1313904 (Refugee) - [2015] AATA 3336

1313904 (Refugee) [2015] AATA 3336 (21 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1313904
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Stuart Webb
DATE:21 August 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
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Statement made on 21 August 2015 at 10:36am
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] November 2012 and the delegate refused to grant the visa [in] September 2013.
The applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.
RELEVANT LAW
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 of the same class.
Refugee criterion
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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 –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided the following statement with his application.
The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the PV officer.
I am a Sri Lankan citizen. I am an ethnic (Sri Lankan) Sinhalese and a Buddhist. I was born on [date], in [District 1], Sri Lanka.
The country to which I fear returning
I fear returning to Sri Lanka.
Why I left Sri Lanka
On the [date] I joined the Sri Lankan police as a police [officer] and was posted to [Division 2]. I continued to serve in [Division 2] until 2005.
In 2004 I was assigned to the [Town 3] police station and as part of my duties was assigned the supervision of the mess. As the supervisor of the mess I was responsible for procuring provisions to serve 150 police personal. I purchased the vegetables from whole sale vendors at the [Town 4] junction near [Town 3].
[Town 4 and Town 3] were under the control of the Sri Lankan government forces during the day but was frequently infiltrated by LTTE who had control of the surrounding areas (i.e. [locations])
As a regular customer I became well acquainted with the vegetable traders who were ethnic Tamils. There were also wholesale suppliers of coconuts at the [Town 4] junction. These were ethnic Sinhalese from [District 1] which is my place of origin. Soon I built a good rapport with them as well. The coconut vendors asked me to introduce them to local people to whom they could sell the nuts wholesale and I introduced the vegetable vendors to the coconut vendors.
In my dealings with the coconut vendors I discovered that Sri Lankan army personnel attached to the [Town 3] jetty camp were extorting 300 nuts out of approximately 3500 in each lorry load. I considered this to be very unjust because I am well acquainted with the struggles of the coconut estates in [District 1] and the wholesale vendors. Therefore I advised, the coconut vendors to resist the demands of the army personnel. As a consequence I became unpopular with the army personnel at the camp.
Within approximately a week, I was summoned by the army when I went to [Town 4] junction. They took me to their van and asked me whether I could identify the individual inside. I identified the person inside the van as the wholesale vegetable vendor who was a Tamil. The Tamil personnel told me he was from the LTTE and that his telephone contained my mobile telephone. I told the army personnel that I knew the vendor well but was not aware of his connections to the LTTE if any. I requested the army personnel not to harm him. I proceeded to the Tamil man's father's vegetable kiosk which was situated further away. I informed the father about the son's arrest and asked him to rush to the brigade office situated at the paper corporation premises in [Town 3]. I did this as I was aware of the kind of treatment meted out by army personnel.
At approximately 2pm that day the father came to the police station where I was working. He was weeping and stated that he had been chased away at the brigade office. I advised the father to lodge a complaint with the police. However the other police personnel on duty refused to record the complaint. As far as I know the Tamil vendor did not return home to this day.
The following day I had loaded my vegetables in a three wheeler for transport to the camp and was travelling on my bicycle when I was intercepted by army personnel in a van. I was forcibly taken away in the van. Of the five men in the van only the driver was in army uniform while the rest of my abductors were in civilian clothing. I was taken to the [Town 3] jetty camp.
Torture at the camp
At army camp I was slapped several times and beaten with a plastic coated metal wire and also beaten on my back with a hammer. After approximately half an hour a senior ranking officer arrived at the camp. The individuals who were torturing me carried me with my chair into a bunker (i.e. the bunker was made of sand bags) behind the camp. While I was there in the bunker I pleaded with the solder inside of the bunker to escape. I told him I was a Sinhalese, a policeman and had nothing to do with the LTTE. I also told him about the incident related to the coconuts which had caused them to target me. The soldier was also from [District 1] and took pity on me. He told me he could not release me but that he would loosen the metal wire (which with my legs were tied to the chair) with which I had been tied to the chair and that he would move away for a few moments and would not intervene if I ran away during that time. I still carry the scars caused by the metal wire on my right ankle. I managed to run out of the bunker.
I ran through the rear of the camp to [a road] and stopped a man on a bicycle and convinced him to give a ride. I was spotted by the sentry at the intersection of [a road and Town 3] road. An army officer followed me on a motorbike. I ordered the man on the bike not to stop. Thereafter another officer that was running behind on foot opened fire with his pistol. I sustained 6 gunshot wounds
·my [fingers] on my left hand
·one on my [arm]
·on my [back] which lacerated my kidney
·which penetrated [me] and went through my [thigh]
·lower [thigh]
·left [leg]
The individual whose bicycle I was riding on received a shot on his chest which proved to be fatal.
I ran into a temple and the caretaker and people from the neighbourhood took me to the [Town 3] hospital.
The person that gave me a ride on the bike were transferred in an ambulance to [a] hospital where I was operated on. The other individual was transferred to [another] hospital and I heard that he had succumbed to his injuries.
I was transferred to [a second] general hospital for a further surgical procedure and admitted to [a ward]. Three days later army personnel had visited the hospital inquiring about me. The doctor upon hearing me story advised me not to remain in that ward. He transferred me to [a third hospital] where I was treated for 17 days. I was taken back to the [second] hospital for a further surgical procedure but was returned immediately to the [third] hospital.
When I was discharged from the hospital I went to my [sister’s home]. However I was told that the army and police personnel had visited my parents' home and searched the home and taken my brother [away] for questioning. My family advised me it was not safe for me to live with any of my relatives.
I decided to go to [a] village in Ampara district to a former colleague's house. I had helped him previously when he was interdicted by the police department and therefore I felt confident he would help me.
During the period 2005 — until 2008 I remained in [the] village in Ampara district at my former colleague's house along with my wife. After the birth of my [child], where was some disagreements between my wife and my friend's wife and as a consequence I moved to [Town 5] alone. I had met a bus driver from [Town 5] that frequently drove to Ampara and he invited me to go and stay in his village. I spelt in a shop that belonged to his son. I lived in [Town 5] for approximately 8 months and moved thereafter to [Town 6] due to my friendship with another bus driver [name]..
During this period I was not able visit my parents or my wife and children because both houses were under surveillance by the army. In addition both my family and wife's family were subjected to harassment by the Sinhalese people of the area as LTTE supporters / sympathisers as a result of the frequent army visits.
The situation got worse when my [brother] also was beginning to receive harassment. I feared for my life because at the time I had moved from [Town 6] to [village] to work in my [brother]’s shop.
The people in the village began to act suspiciously and started asking me why I remained in the shop and why I could not find better work. I realised it was only a matter of time before the authorities were informed by them. After the civil war civilians were encouraged to inform authorities about persons they suspected of having supported the LTTE. I am also aware that many such persons have been targeted by the armed forces, some had been killed while some had gone missing.
I feared for my life because of the injuries I carry on my body and also as I had come to the adverse attention of the Sri Lankan army and decided to flee Sri Lanka.
I am well known to the Sri Lankan authorities, many of whom are my former colleagues who are with the police at the present time and would easily recognise me.
As a former police officer, whose services have been terminated by the state as a result of continued absence I believe I will not receive sympathy or protection from the Sri Lanka authorities as I disappeared after having come to the adverse attention of the authorities.
What I fear may happen to me if I return to that country and why
I believe that I am at risk of being seriously harmed by the Sri Lankan authorities for reasons explained above.
The fact that I fled Sri Lanka illegally, claimed asylum in Australia more recently, have several visible scars on my body would only exacerbate the risk of being harmed.
I have been targeted by the Sri Lankan authorities hence cannot expect protection from them.
Why I think relocation to another area in my country is not a reasonable option.
The whole of Sri Lanka is unsafe for me.
The applicant provided a marriage certificate, birth certificate, learner’s permit from the Department of Motor Traffic, ID Card from the Sri Lanka Police Reserve.
The delegate considered the evidence of the applicant. The delegate stated that the applicant was largely consistent in his evidence, particularly in relation to his evidence as a police officer in [Division 2], and his injuries suffered. The applicant was less convincing regarding the Tamil vegetable sellers, the SLA and himself. The delegate did not accept that the applicant got in trouble because of any link with Tamils. The delegate considered that the applicant had difficulties with the SLA because of his concerns about the SLA stealing from Sinhalese vendors, and that he was shot escaping from custody.
The delegate had some concerns about what occurred in the hospital. The delegate accepted that he had medical treatment, and that the authorities would want to discuss the issue with him, given the nature of the injuries.
With respect to the applicant’s family, the delegate accepted that they had been visited by the SLA and police after the shooting, as this would be normal procedure. The delegate accepted that the applicant’s brother was harmed by the authorities at this time.
The delegate did not accept that the applicant had been in hiding since 2005. The delegate did not accept that the applicant would remain undiscovered for seven years if he was of interest to the authorities. The applicant worked and resided for extended periods of time in certain locations. The delegate considered the fact that the applicant was a former police officer would have been known more generally that as claimed by the applicant.

The delegate noted that the applicant had provided contradictory evidence about his wife’s whereabouts. The delegate did not accept that the applicant’s wife lived separately to the applicant.
The delegate noted that the applicant had provided a learner permit obtained in March 2012. The delegate did not accept that the applicant was in hiding if he sat a public exam in a public office.
The delegate did not accept that the SLA accused the applicant of being a LTTE sympathiser, that he could not be located between 2005 and 2012, that the police had harmed the applicant, that his wife had been taken away, that the authorities had come to question the applicant’s wife or taken his uniform.
The delegate did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm for his difficulties with the SLA, his illegal departure or his being a failed asylum seeker
The applicant’s representative provided a submission to the Tribunal. This stated that the applicant fears persecution because of his imputed political opinion, as an LTTE sympathiser or supporter, as well as his membership of a particular social group, as a returned failed asylum seeker. It was further stated that the applicant has an imputed political opinions as opposing the Sri Lankan government due to this actions while a member of the police force. He fears he will be imputed with an opinion opposing the Sri Lankan Army and Police, and that he has a membership of a particular social group as a 'failed asylum seeker'. It was submitted that he had departed Sri Lanka illegally.
It was submitted that:
While [the applicant’s] issues with the Sri Lankan Army and Police were not necessarily political issues or expressions of political opinions per se, we submit that in the Sri Lankan context — particularly during and after the civil conflict — such activities that [the applicant’s] has involved himself in may likely be perceived as threatening by the Sri Lankan state. In other words, we submit that [the applicant], in defending the Tamils and thereby defying the authorities, will also be seen to have an imputed political opinion against the State
It was submitted that the applicant had significant mental health concerns. A report from [a counselling agency] was provided that the applicant suffers symptoms consistent with PTSD, that he will suffer mental anguish if detained ‘in anticipation of further mistreatment and torture while in detention’.
It was submitted that the applicant has been consistent in his evidence. With respect to the applicant being easily found by the authorities it was submitted that:
at his first location of hiding in Ampara, he supported himself minimally by selling gram/chickpeas (however he did so mostly from within the safety of his colleague's house). He and his wife were, however, mostly forced to rely on the charity of his ex-colleague who provided them with their accommodation and most of their basic needs. It was only when the wife of his ex-colleague threatened to expose their hiding that they were forced to flee that area. [The applicant] reports that his colleague's wife threatened to expose them because of the difficult financial strain that housing and supporting the applicant was having on her own family. She threatened to tell the police about him, making it impossible for him to remain there safely. With this in mind, the delegate's findings about his circumstances were partly correct, however his ultimate conclusion that this would have likely resulted in the Sri Lankan Army "finding" him was erroneous.
Similarly, while he was working at his [brother]’s house, he avoided contact with other people as much as he could. If he needed to leave the house, he would travel at night time. He assisted his brother's business by preparing food. He states that he was upstairs while he did this work, out of the public eye, while the restaurant with the other staff and the customers was downstairs.
[The applicant] describes this period as very traumatic and difficult. He was forced to move to a number of different residences throughout this time, and spent a large period away from his wife and family. For example, during the applicant's stay with his sister in 2012, he recalls being so frightened, fearful and apprehensive, whenever he heard a vehicle drive by, he would hide for fear of his life. Ultimately, none of his family, friends or colleagues could bear the burden of harbouring such a distressed and persecuted man, that he was forced to make the decision to flee to Australia.
A post hearing submission was provided to the Tribunal. It addressed the Tribunal’s concerns regarding the links or support to Tamil separatism. It was submitted that the applicant had a well-founded fear of serious harm arising out of his actions while a police officer, which would be perceived to oppose the Sri Lankan government through his actions.
It was conceded that the applicant may not personally hold political views or have any significant involvement in political activities in the past, it was submitted that the applicant’s support of Tamil vendors and subsequent issues with the Sri Lankan Army and Police after he had exposed corruption, particularly during and after the civil conflict, would be seen as supporting the Tamils and thereby defying in some way the authorities, including his then employers, the police force. The applicant was challenging the authorities, and doing so from a position of authority himself. He has been previously detained and harmed, it was submitted that it is plausible that the authorities could take such actions in the future. it was submitted that the applicant has been consistent in his claims, including regarding his occupation, detention and harm committed against him. it was submitted that it is likely to happen again in the future. It was claimed that the applicant may be harmed in prison as a police officer.
The agent also provided further information about his health. A letter from a nephrologist advised that the applicant will likely need referral to a medical centre for education regarding potential renal replacement therapy. It was submitted that the combination of the applicant’s physical and mental health issues would make his situation worse than in other circumstances. it was submitted that the effect of imprisonment would be worse for the applicant in these circumstances.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Sri Lanka and provided copies of his identity card to the Department with his application. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act
Credibility
The Tribunal questioned the applicant at length about his circumstances and his personal experiences in Sri Lanka. The Tribunal found the applicant to be forthright and open about events that he claimed occurred in Sri Lanka.
The Tribunal accepts that the applicant was concerned about corrupt activities by military personnel, in particular in requiring goods to be provided by Tamil merchants and farmers. The Tribunal accepts that the applicant may have provided some advice that led to the merchants and farmers seeking to stop the corrupt activity. The Tribunal accepts that the actions of the applicant came to the attention of the SLA involved in the corrupt activity, and that he was forcibly taken to a military camp for questioning. The Tribunal accepts that the applicant was harmed while in custody in the military camp. The Tribunal accepts that the applicant was further harmed on escaping from custody, and accepts that the applicant was wounded in the manner described in his statement. The Tribunal accepts that the applicant received medical treatment. The Tribunal accepts that the applicant was sought after this event by members of the SLA. The Tribunal accepts that the applicant was required to live elsewhere in Sri Lanka to avoid the SLA members who had been seeking him.
However, there are further aspects of the applicant’s claims that the Tribunal does not accept. The Tribunal does not accept that there is any imputation of a pro-LTTE political opinion arising from the applicant’s concern regarding corruption in the SLA. The Tribunal does not accept that a Sinhalese police officer would be attributed with such an opinion simply because he knew some Tamils, and provided advice to them in the circumstances of their complaints. The Tribunal does not consider that this has led to any belief that the applicant is a supporter of or has assisted the LTTE in any way.
The Tribunal further does not accept that the applicant would be seen as a witness as to inappropriate treatment of Tamil civilians in the war, or requested to provide evidence of his knowledge of mistreatment. The Tribunal considers this element of the applicant’s claims, provided at the hearing for the first time, to be a concoction designed to embellish the reasons as to why the authorities would be interested in the applicant. The Tribunal considers that the applicant would have raised this earlier, had it been true. The applicant has no actual knowledge of any case being raised, and spoke of it as a potential outcome. The Tribunal considers this a speculative claim by the applicant and not based on any objective information. the Tribunal does not accept that element of the applicant’s claims.
The Tribunal considers that the applicant has raised issues of corruption in the SLA, which has caused him to be harmed in retribution for this action. There is country information that the leadership of the SLA were not concerned with the corrupt activity of members of the army. The army itself was and has been active in its establishment of commercial ventures that have competed against existing merchants and farmers, and there is information that the army has brought in these industries at the expense of local operators[1]. The Tribunal considers that the applicant’s actions were causing some difficulties with these operations of the certain SLA members, tacitly approved of by the leadership of the SLA, certainly, not curtailed. The Tribunal considers that this is the reason that the applicant was targeted, and not for any pro Tamil/LTTE perspective.
[1] A report from Minority Rights Group International of September 2013 stated that in the north and the east, ‘the military also runs businesses, farming and development projects, and controls civil society activity in these areas’.
The Tribunal also does not accept that the applicant remained in hiding and was sought in the intervening period. While the Tribunal is prepared to accept that there was an initial interest in the applicant, as he had escaped from custody, the Tribunal does not accept that the authorities, be it the SLA or the police sought the applicant over an extended period. The Tribunal accepts that in looking for the applicant at the time of the incident the authorities would have questioned family members regarding his whereabouts. The applicant lived in certain locations for an extended period, including getting documentary evidence about himself, which was issued. The Tribunal considers that the applicant may have maintained a lower profile, but that he was not a person of interest after a period of time had expired. The Tribunal does not accept that the applicant was being sought for the duration of 2005 to 2012, prior to his departure from Sri Lanka.
Claims
The applicant has claimed he will be harmed because of an imputed anti-government opinion, from his being a failed asylum seeker and due to the manner of his departure. The applicant has stated that this is further complicated by the physical and mental health issues that he faces arising out of his mistreatment, evidence of which the applicant has provided.
The Tribunal considers that the applicant’s circumstances are unusual. The Tribunal considers that there would be few Sri Lankan Sinhalese policemen who have sought asylum. That the applicant has had significant issues with aspects of the authorities, in the form of the SLA in the past is accepted, and the Tribunal accepts that the applicant has been harmed by those authorities in the past. The Tribunal considers that in these circumstances the cumulative issues that face the applicant provides a compelling case that the real chance of serious harm exists in this instance.
The Tribunal has considered the advice as provided with respect to the processes for dealing with failed asylum seekers and those who may have illegally departed from Sri Lanka.
With respect to failed asylum seekers, the following country information is relevant. Specific advice received from the DFAT, discussed with the applicant at the hearing, indicates that Sinhalese returning to Sri Lanka are subject to the same entry procedures as any other citizen:
R1. Returnees are subject to standardised identity and security checks regardless of ethnicity and the circumstances of their departure from Sri Lanka. Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Government of Sri Lanka has standardised re-entry procedures in place at the airport to undertake identity and security checks for all returnees. These processes are applicable to all Sri Lankan returnees regardless of ethnicity and are standard for returnees from all countries regardless of the circumstances around their departure from Sri Lanka (i.e. regardless if the returnee is voluntary or involuntary).
In general, all arrivals at the airport are screened against an immigration database. Sri Lankan law enforcement agencies, including intelligence agencies, may place alerts against names in the immigration watchlist. A person with an alert against his or her name would be subject to further questioning at the airport.
Where a person is not on the immigration watchlist but the person is otherwise identified to be of security interest, such as if a person has been removed/deported (returnee) or is suspected of being involved in criminal behaviour, including people smuggling, s/he is likely to be interviewed by Police's Criminal Investigation Department (CID) airport office or the State Intelligence Service (SIS), or both. This checking would occur regardless of ethnicity.
We understand that where a person is known to be a non-voluntary returnee (we note again regardless of ethnicity), Sri Lankan immigration authorities have a standing agreement to refer the person to both SIS and CID at the airport for questioning.
The process for returnees (non-voluntary and/or voluntary returnees) who have departed Sri Lanka illegally (not through an official port of entry/exit or not with a valid travel document) is that they will be processed by Sri Lanka's Department of Emigration and Immigration (DIE), SIS and Airport CID. Procedures include Airport CID obtaining police and security clearances, including from the person's local police office, to confirm there are no outstanding warrants against the person before they are allowed to exit the airport. …
In situations where the person is required to be interviewed by Sri Lankan security agencies, the SIS interview would normally precede the police interview. In the SIS interview, the returnee would be checked against intelligence databases. In the police interview, checks against police databases would be made, fingerprints would usually be taken and the person photographed. It would also be common for the person to be held until checks are made with the returnee's local police station.
Increasing numbers of Sri Lankans have been returned from Australia either voluntarily or non-voluntarily in 2012. A representative from Post (DIAC) is present at the airport for the arrival of non-voluntary returns. The arrival of voluntary returns is facilitated by the International Organization of Migration. Based on post's current experience, Sri Lankan agencies endeavour to complete identity and security checks as soon as possible. Police's Deputy Inspector General of CID has advised post that CID endeavours to complete all processing at the airport as quickly as possible with no unnecessary delays. Post has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.
R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.
We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they have facilitated.
We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report "Sri Lankan Tamils tortured on return from the UK" [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:
"We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture."[2]
[2] CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012
The UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankan – particularly Tamil – asylum seekers returned to Sri Lanka following the rejection of asylum claims, but acknowledged that ‘[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned’.[3]
[3] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p.8 < <CIS29707>
However in the country guidance case of GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) it was determined that:
There are no detention facilities at the airport. Only those whose names appear on a stop list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days , see paragraph 356 (6).
A person whose name appears on a computerised ―stop list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a stop list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant, see paragraph 356- 7(d).
The authorities maintain a computerised intelligence-led watch list. A person whose name appears on a watch list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces see paragraph 356- 7(9). [4]
[4] UK Home Office Operational Guidance Note Sri Lanka July 2013

The Tribunal notes that reports from Freedom from Torture, Amnesty International and Human Rights Watch all reported instances of torture for some people who had returned from overseas. The Tribunal noted that the risk of torture in these reports detailed the concern for Tamil asylum seekers, the submission of the applicant’s agents predominantly raise Tamils as being subject to harm in detention, indeed stated that ‘torture and mistreatment of detainees remains widespread in Sri Lanka, particularly in respect to Tamil detainees’[5]. It was submitted that the torture was carried out with impunity in police custody.
[5] P10 of 6 August 2015 submission, AAT Folio 45
In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that ―[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity.[6] Further information on procedures at the airport can also be found in the UK Home Office Country of Origin Information report of March 2012.[7]
[6] Immigration and Refugee Board of Canada, ‘Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport’, LKA103815.E, 22 August 2011 CIS29896
[7] UK Home Office, Sri Lanka: Country of Origin Information (COI) Report‘ 7 March 2012, 7 March, pp.202-203 CIS29709
The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:
UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.[8]
[8] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012, p.8 CIS29707
With respect to the illegal departure from Sri Lanka, the Tribunal accepts that the applicant has illegally departed Sri Lanka, departing by boat and travelling to Australia. The DFAT country information cited above discusses the process on return to Sri Lanka. The Department of Emigration and Immigration (DIE) would interview the applicant on return to Sri Lanka. It is likely that the applicant’s unlawful departure will be identified by DIE and the applicant may face criminal sanction due to the manner of his departure. The Tribunal raised this country information with the applicant for comment, including that he would face charges that any person who left Sri Lanka in a manner that is proscribed by Sri Lankan legislation would face.
DFAT states in its February 2015 report on Sri Lanka that:
Offences under the Immigrants and Emigrants Act
5.27 Most Sri Lankan returnees 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 international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court 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 are held at the nearby Negombo Prison.
5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.
5.29 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 [9]
[9] DFAT report February 2015
The Tribunal notes that the country information states that individuals charged with this criminal offence are held in prison prior to being brought to the court. The applicant has provided submissions as to why he believes he will be held by the authorities and harmed while being detained.
The Tribunal has considered the circumstances of the applicant returning to Sri Lanka. The Tribunal considers that the applicant would be stopped at the airport and questioned, as per the country information. The Tribunal considers that the applicant’s past employment as a police officer would be disclosed or determined through enquiries. The applicant’s physical injuries would be readily apparent to those questioning him on his return to Sri Lanka, leading to further questions as to how these injuries were suffered. Given the applicant’s known mental health condition, the Tribunal is concerned that the applicant would disclose information pertaining to his previous history that may lead to further enquiries, and in particular, extended detention for the purposes of investigating the applicant’s past history.
The Tribunal considers that the applicant’s prior history in the police force would become known to those interviewing him at the airport. The Tribunal considers that potentially his position on corruption may also become known again leading to further enquiries and discussions regarding the applicant. The Tribunal does not consider that, in the particular circumstances of the applicant, that he would be processed as per the many other individuals returning to Sri Lanka as failed asylum seekers and having illegally departed. The Tribunal considers that the prospect that the applicant would be detained for a longer period of time exists in the particular circumstances of the applicant.
The Tribunal considers that in the circumstances the applicant is likely to be taken to prison while enquiries are pursued regarding the applicant’s background and circumstances. The Tribunal notes that being taken to prison is a normal process as per charges under the I & E Act, prior to the ordinary process of being brought before a Magistrate for bail purposes after being charged.
The charges themselves are uncontroversial in their application. Individuals who have left Sri Lanka illegally, like the applicant, are prosecuted under Sri Lanka’s I&EA referred to above. It is established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[10] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[11] As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[12]
[10] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.
[11] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].
[12] Applicant A v MIEA (1997) 190 CLR 225, at 233.
The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[13] In Applicant A Dawson J agreed with the observations of the Full Federal Court in that case that:
Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.[14]
[13] See eg, Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA (1999) 57 ALD 613 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001).
[14] Applicant A v MIEA (1997) 190 CLR 225, at 245 citing with apparent approval MIEA v Respondent A and B (1995) 57 FCR 309 at 319.
While the implementation of laws of general application does not ordinarily constitute persecution, there is no rule that the implementation of such laws can never amount to persecution. A law of general application is capable of being implemented or enforced in a discriminatory manner.[15] Where laws of general application are selectively enforced, in that the motivation for prosecution or punishment for an ordinary offence can be found in a Convention ground, or the punishment is unduly harsh for a Convention reason, then Convention protection may be attracted.
[15] Ibid at [21], Applicant S v MIMA (2004) 217 CLR 387 at [42].
The evidence before the Tribunal does not indicate that Sri Lanka’s I&EA provisions dealing with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent. The Tribunal is satisfied the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees. The Tribunal is not satisfied that application of these laws to the applicant involves systematic or discriminatory conduct as required under s.91R(1)(c) of the Act. The Tribunal finds that the applicant will be held on these grounds and charged under this provision. That in itself does not provide any obligation of protection.
However, there is certainly cause to consider that the applicant, detained in prison, will not be treated as per the vast majority of those who breach this law, and will be detained for a longer period of time while further enquiries are pursued regarding the applicant’s circumstances.
Harm in Detention
An October 2014 report by Amnesty International[16] states as follows:
Torture and other ill-treatment of detainees – including sexual violence – remain common and widespread in Sri Lanka, especially at the moment of apprehension and early stages of pre-trial detention and appear, judging from the testimony of victims, to be aimed at extracting information or confessions as well as to mete out punishment for suspected infractions or criminal affiliations. Amnesty International has received of reports from victims and Sri Lankan human rights defenders of torture of both adult and juvenile detainees; this includes individuals arrested in the context of security operations as well as suspects in ordinary criminal cases.
…
The Sri Lankan government has denied the routine use of torture, stating in its response to the concluding observations issued by the Committee against Torture (CAT) on 25 November 2012 that “it is an unfounded allegation that in a general manner of conducting investigations, the police officers resort to torture and other sort of degrading and inhuman actions to extract confessions of suspects and detainees.” Yet, Amnesty International continues to receive frequent and consistent complaints of torture and cruel, inhuman and degrading treatment by police and other security agencies … The lack of political will on the part of the authorities to end custodial abuse, investigate complaints and discipline and prosecute persons suspected of committing torture is the principal reason that torture persists in Sri Lanka.
[16] Amnesty International 2014, Ensuring Justice: Protecting Human Writes for Sri Lanka’s Future, ASA 37/011/2014, October , p.17 < >
DFAT ‘s 16 February 2015 Country Report on Sri Lanka includes the following [paras 4:17-4:21]:
In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group.
Torture may be used to extract information or confessions from suspects. Although evidence obtained by torture is generally inadmissible in courts in Sri Lanka, for those suspects held under the PTA, all confessions obtained at or above the rank of Assistant Superintendent of Police are admissible in court.
Victims of torture can complain to the HRCSL or directly to the Supreme Court about violation of their fundamental rights. There were a total of 535 complaints of torture reported to the HRCSL in 2012. However, it is difficult to determine the prevalence of torture with any accuracy which means that few reports are proved or disproved. Disciplinary action can also be taken if such complaints are made against the police or in prisons, but there have been few recent cases where charges have been brought against police officers for torture.
DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.
However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention. It is too early to make an assessment as to whether this will change under the Sirisena government.
The Tribunal notes that that DFAT’s 3 October 2014 Country Report on Sri Lanka (at para 21) reports the issue slightly differently, given the alteration in the political situation in Sri Lanka. However the substantive issue remains the same for those suspected of people smuggling.
Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.
Prison conditions in Sri Lanka are generally considered substandard in comparison to the international norm. Lower standards are to some extent attributed to overcrowding resulting in inhumane conditions for inmates. Prison overcrowding is largely the result of those in remand and court backlogs, and the detention of petty criminals and repeat offenders. The Ministry of Rehabilitation and Prison Reforms was established in 2010 to reform the prison system. The Ministry has implemented various measures that aim to reduce the prison population, clear court backlogs, propagate community based corrections as an alternative to imprisonment for minor offences and improve prisoner rehabilitation. Notwithstanding this, recent reports indicate prison congestion remains a serious problem.
A 2013 US Department of State human rights report on Sri Lanka describes prison conditions as ‘poor’ and not meeting international standards due to overcrowding and sanitary conditions.[17] According to the US Department of State report:
In many prisons inmates reportedly slept on concrete floors and often lacked natural light or sufficient ventilation. According to prison officials and civil society sources, prisons designed for approximately 11,000 inmates held an estimated 32,000 prisoners. More than 13,000 of these prisoners were either awaiting or undergoing trial. There were approximately 1,400 female prisoners. In some cases juveniles were not held separately from adults. Pretrial detainees often were not held separately from convicted prisoners. Petty criminals often were incarcerated with perpetrators of more serious crimes. Female prisoners were held separately from male prisoners and in generally poor conditions. Prisoners and detainees had access to potable water. Authorities acknowledged poor prison conditions, but cited lack of space and resources as limiting factors.
There were no ombudsmen to handle prisoner complaints. There were alternatives to incarceration for nonviolent offenders, including community service and community-based corrections alternatives. Community-based corrections included elements of rehabilitation and counseling in addition to community service work.[18]
[17] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014, <
[18] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014, <
A statement made by the Minister for Rehabilitation and Prison Reforms in 2010 offers more a more detailed account of conditions in 2009 with information particularly relevant to prisoners on remand, as the applicant would be, for an uncertain period of time:
Over 148,740 prisoners were admitted to prisons in 2009. Of them 37,872 were those convicted of various crimes while the majority - 108,868 were remand prisoners. The daily average of inmates at the Welikada, Magazine and Colombo Prisons was around 9,000 in 2009 despite accommodation and facilities available for less than one-third of them…The situation relating to remand prisoners is deplorable. Some of them are in prison for only a day while others are languishing for years until their release on a court order.[19]
[19] UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, Section 11 ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/srilanka12/report-070312.pdf?view=Binary Accessed 9 May 2012

A 2012 International Committee of the Red Cross report indicated that overcrowding has been one of the most pressing issues within the Sri Lankan prison system.[20] A 2010 news article reported that overcrowding is a problem mainly within remand prisons due to the imprisonment of petty criminals.[21] In 2010 a UK Foreign and Commonwealth Office report indicated that, overcrowding was caused in part by large backlogs in court cases and large numbers of prisoners detained on minor charges due to their inability to pay fines.[22] That same source reports that the majority of the prison population consist of either pre-trial detainees or convicted inmates serving less than three months.[23]
[20]International Committee of the Red Cross 2012 A systemic approach to tackling recurrent problems in prisons, 15 May 2012 < (CISNET CX297890).
[21] Kanangara, N 2010 ‘Plans for Prison Reforms’, The Sunday Leader, 16 May < (CISNET: Sri Lanka CX248504).
[22] United Kingdom: Foreign and Commonwealth Office, Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report - Sri Lanka, 31 March 2011, < (CISNET: Sri Lanka CX262354).
[23] United Kingdom: Foreign and Commonwealth Office, Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report - Sri Lanka, 31 March 2011, < (CISNET: Sri Lanka CX262354).
A 9 September 2013 Colombo Page article reported on comments made by Sri Lanka’s Commissioner General of Prisons about the then current prison conditions:
Sept 09 [2013], Colombo: Sri Lanka's Commissioner General of Prisons Chandraratna Pallegama said that the country's prisons are severely overcrowded.
He said that seven prisoners are housed in some instances in the cells made for one prisoner. This has caused severe anxiety among the prisoners and the health conditions such as skin diseases have increased.
The Commissioner said that at present, 27 prisons island wide house 27,000 prisoners including remand prisoners. Half the inmates are remand prisoners languishing in the jails until their cases heard in courts.
Repeat offenders, the Minister pointed out were one of the main reasons for the overcrowding of prisons.[24]
[24] ‘Severe overcrowding in Sri Lanka’s prisons’, 2013, Colombo Page, 9 September <
Official statistics reporting prison inmate figures vary. A Colombo Page article quoted the Commissioner General of Prisons report a total of 27,000 prisoners including remand prisoners in September 2013.[25] Whereas the Ministry of Rehabilitation and Prison Reform report the total prison inmate population as at 15 October 2013 was 22, 414.[26] This figure represents capacity of 190.6 percent according to the report.[27] Remand prisoners accounted for 49.3 percent of the prison population as at 15 October 2013.[28] A total of 13, 320 convicted were in community based correction between 1 January 2013 and 31 August 2013.[29] During that same period there were 64 deaths of prisoners and suspects in correctional facilities.[30]
[25] ‘Severe overcrowding in Sri Lanka’s prisons’, 2013, Colombo Page, 9 September <
[26] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <
[27] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <
[28] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <
[29] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 <
[30] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 <>
The current UK Operational Guidance Note on Sri Lanka states:
3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 threshold and a grant of humanitarian protection may be appropriate - see exclusion below.
3.16.11 The Tribunal in GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) [section 2.4 – Caselaw], found that if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection, see paragraph 356 (4). For both men and women perceived to be connected to the LTTE or as advocates of Tamil separatism, there may be a heightened risk in prison of ill-treatment and caseworkers will need to consider whether a grant of asylum based upon imputed political opinion is appropriate.[31]
[31] UK Home Office: Operational Guidance Note Sri Lanka, July 2013.
USDOS report that “isolated incidents of degrading treatment” including corporal punishment, maltreatment and abuse also occur.[32] A 2011 report published by Amnesty International states that “[s]ome detainees report being tortured and beaten by military personnel and paramilitary cadres working with government forces, such as the army and navy; by police, by inmates and by prison guards”. In addition, the report states that “[e]nforced disappearances continue to be reported and bodies of victims of extrajudicial killings often show evidence of torture”.[33] While no information was located specifying the exact frequency of such instances of maltreatment, media outlets report frequent instances of violence between inmates and prison guards.[34]
[32] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1
[33] Amnesty International 2011, Sri Lanka: Briefing to Committee Against Torture, ASA 37/016/2011, October , p.5 asa370162011en.pdf Accessed 23 March 2012
[34] Haviland, C 2012, ‘Sri Lanka ‘must seek’ UN help over deadly prison violence’, BBC News bbc.co.uk/news/world-asia-19274037 Accessed 19 September 2012; UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, Section 11 /policyandlaw/coi/srilanka12/report-070312.pdf?view=Binary Accessed 9 May 2012
According to USDOS, while authorities acknowledged poor prison conditions during 2011, lack of space and resources inhibited reform.[35] Conversely, according to the UK Home Office, President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In addition, the government has also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[36]
[35] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1
[36] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March a,0.html Accessed 7 April 2011; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1
The Tribunal has also considered country information drawn from research by the RRT’s former Country Advice Service which indicates that mistreatment, including torture, is sometimes carried out against inmates in prisons in Sri Lanka. French NGO Action des Chrétiens pour l’Abolition de la Torture (ACAT-France) reported in 2012 that “[i]n 2011 and 2012 Tamil Sri Lankans who had returned to their country, sometimes after having their requests for asylum dismissed, indicated that they had been tortured and subjected to ill-treatments upon their return to Sri Lanka in order to confess to presumed links with the Tamil Tigers”. The same report also noted that “[t]he phenomenon of torture … affects Sinhalese groups as much as Tamils”.[37] Similarly, the Danish Immigration Service cited comments made by a “leading human rights defender in Sri Lanka” in 2010 in which he stated that while torture is frequently practised in prisons, it is not targeted towards certain ethnicities, but rather “related to the conflict in general”.[38]
[37] ACAT–France & ALRC 2012, When arbitrariness prevails. A study of the Phenomenon of Torture in Sri Lanka, p. 16
[38] Danish Immigration Service 2010, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010, October, p.50
The Tribunal finds that the country information set out above indicates that individuals who are held in prison in Sri Lanka for anything other than a very short period of time face a real chance of suffering cruel or inhuman and degrading treatment because of the extremely poor conditions of prisons in Sri Lanka.
The Tribunal considers that the particular circumstances of the applicant raise the possibility of him being harmed while being detained. He is an ex-police officer, Sinhalese, and will be under investigation for his activities that led to his decision to depart from Sri Lanka illegally in 2012. The Tribunal considers that these investigations will take some time, given the time that has passed since the applicant has left, and information pertaining to what may have occurred in 2005 was obtained. The Tribunal considers that the applicant will be detained during this time while the information is sought and considered.
The Tribunal considers that there is a real chance that the applicant will not be provided bail, while further investigations into his circumstances continue and that his detention pending the determination of his circumstances will be extended. The Tribunal has therefore considered that the prospect of the applicant being harmed by the Sri Lankan authorities during this extended detention.
The Tribunal considers that in investigating authorities may well use intimidatory investigative techniques to get information from the applicant, as detailed in the reports cited above. The Tribunal considers the fact that the applicant had previously been a police officer would not lead to any softer approach by the interviewing authorities, but may well lead to an exacerbation of the treatment of the applicant in the circumstances. The Tribunal considers that the process of extracting information from the applicant may lead to him being harmed.
The applicant’s experience in prison may also be affected by this knowledge that he was previously a police officer, leading to potential harm from prison guards and other prisoners while being detained.
Given the applicant’s detailed physical and mental health conditions, the Tribunal considers that the applicant may well experience serious harm during his detention, either through harm from authorities during interviewing processes, or through mistreatment amounting to serious harm from prison guards or other prisoners held in the jail. Article 1A(2) of the Refugees Convention requires that a person’s fear of persecution be “well-founded”. The High Court in Chan Yee Kin v MIEA (1989) 169 CLR 379 held that the concept of “well-founded fear” requires an objective basis for the fear. There is a basis for the fear if there is a “real chance” of being persecuted. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility: a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal considers that the prospect of the applicant being harmed in prison cannot be said to be remote, but is a plausible outcome based on the particular set of circumstances of the applicant. The Tribunal considers that the applicant’s background as an ex-policeman, who raised issues of corruption in the SLA, escaped from the custody of the SLA, and ultimately fled the country due to fears of harm because of his previous experience, would be seriously harmed on return to Sri Lanka.
The Tribunal considers that the applicant’s claims for protection are Convention based, a combination of the imputed political opinion against the SLA, and thus the authorities, and membership of a particular social group. His past actions could be seen to be breaching the unofficial policy, perhaps supported, or at least tolerated, of developing army run commercial enterprises against local operators, in particular Tamil operators. He has escaped from the authorities who were harming him. He is an ex-police officer, who has knowledge of the practices of the authority’s actions during the civil war. The Tribunal considers that the actions of the applicant could be imputed to be a political opinion. Further, the background of the applicant could be construed as a particular social group. The Tribunal is satisfied that the applicant will be persecuted for a Convention reason.
Having considered the applicant’s claims cumulatively, the Tribunal finds that there is a real chance that is more than remote that should he return to Sri Lanka now or in the reasonably foreseeable future the applicant will encounter serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act. The Tribunal further finds that the essential and significant reasons for the harm would be the applicant’s imputed political opinion and membership of a particular social group 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. As the harm feared by the applicant is at the hands of state actors, and will occur on his return to Sri Lanka, when he is in the custody of the authorities, the Tribunal finds that the harm feared is not localised and the applicant could therefore not avoid it by means of internal relocation. As the harm feared is at the hands of state actors, the Tribunal finds also that state protection is not available to the applicant.
On the available evidence the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion and membership of a particular social group 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.
Stuart Webb
Member