1408142 (Refugee) - [2015] AATA 3256

1408142 (Refugee) [2015] AATA 3256 (7 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1408142
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Suzanne Carlton
DATE:7 August 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 07 August 2015 at 11:25am

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] March 2014.
The applicant appeared before the Tribunal on 6 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The agent attended the hearing.
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 issue in this case is whether the applicant, a Sri Lankan citizen of Tamil ethnicity, is owed Australia’s protection obligations. He claims to have been persecuted on the basis of his ethnicity and his perceived and actual LTTE links. He claimed that, as a consequence of his past assistance to the LTTE, he was targeted by the Sri Lankan CID in his area. He fears serious harm at their hands if he returns.
He further fears the consequences of his illegal departure as a failed asylum seeker who departed illegally.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s protection visa application and the delegate’s decision
In his application for a protection visa the applicant provided the following details:
·He was born in [home city], Sri Lanka in 1989 and grew up in [his home village], [district].
·He is Tamil and Hindu.
·He has had 7 years of schooling.
·He speaks Tamil.
·He is unmarried.
·In Sri Lanka, he has variously been employed as [three occupations].
He provided to the Department:
·A copy of his Sri Lankan National Identity Card.
·A copy of his Sri Lankan birth certification.
He also provided a signed statutory declaration made on 6 November 2012 which carried a declaration that the contents had been truly and accurately interpreted to him by a Tamil interpreter. In relevant part, it stated:
The country to which I fear returning
3.I fear returning to Sri Lanka.
Why are left that country
4.It was two years ago that people in my area suffered from the atrocities of criminals who we used to call ‘greasemen’. One night a few young Tamil fellows of mine and I came to know that there were three greasemen hanging out near the local graveyard. We decided to go there and chase them away.
5.Once we got there, the greasemen called the army officers and they turned up very quickly (in less than 10 minutes). They loaded their guns and took us to the nearby Sri Lankan Army camp. In the camp, the officers beat us up. A few hours later my village people came to the camp and started protesting against our arrest. The army officer released us after ordering us that we had to appear in the camp and make report every month.
6.In 2010, before the above incident with the army happened, I was in a temple with my friends that a few CID officers turned up will stop they approached me and asked me to give them my mobile phone. They searched it and found four LTTE songs saved my handset and subsequently arrested me and took me to the military camp.
7.In the camp, they interrogated me. They were asking me whether I was a LTTE member. I refused but they did not believe me. They handed me over to the Police that night. The police detained me for one month to investigate the allegations.
8.After one month, police took me to the court. During the hearing the Judge said to the Police that such songs were available on the Internet and I have not done anything wrong. The judge then heard the rest of the arguments and asked the police to support their argument by providing more details. The police failed to do so. Consequently the case could not be made out against me and I was released after spending one and a half month in custody.
9.During the incident with the army, I was beaten up severely and sustained internal injuries in my hip and my leg which took almost 2 years to fully heal. I also received many threats from SDF unit of the army that they would shoot me. I took the threats seriously and left the country in 2012 after being fully recovered from the injuries.
Who I think may harm/mistreat me in my country
10.I believe that I will be harmed by the Sri Lanka army in Sri Lanka.
Why I will be harmed
11.I believe that I will be harmed by the SLA because of the incidents of the past and more importantly because I left the country unlawfully and will be punished for that
Do I think the authorities of my country can and will protect me and/or my accompanying family members, where applicable, if I were to go back?
12.No. It is actually the authorities that I am afraid of and I do not know any official in Sri Lanka who may be able to offer me some protection against SLA.
Do I think that there is a place in that country where I could be safe?
13.No. I could not relocate to any other place within Sri Lanka because I could not contemplate how long I could live in a strange place. I did not have any relatives in the other areas of the country to provide me with basic support. I do not speak Sinhalese language and would not survive in their communities.
The applicant’s earlier entry interview, held [in] August 2012 was largely consistent with this later statutory declaration.
The applicant was interviewed by the Department [in] October 2013 with the assistance of a Tamil-speaking interpreter. Following that interview the delegate proceeded to make the decision to refuse to grant the visa.
The delegate accepted that applicant’s identity and generally found him to be credible. She accepted that he had been arrested on two previous occasions and found that there had been ongoing reporting requirements, but that those had been relaxed over time and that there were no outstanding charges relating to the applicant.
Ultimately, the delegate found that the applicant no longer faced a real chance of persecution within the terms of 91R of the Act and that his treatment as a failed asylum seeker upon return would be perfunctory.
Tribunal hearing
At the Tribunal hearing, the applicant appeared with his representative by telephone. I briefly explained the proceedings of the hearing. The applicant reiterated his earlier background claims with the following clarifications.
The applicant said clarified that the first of the two arrests occurred in 2010, as mentioned in his statutory declaration, not in 2008 or 2009, as mentioned in his entry interview.
He also recounted problems his brothers had had with the authorities in 2009 during which that brother was imprisoned on trumped up LTTE charges. He was said to have been in possession of explosives, but the applicant said that it was really because his brother owed money to a well-connected man, who was behind the trumped up charges. His brother had been released from prison in 2010-11. After that, that brother went into hiding.
He said that when the LTTE was recruiting in his area, he and his brothers were exempted both because of their young age and because their mother had died.
In 2010 he was approached by CID and asked to see his mobile phone. Loaded on there was a song associated with the LTTE movement. This led to his arrest and interrogation for 12 hours before being handed over to police, who then handed him into court custody where he remained a total of two months. The charges were dismissed by the magistrate. However, the local CID continued to make threatening gestures and verbal threats whenever they saw him around the village.
When he was released in late August 2010 he was given certain conditions, including that he was not to leave the district without permission, he was not to leave the country, and that whenever the court summonsed him to appear, he was required to do so. He said he only received one further court summons.
In early August 2011 the incident regarding the ‘greasemen’ occurred. A group of young men from the village was arrested but released, again on conditions. These involved reporting to the CID camp once a week to sign in. The applicant said that whenever he went to sign in, he was slapped around by both the guard at the gate, as well as the guard in the office.
The applicant and his brother got a contract for work in a neighbouring district. The applicant sought and was granted variance to his reporting requirements. He was then only required to sign in monthly. When he did so, he received beatings.
While he was working in that other district, he heard about the possibility of fleeing by boat and he did so. He indicated that he was tired of being beaten and living in fear.
He said that his brother has been questioned about the applicant’s whereabouts and his failure to report. It is suspected by the authorities that he has fled the country.
The applicant said that if he were to be returned to Sir Lankan, his past record will be discovered and will that of this brother. He will be at high risk of being an LTTE sympathiser, if not a member. He will be punished for violating the reporting requirements set by the court in 2010 (that he not leave the country), as well as those set by the CID in 2011 (that he report monthly).
COUNTRY INFORMATION
Information on the human rights situation in Sri Lanka and risks faced by Tamils
The US State Department has provided the following summary of the situation in Sri Lanka in 2013:
The major human rights problems were: attacks on, and harassment of, civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE) terrorist organization by individuals allegedly tied to the government, creating an environment of fear and self-censorship; involuntary disappearances and a lack of accountability for thousands who disappeared in previous years; and widespread impunity for a broad range of human rights abuses, particularly torture by police and attacks on media institutions and the judiciary. Disappearances and killings continued to diminish in comparison with the immediate postwar period. Nevertheless, attacks, harassment, and threats by progovernment loyalists against critics of the government were prevalent, contributed to widespread self-censorship by journalists, and diminished democratic activity due to the general failure to prosecute perpetrators.[1]
[1] US State Department, Sri Lanka 2103 Human Right Report, p.1.
The report goes on to indicate:
·Discrimination against the ethnic Tamil minority continued;[2]
·There were reports that the government, its agents or its paramilitary allies committed arbitrary or unlawful killings. The number of those killings appeared to decrease from the previous year;[3]
·Enforced and voluntary disappearances continued to be a problem. While no official statistics exist, an incomplete study of open-source media over a seven month period in 2013 showed abductions of at least 17 individuals in 12 events, most of them in Colombo or the Northern or Eastern provinces;[4] and
·There were credible reports that police and security forces tortured and abused citizens. In the Northern and Eastern provinces, ‘military intelligence and other security personal, sometimes allegedly working with paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connection. Detention reported was followed by interrogation that sometimes included mistreatment or torture.’[5]
[2] Ibid, p.2.
[3] Ibid, pp2-3.
[4] Ibid, p.6.
[5] Ibid, p.6.

The DFAT Country Report on Sri Lanka, current as at 16 February 2015 , to which the Tribunal must have regard, variously states:
[Treatment of Tamils]
Many Tamils, particularly in the north and east, express a fear of monitoring, harassment, arrest and detention by security forces. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA [Prevention of Terrorism Act] than any other ethnic group. This was largely due to LTTE members and supporters almost all being Tamil. However, there were also likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity… There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The new Sirisena government has reportedly asked for a list of all detainees held under the PTA for review, and has said it is willing to work with the International Committee of the Red Cross in providing greater access to detainees and establishing a comprehensive database on detainees.
A number of those intending to leave Sri Lanka and travel to Australia by irregular means surveyed by the Australian National University’s Development Policy Centre, cited persecution and torture as reasons for leaving. This included 37 per cent who said they wanted to leave Sri Lanka because of ‘persecution in Sri Lanka’ and 36 per cent who cited ‘torture in Sri Lanka’. DFAT assesses that these fears are significant ‘push factors’ for external migration.
However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[6]
… [Disappearances]
There also have been credible reports of enforced or involuntary disappearances since the end of the conflict. A total of 126 complaints of disappearances were lodged with the HRCSL [Human Rights Commission of Sri Lanka] in 2012, down from a total of 1,030 in 2008, although some of these complaints have since been resolved.[7]
… [Torture]
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.[8]
[6] DFAT Country Report, Sri Lanka (16 February 2015), paras 3.10-3.12.
[7] Ibid, paras 4.7
[8] Ibid, paras 4.17-4.18
The UK Home Office Operational Guidance Note – Sri Lanka dated April 2012 makes the following statement which indicates that Tamils may experience discrimination in accessing government employment and housing:
Both local and Indian-origin Tamils maintained that they suffered long-standing, systematic discrimination in university education, government employment, and other matters controlled by the government. According to the SLHRC [Sri Lanka Human Rights Commission], Tamils also experienced discrimination in housing. Landlords were required to register any Tamil tenants and to report their presence to the police, although in practice many landlords did not comply. Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups.[9]
[9] UK Home Office 2012, Operational Guidance Note, April, Section 3.6.4.
The UNHCR’s July 2010 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’[10] states, in part:
These Guidelines are issued in the context of the improved human rights and security situation following the end of the armed conflict between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, and are intended for the use of UNHCR and State adjudicators in the assessment of claims by Sri Lankan asylum-seekers. They supersede the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka and the subsequent Note on the Applicability of the 2009 Sri Lanka Guidelines. The Guidelines contain information on the particular profiles for which international protection needs may arise in the current context. Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex…”.
[10] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, >
The most recent version of the Guidelines, issued on 21 December 2012 states in part:
UNHCR has carefully analysed the relevant developments in Sri Lanka since the publication of the 2010 Guidelines, as well as newly available information on the conflict period. All claims lodged by asylum-seekers need to be considered on their merits, according to fair and efficient status determination procedures and up-to-date and relevant country of origin information. UNHCR considers that the risks facing individuals with the profiles outlined below require particularly careful examination, and that they are likely to be in need of international refugee protection, depending on the individual circumstances of the case. This listing is not necessarily exhaustive and is based on information available to UNHCR at the time of writing. Therefore, a claim should not automatically be considered as without merit simply because it does not fall within any of the profiles identified below. Certain claims by asylum-seekers from Sri Lanka may require examination for possible exclusion from refugee status.
Recent reports have been published detailing exposure to serious violence directed against people from several of the risk profiles listed below, including in some cases mistreatment amounting to torture.
The psychological and physical consequences of past exposure to such experiences in an environment of past prolonged armed conflict, serious human rights violations and military occupation, needs to be appropriately taken into account in the assessment of a claim.[11]
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.
However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.[12]
[11] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p 25.
[12] Ibid p. 26-27.
The 2012 version of the Guidelines identifies a list of general risk profiles which may give rise to a need for protection. That list is not exhaustive:
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[13]
[13] Ibid, p. 5.
Those Guidelines caution that ethnicity and geographical origin may still have some significance:
Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. Whereas persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. Other human rights issues, such as sexual and gender-based violence and violations of housing, land and property rights, also disproportionately affect members of ethnic minorities. In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.[14]
[14] Ibid p. 26.
The Tribunal also refers to the 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) which comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant.[15]
…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[16]
[15] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325.
[16] Ibid, para. 356(3).
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[17]
[17] Ibid, para.356(7)(a).
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities a indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[18]
[18] Ibid para.356(8).
Independent evidence as to the treatment of failed asylum seekers
The Sri Lankan government has ongoing concern of Tamil support of the LTTE cause, particularly from the Tamil diaspora in Europe and North America.[19] Authorities are concerned by Sri Lankans living overseas and sending money back to Sri Lanka for the LTTE cause.[20] This has led to claims being made by a number of human rights groups that returning asylum seekers will be imputed as LTTE supporters and this will give rise to a real chance of persecution or significant harm.[21]
[19] ‘Sri Lanka’s ethnic problem’ 2012, UNHCR Refworld, source: Integrated Regional Information Networks, 11 December < ‘Although LTTE defeated overseas supporters carry on’ 2012, The Island, 4 March < Amnesty International 2011, Sri Lanka: Briefing to Committee against Torture, October, p.9 < Tamils Against Genocide 2012, Treatment of Failed Asylum Seekers: An Overview of the Persecution Faced by Failed Asylum Seekers Returning to Sri Lanka, TamilNet, May <>
Human Rights Watch in two reports in 2012 documented 21 cases in which individuals deported from the United Kingdom had suffered arbitrary arrest and torture upon their return to Sri Lanka.[22] Freedom from Torture reported in the same year on similar claims of United Kingdom deportees.[23] A UK Home Office report contested the findings in these reports noting variously that there was insufficient evidence to substantiate the claims, that details left ‘much to be desired’, and that some of the claims ‘lacked substance’.[24] The UK Home Office concluded after considering this report that it was safe in general to return Tamil failed asylum seekers to Sri Lanka.[25]
[22] Human Rights Watch 2012, Sri Lanka: UK: Halt Deportations of Tamils to Sri Lanka, 25 February < Accessed 10 August 2012.
[23] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2 < UK Home Office 2012, Country Policy Bulletin – Sri Lanka, October, pp1-8.
[25] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, p.29.
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 who stated that:
The process for persons removed to Sri Lanka begins with verification of the person’s citizenship by Sri Lankan Immigration. Once a person’s right to enter has been established, clients are then interviewed at the airport by Criminal Investigations Division (CID), followed by an interview by the State Intelligence Service (SIS). Sri Lankan State Intelligence Service’s questions are often in regards to how a client departed the country. They are seeking information about human trafficking and smuggling from the country.
The CID conducts criminal background check[s] of returnees by contacting police stations in all districts that a client may have lived. As criminal records are not accessible through a national databank, the final criminal checks may take 24-48 hours to complete depending on the day of the week a person arrives in Colombo. Generally, police record checks may be completed in a few hours, but if a client arrives on a Saturday or Sunday it may take a bit longer to contact appropriate offices. Following this admission process deported Sri Lankan Nationals are free to enter the country.[26]
[26] Immigration and Refugee Board of Canada 2011, 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.
The IRBC also cited information jointly provided by various human rights organisations and lawyers, which noted that:
[i]mmigration authorities are alerted about the impending arrival of those who are deported or who are ‘returned’ as a result of failed asylum seekers processes. They are also identifiable by the fact that they travel on temporary travel documents. These individuals are taken out of immigration queues and subjected to special questioning by the Police, and by members of the Terrorist Investigation Department [TID]. They are almost always detained, sometimes for a few hours, and sometimes for months, until security clearance is obtained.[27]
[27] Ibid.
Additional information from the Canadian High Commission in August 2011 noted that:
[t]here have been only four cases of persons having been detained upon arrival of which the Canadian High Commission is aware. Each of these cases involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity. Persons of all ethnic backgrounds are returned either under escort or voluntarily to Sri Lanka daily, and the screening and admission process for all these persons remains the same.[28]
[28] Ibid.
The following information has been provided by DFAT,[29] current at 16 February 2015:
[29] DFAT Country Report, Sri Lanka (16 February 2015 ), paras 5.24 -5.26.
Exit and Entry Procedures
Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.

It is clear that monitoring of returnees occurs not just on arrival but in the period following their arrival back in the country and their return to their home area. In December 2012, the UNHCR noted that:
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.[30]
[30] 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 <
This is confirmed in the decision of United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) which states:
There are no detention facilities at the airport. Although individuals may be interviewed at the airport by the security forces, the Sri Lankan authorities now aim to move returnees relatively quickly out of the airport and on their way to their home areas and to verify whether they have arrived there soon afterward. If the authorities have an adverse interest in an individual, he will be picked up at home, not at the airport, unless there is a “stop” notice on the airport computer system. There is no evidence that strip searches occur at the airport; the GOSL’s approach is intelligence-led rather than being driven by roundups and checkpoints as it was during the civil war.[31]
[31] GJ and Others, para. 310.
The DFAT post in Sri Lanka has commented on the treatment of returnees as at November 2012 as follows:
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"
On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UKBA have written to them since and received no response and they are due to meet Freedom from Torture again in November.
[32] CX299951, Request Sri Lanka: Questions arising from recent applications, 29 November 2012.
We are also aware of a story on Tamil Net [CX299934] claiming a Tamil British national visiting Sri Lanka was detained by the CID in Colombo from 3 to 9 October and “allegedly tortured under suspicion of LTTE links". The article claims the person was released after a ransom was paid to CID. AFP at post has followed up on the claim with the Sri Lanka Police CID (including with the officer named in the story) who have categorically denied the allegation.[32]
DFAT in its Country Report on Sri Lanka dated 16 February 2015, to which the Tribunal must have regard, has stated:
Torture or mistreatment of returnees
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…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. It is too early to make an assessment as to whether this will change under the Sirisena government.[33]
... Experience following return
Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.
Many returnees will have incurred significant expenses to undertake their outward journey and, in some cases, will have incurred debt to do so. Many are apprehensive about finding suitable employment opportunities on return. Those who have skills which are in high demand in the labour market will be best placed to find well-paid employment. Returnees who receive reintegration assistance on their return to Sri Lanka find it easier to resettle.[34]
[33] DFAT Country Report, Sri Lanka, 15 February 2015, paras 4.20-4.21.
[34] DFAT Country Report, Sri Lanka, 15 February 2015, paras 5.32-5.33.
The Country of Origin Information Centre, Landinfo, which provides advice to Norwegian immigration and refugee bodies made the following comments in a late 2012 report:[35]
The Norwegian immigration authorities has since the early 1990s gathered information about the security situation for Tamils will return to Sri Lanka (Colombo) after being denied protection in Norway or any other country of asylum in Europe. The information Landinfo has obtained from a number of visits to the country has been relatively unambiguous. Return Tamils face the same general conditions of the rest of the Tamil population in Sri Lanka, and other us not subject to a particular focus or treatment – neither from the authorities nor from private independent groups.
[35] Landinfo, "Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province", Landinfo, 01 December 2012, p.31, CIS25286.
The UNHCR and the International Organization for Migration (IOM) actively encourage and facilitate the voluntary return of Sri Lankans to their home country. In relation to this the UK Home Office has observed that:
There is no evidence from UNHCR as to any risk on return to Sri Lanka for Tamils per se. Their programme of voluntary assistance from India and other countries, where Tamils, settled during the conflict, indicates they deem it safe to return Tamils and the priority is to ensure that they are recipients of the various aid programmes to re-establish themselves. Returnees from India are not failed asylum seekers; however, this is relevant as the allegations are that all categories of Tamil returnees to Sri Lanka are at risk.[36]
[36] UK Home Office 2012, Country Policy Bulletin – Sri Lanka, October, p.9.
In April 2012, the UNHCR noted that they ‘had assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012’. January 2012 reporting noted that ‘the UNHCR had returned 2,054 in 2010 and 818 in 2009’. While mostly repatriating from Tamil Nadu, returnees also arrived from Malaysia, Hong Kong, Georgia and St. Lucia, and were ‘mainly returning to Trincomalee, Mannar and Vavuniya districts with smaller numbers returning to Jaffna, Kilinochchi, Batticaloa, Colombo, Ampara, Puttalam and Kandy’. According to a 2012 press release:
UNHCR carries out regular monitoring in these areas and seeks to ensure that returnees receive mine risk education and are included in the food ration lists and become considered as beneficiaries to the many government, UN and other projects taking place to re-establish the lives of Sri Lankans in the North and East of the country.[37]
[37] Ibid, pp.8-9.
The IOM works with the government of Sri Lanka in a number of areas related to failed asylum seekers, and stranded and irregular migrants. The IOM facilitates programmes in areas such as Immigration and Border Management, Counter Trafficking, and in particular, Voluntary Assisted Return and Reintegration Assistance for Sri Lankan Migrants.
Regional information
A recent report examines the post-war situation in the North:[38]
[38] Sri Lanka Campaign for Peace and Justice, "Crimes against humanity in Sri Lanka's Northern Province: A legal analysis of post-war human rights violations", Sri Lanka Campaign for Peace and Justice, 01 March 2014, CIS28485.
This Report fundamentally challenges the government’s narrative on accountability. Its findings demonstrate that, contrary to government assertions, human rights violations credibly amounting to international crimes continue to be committed nearly five years after the end of a decades-long civil war in May 2009. For many Tamils in the North, the end of the internal armed conflict has not put an end to grave and recurring human rights violations, including rape, sexual violence, torture, enforced disappearance, imprisonment, murder, and deprivation of land rights.[39]
[39] Ibid, p (i).
…
The credible allegations set forth in this Report point to an attack perpetrated pursuant to a coordinated policy to centralize control over aspects of Tamil civil and political life in the Northern Province and repress the pursuit of Tamil political aspirations, including through resort to violence and deprivation of fundamental rights (See Part II). The allegations herein suggest that this policy is being pursued through at least four discrete but interlinked strategies pursued by the government of Sri Lanka, all involving a resort to violence or the deprivation of fundamental rights:
·Targeting members of the population having had connections with, or perceived as having had connections with, the LTTE; and those espousing or perceived as espousing Tamil nationalist claims;
·Targeting members of the population involved in or perceived as being involved in mobilizing international opinion on accountability issues and human rights issues concerning Tamils in Sri Lanka;
·Targeting members of the population defiant of, or perceived as being defiant of, the government and military, and those involved in protests against the government and military; and
·Establishing a heavy and permanent military presence in the Northern Province, including through the mass appropriation of private lands.[40]
[40] Ibid, p (ii).
…
The first strategy of the policy—the targeting of those perceived to have had connections with the LTTE, or those espousing Tamil nationalist claims—is employed to deter victims and other members of the population from advancing Tamil political aspirations.[41] Persons having connections with the LTTE—perceived or real—are regarded by the government to be those most likely to sustain continued demands for secession. Those espousing or perceived to be espousing Tamil nationalist claims include members and supporters of the TNA or members and supporters of the TNPF; journalists supportive of regional autonomy for Tamils; and leaders of student unions from the University of Jaffna. While there may be differences between these groupings on the degree of autonomy desired and the means of struggle employed, they all represent political shades of opinion urging, at the very least, a departure from the unitary state structure entrenched by the Sri Lankan constitution. As discussed above, the government and security forces target these disparate groups in like manner, as a separatist threat to national security requiring suppression.[42]
[41] See also generally, ‘Dy Minister calls for ban on TNA’, Island, 18 December 2013, at [last accessed 7 February 2014]; ‘MOD ponders rehabilitating NPC member Ananthi’, Island, 14 January 2014, at [last accessed 7 February 2014]; Human Rights Watch, ‘Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka’, February 2010, at [last accessed 11 February 2014]; Human Rights Watch, ‘We will teach you a lesson’, supra note 5
[42] CIS28485, pp 21-22.
…[T]hese underlying acts have occurred at periodic intervals between 2009 and 2013. The most recurrent acts committed in pursuance of this strategy are rape, torture, other inhuman acts or causing serious injury, imprisonment and persecution. There are also credible allegations of enforced disappearances.[43]
[43] Ibid, p 22.
67.
The second strategy of the policy is that of targeting those involved in or perceived as being involved in mobilizing international opinion with respect to accountability and human rights issues.[44] This includes those involved in collecting information regarding human rights abuses and atrocities against Tamils; those involved in disseminating information regarding human rights abuses and atrocities against Tamils to the international community; and Tamils returning to Sri Lanka after being involved in Tamil political or human rights activism outside the country. Government and military officials have consistently asserted that growing international pressure on human rights and accountability issues are part of a conspiracy to divide the country.[45] Individuals contributing to international pressure on Sri Lanka’s record are thus perceived by the government as being motivated by a desire to ensure a measure of autonomy for Tamils.[46] [47]
[44] See, ‘Navi Pillay warns Lanka for reprisals against rights defenders’, Hindu, 9 September 2013, at [last accessed at 7 February 2014]; ‘Mannar Bishop Concerned’, Sunday Leader, 24 November 2013, at [last accessed 7 February 2014]; Navi Pillay, ‘Opening Remarks at Press Conference in Colombo, Office of the High Commissioner for Human Rights’, 31 August 2013, at [last accessed 11 February 2014].
[45] Ministry of External Affairs Sri Lanka, ‘Sri Lanka is still under threat - warns Secretary Defence’, at [last accessed 7 February 2014]
[46] Ministry of External Affairs Sri Lanka, ‘Sri Lanka is still under threat - warns Secretary Defence’, at [last accessed 7 February 2014]; see also Rear Admiral Dr. Sarath Weerasekara, Deputy Minister of Labour and Labour Relations, Parliamentary Debates, Hansard Volume 216-2, p. 330, 6 March 2013: “There is a diabolical attempt[on the part of TNA Members of Parliament] to distort the real picture and give a wrong picture to the international community with ulterior motives. One of their objectives can be the seeking of foreign funds to resuscitate the LTTE by spreading the untruth that Tamil people in the North are not looked after properly.” (informally translated from Singhalese)
[47] CIS28485, pp. 22-23.
…
The third strategy of the policy outlined by this Report is the targeting of those defiant or perceived as being defiant of the government and military89 and those involved in protesting the government and military. This strategy is aimed at exerting significant control over the population; imposing heavy costs on those who are perceived as intransigent; and discouraging mobilizations by those opposed to the government and military.[48] This strategy is designed to stultify any mass mobilization of people in the Northern Province capable of challenging the dominance of the military and government in social, cultural, personal and political life, and thus undermines the pursuit of Tamil political aspirations.[49] (23 [68
[48] See generally, Amnesty International, Assault on Dissent Report, supra note 7; Tamil Guardian, ‘Sri Lanka to prosecute LLRC critics’, 23 December 2011, at [last accessed 11 February 2014].
[49] CIS28485, p 23.
With respect to the situation of the ‘grease men’ or ‘grease yaka’, that report provided the following account:
At around 8 pm on 22 August 2011, villagers from Navanthurai, a village in the Jaffna District, spotted five “grease men” in the Navanthurai area. “Grease men” referred to a phenomenon observed throughout the country in the mid to latter part of 2011 where unidentified men whose bodies were covered in grease had been attacking women—particularly in minority areas—throughout the country.[50] When the villagers surrounded and tried to capture the men, they ran into the Navanthurai Army camp. The villagers gathered at the entrance to the Army camp and demanded that the Army produce the grease men who had run into the camp. The Army refused. A short while later, the villagers saw the grease men being driven out of the camp in an army jeep. They had changed into military uniform and one man even brandished a knife at the villagers from inside the jeep. Agitated by the protection given by the military to the grease men the villagers threw stones at the jeep. The crowd was dispersed by around 9.30 pm after soldiers fired shots in the air. Later that night, in retaliation, approximately 100 men were tortured by Sri Lanka Army personnel. In the early hours of 23 August 2011, approximately 100 young men were dragged out of their homes and tortured in an operation in the night conducted by the Sri Lanka Army. The villagers were severely beaten by the army and dragged to the main road near the Navanthurai Army camp located around 300 meters from the village. The men were loaded onto buses and handed over to the Jaffna police around 4 am. At 10 am, they were produced to the Jaffna courts. Many were severely injured with open wounds and broken bones. Twenty of the most seriously injured were admitted to the Jaffna General Hospital after 10 am, on orders by the District Judge. The rest were denied treatment until around 7.30 pm.[51] [52]
[50] See, e.g., ‘Grease Yaka still haunts villages’, BBCsinhala.com, 20 August, 2011, at [last accessed 7 February 2014]
[51] See, e.g., WATCHDOG, ‘Jaffna: brutal assault of civilians in Navanthurai’, Groundviews, 25 August 2011, at [last accessed 7 February 2014]
[52] CIS28485, p 46.

Another report also discussed the ‘grease men’ issue:[53]
[53] Swarna Rajagopalan, "Peace, with Women? Women's Political Participation in Post-conflict Contexts", Prajnya Trust, 01 January 2014, CIS2F827D92413.
The climate of fear and insecurity are best epitomised by the stories of ‘grease yaka’ attacks in August-September 2011.[54] After initial reports from the tea estates of Ratnapura,[55] women from Batticaloa, Puttalam, Trincomalee, Mannar, Vavuniya and Jaffna reported that they were physically assaulted by men with concealed identities. According to the ICG report, the attacks were never sexual and seemed random, with perpetrators approaching women from behind and putting their hands on victims’ neck and chests. However, what the Women Under Siege researcher heard suggests they were in fact sexualised: the perpetrators are naked and bite breasts or rape.[56] Fear of the attacks was sharpened by the feeling that the police were not just ignoring the attacks but sheltering the perpetrators, and this resulted in vigilante attacks on suspects, which in turn led to their arrest.[57] Most of those caught were Sinhalese and some were members of the armed forces.[58]
[54] ICG, Sri Lanka: Women’s Insecurity in the North and East, Asia Report No. 217, December 2011, pages 30-31
[55] Isaac, Leela. Reconciliation, A Political Settlement and the “Grease Devil,” Groundviews.org, September 8, 2011, accessed at on January 3, 2014.
[56] Lent Hirsch, Michele. Conflict Profiles: Sri Lanka, July 2013, Women Under Siege Project, accessed at on January 3, 2014.
[57] “In all these places civilians who protest against the ‘Devils’ are the ones who are considered the villains of the peace. According to General Hathurusinghe those who disturb the peace, those who protest would be shown no mercy – in fact they would be branded “Terrorists”.” Leela Isaac, Reconciliation, A Political Settlement and the “Grease Devil,” Groundviews.org, September 8, 2011, accessed at
on January 3, 2014. See also, “Ground report: Widespread public perception of military links to ‘grease devils’? August 15, 2011, accessed at on January 3, 2014; and Kusal Perera, “De-greasing social speculation over “grease devils” in Sri Lanka,” Groundviews.org, August 21, 2011, accessed at on January 3, 2014.
[58] Ibid., p. 39.
70.
The Amnesty International report on Sri Lanka from 2013 advises:
Unlawful detentions, torture and enforced disappearances remained rife and went unpunished. Government officials and supporters harassed and threatened human rights defenders, journalists and members of the judiciary who spoke out about abuses of power or advocated human rights accountability. More than three years after the armed conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) ended, impunity persisted for alleged war crimes and crimes against humanity. The government failed to implement recommendations aimed at accountability made by Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) and the UN Human Rights Council. The authorities continued to rely on the Prevention of Terrorism Act to arrest and detain suspects for lengthy periods without charge or trial. Despite government claims, many people displaced by the armed conflict were not fully settled, including some whose land remained occupied by the Sri Lankan military.
Another Human Rights Watch Report from 2014 for Sri Lanka advises:
Torture and other ill-treatment of persons in custody by the security forces has been a widespread problem both during and since the armed conflict. Human Rights Watch published new evidence in February that rape and sexual violence has been a key element of broader torture of suspected LTTE members and supporters even since the war’s end. The torture is used to obtain “confessions” of LTTE involvement, and to instill terror in the broader Tamil population to discourage involvement with the LTTE.
The government rejected these findings and claimed they were fabrications by individuals seeking to embellish their overseas asylum claims. Human Rights Watch is unaware of any government investigations into the reported sexual abuse.
Several European countries have since suspended deportations of Tamils with connections to the LTTE, finding them to be at risk of torture on return. UNHCR revised its guidelines on assessing asylum claims in December 2012, and recommended that persons with certain links to the LTTE be regarded as being at risk on return…
…Sri Lanka’s Prevention of Terrorism Act gives police broad powers over suspects in custody and is the law most commonly invoked by officials to justify prolonged detention without trial of security suspects. It is still in regular use. The government asserts it has made available comprehensive lists of the names of those detained under the law as well as their places of detention, but family members in 2013 reported difficulty accessing the information. Pillay said during her trip in August that she had “never seen this level of uncontrollable grief” when visiting with families of the forcibly disappeared in northern Sri Lanka.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of Reference
The applicant entered Australia from Sri Lanka and provided evidence of his Sri Lankan citizenship. Having considered the material on the applicant’s files, I find that the applicant is a citizen and national of Sri Lanka.
I am also satisfied that he does not have enforceable rights to enter and reside in any other country.
This being the case, I find that Sri Lanka is the country of reference in this matter.
The independent material cited supports the applicant’s claim that the LTTE had been in control of the area during the war.
The applicant’s main claims have been consistent and are set out above. Like the delegate did, I find the applicant credible and accept his claims.
However, I have obtained further information and evidence as to the applicant’s various conditions of release, including reporting requirements, and the previous conviction of the applicant’s brother and the suspicions that arise from that.
I give weight to the advice in DFAT Report the Thematic Report on LTTE Links as cited above and find that the applicant, according to that report falls into a category of people of adverse concern to the Sri Lankan authorities.
Although the applicant had not, at the time he left faced any serious harm with the exception of the assault and beating during questioning at the CID, I accept that he had come to a point where he was of some adverse concern to the CID.
I accept that he was on reporting conditions and that his absence from Sri Lanka will be known to the CID. Accordingly, I cannot dismiss as remote and insubstantial a chance that his personal background has been further examined.
Equally, I accept the DFAT advice that, on return to Sri Lanka, the applicant will come under close scrutiny of the Ministry of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department (CID):
Upon arrival in Sri Lanka, authorised officers check passport/travel document and visa information against the Department of Immigration and Emigration (DoIE) immigration database. Under Sri Lanka’s Immigrants and Emigrants Act (the I&E Act), it is an offence to depart other than via an official port of entry/exit (such as a seaport or airport) and without a passport. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can also be charged with an offence under Section 45C of the I&E Act for organising or attempting to organise for another person to leave in contravention of the I&E Act. The I&E Act empowers authorised officers to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents by such a person.[59]
[59] DFAT Country Information Sri Lanka July 2013.
Of itself, there is nothing untoward about this as the DFAT advice is that this is non-discriminatory and is done on the basis of determining who the returnee is and what his or her background is. In the case of a person with no significant profile this is not, without more, a matter of significant concern.
However, in the current matter, the applicant’s ability to keep a relatively low profile and not to have come to the attention of the CID in regard to his activities with the LTTE would seriously change if he came under the close scrutiny of this on-arrival investigation which, can be for 24 or 48 hours. The additional investigation he would be subjected to upon his return to his home area is also of concern.
I find that it is quite plausible that the applicant would be scrutinised and interrogated to the extent that his involvement in the transport of goods for the LTTE could become known.
I accept DFAT advice that a person of that profile would be of adverse concern and face a real chance of serious harm including torture, loss of liberty and/or loss of life.
These losses are those given as examples of serious harm in s.91R(2) of the Act and constitute serious harm.
Is there a Convention Nexus
The situation of the applicant having come from an area that was completely under the control of the LTTE throughout much of the period of conflict, the assistance he provided to the LTTE and, in particular his work transporting goods for the LTTE are such that he would be suspected of being a supporter of the LTTE or that a political opinion to that extent would be imputed to him.
This being the case, I find that the essential and significant reason for the serious harm is an imputed political opinion.
Other Issues
There are three other issues to consider: Whether he could avail himself of protection through the state; whether he could avail himself of protection by relocating to another part of Sri Lanka; and whether there are grounds for the applicant to be excluded and therefore referred to the appropriate body, the AAT for determination.
In regard to the first two grounds, the applicant could not avail himself of any protection through the state since it is an organ of the state that I find is the agent of persecution.
Secondly, as I find he would be detained at the airport on arrival the ability to relocate and be protected in this way does not exist.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Suzanne Carlton
Member

^{^[22]} Human Rights Watch 2012, United Kingdom: Document containing cases of Sri Lankan deportees allegedly tortured on return, 15 September <

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