lankan civil war and that, in 2005, after his escape from the LTTE, the appellant had been detained for two weeks. However, the Tribunal was not prepared to accept that subsequently to the conclusion of the war, the appellant had suffered, or was at risk of suffering, any further harm from the LTTE, the government, or groups associated with either the LTTE or the government. 5 The Tribunal was not satisfied that the appellant was a credible witness about his claims that he had suffered any further adverse experiences or consequences after his release by the army from the two week detention in 2005. Indeed, it found that the army had released him at that time and that fact "strongly suggests that he was not believed to have any connection with the LTTE". 6 The Tribunal found that, the appellant had been able to travel to Abu Dhabi on a genuine passport in his own name twice and that his passport had been renewed in 2009 while he was in Abu Dhabi. The Tribunal said this meant that the appellant could not have been of adverse interest to the Sri Lankan authorities, because of any actual or imputed behaviour or belief, as he had claimed. 7 The Tribunal also was not satisfied of the appellant's claim, when he returned to his village for two months in 2008, to have been of adverse interest to the Karuna or Pillayan paramilitary groups. Those groups had originally been aligned to the LTTE, but had switched sides to align themselves with the then government. The Tribunal found that because he lived in a small village, the army would have been well aware that he was there and, had he been of adverse interest, the army would have detained and harmed him, but that, as the appellant had said, no such events occurred. 8 The Tribunal found that because he had performed no service at all for the LTTE during his very brief detention in 2005 and had escaped from them, there was no basis to conclude that he had ever been denounced to the authorities or to paramilitary organisations by any former LTTE members or informants. The Tribunal was not satisfied that the appellant's assertions that either paramilitary group had searched for him after he returned from Abu Dhabi in 2011 or had come to his sister's house on three occasions in a white van, as he had claimed. It found that, had the appellant been of any interest to either of those groups or others, they would not have stopped simply at attending at his sister's house and doing nothing else to seek him out, after being told that he was not there. It was not satisfied there was any reason to believe that the appellant was currently wanted or sought by the authorities or any paramilitary groups in Sri Lanka. 9 For the same reasons, the Tribunal rejected the appellant's claim to have had an imputed pro-LTTE political opinion or that he faced a real risk of persecution by reason of his Tamil race or ethnicity. It made those findings based on the then latest country information as to the situation in Sri Lanka in the years following the conclusion of the civil war in 2009. It was not satisfied that Sri Lankans who were ethnically Tamil then faced serious harm simply because of their ethnicity or that factors, such as their geographic origins in the Eastern Province, put them at any real risk of such harm. In particular, it found that the appellant himself did not face a real chance of serious harm on return to Sri Lanka because of his ethnicity, or any other matter connected to his personal circumstances or geographic origins. 10 The Tribunal also found that, although the appellant was a member of the particular social group of Tamils who had fled Sri Lanka illegally and made unsuccessful claims for asylum in Australia, his membership of that social group did not give rise to a real chance that he would suffer imprisonment or be subjected to penalties, other than a fine, after he returned. It accepted the then current country information that indicated that were he returned to Sri Lanka, he would be detained at the airport under a law of general application, because he had departed Sri Lanka illegally, for a short period until he could be brought as quickly as possible before a court to be granted bail on his own recognisance or with a family member providing surety. 11 The Tribunal then made an overall finding in relation to the appellant's claims to fear persecution under the Refugees Convention and s 36(2)(a). It was not satisfied that, having considered those claims individually and cumulatively, there was a real chance that on return to Sri Lanka the appellant would suffer serious harm amounting to persecution for any Convention reason including, but not limited to, those which he had claimed. 12 It then turned briefly to deal with his claims to complementary protection saying at [40]-[41]: 40. As noted, I am not satisfied as to the credibility of the Applicant's claims that he would suffer serious harm on return to Sri Lanka for the reasons he has claimed. While I accept he would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty I am not satisfied that this treatment could reasonably be seen as amounting either to serious harm in a Convention sense or significant harm in terms of Australia's complementary protection arrangements. Nor am I satisfied that he would be exposed to significant harm for any other reason. 41. Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act. (emphasis added) 13 The appellant had been represented by solicitor migration agents before the Tribunal and it addressed their arguments put on his behalf in the course of its reasons that I have briefly summarised above.