1313436 (Refugee)

1313436 (Refugee) [2016] AATA 4055 (6 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1313436
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Bruce Henry
DATE:6 July 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 06 July 2016 at 2:44pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] September 2013.
The applicant appeared before the Tribunal on 26 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. Given the view that the Tribunal has reached on the refugee criterion, it is unnecessary to consider the question of complementary protection.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (the Department), 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
On the basis of information on the departmental file, the Tribunal is satisfied that the applicant is a Sri Lankan citizen born in [Town 1] in the east of Sri Lanka in [year]. He is a Tamil and a Hindu. He left Sri Lanka by boat in July 2012 and arrived at [an Australian location] [in] July 2012.
On the basis of the identity documents produced by the applicant to the Department, the Tribunal accepts that the applicant is a national of Sri Lanka and has therefore assessed the applicant against Sri Lanka as his country of reference and receiving country. There is no evidence that he has the right to enter and reside in a third country and the Tribunal is satisfied that s.36(3) does not apply.
The applicant’s claims were set out in a detailed statutory declaration that accompanied his application. The declaration appears on the departmental file, along with a submission from his representatives and supporting documents that were provided to the Department.
The applicant was interviewed by a departmental officer [in] June 2013, and a recording of that interview is on the departmental file. His application was refused. He provided the Tribunal with a copy of the decision record of the delegate with his application for review. The delegate summarises his claims as follows:
The applicant's claims relevant to the following assessment can be summarised as follows:
·The applicant was born in [his home] village [in] Trincomalee District, Eastern Province, Sri Lanka in [year].
·The applicant's father died when he was an infant and he lived with his [a relative] until 2002.
·In 2002 the applicant went to live with his mother and step-father in [Village 1], Trincomalee District.
·The applicant's step-father owned a [business] in [Village 1]. The applicant began working at the [business] with his step-father and [Relative A].
·The Liberation Tigers of Tamil Eelam (LTTE) forced the applicant's stepfather and other [business] owners to pay taxes, for which he would be issued a receipt.
·LTTE members would also buy supplies from the [business], including [specified products].
·In September 2006 the applicant's family left Sri Lanka and travelled to [another country] by boat. The applicant's step-father remained in Sri Lanka to protect his property.
·In February 2007 they returned to Sri Lanka as the applicant's father had been injured in [an] accident.
·In September 2007 the applicant's [Relative A] was abducted by CID officers while at his home. Two weeks prior to his abduction he had been forcibly detained and beaten by members of the Karuna group.
·The applicant's parents sent him to [Country 1] in October 2007 on a [temporary] visa. The applicant was found working illegally in [Country 1] and was returned to Sri Lanka in May 2008.
·The applicant resumed working at his father's [business].
·Towards the end of 2008 the LTTE attacked a nearby army camp. Members of the LTTE fled the scene via the lane where the applicant's home was located.
·The Sri Lankan army entered the applicant's home and dragged him outside and to the army camp. There were several other young Tamil males also present. The applicant was told to kneel, was beaten on the shoulder with a pole and kicked in the chest. The applicant and other Tamil males were released later that day when the [an agency] intervened.
·Sometime in 2008 or 2009 the applicant was approached on the side of the road by a man named [Mr B] whom he knew to be a member of the Karuna group. [Mr B] asked the applicant to come with him in his [vehicle] and the applicant complied.
·[Mr B] took the applicant to the Karuna group office in [his home village] where he was beaten on the soles of the feet with a coconut branch before being released. He was not questioned and does not know why he was beaten.
·[In] August 2009 the applicant was at home when a white van approached his residence. Two men entered the house and identified themselves as CID officers, producing identity cards. The applicant was taken away in the van, blindfolded and driven to an unknown location,
·The CID interrogated the applicant. They questioned him about three people who were allegedly LTTE members, including the applicant's [Relative A]. The applicant told them he was related to [Relative A] but he had been missing since he was taken by the CID. One of the officers then hit the applicant on the head with a pistol.
·The applicant was released and travelled to [another city] where he stayed with [a relative] until October 2009.
·The applicant then stayed with a friend in [location] for approximately three weeks before returning to [Village 1]. The applicant would sleep at a friends' house in [Village 1] as he was afraid to stay at home.
·[In] April 2012 while the applicant was at his friend's house, the army, navy and police were conducting searches in the area. They were asking people to come to a nearby [location].
·CID officers arrived at the [location]. They separated the applicant and some other young Tamil males from the others and took them to a CID office in [Town 1].
·The applicant was directed into a room where he was beaten on the hip with a pole, and hit and kicked. He was shown a list of names and photographs and asked if he recognised any of the men on the list. The applicant denied knowing anyone.
·That night the applicant was taken to a police station where he was later released to his family.
·Following this incident, the applicant stayed at his [relative’s] house in [their town] for a few months before departing Sri Lanka by boat in July 2012.

In assessing the claims the delegate said:
[Relative A’s] Disappearance
The applicant claims that his [Relative A] was abducted by the CID in September 2007. I asked the applicant about the circumstances of his [Relative A’s] disappearance. He stated that his [Relative A], who also worked at the family [business], had gone home from the [business] and had been taken by force from his house. I asked the applicant how he knew this and he replied that he had learned the details from his [Relative A’s] wife. I asked the applicant how they knew it was the CID that had taken [Relative A]. He stated that his [Relative A’s] wife told him that it was the CID. I asked the applicant why his [Relative A] was abducted and he replied that he does not know the reason. I asked the applicant if [Relative A] was a member of the LTTE. He stated that he was not a member of the LTTE and as far as the applicant knew had not had anything to do with the LTTE aside from delivering goods to them that they had purchased from the [business]. The applicant also stated that a short time prior to his disappearance his [Relative A] was taken and beaten by the Karuna group although they do not know why he was targeted on that occasion either.
The applicant has provided copies of police report entries (untranslated) that he claims relate to the disappearance. In the absence of any evidence to the contrary, I accept that the applicant's [Relative A] disappeared in 2007. I am also willing to accept that his disappearance may relate to support he provided to the LTTE. However, I find that there is insufficient information to accept the applicant's claims that [Relative A] was abducted by the CID in particular. While this is possible, it is also possible that another group is responsible for the disappearance.
Beaten by Sri Lankan Army in Late 2008 and by the Karuna Group in 2008/09
I accept that the applicant was beaten by the Sri Lankan Army in 2008 when the army rounded up several young Tamil males in the area following an attack by the LTTE on a nearby army camp. I also accept the applicant's claims that he was beaten by members of the Karuna group in either 2008 or 2009. I further accept that the applicant is unaware of the reasons for this attack.
Questioned by CID August 2009
The applicant claims that in August 2009 he was taken and questioned by the CID about people suspected of being LTTE members. The applicant stated that he was at home when two people came into the house calling his name. They showed their CID ID cards and said that they would be taking him for inquiries. I asked the applicant where they took him and he replied that he did not know. He stated he was taken in a van with dark windows and that the CID officers covered his eyes. He said they travelled for approximately 45 minutes before he was taken from the van and pushed into a room. At interview, I asked the applicant what the CID officers questioned him about. The applicant stated that he was asked about three men, including his [Relative A], who the CID said were with the LTTE. He explained that they mostly asked about his [Relative A], asking him (the applicant) if [Relative A] was a member of the LTTE. The applicant stated that he told them that they (the CID) had taken his [Relative A] and that he was beaten following that comment. I asked the applicant how he was beaten and he stated that he was hit on the head with the back of a pistol and a plank of wood. I asked the applicant how long he had been questioned for and he replied he was questioned for approximately 90 minutes. I asked how long the CID detained him and the applicant stated that he was held for three days; when he was released he was told to report to them if anyone they had been asking about came to the [business]. I accept that the applicant was questioned by the CID in 2009 about suspected LTTE members, including his [Relative A].
Questioned by CID April 2012
The applicant claims that in April 2012 he was taken again by the CID and beaten. The applicant stated at interview that he was held for eight hours, during which time he was shown photos of people and asked if he knew them. The applicant also claims that he was again questioned about his [Relative A]. He claims that he was beaten with a pole while he was held by the CID. I am not satisfied that these events occurred as claimed by the applicant. The applicant's account of these events was considerably less detailed than his accounts of less recent events. While I accept that the applicant may have been questioned about his [Relative A] in 2009, shortly after the end of the conflict when the Sri Lankan authorities were intensively searching for suspected LTTE members, I find it unlikely that the CID would choose to question the applicant about his [Relative A] in 2012 when they had not done so for some three years. Although the applicant has (inconsistently) claimed that he was not living in the family home at this time as he was afraid to stay there, he has stated that he had resumed working in his step-father's [business]. Therefore, if the CID (or any other authority) had wanted to question him during this time I find that they would have been able to locate the applicant without difficulty. Even if I were to extend the applicant the benefit of the doubt and accept that he was taken to the CID office for questioning on this occasion in 2012, he has provided nothing to suggest that the CID officers were interested in him personally, or suspected him of any involvement with the LTTE. By the applicant's own account they appear to have been interested only in information he may have about others suspected of such involvement. That the applicant claims he was released within eight hours also suggests that he was not of any interest to the authorities. On balance, I do not accept that the applicant was questioned by the CID in April 2012 or that he is of ongoing interest to the CID or any other Sri Lankan government authority.
Following his application for review by the Tribunal, the applicant’s representatives provided further written submissions dated 12 June 2015 with a further detailed statutory declaration by the applicant regarding his claims. In his statutory declaration the applicant provided further details about his family’s involvement with the LTTE, the abduction of his [Relative A] in 2007, and the incidents in which he was abducted and beaten by the Karuna group in 2008-2009 and the police in 2009 and 2012.
The applicant’s evidence at the hearing was generally consistent with the claims set out above, and the Tribunal does not consider it necessary to repeat that evidence.
Assessment of the claims and country information
Having regard to the evidence noted above the Tribunal accepts that the applicant is a national of Sri Lanka and has therefore assessed the applicant against Sri Lanka as his country of reference and receiving country. There is no evidence that the applicant has the right to enter and reside in a third country and the Tribunal is satisfied that s.36(3) does not apply.
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This requires an assessment of the applicant’s credibility and a consideration of the relevant country information available to the Tribunal. In assessing the applicant’s claims, the Tribunal is not required to accept uncritically any or all allegations made by him: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
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 an applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal has assessed the applicant’s claims in light of the country information set out in the attachment to this decision. He has claimed to fear harm for reason of his Tamil ethnicity, his imputed political opinion, his illegal departure from Sri Lanka and his membership of the particular social group of failed Tamil asylum-seekers.
In assessing the credibility of the applicant’s claims, the Tribunal also has regard to the Refugee Law Guidelines, which relevantly state (at section 15.3, references deleted):
In Sellamuthu, the Federal Court noted that mere “vagueness or inconsistencies in recounting peripheral details” or an inability to give a “precisely accurate or consistent account of some past events” would not be enough for an adverse credibility finding.
The court also noted that discrepancies that are obviously insignificant and immaterial are insufficient to undermine an applicant’s credibility. Insignificant or peripheral discrepancies are not likely to be material factors.
Courts are prepared to scrutinise such decisions and decision makers should be careful not to join a series of minor alleged inconsistencies and ambiguities to reject the whole of the applicant’s account. In SZGUR v Minister for Immigration and Citizenship, the RRT’s decision was quashed as its selective use of corroborative evidence created an apprehension of bias in the form of a pre-judgment, that is, “a mind not open to persuasion”.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Kirby J (dissenting in the outcome of the case) noted that:
There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
Although Kirby J was in the minority in SGLB, the considerations that he outlined have since been discussed in several refugee cases involving credibility concerns.

The Tribunal found the applicant to be an articulate and credible witness who gave a clear, consistent and coherent account of his family’s links with the LTTE and interactions with the Sri Lankan police and military as a result of those links. He listened to questions carefully, and was able to discuss his earlier claims in detail. The Tribunal did not find him to be vague or uncertain in his evidence, and accepts that evidence as credible.
As discussed with the applicant at hearing the key issue before the Tribunal in this case is whether and why the applicant would be at risk of harm if he returned to Sri Lanka. When asked why he thought he would be harmed, the applicant said that he fears that the police would physically harm or kill him because of his family’s history of involvement with the LTTE, both real and suspected, and because he is a young Tamil male who left Sri Lanka illegally. The applicant does not claim to have been a member of the LTTE. He claims that he has been held for questioning and beaten on several occasions already by the Karuna group, the Sri Lankan army, and the local police.
Under Australian law a well-founded fear consists of two distinct elements, a subjective and an objective element: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62.
The subjective element involves the applicant’s state of mind and whether they genuinely have a fear of harm. The objective element involves assessing the factual basis of the applicant’s fear, and is a forward looking test. In other words, decision makers need to consider whether there is a real chance of persecution in the future if the applicant returns[1].
[1] Department of Immigration and Border Protection, Refugee Law Guidelines, para 8.1.1
The Tribunal accepts the applicant’s evidence as set out above, and accordingly accepts that he has a subjective fear of harm should he return to Sri Lanka. The Tribunal also accepts that the harm he fears would amount to serious harm as that is defined in s.91R(1)(b) of the Act.
The remaining question is whether his fear of harm is well-founded, or applying the test formulated by the High Court in Chan, whether there is a real chance that he would suffer persecution should he return to Sri Lanka.
Reports from UNHCR and media sources concerning the security situation in [Town 1] in late 2011 to mid-2012 indicate a 'renewed' interest by the security and military agencies in the area, with reports of the arrests and disappearances of Tamils with suspected past affiliations or connections to the LTTE, in an apparent campaign to deal with any remnant LTTE groups and former members who had not been 'rehabilitated', as well as recently returned Tamils with LTTE links.
On the basis of these reports, the Tribunal accepts that the applicant was detained and questioned by the Karuna group and the Sri Lankan army and police on a number of occasions before he left Sri Lanka and questioned about the alleged LTTE links of his [Relative A]. In particular, the Tribunal accepts that he was questioned again in 2012 before he left Sri Lanka. He gave detailed evidence about this matter in his statutory declaration of April 2015 and at the hearing, and his claims are consistent with country information that indicates that the Sri Lankan army and police increased monitoring of Tamils with suspected LTTE links in 2012.
Accordingly, the Tribunal is satisfied that the applicant’s claims about these matters are consistent with the country information set out above, and accepts his claim that he fears that he would come to the attention of the CID in [Town 1] as a result of the screening process in place for failed asylum seekers if he were to return to Sri Lanka.
In earlier reports UNHCR had reported that a person's ethnicity and place of origin alone could be enough for the government to impute to them an adverse LTTE-related profile, and, at one stage, simply being a Tamil male from the northern or eastern provinces was in itself considered enough to arouse suspicion and the perception of an association with the LTTE, and place such a person at risk of harm. However, more recently, in its 2010 'Eligibility Guidelines' and the current December 2012 Guidelines, UNHCR has revised its position and states there is no longer a presumption of eligibility for protection of Sri Lankans simply on the grounds that they are Tamils.
Further, originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.
The December 2012 Guidelines caution that a merits-based assessment based on individual circumstances is still necessary, and that Tamil ethnicity and place of origin can still be factors increasing the vulnerability of persons within other 'risk profiles' whose protection claims warrant particularly close attention, and that the 'risk profiles' listed should not be seen as exhaustive. The Guidelines state that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case.
Persons who may be at risk include those who held senior positions within the LTTE civilian administration, former LTTE cadres, former LTTE supporters who provided material assistance of various kinds, LTTE fundraisers and propaganda activists, and persons with familial links or otherwise closely related to individuals with the above profiles. Other risk profiles relate to certain opposition politicians and political activists, certain journalists and other media professionals, certain human rights activists, certain witnesses of human rights violations and victims of human rights violations seeking justice.
The Tribunal considers that there is a possibility which is not remote or implausible that the applicant was of adverse interest to the authorities partly because of his imputed political opinion because of his family’s history of dealings with the LTTE. DFAT assesses that tolerance for political dissent in Sri Lanka can be limited, and notes that under the previous Rajapaksa government, active anti-Government critics were often described as 'LTTE or terrorist sympathisers' who 'want to destroy Sri Lanka' and risked attracting adverse attention by Government authorities, their agents or supporters. This included monitoring, harassment, arrest and detention.
The Tribunal has considered the situation concerning returnees. The DFAT report confirms that the LTTE as an organisation remains banned in Sri Lanka. The DFAT Thematic Report confirms that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country, and it refers to expert testimony provided to the UK Upper Tribunal that Sri Lankan authorities collect and maintain a sophisticated intelligence on former LTTE members and supporters, including stop and watch electronic databases (stop list includes those with extant court orders, arrest warrants or order to impound their Sri Lankan passport; watch lists include those who the security forces consider to be of interest, including for separatist or criminal activities: they are not reasonably likely to be detained, but are likely to be monitored). However, many reports indicate that arrests, abductions, killings, torture and of persons with certain LTTE connections (actual or suspected), continue to be perpetrated by Sri Lankan security forces and pro-government paramilitary groups, although to a lesser extent than during the civil war and its immediate aftermath.
The weight of evidence indicates, and the Tribunal accepts, that returnees who have real or perceived associations with the LTTE either in Sri Lanka or in the politically active Tamil diaspora, or who may have been perceived or involved in criminal activities, terrorism, people smuggling, or anti-government political activities, may be identified during the process on return (discussed further below), and dealt with under different provisions, which may lead to them being detained for longer periods on return, and there are reports that some have been mistreated and subjected to torture. The Tribunal also accepts that there are reports of some Tamils who were returned prior to protection visa applications being lodged, who had profiles, being subjected to harm upon return. The Tribunal considers that the credible evidence suggests that the reports of people who have suffered harm have had such profiles, (or occasionally their profiles are not discussed). Further, in the thematic report, DFAT states that it is aware of but cannot verify cases where close relatives have been arrested and detained because of their family connections with former LTTE members and that such persons are likely to be the subject of monitoring.
Based on this information, the Tribunal accepts that the Sri Lankan government remains vigilant in relation to members and suspected former members or associates of the LTTE. Although the degree to which such people are being sought out and subjected to serious mistreatment has declined since the years immediately following the end of the war, the independent information demonstrates that such people are still subjected to “monitoring”, consistent with the Sri Lankan government's concern to ensure that there is no resurgence of the LTTE. The Tribunal notes the UNHCR Guidelines suggest that persons with familial links with certain persons with an LTTE profile may be in need of international protection.
Although the independent information indicates that the risk of the applicant being subjected to serious harm amounting to persecution for that reason is less than it was several years ago, nonetheless, there remains a real chance that he could be subjected to persecutory harm in some circumstances, particularly as a result of the procedure in place for the processing of people who departed illegally from Sri Lanka.
The country information set out in the attachment, from sources ranging from the US Department of State and the UK Home Office to Amnesty International and Human Rights Watch, as well as the various media reports cited above, is that Tamils returning to Sri Lanka continue to be subject to arrest, interrogation, detention and torture at the hands of the Sri Lankan police and military. The Tribunal is also satisfied on the available information that this is particularly a risk for young Tamil men suspected of involvement with the LTTE.
On the basis of the information from DFAT and other sources set out in the attachment, the Tribunal is also satisfied that a failed asylum seeker who has left Sri Lanka illegally, as the applicant has, will on return be arrested and charged with an offence under the Sri Lankan Immigration and Emigration Act. They will be fingerprinted and photographed and transported to the Magistrates Court where they will be held on remand and may be released on bail with a family member providing a surety.
DFAT state that the time spent in remand varies and is generally a few hours, but could be a number of days, and that the person would then have to attend Court at a later date to face the charges. Having regard to the information from the US Department of State referred to above, the Tribunal is satisfied that there is a real chance that the time spent on remand could be considerably longer than a few hours or a number of days.
DFAT also states that so far as they are aware, no returnee has been sentenced to a term of imprisonment solely for illegal departure, although there is provision for that in legislation. People involved in people smuggling or organizing the transport of people by boat to Australia without authorization have been sentenced to prison terms. Others have been fined an amount between 5,000 SLR and 50,000 SLR ($40 to $400 AUD). The report from DFAT is silent as to what happens if a person is unable to pay the amount of any fine imposed.
For the reasons set out above, the Tribunal is satisfied that that the applicant is a Tamil from a family identified as being involved with the LTTE in the Trincomalee area, and considers that there is a real chance that on his return to Sri Lanka, when questioned by the authorities, as all returnees are, these particular additional profile factors of the applicant will come to light. In these circumstances the applicant faces a real chance of more than short term imprisonment and as a consequence mistreatment whilst imprisoned. That there is a real chance of mistreatment whilst imprisoned, particularly for Tamil men, is supported by the above report from the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in May 2016.
The Tribunal is satisfied on the basis of the country information that the applicant would be prosecuted for illegal departure should he return to Sri Lanka. The Tribunal is also satisfied that he would then be held on remand pending the provision of a surety either personally or by his family, and that the chance that the applicant would spend more than a few hours or days in detention on remand is neither remote nor insubstantial or a far-fetched possibility.
The independent information set out above regarding the treatment of detainees in Sri Lanka indicates that they are routinely beaten and abused in detention. The UN Rapporteur on Torture has concluded that conditions in Sri Lanka’s prisons, including for those on remand, ‘constitute in themselves a form of cruel, inhuman and degrading treatment.’
Accordingly, the Tribunal accepts that that there is a real chance the applicant would face serious harm should he return to Sri Lanka. The Tribunal is satisfied that the applicant would face these problems because of his perceived support for the LTTE and the political opinions that would be imputed to him because of his family’s involvement with the LTTE.
Accordingly, the Tribunal finds there is a real chance that is more than remote that the applicant will be subjected to harm by the individuals or groups pursuing him should he return to Sri Lanka now or in the reasonably foreseeable future.
On the basis of these findings the Tribunal is satisfied that the harm to which the applicant would be subjected would be serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act, and that the essential and significant reason for the harm would be the applicant's political opinion, as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).
The Tribunal must also consider whether the harm feared by the applicant is localised and whether he could relocate to another part of Sri Lanka to avoid it. The Tribunal has accepted on the country information above that it is the Sri Lankan government itself that the applicant fears, and the Tribunal is satisfied that state protection is not available to the applicant. For the same reasons, the Tribunal finds that the harm feared is not localised and the applicant could not avoid it by means of internal relocation.
CONCLUSION
In these circumstances, the Tribunal is satisfied that there is a real chance, that is not a remote or insubstantial or a far-fetched possibility, that the applicant would suffer serious harm as defined in s.91R(1) of the Act if he returns to Sri Lanka.
On the available evidence the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his political opinions should he return to Sri Lanka now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Bruce Henry
Member

ATTACHMENT
Country information
The most recent DFAT report on Sri Lanka[2], to which the Tribunal is required to have regard as noted above, states, in relation to the situation for Tamils in Sri Lanka:
[2] DFAT Country Information Report – Sri Lanka, 18 December 2015
Monitoring, harassment, arrest and detention
3.7 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA than any other ethnic group. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity. There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The Sirisena government has undertaken to review the list of detainees under the PTA and has released some detainees, including Tamils. The government has said it is willing to work with the International Committee of the Red Cross (ICRC) to provide greater access to detainees for welfare monitoring and to establish a comprehensive database on detainees (see: ‘Arbitrary arrest and detention’ below).
3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.
3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena 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. …
3.37 In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the Police Criminal Investigation Department (CID) for interviews. Sri Lankan authorities have also increased their security presence in the north and east from time to time. For example, in March 2014, a number of check-points were established due to an alleged resurgence of LTTE activity. DFAT is aware of credible reports of people being stopped, detained and questioned by security forces in 2014 but assesses that these incidences decreased in 2015, since Sirisena came to power. After initially retaining the police powers granted to the military by Rajapaksa, in March 2015 Sirisena did not renew them, thus making military checkpoints in the north technically illegal. …
Low-profile former LTTE members
3.42 In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this includeS former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.
3.43 DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted. …
Family members
3.53 DFAT is aware of but cannot verify reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members. DFAT assesses that close relatives of the LTTE members, particularly high-profile members, who are wanted by Sri Lankan authorities are likely to be subject to monitoring.
Arrest and detention
3.54 Under Regulation 22 of Sri Lanka’s Emergency Regulations 2005 (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Some of these provisions were replaced by similar regulations under the PTA, which is still in place. Under the PTA, suspects can be held without charge for three-month periods, not exceeding a total of 18 months. In addition to those arrested under the PTA, some former LTTE members have been arrested and detained on other criminal charges. According to Sri Lanka’s then Minister for External Affairs, GL Peiris, as of March 2014, a total of 12,288 LTTE members had been arrested and sent to rehabilitation centres since the end of the conflict in 2009. The majority of those in rehabilitation have since been released and DFAT understands that only 45-50 former ex-LTTE members remain in rehabilitation as of July 2015.

The United Nations High Commissioner for Refugees (UNHCR) last published the UNHCR Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka in December 2012. According to those guidelines, ‘the risks facing individuals with the profiles outlined below require particularly careful examination’:
• Persons Suspected of Certain Links with the Liberation Tigers of Tamil Eelam (LTTE) – in particular, those who held senior positions within the LTTE civilian administration, former LTTE cadres, former LTTE supporters who provided material assistance, LTTE fundraisers and propaganda activists, and persons with familial links or are otherwise closely related to individuals with the above profiles.
A September 2015 United Nations report[3] states that many of the reported human rights abuses in Sri Lanka ‘are carried out against Tamil men and women that are perceived to have, or have had, links with the Liberation Tigers of Tamil Eelam (LTTE)’, and rejected asylum-seekers and returnees may be at risk to torture, if accused of anti-government political activity or of links to the LTTE:
[3] Office of the United Nations High Commissioner for Human Rights, report to the Human Rights Council Thirtieth Session, Report of the OHCHR Investigation on Sri Lanka (OISL), 16 September 2015, UN Doc A/HRC/30/CRP.2
Patterns of unlawful arrests by security forces and affiliated paramilitary groups
343. OISL conducted over 50 interviews with persons (one third were women) who had been unlawfully arrested or otherwise arbitrarily deprived of their liberty during the investigation period in the context of the armed conflict in Sri Lanka. It also reviewed other information on such cases, including many cases of enforced disappearance that reportedly occurred after unlawful arrests by security forces. The information gathered shows the widespread use of arbitrary and unlawful arrest and detention by the State, as well as arrests by paramilitary groups supporting the Government forces.
344. In the overwhelming majority of cases documented by OISL, the manner in which the arrests and in some cases abductions were carried out failed to comply with international standards and were often unacknowledged. In all these cases, no warrant was produced at the time of the arrest or abduction, and in only a handful of cases were detainees informed of the reasons for their arrest and of the location to which they were being taken, were brought before a judge, charged, or given access to legal counsel. Victims of such violations included suspected LTTE cadres or sympathisers, as well as journalists and civil society activists. OISL also documented a pattern of arrests of individuals of Tamil origin who were trying to leave the country, or who had returned to Sri Lanka from abroad, either voluntarily or after having been denied asylum abroad.
In January 2012 The Sunday Leader[4] reported that 'police have begun investigations into hundreds of people reported missing over the past several months', including 110 people from Trincomalee. The article stated:
Convenor of ‘We are Sri Lankans’ Udul Premaratne told The Sunday Leader that some 500 people have been reported missing in the North and East alone over the past few years.
Of those missing are 110 persons from Trincomalee, 100 from Mannar, 140 from Vavuniya and several others from Jaffna and parts of Killinochchi and Batticaloa.
Among those abducted are State employees, fishermen and university students, Udul Premaratne added.
Meanwhile former MP Mano Ganeshan said that between 2005 – 2009 there were around 550 persons reported missing in Colombo and its immediate suburbs.
[4] Indika Sri Aravinda, Sri Lanka’s Disappeared, The Sunday Leader, 15 January 2012, available at , accessed 8 July 2015
He said the whereabouts of these people are still not known and blamed the government for the alleged abductions.
In April 2012, TamilNet[5] reported that the SLA and police had entered 'selected houses in the villages of Trincomalee district' and detained an estimated 220 Tamils, including some who had left the LTTE more than 10 years before. Earlier in the same month, TamilNet reported that ‘[a]t least ten Tamils have been taken into custody’ by the SLA and police ‘in cordon and search operations in Trincomalee district’. According to residents ‘around 600 to 700 of SL Army and SL Police were involved in house-to-house search operations and they took the males for interrogation to their camps in the presence of their wives and children.’ There were mid-April 2012 reports from Trincomalee of the disappearance of former LTTE members who had been released from rehabilitation camps, with their families being warned not to disclose information about the abductions, and reports of the wives and family members of former LTTE members, who were still detained at undisclosed locations, being repeatedly summoned to military camps for questioning.
[5] TamilNet, 25 April 2012, 220 Tamils arrested in SLA combing in Trincomalee, available at accessed 9 July 2015
A recent report on TamilNet[6] illustrates that the problems for families linked to the LTTE in the Trincomalee area continue unresolved:
Tamil National Alliance (TNA) parliamentarian Suresh Premachandran on Thursday questioned the SL Minister for Public Security at the Sri Lankan Parliament on the fate of 700 Tamils, who were alleged to have been kept in a detention camp inside the Trincomalee Sri Lanka Navy (SLN) complex under the past regime of Mahinda Rajapaksa. Around 35 families were also detained in that camp known as ‘Gota camp’ the TNA parliamentarian said.

[6] TamilNet, 20 February 2015, Whereabouts of 700 Tamil prisoners detained in Trincomalee questioned in SL Parliament, available at accessed 9 July 2015
The Public Security and Christian Affairs Minister John Ameratunge in his reply said he would be bringing these matters immediately to the notice of the Sri Lankan President Maithiripala Sirisena who is also holding the post of Minister of Security.
The DFAT report also states:
Security situation in the north and east
2.37 The security situation in the north and east has greatly improved since the end of the conflict. However, military and security forces maintain a significant presence in the Northern Province, including Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In July 2015, DFAT observed a low-level but visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula, also known as the ‘High Security Zone’. The High Security Zone occupies fertile land and is well-established, with permanent structures and well-tended agricultural land. Most check-points have been removed in the north, and the main checkpoint on the highway between the north and south, the Omanthai checkpoint, was removed on 29 August 2015. Restrictions placed on persons, including foreigners, visiting the north that were introduced in October 2014 have been lifted.
2.38 The Sirisena government appointed two retired senior civil servants as Governors in the Northern and Eastern provinces to strengthen civilian administration. These posts were previously held by retired military personnel. The Government has also commenced discussions on progressively reducing High Security Zones in the Northern Province and to date, over 1,000 acres of land has been released.
2.39 Under the Rajapaksa government the security and intelligence forces in the north and east were known to monitor any possible LTTE activity and any form of civil resistance or anti-Government sentiment. Some community members were questioned by authorities after they were visited by Non-Government Organisations (NGOs) or foreign government officials. Although not officially mandated to do so, in many areas military officers and personnel took a visible and active role in aspects of civilian life. This included participating in community functions, opening development projects such as schools and houses and undertaking community work. The Sirisena government has publicly claimed that military involvement in civilian activities has ceased. DFAT assesses that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life. …
Treatment of Returnees
5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.
5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat. If a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Entry Procedures
5.29 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.
5.30 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.
5.31 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.
5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to [another country] and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).
5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.
An article in The Guardian on 6 August 2014[7] described the treatment of Sri Lankans returned from Australia in June 2014 as follows:
The Sinhalese aboard the boat haven’t fared any better. Sujeewa Saparamadu’s husband remains in jail, accused of masterminding the plan. She met with the Guardian in the ruins of a disused house in a village three hours drive from Colombo.
A mother of three, she and her husband were owners of a successful company that sold forklift trucks, and their children attended international school. But she was a vocal critic of the government, and relatives of hers had been supporters of the armed opposition People’s Liberation Front.
Three of her brothers attempted to flee to Australia in late 2012, but were deported back and have since disappeared. In an interview with Australian television in December 2012 she rounded on an increasingly repressive Sri Lankan government; after that, “everything got worse.”
On two occasions last year, one of her teenage sons was kidnapped and held for ransom. Sujeewa, her husband and children first attempted to flee in June 2013, travelling to the north coast and hiding in a thicket of jungle one night until the beach was clear and they could board a vessel anchored off the shore. A group of soldiers saw them and opened fire. They were brought back to shore, where Sujeewa was dragged into the jungle by seven soldiers and assaulted.
[7] Francis Wade, Guardian online, Beaten and spied on, asylum seekers reveal oppression of being returned, 6 August 2014, available at accessed 29 June 2016
The recent US Department of State Country Reports on Human Rights Practices 2015 – Sri Lanka[8] provides the following information:
[8] Available at accessed 29 June 2016
Prison and Detention Center Conditions
Prison conditions were poor due to old infrastructure, overcrowding, and shortage of sanitary and other basic facilities. A few of the larger prisons had their own hospitals, but the majority were staffed only by a medical unit. Authorities transferred prisoners requiring medical care in smaller prisons to the closest local hospital for treatment.
Physical Conditions: In many prisons inmates reportedly slept on concrete floors and often lacked natural light or sufficient ventilation. According to the Prison Headquarters Statistics Division, there was a total of 19,067 prisoners, both convicted (10,063) and unconvicted (9,004) as of October. (Unconvicted prisoners refer to those held on “remand” while awaiting trial.) The commissioner of prisons estimated that on average the prison population exceeded the system’s capacity by 60 percent.
The Ministry of Law and Order and Prison Reforms (Prison Reform has since become a part of the Ministry of Resettlement, Rehabilitation, and Hindu Religious Affairs) operated three “closed prisons” designed for convicted prisoners and 19 remand prisons for those awaiting trial. Separate from this were 10 work camps, two open prison camps for prisoners who had committed minor offenses, a training school, and two correctional centers for youthful offenders. The large majority of the convict and remand prisons were supposed to have separate wards for women and juveniles, but strict separation was not always the case in practice. In some cases juveniles were not held separately from adults. Authorities often did not hold pretrial detainees separately from convicted prisoners. Authorities often incarcerated petty criminals with perpetrators of more serious crimes. Female prisoners were held separately from male prisoners within the same jail. …
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, but such incidents occurred although at a decreased rate relative to 2014. Civil society groups and human rights activists reported incidents of persons arrested and detained on unsubstantiated charges.
The PTA does not clearly define what constitutes an arbitrary arrest. Under the PTA, security forces have sweeping powers to search, arrest, and detain. Detainees may be held for up to 18 months without charge. Many detainees were held arbitrarily for substantially longer periods than this without charge, including in irregular places of detention. The government reported it was holding 162 “unconvicted” prisoners under the PTA (160 men and two women) as of October and that all such prisoners had access to family member visits, attorneys, magistrates, medical officers, members of the clergy, and representatives of the Human Rights Commission of Sri Lanka (HRCSL).
On October 12, 217 Tamil prisoners, including former LTTE cadres detained in 14 prisons, commenced a hunger strike demanding immediate release. They accused the Siresena government of not fulfilling its promises regarding political prisoners and called on the president, the prime minister, and the leader of the opposition to resolve their cases. On October 12, the commissioner of prisons reported that, of 201 political prisoners, 40 were issued court orders citing punitive measures, and indictments were yet to be filed against the remaining 161 suspects.
On November 11, the Colombo chief magistrate granted conditional bail to 31 prisoners detained under the PTA. The bail conditions required prisoners to each post a Rs. 203,000 ($1,450) bond, prohibited them from leaving the country, and mandated they check in with the Terrorist Investigation Division office every two weeks. A high-ranking prison official indicated similar bail arrangements were approved for another eight prisoners. The large majority of those released were to attend government-mandated rehabilitation. The Attorney General’s Office was reportedly examining an additional 20 cases for possible release on bail.
According to human rights groups, police stations held an unknown number of irregular detainees, as did the CID, the Terrorist Investigation Division, army camps, and other informal detention facilities without charge or trial on allegations of involvement in terrorism-related activities. Numerous reports suggested that security personnel used involuntary disappearance to interrogate persons “off the books” without the need to document the cases. Following interrogation, authorities released these involuntary detained persons, instructing them not to disclose details of their detention under threat of physical harm. In some cases irregular detentions allegedly included interrogation involving mistreatment or torture.
Reintegration of former combatants and other detainees released from rehabilitation remained challenging due to intensive surveillance by the military, social stigma (some persons were afraid to associate themselves with former combatants, who regularly had to report to the army), employment difficulties, and psychological trauma. Several released former combatants reported torture or mistreatment, including sexual harassment and abuse by government officials while in rehabilitation centers and after their release.
Arrest Procedures and Treatment While in Detention
By law authorities are required to inform an arrested person of the reason for the arrest and arraign that person before a magistrate within 24 hours for minor crimes, 48 hours for some grave crimes, and 72 hours for crimes under the PTA. In practice, however, days, weeks, and sometimes months elapsed before detained persons appeared before a magistrate, particularly in PTA cases. A magistrate may authorize bail or continued pretrial detention for up to three months or longer. Judges need approval from the Attorney General’s Office to authorize bail for persons detained under the PTA, which they normally did not grant. Police may make an arrest without a warrant for certain offenses such as killing, theft, robbery, and rape. In homicide cases, regulations require the magistrate to remand the suspect, and only the High Court may grant bail. In all cases suspects have the right to legal representation, although there is no legal provision specifically providing the right of a suspect to legal representation during interrogations in police stations and detention centers. There were credible reports that detainees often did not have a lawyer present at the time of interrogation. The government provided counsel for indigent defendants in criminal cases before the High Court and courts of appeal but not in other cases.
By law police may detain a suspect for up to 72 hours, after which police must produce the suspect before a magistrate, but there were reports of cases in which authorities did not respect this law. Observers received multiple reports of suspects detained incommunicado for extended periods without being charged.
Arbitrary Arrest: The law prohibits arbitrary arrest and detention; however, this requirement was not always respected in practice. The Center for Policy Alternatives reported 21 persons were arrested or detained under the PTA without charge from January through the end of September.
Pretrial Detention: The judicial process moved slowly, and in a total prison population of 19,067 reported as of October 13, 9,004 were “unconvicted” and the cases of another 1,065 were in appeal. Lengthy legal procedures, large numbers of detainees, judicial inefficiency, and corruption often caused trial delays. Legal advocacy groups asserted it was common for the length of detention to equal or exceed the sentence for the alleged crime.
Persons held under administrative detention did not enjoy the same rights as those awaiting trial. For example, lawyers were required to apply for permission from the Terrorism Investigation Division to meet clients detained at the Boosa detention center, with police frequently present at such meetings. Pretrial detainees did not have the right to legal counsel during questioning by police. Persons convicted and undergoing appeal did not receive credit toward their original sentence for time served in prison while the appeal continued. Appeals often took several years to resolve.

Media reports from 2015 indicate that Tamil men returning to Sri Lanka may well face adverse attention following apprehension at the airport. A report from The Tamil Guardian dated 6 February 2015[9], for example, stated:
[9] Tamil Guardian, 6 February 2015, Two Tamils arrested on return to Sri Lanka, available at accessed 17 June 2015
Kandasamy Karunananidhi, a 36 year old man from Kaluthavalai, Batticaloa and Thamodaram Baskaran, a 29 year old from Kokkaddicholai, Batticaloa were both arrested on arrival in Sri Lanka on the 2nd and 3rd of February respectively. They are currently being detained in the notorious fourth floor of the CID headquarters in Colombo.
Both men, who were working in the UAE and Qatar, had returned to the island in order to visit their wives and children. Tamil National Alliance MP P Ariyanenthiran said that both men had returned several times over the past without facing any difficulty.

“According to the parents, these two boys had briefly been in the LTTE, but they left the outfit long ago and were working in Dubai and Qatar,” Mr Ariyanenthiran told the Tamil Guardian.
“They have often visited their families from time to time without any problem in the past. But this time, they have been arrested and detained by the CID at the Fourth Floor.”
The parents of the men were summoned to the CID office in Colombo and told their sons would be released after questioning.

Commenting on the arrests, the MP for the Batticaloa district said Tamils on the island still faced intimidation from state security forces and warned against diaspora Tamils from returning.
"Despite the new government saying it is welcoming back diaspora Tamils, it is clear the situation is not yet conducive or safe to return,” he said.
A recent media report published on Tamilnet[10] states:
While Amnesty International and Swiss NGOs, including the Swiss Refugee Council, said that the situation for Tamils in Sri Lanka is still precarious and that it is too early for asylum seekers from Switzerland to be returned to Sri Lanka, the Swiss Government and the visiting Sri Lanka’s foreign minister, Mangala Samaraweera, signed a "migration partnership" the technical consultations [on involuntarily returning Tamil refugees] of which is to take place soon, according to a Swiss Embassy press release.
In summer 2013, Switzerland sent back two Tamil asylum seekers who were arrested on the island. One of them remained locked up for over a year and was allegedly tortured. Switzerland reacted by stopping returns to Sri Lanka and a readmission accord was put on ice. So far, the authorities have only returned a handful of individuals to Sri Lanka against their will (six in 2015).
“In our view, this step comes too early,” Adrian Schuster, a Sri Lanka expert at the Swiss Refugee Council, told Swiss public radio on Thursday. “We have received reports that in 2015 returning people were arrested or abducted in Sri Lanka."
Amnesty International also has serious misgivings. The general situation has improved since the launch of the reconciliation process, says Nadia Boehlen, spokesperson for the Swiss branch: “But there is an anti-terrorist law that allows the state to lock people up and the demilitarization of the North and Northeast has not yet taken place, neither have people had their land returned.”
[10] TamilNet, Sri Lanka still precarious for returning Tamil asylum seekers, says Swiss NGO, 5 March 2016, available at accessed 29 June 2016
She said a recent visit to the island confirmed that torture was still carried out.
The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka and released a preliminary report in May 2016[11]. In his report the Special Rapporteur states:
After many interviews conducted by my team and myself at random throughout my visit with both detainees and those who have been released, I am persuaded that torture is a common practice carried out in relation to regular criminal investigations in large majority by the Criminal Investigation Department (CID) of the police. In cases where there is a real or perceived threat to national security there is a corresponding increase in acts of torture and ill-treatment during detention and interrogation in Terrorism Investigation Division (TID) facilities.
I have interviewed survivors and examined documentation regarding the practice of torture from previous years as well as its prevalence today. Fewer cases are reported today than during the conflict period and perhaps the methods used by the police forces are at times less severe. But sadly the practice of interrogation under physical and mental coercion still exists and severe forms of torture, albeit probably in less frequent instances, continues to be used.
Both old and new cases continue to be surrounded by total impunity. In addition, procedural norms that entrust the police with investigative powers over all criminal cases and, in the case of the Prevention of Terrorism Act, allow for prolonged arbitrary detention without trial, are still very much in place and open the door to – almost invite – police investigators to use torture and ill-treatment as a routine method of work. I received many testimonies from victims and detainees who took the risk to speak out, despite concerns either for their own safety or their families. I was able to conduct thorough interviews and forensic examinations in a few cases, with the assistance of a forensic expert that accompanied me during my mission. I found the testimonies truthful and many were substantiated with physical evidence that is conclusive of torture. The forensic expert conducted a number of medical examinations that confirmed physical injuries consistent with the testimonies received. The forensic expert also analysed photographs taken shortly after the alleged torture and ill-treatment, and concluded they are diagnostic of severe physical torture.
The nature of the acts of torture consists mainly of transitory physical injuries caused by blunt instruments (essentially punches, slapping and, occasionally, blows with objects such as batons or cricket bats) which heal by themselves without medical treatment and leave no physical scars. There were also several accounts of brutal methods of torture, including beatings with sticks or wires on the soles of the feet (falanga); suspension for hours while being handcuffed, asphyxiation using plastic bags drenched in kerosene and hanging of the person upside down; application of chili powder to face and eyes; and sexual violations including mutilation of the genital area and rubbing of chili paste or onions on the genital area. While these methods of torture were in some cases of short duration, in other cases torture occurred over a period of days or even weeks during interrogation…
I am deeply concerned, however, about the conditions of life in all prisons, all characterized by very deficient infrastructure and pronounced overcrowding. As a result, there is an acute lack of adequate sleeping accommodation, extreme heat and insufficient ventilation. Overpopulation results as well in limited access to medical treatment, recreational activities or educational opportunities. These combined conditions constitute in themselves a form of cruel, inhuman and degrading treatment.
TID facilities also suffer from excessive heat, absence of ventilation, limited access to daylight and exercise, prolonged or indefinite isolation in some cases, and lack of electricity so that some inmates spend about 12 hours a day in the dark. …
During my visit I observed levels of population exceeding capacity by well over 200 or 300 per cent. Vavuniya Remand Prison offered a striking example of such overcrowding. One of its halls hosted 170 prisoners in what my team and I estimated to measure less than 100 square meters, providing less than 0.6 metres per person. In the same building, other prisoners were forced to sleep on the staircase for lack of space in the detention areas. In addition, we saw cells designed for one person occupied by four or five inmates. The larger prisons in Colombo were built in the mid-19th century and walls, roofs and staircases are literally crumbling on the prisoners. The Government has indicated that Welikada prison will be closed and a new prison will be built in Tangelle, but we understand the latter is not even in the planning stages yet. While replacement of old prisons is a good idea, in the meantime it is urgent to conduct maintenance and repair the unsafe conditions that amount to cruel, inhuman and degrading treatment or punishment.
An aggravating factor is that the congested prisons are a direct result of lengthy sentences for non-violent and drug related offences. Suspects are subjected to lengthy remand periods with many being detained for years and some even up to ten to 15 years. We understand that the average delay for State Counsel to bring a criminal case before the High Court after remand ranges from 5 to 7 years. This is a serious violation of due process and the presumption of innocence, and results in what is commonly known as an “anticipated penalty” without trial. It also violates the principle that provisional detention should be the exception and not the rule. I urge Sri Lanka to consider measures to make more non-violent offenses bailable and to experiment with alternatives to incarceration.
[11] Mendez, JE, Preliminary observations and recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Mr. Juan E. Mendez on the Official joint visit to Sri Lanka – 29 April to 7 May 2016, Colombo, 7 May 2016, pp.8-9, available at accessed 29 June 2016
The current UK Home Office report on Sri Lanka[12] states:
6.5.5 The International Crisis Group noted in an August 2015 report that: ‘Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement. According to some reports, after police detention, many are sent to the military-run rehabilitation program. Tamil politicians and activists allege that secret detention centres established by the old government continue, though officials deny this.’ 40
6.5.6 In an August 2015 study of 148 Sri Lankan torture cases perpetrated since the end of the Sri Lankan civil war in May 2009, Freedom From Torture recorded that 139 people (94 percent of all cases) were of Tamil ethnicity, and the majority (142) described an association with the Liberation Tigers of Tamil Eelam (LTTE) at some level and/or said that they had been associated with the LTTE by the Sri Lankan authorities in some way (96 percent of all cases). It further reported that ‘It is of particular concern to Freedom from Torture that more than one third of the people whose cases were reviewed in this study were detained and tortured in Sri Lanka after returning from the UK following the end of the armed conflict (55 of 148 cases or 37- [percent]). Most had been in the UK as students but three had claimed asylum and were forcibly removed after their asylum claims were rejected. All but seven of these people were detained within weeks of their arrival in Sri Lanka and the majority were specifically interrogated about their reasons for being in the UK, their activities and/or their contacts in the UK. Twenty-one people were accused of attending particular protests and demonstrations in the UK and eleven were shown photographs taken at these events’. …
6.6.2 The Amnesty International Report 2015/16 - The State of the World's Human Rights - Sri Lanka, published 24 February 2016, stated:
‘Torture and other ill-treatment of detainees – including sexual violence – continued to be reported and impunity persisted for earlier cases. ... Suspicious deaths in police custody continued to be reported. Detainees died of injuries consistent with torture and other ill-treatment, including beatings or asphyxiation. Police claimed suspects committed suicide or in one case drowned while trying to escape.’ …
6.6.6 A Statement by United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, at the end of his Mission to Sri Lanka, dated 9 February 2016, read:
‘The ‘white van’ abductions that operated outside all norms of law and order, and — as intended — instilled fear in the hearts of journalists, human rights defenders and others who dared criticise the Government or State security institutions, are now very seldom reported. The number of torture complaints has been reduced but new cases continue to emerge — as two recent reports, detailing some disturbing alleged cases that occurred in 2015, have shown — and police all too often continue to resort to violence and excessive force.’
[12] United Kingdom: Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism, May 2016, Version 2.0, available at: accessed 29 June 2016
Human Rights Watch have recently reported[13]:
[13] The Human Rights Watch (HRW), Annual report 2016, Sri Lanka, 27 January 2016, available at accessed 29 June 2016
Serious concerns remain about the forced return of Sri Lankans who seek asylum abroad. Many of the forced returns took place in the midst of intensified government security operations since March 2014, which saw scores of arrests and several deaths due to hazardous conditions at sea. Human Rights Watch and others have documented the authorities’ use of torture against people suspected of links to the LTTE, including those returned as failed asylum seekers from the United Kingdom and other countries.

[2016] AATA 4055

6 July 2016

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