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Tribunal: Deputy President J Redfern

The AAT affirmed the decision of a delegate of the Minister for Immigration and Border Protection (the Department) refusing to grant the applicant a protection visa. The Tribunal was not satisfied that, on return to Sri Lanka, the applicant had a well-founded fear of persecution or that there was a real risk he would suffer significant harm.

The applicant claimed to fear persecution based on his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), commonly known as ‘the Tamil Tigers’, and his membership of a particular social group as a Tamil and a returned failed asylum seeker. He said there was a real risk he would suffer serious harm as a result of this persecution.

He also sought protection on the alternative ground of complementary protection because he said if he is returned there was a real risk he would suffer significant harm

The AAT was concerned with the applicant’s credibility. Although it accepted he was detained in a camp before escaping (which an earlier AAT review had not)[1], it found the applicant’s evidence he was abducted and tortured by police, after escaping the camp, was inconsistent. He did not corroborate these claims, which meant there was no strong evidence before the AAT of his purported profile with the police and therefore no evidence of a risk of harm on return to Sri Lanka for his political associations.

In considering the applicant’s claims, the AAT considered the country information for Sri Lanka prepared by the Department of Foreign Affairs and Trade (DFAT). Noting the information for Sri Lanka is complex, the Tribunal had regard to reports prepared by the United Nation’s High Commissioner for Refugees and the UK Home Office, among others.

The weight of evidence was that Tamils living in Sri Lanka, including in the north where the applicant was likely to return to live and work, do not face excessive monitoring, detention or harassment.

The Tribunal acknowledged it was likely the applicant would be questioned by both immigration and police, and either be released or charged for having left Sri Lanka illegally. If he was charged and plead guilty, he would be fined a modest amount. However, the police typically focused on returning asylum seekers involved in people smuggling and serious offences, which did not apply to the applicant.

The Tribunal found escaping from a camp at the end of the war did not mean the applicant would have had a high profile. He was not an LTTE member and not associated with them. Consequently, the Tribunal found the applicant did not meet either criterion with respect to his claims.

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[1] This matter was before the Tribunal a second time following a successful appeal by the applicant to the Federal Court of Australia. The court found the Tribunal’s original decision was affected by jurisdictional error and ordered the application to be reconstituted and returned to the AAT for it to reconsider.