1402250 (Refugee)

[2016] AATA 4910

1402250 (Refugee) [2016] AATA 4910 (7 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1402250

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Magda Wysocka

DATE:7 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 September 2016 at 2:06pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Federal Circuit Court appeal – Irregular maritime arrival – Ethnicity – Tamil – Imputed political opinion – Father’s work for LTTE – Uncle’s high ranking role in LTTE – Applicant’s assistance for uncle – Applicant detained by CID ­– Failed to report to CID – Credibility issues – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994

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

1. 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).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 27 November 2012 and the delegate refused to grant the visa on 7 February 2014.

3. The applicant appeared before the Tribunal on 3 August 2016 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.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. The issue in this case is whether the applicant is owed protection obligations by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

20. The applicant is [an age] year old unauthorised maritime arrival who entered Australia on 2 August 2012. The following is a summary of his claims based on information provided to the department and new information provided to the tribunal. He is a Tamil Hindu from [Village 1], [District 1]. His father worked for the LTTE [and] his uncle was a well-known LTTE member whom the applicant assisted by driving him around and carrying his weapons. The applicant’s family was displaced during the final stages of the Sri Lanka civil war and at the end of the war was taken to a camp where they remained until 2010. After returning to their village the applicant was stopped by CID. In June 2012 when in Colombo for a cricket match, the applicant was questioned by CID on suspicion of being an LTTE fighter or supporter. He was released after the intervention of his cricket coach and told he had to report to CID in [District 1]. The applicant did not do so and left Sri Lanka soon afterwards. After his departure, the CID have inquired about the applicant’s whereabouts and authorities have demanded that his uncle regularly sign in on the applicant’s behalf.

21. The applicant’s evidence and submissions provided to the tribunal on his behalf indicate that he fears harm due to his Tamil race and as an imputed LTTE supporter due to his origins from a formerly LTTE controlled area in the North, a scar on his leg from a 2008 bomb blast, his uncle’s former LTTE membership and the applicant’s provision of assistance to his uncle, his father’s work for the LTTE, his past encounters with CID and accusations of LTTE affiliation including the CID’s requirement that he report to them weekly and his having sought asylum in Australia. Claims have also been raised regarding harm due to the applicant’s membership of the particular social group of ‘failed asylum seekers in Sri Lanka’.

22. The departmental delegate accepted the applicant’s claims of being injured in a bomb blast, that he was in a Jaffna camp from 2009-2010 during which he was questioned by the Sri Lankan Army (SLA) and questioned by the CID in 2011 and 2012. However the delegate found that the applicant embellished the rest of his claims and did not accept that he was of any interest to the authorities.

23. Country of reference

24. The applicant has provided various Sri Lankan documents including his birth certificate, his school certificates, mother’s birth certificate and father’s death certificate. The tribunal accepts on the basis of these documents and his general evidence that he is a Sri Lankan national and has assessed his claims as such.

    Credibility  

25. The applicant presented as well-educated and intelligent. He was able to describe certain incidents in relative detail and certain aspects of his evidence have been consistent. However, like the delegate the tribunal has significant concerns that the applicant has attempted to embellish many aspects of his claims in order to strengthen his protection claims. This is particularly so given the introduction of new claims prior to the tribunal hearing including about his father’s work for the LTTE and the applicant’s assistance to his LTTE member uncle in the last few months of the war. As discussed with the applicant at hearing, raising significant new claims at a later stage may give rise to credibility concerns. The tribunal acknowledges that there may be valid reasons for disclosing significant claims at a later stage, for example in the case of previously undisclosed sexual assault. In this case, the applicant has claimed that he was confused about what to say because he was told at the beginning never to disclose that he was with the LTTE and was scared that this information may be used against him. He stated that no country likes terrorists and that the reason he is now disclosing it is because he wants to tell everything as it is.

26. The tribunal has considered this explanation but finds that the applicant’s credibility is further undermined by significant inconsistencies in his evidence including between new information set out in submissions on his instructions (and accompanied by the applicant’s signed statement that the submissions accurately and comprehensively present his claims) and his evidence at the tribunal hearing. The tribunal further has concerns about the plausibility of several aspects of the applicant’s claims, as discussed in further detail throughout the decision. Contrary to oral submissions from his representative, the tribunal does not find these discrepancies to be minor or slight. Generalised reasons were suggested in oral submissions to explain the inconsistencies including trauma, the length of time elapsed and memory lapses. Given the nature of the discrepancies, as described in this decision, the tribunal does not accept that these factors satisfy the tribunal’s concerns. The tribunal notes that no independent evidence has been provided regarding any trauma or its impact on the applicant’s ability to give evidence.  On the contrary, the applicant was able to effectively engage with the tribunal during his hearing including providing an account of his claims and actively engaging in discussion regarding country information. Given this, while the tribunal acknowledges that an applicant may be anxious due to the somewhat formal setting of a tribunal hearing, it also does not accept that any anxiety or unfamiliarity with a formal interview setting impacted upon the applicant such as to explain the numerous deficiencies in his evidence. 

27. The tribunal further does not accept submissions that inconsistencies or discrepancies have arisen due to confusion about how the applicant was asked a question or not being given an opportunity to explain his evidence at his departmental interview. The tribunal notes that the applicant was represented at that interview and it was open to him to seek clarification regarding questions at that interview or to provide post-interview clarification. This was not done. The tribunal further notes that some of the evidence giving rise to its concerns was provided by the applicant at hearing, where these concerns were raised with him and where he had opportunity to clarify his evidence and respond to concerns. The tribunal further notes that the applicant and his representative were asked if they wanted time to provide further written submissions in response to concerns, which was declined. Following this a request was made for two weeks to provide written submissions, which the tribunal granted, but within that time period the tribunal was advised that, on the applicant’s instructions, submissions would not be forthcoming.

    Applicant’s background and new claims regarding LTTE involvement

28. The tribunal accepts uncontested evidence before it that the applicant is a Tamil Hindu from [Village 1] village, [District 1].

29. In submissions received prior to the hearing, new information was provided on the applicant’s instructions that his father worked for the LTTE [from] 2004-2009. Asked about this at hearing, the applicant elaborated that his father was involved in [a certain line of work] and was paid a monthly salary of 10,000 rupees. It was a situation when everyone in the community had to do some work for the LTTE. His family had no land so the father ended up doing that job because he needed it. His father was not a member of the LTTE but provided services to them. He worked in[a location]; [his work] area was within the LTTE camp, surrounded by fence. The applicant has not been there but there was a similar type [work] area in the LTTE camp in [Village 1]. There is some inconsistency in the applicant’s evidence about his father; the applicant instructs in submissions received that while the Sri Lankan authorities did not know about his father’s involvement, villagers do. However, at the hearing the applicant stated that his father’s LTTE work was not ‘open’.

30. The applicant has made further new claims in relation to his own LTTE involvement, first raised in pre-hearing submissions. These are that the LTTE approached his family demanding that the applicant join them but his uncle (an LTTE member) stopped the applicant from being forcibly recruited. He further claimed that he assisted his uncle by driving him around and carrying his weapons, as his uncle lost a leg in 2007/2008 and fractured an arm in 2008/2009.  

31. As noted above, the tribunal raised concerns at the hearing about why the applicant had not mentioned this information before. The applicant gave evidence that he was scared to disclose that his family was involved with the LTTE. It was pointed out to the applicant that he had already referred to his uncle being an LTTE member in his entry interview. The applicant stated that everyone knew his uncle was in the LTTE but not about the applicant or his father and that they never told the SLA that they had any LTTE association. The applicant referred to being told never to disclose his LTTE involvement because it may go against him. He further claimed he is disclosing everything now, because he wants to tell everything as it is. The tribunal also notes that submissions indicate the applicant’s instructions that he was upfront about his uncle’s LTTE involvement but not his father’s is because he believed he would be in greater trouble with Australian authorities if he admitted a direct family member had LTTE links.

32. The tribunal has considered the above explanations but gives them little weight in light of its overall concerns about the applicant’s credibility as well as concerns specifically relating to these late claims. The tribunal finds it difficult to accept, even taking into account the applicant’s above explanation, that he would make reference (in his entry and departmental interviews) to an uncle who was a former LTTE member but would fail to mention his father’s association with the [LTTE], given his evidence that his father was not even an LTTE member. While the tribunal has considered the representative’s submissions that Sri Lankan asylum seekers being told not to disclose LTTE links out of fear is ‘quite common’, as discussed at hearing, the applicant came to Australia for the purpose of seeking protection and would have been advised at every stage of the process the importance of providing truthful evidence. In circumstances where many other aspects of the applicant’s claims give rise to credibility concerns, the tribunal is not willing to accept the applicant’s reasons for the late disclosure of significant claims.

33. Other concerns have also led the tribunal to reject the applicant’s newly raised claims. Firstly, while the tribunal acknowledges that the applicant made reference to his uncle’s LTTE membership in his entry and departmental interviews (but not in his written statement), it was only at the hearing that the applicant claimed that his uncle was actually a Lt-Colonel or commander in the LTTE and that he commanded a battalion of over a hundred people. The pre-heaving submissions containing the applicant’s instructions regarding his new claims only refer to the uncle’s LTTE membership being known, but do not make reference to the applicant’s claims that his uncle was a commander.

1. Furthermore, the applicant’s instructions set out in pre-hearing submissions (which, as noted, were accompanied by the applicant’s signed statement that they accurately presented his claims) state that at the time the LTTE came to his home in early 2009, the applicant’s uncle told them that the applicant was already helping him with LTTE activities, where were carrying the uncle’s weapons and driving him around in January- February 2009. This indicates that the applicant was already helping his uncle in this way when the LTTE came to recruit him. However, at the hearing, the applicant clearly stated that he did not assist his uncle in this way until after the LTTE came to his home. Further inconsistent information was offered by the applicant and/or on his behalf regarding any assistance to his uncle prior to January 2009. The applicant told the tribunal after his uncle lost a leg in 2007, the uncle would come to the applicant’s home and his family would look after him (while confirming that he did not start driving his uncle/carrying his weapons until 2009). Oral submissions by the representative at the end of the hearing addressing discrepancies stated that the applicant instructed that he was helping his uncle out occasionally since 2007 but did not officially start assisting him with ‘full time duties’ until 2009.

2. Furthermore, evidence has differed on what happened when LTTE came to forcibly recruit the applicant. Submissions setting out the applicant’s instructions on these new claims state that the uncle first advised that the applicant was already assisting him with LTTE duties but, when this did not convince the men, the uncle advised that he would speak with his superior about the situation, after which the men left. In contrast, the applicant’s evidence at hearing was that, when the LTTE came to his house, his uncle advised them not to take the applicant by force and that he would convince the applicant to help the LTTE. The applicant claimed that after this the LTTE members just left because everyone knows who his uncle is. This is not consistent with the earlier version of this incident set out in submission on the applicant’s instructions but is consistent with the applicant’s attempts at hearing to elevate the LTTE profile of his uncle.

3. In the context of the above concerns and the late disclosure of these claims, the tribunal finds the applicant’s evidence that he drove his uncle around on a motorbike, including to meet LTTE leaders and commanders, and carried his uncle’s weapon around, while his uncle continued to engage in LTTE activities even though he had only one leg and a fractured arm to lack credibility. The tribunal has concerns why the applicant would be given the responsibility of transporting his uncle or carrying his weapon if his uncle was an LTTE commander particularly if his uncle had bodyguards, as claimed. In light of its numerous concerns about this evidence, the tribunal gives little weight to the applicant’s explanation that his uncle needed someone whom he could trust. The tribunal further notes that the applicant’s evidence of attempted recruitment by the LTTE in early 2009 and providing assistance to his uncle (who he claims lives in [Village 1] and was residing next door at the time of the attempted recruitment) in January-February 2009 appears inconsistent with the applicant’s written claims that his family was displaced from [Village 1] in 2008 to various villages before going to [a location], from where they attempted to travel to India before being intercepted by the Sri Lankan Navy (SLN).

4. While the tribunal acknowledges that many people living in formerly LTTE controlled areas had dealings with the LTTE, due to the above concerns, the tribunal does not accept that the applicant’s father worked for the LTTE [from] 2004-2009 as claimed. Given the applicant’s previous mention of his uncle having been in the LTTE, the tribunal is willing to give him the benefit of the doubt and accept that his uncle may have been in the LTTE from approximately 2006 until the end of the civil war in 2009 and is willing to accept that the uncle lost a leg in 2007/8 and fractured an arm during a shelling attack in 2008/2009. Due to above noted concerns, the tribunal does not accept any of the further new evidence provided by the applicant to the tribunal, including that the uncle was a well known LTTE Lt-Colonel or commander who led a battalion of 100 men or that he was in [a certain] regiment.

5. The applicant has claimed that prior to the final stages of the war, he was exempt from forced recruitment as he was the only child. There is some support for this proposition.[1] While the tribunal acknowledges country information indicating that the LTTE became conducting more aggressive forced recruitment campaigns as the conflict worsened, given inconsistencies and concerns above, the tribunal does not accept that in early 2009 the LTTE approached the applicant in order to recruit him or that the applicant’s uncle intervened or advised that the applicant was already assisting him, that he would either speak to his superior or convince the applicant to join the LTTE himself. While the tribunal is willing to accept that, after the uncle’s injuries dating from 2007 he may have on occasion received some assistance from the applicant’s family (such as looking after him), the tribunal does not accept that the applicant helped his uncle, either in an official LTTE capacity or unofficially at any time (including January-February 2009) including by driving him around on a motorbike or carrying his weapons.  

   Time in [a] camp

   [1] Rajan Hoole, Himal South Asian ‘A people on the run’ (February 2009)

6. The tribunal accepts as plausible on country information before it that the applicant and his family were displaced to various villages in 2008 and that during this time the applicant and his father were injured by flying shrapnel from a bomb and that the applicant has a scar from this incident on his lower [leg], which the tribunal saw at hearing. The tribunal accepts as plausible that the applicant’s family moved to [location] and that, during the final stages of the conflict, made arrangements in April 2009 to depart Sri Lanka by boat for India. The tribunal accepts as plausible that the applicant and his family were intercepted by the SLN and taken to [a] camp in Jaffna district.

7. The applicant has claimed that the SLA questioned him on three occasions while he and his family were detained at [a] camp about whether he was an LTTE member or supporter. In his written statement, the applicant claimed that his mother tried to tell the SLA that the applicant would not have been recruited as an only child but the SLA did not believe her. He further claims in his written statement that the SLA suspected that the scar on the applicant’s leg was from fighting for the LTTE, that he was hit during one of the interviews and told that even if he was released he would be kidnapped and brought back to the camp. However, when asked at the hearing if he was ever harmed at the camp, the applicant stated that he was not harmed and that, while they did ask him questions, they did not pay much attention to him.  

8. The tribunal is willing to accept as plausible that the applicant may have been questioned at the camp about whether he had any LTTE associations and about his scar. It is willing to accept that, on one of the occasions he was questioned, he may have been hit and that in the course of these interrogations the SLA may have threatened the applicant with being brought back to the camp. However, the tribunal does not accept the applicant’s attempts to indicate that the SLA had a serious adverse interest in him are credible for the following reasons.

9. As discussed with the applicant at interview, many actual and suspected LTTE members were identified in camps housing Tamils displaced from fighting, and taken for rehabilitation.[2] Country information indicates that the screening process for identifying LTTE members in such camps lacked transparency and credibility.[3] The tribunal is of the view that, if the SLA had serious suspicions that the applicant was an LTTE member, the applicant would have been separated and taken into a rehabilitation centre for actual and suspected LTTE members. The tribunal gives little weight to the applicant’s claim that while this was the case in Vavuniya camps, this did not happen in Jaffna, given its concerns about the applicant’s credibility and a lack of evidence provided by him to support this contention.

   [2] Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected Liberation Tigers of Tamil Eelam (LTTE) members or supporters, including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (January 2010-21 January 2011), 21 February 2011, LKA103663.E, available at: Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected Liberation Tigers of Tamil Eelam (LTTE) members or supporters, including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (January 2010-21 January 2011), 21 February 2011, LKA103663.E, available at: >

   The applicant has been inconsistent about when his family was released from the camp, at times stating it to be the end of 2010 (for example, at times during his tribunal hearing and in his written statement where he claims his family was released in December 2010) and at others claiming it was July 2010 (eg at other times at his hearing and in his departmental interview). The tribunal notes that the applicant has also given evidence to the department that his father passed away in September 2010, and told the tribunal that his father passed away after the family’s release from detention. On this evidence, the tribunal finds that the applicant and his family were released from [the] camp around July 2010. It accepts that the applicant’s father died in September 2010 from natural causes, noting that the applicant has provided an (untranslated) death certificate purporting to be for his father.

   Events after the applicant’s release from [the] camp

10. The tribunal accepts that the applicant and his parents returned to [Village 1] after their release from camp. The tribunal accepts as plausible and given evidence consistent with this including at his entry interview, that the applicant’s uncle was sent to a rehabilitation centre in 2009 and released around the end of 2010. The applicant claims his uncle told him that he was hit and tortured while undergoing ‘rehabilitation’; the tribunal accepts this as plausible given that country information indicates abuses of detainees at such rehabilitation camps.[4] The applicant claimed at hearing, and the tribunal accepts as plausible, that after his release, the uncle came to live in the grandmother’s compound, located on the same piece of land as the applicant and his mum. The tribunal further accepts as plausible that the applicant’s mother moved to her home area, [Town 1], in around February/March 2011 while the applicant remained mostly in [Village 1] to finish his schooling. 

    [4] US Department of State. Country Reports on Human Rights Practices for 2013: Sri Lanka (27 February 2014); BBC "'Tamils Still Being Raped and Tortured' in Sri Lanka." (8 November 2013); Human Rights Watch. "Sri Lanka: Rape of Tamil Detainees." (26 February 2013).

11. The tribunal accepts as plausible that in early 2011 the applicant and schoolmates were stopped on their way to school by SLA and CID at a checkpoint and asked for their ID cards.

12. The applicant’s evidence about what happened while he was questioned has been inconsistent. At the hearing, the applicant gave evidence that the authorities asked whether the applicant’s brother was a martyr or whether he was an LTTE member. When he said no, they asked how that was possible and took him and others into a type of house for further questioning. Because the camp is not far from his house, someone informed his mother and she came to the camp and started crying. His mother threatened to make it a big issue because he was a student. The authorities could not do anything and let him go. In his original statement, however, the applicant stated that during this incident, the CID retrieved a file about the applicant at their office and told him that he had been kept at [a] camp for 1 ½ years due for fighting with the LTTE. When the applicant was asked at the hearing about whether he had ever been shown any file, he initially referred to a form he claims he had to sign when stopped by the CID in Colombo (discussed further below), referred to seeing a ‘file’ when at [the] camp and stated that when he was questioned by CID in 2011 they said they had a file on him, but did not indicate that he had seen any physical file at the time.

13. The tribunal further finds it difficult to accept that, if the applicant was of any serious adverse interest to the authorities as an LTTE suspect, the CID would have released him simply because his mother threatened to make an issue out of it or because the applicant was a student.

14. The tribunal is willing to accept as plausible that after being stopped and their IDs checked, the applicant and his classmates were taken to an office for further questioning and that the applicant’s mother, upon finding out, came to the CID, after which the applicant was released. The tribunal accepts that after the applicant was released he avoided walking on that route. Given the tribunal’s concerns regarding the applicant’s evidence on this incident in particular and his evidence in general, it does not accept that the CID retrieved a file on the applicant or mentioned anything about such a file. The tribunal also does not accept that the applicant was told that he had spent time in [a] camp for fighting for the LTTE. It is clear from the applicant’s evidence that the camp he and his family were in was not a rehabilitation centre for LTTE members but rather a government-run camp or ‘welfare centre’ for Tamils displaced during the war.[5] As discussed with the applicant at the hearing, suspected LTTE members were separated and placed in separate detention facilities aka rehabilitation and training centres.[6] 

    CID questioning in Colombo and events leading up to the applicant’s departure

    [5] Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected Liberation Tigers of Tamil Eelam (LTTE) members or supporters, including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (January 2010-21 January 2011), 21 February 2011, LKA103663.E, available at: DFAT Country Information Report: Sri Lanka (18 December 2015); Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected Liberation Tigers of Tamil Eelam (LTTE) members or supporters, including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (January 2010-21 January 2011), 21 February 2011, LKA103663.E, available at: >

    The applicant has claimed that in June 2012 while on a trip to Colombo to play district cricket with his club, he and other teammates were stopped by the SLA, that the CID were called and that they took the applicant to a CID office for further questioning.

15. The applicant has provided a level of detail regarding this incident, some of which has been relatively consistent. At the hearing, he stated that he and other teammates decided to do some sightseeing. There was a checkpoint where they were asked for IDs. The applicant’s ID card clearly says he is from [District 1] and the SLA asked him where in [District 1] he was living. All the boys that came with him (about three or four in total) had martyrs in his family. He claims that their coach told them that wherever they go, they should take all documents with them including if they had a martyr in their family. The SLA told him that he should have been in the LTTE. They took him for investigation somewhere else; he does not know where. There was an interpreter there asking if the applicant had been involved in the LTTE. The applicant explained that he was the only child and had come to play cricket. The authorities did not trust anything he said because (according to what they said) they knew everyone in that area was involved in the LTTE. During the questioning, they took some sticks and pretended they were going to hit him but did not actually do it. He cried a lot. In his written statement he referred to the interview lasting two hours and the CID threatening him with jail because he was a Tamil Tiger.

16. The applicant further described at hearing that the two boys with him who were released went and told the coach that the applicant had been captured. The coach knew Sinhalese well, asked at the checkpoint and was able to find the applicant. The coach asked the authorities to release the applicant. The coach was talking to them and went to speak to someone higher above him in sports about the situation. The applicant was eventually released and told that he would have to report weekly to the CID office in [District 1].

17. While the above account of this incident has been generally consistent, at the hearing the applicant further claimed that he had to sign a form confirming that he was involved with the LTTE before he was released. According to his hearing evidence, he asked why he should sign as he was not involved in the LTTE. The CID said if he continues to argue with them they will put him in a ‘concentration camp’.  He signed it because he was afraid if he did not he would be sent to rehabilitation if he did not. The applicant stated that after he signed the document, they released him. The evidence before the tribunal does not indicate that the applicant previously raised having to sign any document admitting that he was an LTTE member in his evidence to the department (for example his written statement), nor does this further information form part of the new evidence or clarifications set out in pre-hearing submissions on his instructions.

18. When the tribunal raised concerns about this new addition to his evidence, the applicant queried whether he had never mentioned it before. He then suggested that at the hearing he was questioned in a way that made him able to disclose this. However, as put to the applicant, the applicant’s evidence on this event (including about the form) was recounted in a monologue with the tribunal not asking questions to clarify matters until the applicant had finished giving his evidence. It was further put to him that the tribunal did not initially ask any questions about a form or document, given that no such evidence was before it. The applicant then stated that he cannot memorise ‘a whole book’. The tribunal acknowledges that the applicant may not be expected to remember every detail of an event that occurred several years ago. However, the tribunal finds having to sign a form admitting LTTE membership significant and finds it difficult to accept that the applicant would not have mentioned such an important detail earlier in the protection process.

19. Given country information that suspected LTTE members were sent to rehabilitation and training centres,[7] the tribunal finds it difficult to accept that, if the applicant was seriously suspected of LTTE involvement or had signed a form admitting membership of the LTTE, he would have simply been released by the CID at the intervention of his coach and just advised to report weekly in his home area. The applicant’s evidence is that he remained in Colombo for the cricket tournament for a further 5-6 days without any problems. This indicates that the applicant was not of further suspicion or interest to the SLA or CID. The tribunal does not accept as credible, that if the applicant was seriously suspected of LTTE membership and signed a document to this effect, he would have been allowed to continue playing in a cricket tournament. Given country information about the treatment of suspected LTTE members noted in this paragraph, the tribunal does not accept that the fact that the applicant was staying in a school for the remainder of his stay in Colombo or that he was playing cricket organised by the cricket committee are considerations that would have influenced the way the authorities treated him if he was under suspicion of LTTE membership.

    [7] DFAT Country Information Report: Sri Lanka (18 December 2015); Canada: Immigration and Refugee Board of Canada, Sri Lanka: Treatment of suspected Liberation Tigers of Tamil Eelam (LTTE) members or supporters, including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (January 2010-21 January 2011), 21 February 2011, LKA103663.E, available at: type="1">

20. Other aspects of the applicant’s evidence on subsequent events give rise to further concerns about its credibility. At the hearing, the applicant advised that after returning from Colombo he went to [Town 1] to see his mother for a week but then decided to go to [Village 1] to sign in with the CID. He claimed that he did not have any issues in [Town 1] and just stayed at home but in the second week he got a bit scared and thought that if he did not sign in the second time he knew the CID would go to his uncle because that is the address he gave them. He decided to go and report to the camp but then he decided to go and stay with his uncle.  He claimed that he was on his way to tell his uncle that he was caught in Colombo and stopped by a college that he had been admitted to in order to sign some documents. Some boys, including a close friend, were playing cricket at the back of the school. His friends asked him why he signed the document in Colombo in the first place. They told him that he might go to jail and advised him that there was a boat going to Australia. He decided to take the boat and then went to see his uncle. His uncle told him not to go to the authorities and about the tortures that he faced while in rehabilitation.  The applicant advised that around [July] 2012 his friend told him about the boat and on [date] July he left Sri Lanka. He was with his uncle during those two days hiding away.

21. The above evidence is inconsistent and lacking in credibility in many respects. Firstly, the applicant’s hearing evidence that nothing happened for the week that he was in [Town 1] but that he decided to go to sign in at the CID on the second week because he thought they might visit his uncle differs from his written statement, which states that the CID called him to attend interviews when he returned home but he ignored the calls. This claim is repeated in the applicant’s departmental interview. When this was put to him at hearing, the applicant confirmed that he did receive a phone call but did not answer it and that he may not have mentioned it because he was ‘going with the flow’ of evidence. Given numerous concerns about the credibility of the applicant’s evidence, the tribunal gives little weight to his explanation for his failure to mention a significant detail such as receiving a phone call from the CID in his evidence.

22. The applicant has also given inconsistent information about his movements after returning from Colombo. In his entry interview, the applicant referred to returning from Colombo to [Village 1]to work as a helper for an electrician and stayed there for ten days before being told of the opportunity to take a boat by a friend and subsequently leaving.  In his departmental interview, the applicant stated that he initially stayed at home for five days (until the CID called him) and after that he did not go home but was with friends doing some wiring work. He stated in that interview that he went to his uncle’s house to eat, but did not stay there. These versions of the applicant’s evidence are inconsistent with his claim to have stayed first in [Town 1] with his mother and then staying in hiding with his uncle for two days.

23. In response to these inconsistencies, the applicant confirmed his hearing evidence that he went to his mother’s house for a week, went to school to fill out a form then went to his uncle’s house. He claimed to have hidden staying at his uncle’s house because this might ‘bring some issues’ and advised that it could have been taken the wrong way. The applicant did not elaborate on this further and, in light of the concerns it holds about the applicant’s credibility, the tribunal gives little weight to these explanations.

24. The tribunal further finds the timing of the events described above to lack credibility. The tribunal finds it difficult to accept that the applicant would make up his mind to leave Sri Lanka illegally by boat on the basis of one conversation he had with a friend while playing cricket and that he would actually Sri Lanka a mere two days after having this conversation. The fear of the CID that allegedly led the applicant to make such a decision and leave Sri Lanka so quickly is inconsistent with his evidence of going to sign documents at a college or chatting with friends playing cricket. The tribunal gives little weight to the explanation offered by the representative about the importance of cricket to the applicant and the amount of time it can take for someone to realise how much risk they are facing in order to disengage themselves from activities. This explanation does not sit with the applicant’s extremely quick decision to depart Sri Lanka by boat after one conversation with a friend. Furthermore, in the context of general concerns about many aspects of the applicant’s evidence, the tribunal also questions the timing of the applicant being stopped and questioned by CID in Colombo, just one to two weeks before he decides to leave the country.

25. Having considered the evidence as a whole, the tribunal is willing to accept as plausible, given the level of detail provided by the applicant about this incident, that at some stage in the past the applicant and his cricket team travelled to Colombo, during which the applicant and other team mates were stopped by SLA/CID, had their ID cards checked and during which the applicant was taken for further questioning about his LTTE association. The tribunal is willing to accept that during the course of such questioning verbal threats may have been made against the applicant. The tribunal accepts that the applicant was released upon the intervention of the applicant’s cricket coach. Given the significant concerns described earlier, the tribunal does not accept that this incident occurred in June 2012 ie a week or two prior to the applicant’s departure from Sri Lanka, that the applicant was told or did actually sign a paper admitting LTTE membership or that he was required to report weekly to the CID/SLA camp upon his release.

26. Given inconsistencies and other above concerns, the tribunal does not accept that, after returning from Colombo, the applicant either received a call from the CID which he did not answer or decided to report to the CID himself. The tribunal does not accept that on the way to do this and/or see his uncle, two days before his departure, the applicant was advised by a friend about leaving Sri Lanka by boat, that he made a decision to leave after that conversation or that he was in hiding with his uncle, or with anyone else, prior to his departure from Sri Lanka.

27. Given its numerous concerns and resulting findings, the tribunal does not accept that the applicant was of any adverse interest to the authorities at the time of his departure from Sri Lanka in July 2012. On this basis and its above findings, the tribunal does not accept the applicant’s claim (in his written statement) that the CID and SLA share a file about him that says he supported and fought for the LTTE and that he was detained because he was dangerous. As already noted above, the applicant was not detained because he was dangerous.

    Claims regarding CID interest after the applicant’s departure

28. Given the tribunal’s above finding that the applicant was not of adverse interest to the authorities as a suspected LTTE member and/or sympathiser at the time of his departure from Sri Lanka, the tribunal does not accept the applicant’s claims of inquiries made to his family members after his departure from Sri Lanka.

29. Concerns about the applicant’s inconsistent evidence relating incidents after his departure from Sri Lanka were raised by the departmental delegate and the following discrepancies in the applicant’s evidence have also led to the tribunal’s above finding.  For example, in his original statement the applicant referred to the CID making inquiries with his mother about his whereabouts approximately three times. At the departmental interview, the applicant provided confusing and internally inconsistent evidence about this. He initially claimed that his mother was visited twice after he left Sri Lanka but before she knew he had come to Australia. After he contacted his mother from Australia, he claims the CID came to visit her a third time. He further claimed in the departmental interview that his uncle was also visited three times by the CID, specifically: one visit to the uncle after the first visit to the mother; a second visit to the uncle after the second visit to the applicant’s mother; and a third visit to the uncle (during which threats were made) after the third visit to the applicant’s mother about a month before the departmental interview (ie October 2012). The applicant then claimed that authorities did not go to his uncle’s house after the first visit to his mother but only after the second and third visits.

30. Shortly prior to and at the hearing, the applicant gave further inconsistent evidence about this.  His instructions as set out in pre-hearing submissions are that his mother was only questioned once by the CID but that his uncle was questioned three times, and that authorities have demanded his uncle sign in on regular basis on his own and on the applicant’s behalf while the applicant is unable to present to the authorities himself. At the hearing, the applicant claimed that ‘after two weeks’ the authorities came to his uncle’s house inquiring as to why the applicant did not sign but he does not know what event the two weeks was from. He claimed that the authorities came to his uncle three times in total but he does not remember when the other two visits took place. He further stated that the authorities went to his mother after the three visits to his uncle, that this may have been around the end of 2012 and that at that time the authorities took copies of his birth certificate, family card and his photograph.  The applicant also confirmed that his uncle has to sign in on the applicant’s behalf at an SLA camp and claimed that the authorities threatened to shoot the applicant on site if he does not show up and said they know the uncle’s position in the LTTE, there is a possibility that the nephew could also have been involved and that they are probably up to something.

31. The tribunal finds the various versions of the applicant’s evidence regarding these alleged visits including their sequence and timing significantly inconsistent and confused. Furthermore, the applicant has not previously claimed that copies of his birth certificate, photograph or other documents were taken during any such visit.

32. The applicant has claimed that the discrepancies in his evidence about these visits are because he was unclear at the time of his departmental interview about how many times his mother and uncle had been approached, that his uncle does not tell him him the whole story because he does not want to ruin the applicant’s happiness and only recently informed the applicant about having to sign in on his behalf and that he may have misunderstood what his mother originally said to him about these visits. He claimed that three months prior to the hearing he contacted his mother and uncle to get further details.

33. The tribunal has considered the above explanations but finds them unsatisfactory. Given the numerous discrepancies about not just this issue, but several other aspects of the applicant’s evidence, the tribunal does not accept that the numerous versions of the applicant’s evidence are the basis of misunderstandings or lack of clarity from the applicant’s mother and uncle. The tribunal further does not accept that the applicant’s uncle would withhold information from the applicant that was significant to his claims for protection- such as the authorities requiring the uncle to sign in on the applicant’s behalf- simply because he wants the applicant to be happy. The tribunal further questions why the applicant would wait four years to clarify information regarding visits to his relatives after his departure and, given its concerns about the applicant’s credibility, gives little weight to his explanation that he did it in anticipation of being invited to a hearing soon.

34. The tribunal also questions the rationale behind the authorities requiring the applicant’s uncle to ‘sign in’ on the applicant’s behalf while the applicant is not present in Sri Lanka. Asked about this, the applicant was unable to offer any explanation. 

35. The above noted concerns further lead the tribunal to reject the applicant’s claims of any visits or ‘torture’ by authorities including the CID to his uncle or mother specifically inquiring about the applicant, since his departure from Sri Lanka. While the tribunal accepts that, as a former LTTE member, the applicant’s uncle may continue to be requirement to undergo regular monitoring[8] it does not accept that he has been required to sign in on the applicant’s behalf, or has been harassed or threatened in relation to the applicant. Indeed, the applicant’s evidence does not indicate that his uncle has been harmed at all after his release from detention including during regular reporting/monitoring. Given its findings, the tribunal further does not accept that the authorities took copies of any documents or photographs of the applicant, threatened to shoot him onsite or have any suspicions of the applicant and his uncle being ‘up to something’ including related to the LTTE.

    Future risk of harm as a Tamil and/or LTTE associations

    [8] DFAT Country Information Report: Sri Lanka (18 December 2015).

36. The tribunal has considered the future risk of harm faced by the applicant on the basis of his Tamil ethnicity and LTTE associations due to various factors raised by him and his representative, in light of its above findings.

37. The tribunal put to the applicant that country information indicated that the situation in Sri Lanka for Tamils has generally improved, particularly since the election of the current government, including the replacement of military administrators in the North.[9] It was put to him that DFAT had assessed that monitoring and harassment of Tamils had eased since the end of the conflict and has decreased under the Sirisena government.[10] Civilians in the North still come under surveillance by the security forces. In most cases, however, such contact is now with the police instead of the army.[11]

    [9] UK Home Office Country Information and Guidance- Sri Lanka: Tamil Separatism (May 2016); DFAT Country Report: Sri Lanka (18 February 2015).

    [10] DFAT Country Report: Sri Lanka (18 December 2016).

    [11] Switzerland: State Secretariat for Migration (SEM), Focus Sri Lanka: Lagebild , 5 July 2016, available at: (English summary).

38. As discussed with the applicant, on the basis of the information before it, including that contained in submissions, the tribunal is of the view that that being a Tamil, a young Tamil male or a Tamil from formerly LTTE- controlled areas (such as [District 1]) or the North in general no longer gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion. The 2012 UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka do not list Tamils as a group at risk in Sri Lanka but instead indicate that persons with more ‘elaborate links’ to the LTTE may require protection.[12]  The UK Home Office notes that Tamil ethnicity does not in itself warrant international protection.[13]

    [12] UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka, 21 December 2012.

    [13] UK Home Office Country Information and Guidance- Sri Lanka: Tamil Separatism (May 2016).

39. As further discussed with the applicant, while the 2012 UNHCR Guidelines refer to persons with family links to, for example, former LTTE combatants or cadres or former LTTE supporters involved in sheltering or transporting LTTE personnel or supplying/transporting goods to the LTTE, as one of the profiles that may require international protection, more recent information indicates that past membership or connection to the LTTE does not warrant protection unless an individual is perceived to have a significant role in post-conflict Tamil separatism or appears on an airport ‘stop list’.[14]

    [14] UK Home Office Country Information and Guidance- Sri Lanka: Tamil Separatism (May 2016).

40. It was also discussed with the applicant that the scope of the Sri Lankan authorities’ focus had narrowed since the end of the war as were the findings in the country guidance decision of GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), where the UK Upper Tribunal concluded that the focus of the Sri Lankan government’s concern has changed since the end of the civil war in May 2009, that the LTTE in Sri Lanka is a spent force and there have been no terrorist incidents since the end of the civil war. The Upper Tribunal found that the government’s present objective is to identify Tamil activists in the diaspora working for Tamil separatism and to destabilize the unitary Sri Lankan state and its focus is on preventing the resurgence of the LTTE or any similar Tamil separatist organization and the revival of the civil war. The Upper Tribunal relevantly identified individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state as among the current categories at risk of serious harm.[15]

    [15] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

41. The tribunal has rejected the applicant’s claims of his father’s involvement in the LTTE and his assistance to his LTTE member uncle. The tribunal has, however, been willing to accept the applicant’s uncle is a former LTTE member and, given his rehabilitation, the tribunal accepts that the uncle’s LTTE involvement is known to the authorities. Submissions on behalf of the applicant have argued that the uncle’s known LTTE involvement is sufficient to expose the applicant to scrutiny by the CID and that the applicant is of ongoing interest to the Sri Lankan authorities including the CID as a perceived LTTE member/supporter due to his uncle’s involvement with the LTTE.  However, the applicant’s evidence does not indicate that he has faced any problems or scrutiny from the authorities in the past due to his uncle’s LTTE membership. He stated that at the hearing that he was not asked by CID during either of the two incidents of questioning he described about his uncle’s LTTE membership. Nor does his evidence indicate this was ever of concern during the time the applicant and his family were held at [a] camp.

42. The tribunal further notes the applicant’s evidence is that his uncle, a former LTTE member who has undergone rehabilitation, is only now subject to reporting requirements and has not been harmed himself. This appears consistent with country information.[16] The tribunal gives little weight to the applicants’ evidence that this is because his uncle is missing a limb. Given country information before it including about past and ongoing abuses of persons of interest to the authorities, the tribunal does not accept that Sri Lankan authorities would refrain from harming a person of interest simply because they were physically disabled. On the evidence before it, the tribunal finds that the chance of the applicant facing serious harm, including due to being perceived as an LTTE member/supporter due to his relationship with his uncle, is remote. Following the same reasoning, the tribunal finds the risk of significant harm to the applicant due to his relationship with his uncle (including actual/perceived LTTE association) is remote.

    [16] DFAT Country Information Report: Sri Lanka (18 December 2015).

43. The applicant and his representative have referred at various times to the increased risk to the applicant as a young Tamil from [District 1]. For example, the applicant has referred to being harassed as a young Tamil from[District 1], suffering severe hardship because of the Sri Lankan authorities eroding the rights of Tamils and deliberately targeting Tamil youths. He claimed that the authorities think that Tamils in [District 1]and other districts are trying to bring the LTTE back. He further claimed that he will be viewed as an LTTE sympathiser because his identity card shows that he is from a Tamil area where the LTTE was active and that people in the LTTE were around his age. Submissions refer to racial discrimination against Tamil youth is such that authorities escalate scrutiny of young Tamil men suspected of LTTE affiliation.

1. The tribunal acknowledges that on two occasions in the past, the applicant was stopped and questioned by the authorities and accepts that the applicant’s origin from[District 1], as presented on his ID card, may have been a factor that led to questioning, particularly in the incident in Colombo. However, the tribunal notes that the applicant was unharmed during these incidents and has not accepted his evidence of ongoing interest. Nor has the applicant indicate any other incidents during which he was targeted or harassed including as a Tamil youth from[District 1]. Bearing in mind its rejection of the applicant’s evidence about the timing of the Colombo incident, the tribunal notes that these interrogations occurred no later than a couple of years after the end of the civil war. Since that time, a further four years have passed and country information indicates that such monitoring of the Tamil population has decreased. The country information set out above does not support claims of Tamil youth or young Tamils from [District 1] facing a real chance or risk of being targeted. That information leads the tribunal to find that the chance of serious harm from the authorities (SLA or CID) or affiliated agencies faced by the applicant as a young Tamil male, or Tamil youth, from [District 1]or from a Tamil area where the LTTE was active, in the reasonably foreseeable future, including if stopped at a checkpoint, is remote.  On the same information, the tribunal finds the risk of significant harm to the applicant based on his Tamil race, combined with his age and origins is remote.  The tribunal further finds the chance or risk that the applicant will be detained under Prevention of Terrorism Act provisions, as suggested in submissions, is remote given his profile.

2. It was put to the applicant that no official laws or policies discriminating on the basis of ethnicity exist in Sri Lanka, although DFAT noted a moderate level of societal discrimination between ethnic groups in Sri Lanka.[17] While the tribunal accepts that a level of societal discrimination against Tamils may exist in Sri Lanka, it does not accept on the evidence before it that any such discrimination amounts to either serious harm or significant harm and does not accept that any racial discrimination against Tamil youth or young Tamil men in particular, such as the applicant, leads to either a real chance of serious harm or a real risk of significant harm.  The tribunal gives little weight to a reference by the applicant of Sinhalese beating up protestors at Jaffna University in relation to its assessment of the applicant’s future risk, given the limited information provided by the applicant on this matter and his lack of explanation of how this relates to him given that he has not claimed to have ever participated in any such protest and does not study at Jaffna University. The tribunal also does not accept that country information or his own evidence support the applicant’s assertion that Tamil youths cannot walk freely in the streets or study properly. As put to the applicant, his evidence indicates he was able to take part in district cricket and gain admission to a college. The tribunal acknowledges that the applicant may be frustrated at missing out on educational opportunities in Sri Lanka due to the civil conflict but does not accept on the evidence before it that Tamils, including Tamil youth, face real chance or risk of being prevented from studying or having their movement restricted such as to amount to either serious harm or significant harm.

   [17] DFAT Country Report: Sri Lanka (18 December 2016).

3. The applicant has further claimed that the scar on his leg would also impute him with LTTE association. As noted above, the tribunal accepts that the applicant may have been questioned about his scar during his time at [the] camp but notes that he was not seriously suspected of LTTE involvement as a result, detained further, taken to rehabilitation or otherwise harmed. Nor does it appear that the applicant was questioned about his scar on the two incidents of questioning by the CID which the tribunal accepts occurred.  As discussed with the applicant at hearing, while there is evidence that scarring was used in the past to identify LTTE suspects, information including from the British High Commission in Colombo in 2012 indicates that this practice has either ceased or is used less frequently or that searches for scars may be conducted when there are other reasons to suspect an individual.[18] As also discussed with the applicant, the British Commission further noted that evidence did not suggest such examinations are routinely carried out on immigration returnees.”[19] Given this information and the tribunal’s findings that the applicant was not of adverse interest to the authorities when he left Sri Lanka and does not have a profile that would raise any interest, the tribunal finds that the chance of serious harm, or risk of significant harm to the applicant for suspected LTTE association on the basis of his scar is remote.

   Failed asylum seeker

   [18] UK Home Office 2013, Operational Guidance Note: Sri Lanka (July 2013), 1 July < Accessed 25 August 2014 <CIS29708>; UK Home Office 2012, Sri Lanka – Bulletin: Treatment of Returns, 1 December, pp.101,103-104 <CIS3853>.

   [19] UK Home Office 2013, Operational Guidance Note: Sri Lanka (July 2013), 1 July < Accessed 25 August 2014 <CIS29708>.

4. Country information discussed with the applicant indicates that all returnees, regardless of ethnicity, are subject to the same entry procedures.[20] Non-voluntary returnees are referred for questioning and criminal and security checks by Sri Lankan authorities.[21] DFAT assesses that detainees are not subject to mistreatment during their processing at the airport.[22]

   [20] DFAT Country Report: Sri Lanka (18 December 2015).

   [21] CX29995 1: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012; DFAT Country Report: Sri Lanka (18 December 2015).

   [22] DFAT Country Report: Sri Lanka (18 December 2015).

5. The tribunal acknowledges reports, such as from the NGO Freedom from Torture in 2015, indicating that some returnees with actual or perceived LTTE connections have faced torture. It notes comments from DFAT that allegations of torture or mistreatment are complicated by the fact that many such allegations have been made anonymously, often to third parties.[23] Also, the UK Upper Tribunal observed that cases reported by organisation such as Human Rights Watch, Freedom from Torture and Tamils Against Genocide in their reports were not a representative sample.[24] DFAT further notes that:

   …there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, with relatively few allegations of torture or mistreatment… Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.[25]

   [23] DFAT Country Report: Sri Lanka (18 December 2015).

   [24] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

   [25] DFAT Country Report: Sri Lanka (18 December 2015).

6. As put to the applicant, the tribunal’s assessment of the country information before it is that it does not indicate that all failed asylum seekers, including young men of Tamil ethnicity or from formerly LTTE controlled areas, are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Rather, it appears that individuals who already have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers may be of adverse interest to the authorities. The evidence before the tribunal also does not indicate that individuals, including Tamils, who leave Sri Lanka without permission face a real chance of serious harm, or real risk of significant harm due to being suspected of LTTE association or support. As discussed with the applicant at hearing, the Sri Lankan authorities have made statements indicating they are aware many Sri Lankans leave by boat for a variety of reasons, including economic.[26]

   [26] Cooray, D 2014, ‘Asylum seekers and host country impacts: a case study of Sri Lanka’, Migration and Development, vol.3, no.1, pp.73-94, at p.78 <CIS29762>.

7. The tribunal has considered submissions from the applicant’s representative on this matter, including references to news reports about white vans taking Tamil returnees away and Tamils returning from abroad with connections to the LTTE or Tamil nationalist politics being targeted by the TID, as well as oral submissions that DFAT’s assessment on returnees is at odds with other country information. The tribunal notes that the sources for the above noted reports referred to in submissions are mainly from Tamil media sources.  As noted above, the tribunal acknowledges reports of torture faced by some returnees but does not accept that these indicate the same level, or a real chance or risk, of similar mistreatment for all (Tamil) returnees, regardless of their individual profiles. Considering the applicant’s profile and circumstances, including the tribunal’s findings regarding past events, the tribunal is not persuaded that the above news reports referred to in submissions lead to a finding that the applicant faces a real chance of serious harm, or real risk of significant harm, or that they outweigh credible independent country information discussed with the applicant at hearing. The tribunal further gives little weight to the applicant’s vague reference to someone from [District 1]returning from Australia and being arrested given his lack of further detail on this matter.  

8. On the evidence before it and taking into account the applicant’s circumstances and profile, the tribunal does not accept that the standard questioning and security checks that the applicant would face upon his return to Sri Lanka amount to either serious harm or significant harm. The tribunal is further not satisfied on the evidence before it that there is a real chance or risk that the applicant would be subjected to serious or significant harm during such questioning/checks either upon his arrival in Sri Lanka or at any other time after he leaves the airport after such questioning, given that the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities.

9. On the evidence before it, the tribunal therefore does not accept that the applicant would face a real chance of serious harm as a failed asylum seeker including due to any imputed pro-LTTE political opinion arising out of the act of seeking asylum or because he left Sri Lanka without permission. On the same evidence the tribunal further finds that the applicant does not face a real risk of significant harm due to having Sri Lanka illegally and having sought asylum in Australia or any perceived (pro-LTTE) political opinion arising out of those actions. 

   Illegal departure

10. Information was put to the applicant that illegal departure from Sri Lanka is an offence under s 45 of the Immigrants and Emigrants Act carrying a penalty of a term of imprisonment of up to five years or a fine of up to 200,000 rupees. Since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed.[27] DFAT and other sources have indicated that returnees who departed Sri Lanka illegally are being charged regardless of ethnicity, as are persons intercepted attempting to leave Sri Lanka illegally and that the law is being enforced to deter future boat ventures.[28]

    [27] DFAT report 1478, MRT/RRT information request: LKA41452, 28 February 2013.

    [28] `Asylum denied, a penalty awaits at home', Sydney Morning Herald, 8 December 2012.

11. The following information was also put to the applicant. According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office for up to 24 hours during the investigation period and transported to the Magistrate’s Court at the first available opportunity. Where a magistrate is not available within that time period, for example due to returnees arriving on a weekend or public holiday, they may be held at a nearby prison. A person who pleads guilty is fined and free to go.[29]  In most cases, returnees who plead not guilty to the charges have been granted bail on personal recognisance immediately by the magistrate or may require a family member to act as guarantor.[30] There is no payment required for bail. Bail conditions are rare and if there are, they are imposed on a discretionary basis. The court may decide not to grant bail if the returnee is considered to be a facilitator or organiser of people smuggling.[31]

    [29] DFAT Country Report: Sri Lanka (18 December 2015).

    [30] DFAT Country Report: Sri Lanka (18 December 2015).

    [31] DFAT report: 1479, LKA41452: Further clarification regarding Post's response to LKA41452.

12. The tribunal accepts that the applicant departed Sri Lanka in 2012 without a valid travel document and from a place other than an approved port of departure and he is therefore likely to be charged with an offence under the Immigrants and Emigrants Act.[32]

    [32] Department of Foreign Affairs and Trade 2012, DF 4T Report no. 1446- Sri Lanka: RRT Country Advice Information Request LKA40999, 22 October.

13. The tribunal is satisfied that the Immigrants and Emigrants Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The tribunal is further satisfied that the terms of the law do not have a discriminatory intent or impact and finds that s 45 of the Immigrants and Emigrants Act is a law of general application and its application does not give rise to persecution under the Refugees Convention.

14. The tribunal places weight on the above DFAT advice and is satisfied that the applicant will be held in remand for a short period, generally up to 24 hours or at most a few days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court. Given that the applicant has not been involved in people smuggling, the tribunal finds on the evidence before it that the applicant will be granted bail and, if required, his mother would be able to act as a guarantor. This means that the applicant will be on remand for a short period of up to 24 hours or a few days maximum.

15. It was put to the applicant that the most likely consequence of his illegal departure is a fine and not imprisonment. The 2006 amendments of the Immigrants and Emigrants Act remove a legislative requirement for a minimum sentence of imprisonment for a conviction under s.45(1)(b) and allow a judicial discretion under s.303 of the Code in relation to the suspension of any sentences to imprisonment on a conviction under s.45(1)(b).[33] Courts also have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction.[34] DFAT has been advised that no returnee who was merely a passenger has been given a custodial sentence for departing Sri Lanka illegally.[35] It was discussed that fine amounts vary and have been in the past reported to be between 5,000 and 50,000 rupees.[36] They may be paid in instalments.[37]

    [33] See the Immigrants and Emigrants (Amendment) Act, No. 31 of 2006, available at These amendments do not appear to have been incorporated in the version of the Immigrants and Emigrants Act which is available online.

    [34] Code of Criminal Procedure Act (No 155 of X979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2.

    [35] DFAT Country Report: Sri Lanka (18 December 2015).

    [36] DFAT Country Report: Sri Lanka (16 February 2015).

    [37] DFAT Country Report: Sri Lanka (18 December 2015).

16. Given the above information, the tribunal finds that, if convicted of an offence under the Immigrants and Emigrants Act, the applicant would most likely be required to pay a fine of no more than 200,000 rupees and likely between 5,000- 50,000 rupees. It finds that the risk of being imprisoned instead of fined in the applicant’s circumstances is remote. The tribunal does not accept that the imposition of a fine as described constitutes serious or significant harm.

17. The applicant was asked at hearing if he or his family would be able to pay the relevant fine. He instead replied that the truth is that if he returns he will be dead. The tribunal notes that, while the applicant did not work in Sri Lanka, he gave evidence that he is currently working as [an occupation] in a [company]. He presented as intelligent, educated and resourceful. On the evidence before it, including a lack of evidence of anything that would prevent the applicant from working upon return to Sri Lanka, the tribunal finds that the applicant would be able to pay a fine imposed on him.

18. The above findings lead the tribunal to find that the chance or risk that that the applicant would spend more than a few days maximum in prison after his return to Sri Lanka due to having been charged with breaching Sri Lankan immigration laws or for any other reason, is remote.

19. The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the limited period he would be held in prison. As discussed at hearing, country information indicates that prison conditions in Sri Lanka may not meet international standards due to overcrowding, poor sanitary facilities.[38] Torture has been used by the authorities in some cases to extract information or confessions from suspects and other incidents of ill treatment have been reported.[39]

    [38] DFAT Country Report: Sri Lanka (18 December 2015); US State Department Country Reports on Human Rights Practices for 2014: Sri Lanka (2015); UK Home Office Operational Guidance Note: Sri Lanka (July 2013) at 3.16 ‘Prison Conditions’.

    [39] DFAT Country Report: Sri Lanka (18 December 2015); UK Home Office Country Information and Guidance- Sri Lanka: Tamil Separatism (May 2016).

20. Given its findings in previous sections in relation to the applicant’s other claims, the tribunal does not accept that he faces a real chance of serious harm for any Convention-related grounds while in prison for a maximum of a few days upon his return to Sri Lanka. Nor does the tribunal find that he would face a real risk of significant harm for any of the reasons raised by the applicant in his claims.

21. As required by ministerial direction, the tribunal has taken into account the relevant guidance in the PAM including in relation to the circumstances in which harsh detention conditions may amount to significant harm (see “Lawful Sanctions Not Inconsistent with the ICCPR; Section 29; Imprisonment/Prison Conditions”). Given that the applicant will be on remand for no more than a few days maximum, the tribunal finds that the risk that he would face significant harm for any reason while on remand for this short period is remote.  The tribunal further notes that, as discussed with the applicant at hearing, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources[40] rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. The tribunal does not accept that any anxiety and/or discomfort that the applicant would face while on remand for the short period described amounts to significant harm, where evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation.

    [40] DFAT Country Report: Sri Lanka (18 December 2015); US State Department Country Reports on Human Rights Practices for 2014: Sri Lanka (2015); UK Home Office Operational Guidance Note: Sri Lanka (July 2013) at 3.16 ‘Prison Conditions’.

    Overall assessment on refugee and complementary protection criteria

100.   Considering the applicant’s claims both separately and cumulatively, the tribunal does not accept that he faces a real chance of serious harm due to his race, political opinion, membership of any particular social group or any other Convention ground and does not accept that his fears of persecution are well-founded.

101.   Having considered the applicant’s separate and cumulative claims, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.

102. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

103. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

104. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

105.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Magda Wysocka
Member