1410839 (Refugee)

[2016] AATA 3367

1410839 (Refugee) [2016] AATA 3367 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410839

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Stuart Webb

DATE:22 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 22 February 2016 at 12:16pm

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 [in] November 2012 and the delegate refused to grant the visa [in] June 2014.

3. The applicant appeared before the Tribunal on 17 February 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.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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

20. The applicant provided the following statement with the application.

    I am a [age] year-old citizen of Sri Lanka. I was born in [year], in [Village 1], Puttalam district, North West Province in Sri Lanka. I am of Tamil ethnicity, and my religion is Hindu. My family, including my wife, [children], as well as my mother, and [siblings], remain living in [Village 1]. I make this Statutory Declaration in support of my application for a Protection Visa.

    I respectfully request that the Department of Immigration grant me protection from the harm that I fear in Sri Lanka. My main reasons for seeking the protection of the Australian Government are based on fear of harm at the hands of the Sri Lankan Army on account of my Tamil ethnicity, because of my imputed connection with the LTTE, and because I left Sri Lanka unlawfully.

    Growing up in [Village 1] we largely avoided the conflict which affected the rest of the country.

    Between [year] and [year] I completed [number] years of Primary [School]. I then left school and began fishing in rivers nearby to the village. The village is situated on the coast and many of the people who live there work in the fishing industry, both fishing and farming prawns. My father worked as a fisherman in the river, but he would also fish in the ocean. My mother was a housewife and she took care of us all.

    In order to pass from one area, [Village 1], to another, [Village 2], and get permission to fish in certain areas, we had to obtain a permit and register our details with the Sri Lankan Army (SLA). My father was usually responsible for undertaking this process. In 1991 I took over this process from my father. Usually we had to queue for about 45 minutes to one hour, and as my father was getting old it was too long for him to stand. All Tamil fishermen must attend the SLA check point at [Town 3] and register your name and present your National ID card and the address that you have come from and where you intend to go. The SLA monitors the movements of the Tamil people coming and going through the area as [Village 2] is an LTTE area. I understand this is the reason the SLA monitors the entry and exit of people from this area. Once you arrive in [Village 2] you must pass through an LTTE checkpoint. Once you exit the area you must also advise the LTTE at the [check point] that you are exiting the area, there is then another LTTE [check point]. This is the last LTTE checkpoint I must present all documents to the LTTE. I am then issued with another pieces of paper that I have to keep secret as I exit the area through the SLA checkpoint at [Town 3]. If the SLA discovers that I have this authorisation paper from the   LTTE then the SLA would hold me for a long time and interrogate me about where I have been fishing.

    There are two reasons why I chose to enter [Village 2] for fishing. The first reason is that once we are in this area then we are not harassed or pursued by Singhalese people at all. The other reason is that [Village 2] is a good fishing area. In [Village 1] there is only seasonal fishing. When the fishing season is finished in [Village 1] then I must go somewhere else to fish in order to provide for my family.

    I cannot remember exactly which year it was, but about 1996 or 1997 my father went fishing to [Village 2] and became sick and died. [Details of father’s health conditions deleted]. My [brother] lives in [Village 2].

    Between 1991 until 1998 I lived in [Village 2] and fished and farmed prawns with my [brother]. During this time there was conflict in Sri Lanka. On occasion we would be beaten by the Navy officers patrolling the area. This was very regular, about every two days. The Sri Lankan Navy officers would attack us because we are Tamil, and the area we were in was a Tamil area. Sometimes there were air attacks and when this occurred we would have to run away from bombs. The LTTE would also attack the Navy. Over time the LTTE increased their presence in the area, conflict directly between the LTTE and the Sri Lankan Navy increased. We, as civilians, were in the middle. The LTTE advised us to dig holes in the sand and showed us how to protect ourselves.

    In 1998 I returned to [Village 1] because the conflict was not as intense, my father had died in [Village 2] and my mother was widowed. I had to report my arrival to the local police. The local police advised the CID. Once we returned to [Village 1] I was regularly subjected to checks by CID. [In] October 1998 I was arrested by the CID and accused of working for the LTTE. The CID checked my body for signs of training by the LTTE. The CID beat me and suggested my brother is helping the LTTE. My mother bribed the CID and I was able to be released. My family was falsely accused for working with the LTTE because my brother had married and moved to live in [Village 2]. Other people in [Village 1] said we were working for the LTTE. Although I was never officially working for the LTTE, as a resident of the [Village 2] area I was required, as were other fishermen, to undertake sentry duties to see if there were any SLA movements. If someone did not want to undertake the sentry duties then I would have to pay a find another man would take over.

    In 1999 I left [Village 1] and went to [Town 3] and got married to my wife. [Town 3] is a Singhalese area, and although my wife and her family are Tamils like me, we did not experience any problems. During this time I worked in a [factory]. I remained in [Town 3] until 2001.

    In 2001 I returned to [Village 1]. At this time I was working as a self-employed fisherman and I travelled between [Village 1] and [Village 2] every three to six months. Between 2001 and 2008 my life was relatively peaceful. When I went out fishing during this time I had to register with the SLA and state the purpose of my movement from the area. When I returned I had to advise the SLA at the checkpoint. On occasion I was detained for up to a day by the SLA and interrogated about what the LTTE was doing in the area and where they were. If you did not answer correctly the SLA officers would beat you. One of my Tamil friends, a fellow fisherman, was beaten so badly by the SLA that he died. I had also been detained at this time. After this incident his wife came to ask me what had happened to him and I told her to ask at the camp. She was told at the SLA camp that her husband was released also, but this was not true.

    Between 2008 and 2009 there was civil war in Sri Lanka. There were many restrictions placed on where we travelled to fish during this time, we could not move around as normal. This made it very difficult for me to earn a living. It was very hard for my family during this time.

    In 2010 I began working  at a [factory] to earn a living to support my family. My father in law had a [factory] and he allowed me to take over the business. I then rented [factories] next to my father in law's factory. I was able to do this by giving the bank my family jewellery an obtaining a loan. There were Singhalese conducting similar businesses nearby. They were not subjected to the stringent checks that I was subjected to as a Tamil person. I had to produce a lot of documents to obtain permission from the authorities to conduct this business. There were other ways that I was discriminated against also in conducting this business, for example I had to stop [details deleted] at a certain time because the Singhalese farmers wanted to continue [details deleted]. I had to [stop] and I ended up with a loss for my business. I complained to a member of parliament about this, but was not able to get any assistance. This is one way that the government discriminates against Tamil people in Sri Lanka.

    Between 2010 and 2012 I lived in [Village 1]. [In] March 2012 I went to work as usual, to a fishing [area], I had to take a pass from the local council and police. Then I had to register in the SLA camp. The army would check whether the correct number of people was fishing in that area. When I was checked they asked me if I was fishing in other places. I told them I was fishing in [Village 2]. I told them I was doing fishing on the boat in [Village 2]. The SLA officers inferred that I knew where the LTTE were keeping weapons in that area. I told the SLA officers that I did not know and that LTTE do not allow us to go to those areas.

    [In] May 2012 I returned home to [Village 1] without informing the army. On the same day the SLA recorded the number of people who have left and entered the area and my friends said to me that the SLA would come after me because I had left without permission from the SLA.

    [In] May 2012 the CID arrested me along with [a number of] other people in a jeep they took me to the head branch of the CID in Colombo. The CID took photos of me, my address and personal details and moved us to the police department. I was interrogated by the CID. I was advised that I would be released on [date] May 2012, however the police advised me that I would not be released without the authority of the court. The police advised me that I should ask my wife to get a letter stating she would provide security if I was released. At the court my case was joined together with that of other men who had attempted to leave Sri Lanka illegally. In total we were [number] people. The court made my charges the same as the men who had tried to leave Sri Lanka illegally.

    [In] May 2012 the police provided me with six or seven release papers to secure my release. I was able to be released because my wife provided security for my release. I was very scared that the SLA, CID or police would come after me again, detain me and interrogate or torture me, and so I made arrangements to leave Sri Lanka.

    There are some minor errors in my entry interview that I would like to clarify, in some instances it is recorded that the CID interrogated me, this was in fact the SLA. I believe that I was misunderstood by the interviewer or the interpreter.

    Now that I have left Sri Lanka illegally and sought asylum in Australia I fear further harm at the hands of the SLA and the Sri Lankan authorities. I fear that they will know when I return to the airport and will arrest and detain me there. I left without a valid passport and would face punishment for this. Further I departed Sri Lanka while the Army were still searching for me.

    I do not believe that I could move anywhere else in Sri Lanka to escape the threat of harm. First, in Sri Lanka it is necessary to register your residence when you move. It would be possible for those who are searching for me in the SLA to know that I have moved and continue to threaten me. Further, to move would be very difficult for me. I have no family at all anywhere else in Sri Lanka who I

    could rely on for support. I could not move to Colombo because the majority there are Sinhalese. I could not move to any other Tamil areas either because I believe they would be even worse than [Village 1]. [Village 1] avoided the conflict and so I believe it would be even worse in a place like Batticaloa or Jaffna.

    In summary, I fear harm including arrest, detention, physical assault and death at the hands of the Sri Lankan Army and other government authorities on account of my Tamil ethnicity and imputed connection to the LTTE. I face an increased risk of this harm as I am a young male Tamil and because I left Sri Lanka illegally. I have been pursued for harm by the Sri Lankan Army and have previously experienced physical assault. I cannot reasonably relocate anywhere else in Sri Lanka to avoid the threat of harm.

1. The applicant provided documents pertaining to his identity.

2. The applicant’s agent provided some further submissions. They stated that

   We submit that there is a real chance that [the applicant] would face serious harm from the Sri Lankan authorities on account of the following Refugees Convention grounds, taken either individually or cumulatively:

   ·His Tamil ethnicity;

   ·His imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) on account of:

   §His Tamil ethnicity; and

   §His time spent working in areas controlled by LTTE

   §His illegal departure from Sri Lanka and his previous charge of attempting to leave Sri Lanka illegally ; and

   §His extended presence in Australia as an asylum seeker

   Findings and reasons

   Country of nationality

3. The applicant claims to be a citizen of Sri Lanka and provided copies of his identity card to the Department with his application. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.

   Third country protection

4. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

5. The applicant provided evidence to the Tribunal regarding his personal circumstances. As discussed with the applicant at the hearing, there was very little in his personal background and history in Sri Lanka that would lead to a finding that the applicant faced a real chance of serious harm or a real risk of significant harm on return to Sri Lanka. The applicant’s agent conceded that there was not much of a recent personal history of being harmed, he had experiences  with the authorities in the 1990s, had to register as a fisherman, but there was nothing that had occurred to the applicant in the period leading up to his departure, apart from his arrest in May 2012.

6. The Tribunal discussed this arrest with the applicant. He stated he had returned from fishing on the East coast of Sri Lanka earlier in May 2012. The applicant stated he had failed to report back to the authorities that he had left, and thought that this might have caused him some difficulties, and may have been a reason why he was arrested [in] May 2012.

7. The Tribunal discussed the arrest. The applicant was at a Hindu Temple in [Village 1] when he and other Tamil men who were at the temple were arrested by the CID. He was placed in a jeep with these other men and driven to Colombo.

8. The Tribunal considers that as the applicant had been arrested with a number of other men he was not identified as someone who was a person of interest for not signing out after fishing. The Tribunal considers that the applicant was arrested because he was in the company of a number of Tamil men whom the authorities suspected were making arrangements to illegally depart Sri Lanka.

9. The applicant stated that he was taken to the Colombo CID headquarters and held for two days. He stated that he was not questioned or harmed during this detention. He was asked his name and fingerprinted, but nothing else occurred. He was not told why he was arrested. The applicant stated that some other men were harmed, but not the applicant.

10. The applicant stated that after two days he was taken to the Magistrates Court where he was notified that he was charged with attempting to leave Sri Lanka illegally. The applicant stated that there were [number] people charged with this offence. The applicant stated that a lawyer representing him and others stated that the people had been arrested on the street, and not on the boat. The applicant stated that the Magistrate let him out. His wife came to court and paid 1000 rupees.

11. As discussed with the applicant, the Tribunal noted that this treatment of the applicant by the authorities demonstrated that the applicant was not a person of interest arising from his background as a Tamil, including his past experiences with the authorities, and experience of travelling to the East coast to fish. The authorities had fingerprinted him and got his details, however they had no further interest in him, asking him no questions about any of his activities, and releasing him on bail with only the charges arising from the belief he was seeking to leave Sri Lanka.

12. The Tribunal is aware of this incident where a number of Tamil men were arrested and charged with attempting to depart Sri Lanka illegally. The Tribunal has previously been provided with a court document in Singhalese with an English translation, which lists the details of the [men] who were charges in late May 2012 with attempting to depart illegally from Sri Lanka. This list of individuals has been verified as a genuine document; the Tribunal is satisfied that this court document is a genuine document.

13. These documents reference the applicant (at no. 16), and the ID Card reference in the court document matches that of the applicant as included in his ID card provided to the Tribunal. The applicant also provided the same address as listed on the court document.

14. The Tribunal accepts that the court documents are genuine documents and that the applicant has been charged with offences under Sections 35(a) and 45(c)(1)(1)(6) of the Immigration and Emigration Act and s140 of the Ceylon Penal Code.

15. The Tribunal has viewed a series of reports that confirm the applicant’s claim that a number of people were arrested in late May 2012. These include the reports: ‘[title]’, [source deleted][1]; ‘[title]’, [source deleted][2]; ‘[title]’, [source deleted][3]; ‘[title]’, [source deleted][4]; and [title], [source deleted].[5]

    [1] [Information deleted].

    [2] [Information deleted].

    [3] [Information deleted].

    [4] [Information deleted].

    [5] [Information deleted].

16. The Tribunal asked if the applicant had intended to leave Sri Lanka  when he was arrested [in] May 2012. The applicant stated he did not. The Tribunal considers that the applicant may have had a defendable case before the Court. However his actions in departing the country and not appearing before the Court make it unlikely that his defence would be successful to these charges. He is likely to face a punishment for this offence.

17. However, the applicant then did proceed to board a boat and depart Sri Lanka illegally [in] June 2012. The Tribunal asked why the applicant left at this time. The applicant feared that he would be harmed because he provided security for the LTTE during the 1990s. The applicant also described an incident from the past when he was arrested with another man, who was not seen again. The Tribunal noted that the authorities had asked no questions of the applicant when they had arrested him, he had been identified and fingerprinted, then released, with no issues arising for the applicant. The Tribunal stated that the reasons for the applicant departing did not appear to exist. However, the Tribunal notes that irrespective of the very limited reasons as to why he departed, the applicant has left Sri Lanka illegally.

18. The Tribunal accepts that the applicant will face further charges regarding his actual illegal departure [in] June 2012.  This will likely include further charges for breaching the bail conditions as established [in] May 2012. He will also face the original charge that brought him before the court [in] May 2012.

19. The applicant states that his wife has been required to attend court and the [Police] Station because she provided the surety that the applicant would return to court at a later date. The applicant stated that his wife very recently had to pay 50 000 rupees as a fine for her part in the applicant’s breach of his bail, and that she received a receipt for the payment of the money. Her [sibling] in [another country] provided the money to pay the fine. The Tribunal asked if the applicant’s court case from 2012 was still ongoing. The applicant stated he believed so.

20. The applicant’s experience of the prison system in Sri Lanka is limited. He was held with others in a police station for two days. He has not claimed that he was mistreated, he was not questioned, he was released by the Magistrate without any concerns being raised or identified. The applicant has an older experience of mistreatment that dates back to the civil war, but as discussed, this was not an issue for him while he was detained.

21. The Tribunal asked the applicant regarding any fears he had in prison. The applicant stated that he feared he would be placed in Negombo prison with Singhalese inmates because he was a Tamil. The applicant stated he feared that he would be beaten and harmed while being detained. The applicant stated he did not believe that he could complain about any mistreatment to the authorities, that he would be more likely to be further harmed by the prison guards. He would also not be able to raise any mistreatment with any independent visitors, like the Red Cross, as he would be harmed for talking to them.

22. The applicant’s representative made submission regarding the violence that has occurred to Tamils in Sri Lanka prisons. She stated that there was evidence of mistreatment that had been recorded. The Tribunal noted that there were credible reports of violence in some instances, but that it was now a few years old, and there had been significant political changes in Sri Lanka. The Tribunal noted that the President Sirisena had made public statements regarding seeking reconciliation between the Singhalese and Tamil communities. The applicant’s representative acknowledged the change of government, but submitted it was optimistic to assume that changes in the leadership of the country had filtered through all levels of society, including to the prison system. It was submitted that there was a very real risk that the applicant would be detained for an extended period of time, because he had breached bail conditions, and while detained, would be harmed.

23. The Tribunal accepts that the applicant is named in a criminal case arising out of an alleged attempt to depart from Sri Lanka in mid-2012. The Tribunal accepts that the applicant has breached the conditions of his bail imposed in this case by departing Sri Lanka in mid-June 2012. The Tribunal accepts the claim by the applicant that by breaching the bail condition he is likely to be refused bail on return to Sri Lanka, face fresh charges of departing Sri Lanka without permission, and that the prospect that the applicant would be remanded in custody for an extended period of time due to his previous actions and criminal matters that are currently proceeding through the courts.

24. The Tribunal considers that the applicant’s claims with respect to his fearing harm due to his illegal departure from Sri Lanka and likely imprisonment on return are a relevant claim. The treatment from prison authorities that the applicant may receive as a Tamil while being held on remand or while serving a court imposed sentence can constitute serious harm, as the mistreatment can be intentionally or discriminatorily affecting a certain element of the prison population, namely Tamils who have been ascribed an anti-Government opinion.

    Illegal Departure

25. DFAT released a report on matters pertaining to entry and exit procedures of Sri Lanka and offences under the Immigrants and Emigrants Act in December 2015. It stated:

    Entry Procedures

    5.29 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and a unit of the CID based at the airport. In the past, officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavoured to meet flights with involuntary returnees from Australia on arrival but no longer do so. DIBP has observed that processing arrivals can take several hours, primarily due to the administrative processes and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.

    5.30 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters.

    5.31 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.

    Offences under the Immigrants and Emigrants Act

    5.32 Most Sri Lankan returnees, including those from Australia, are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo’s Bandaranaike International Airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the closest Magistrates Court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged may be held at a nearby prison.

    5.33 DFAT was informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings. The same processes outlined above are applied to returnees who travelled illegally to India and then onwards to a third country. Children are never subject to bail or fines. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures (see ‘Facilitators and organisers below).

    5.34 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.

    Facilitators and organisers

    5.35 The Attorney-General’s Department typically distinguishes between those suspected of being passengers on a people smuggling venture and those suspected of facilitating or organising of irregular migration of people from Sri Lanka. Facilitators or organisers can be charged with an offence under Section 45C of the I&E Act.

    5.36 Some returnees from Australia have been charged with immigration offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to the robbery of a vessel used to travel to Australia; the causing of grievous harm to persons; and people smuggling. DFAT understands that, in several cases, returnees have been charged and convicted of immigration offences. As of March 2014, at least one charge had been upheld on appeal.

26. Further information considered also provides information about the situation for illegal departures. Advice from DFAT and other sources[6] indicates that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail. The country information before the Tribunal indicates that the penalties on conviction for these offences involve a fine and a prison of one to five years, but that the courts have discretion and a prison term may not be imposed.

    [6] See, for instance, Doherty, B. 2012, ―Asylum denied, a penalty awaits at home‖, The Sydney Morning Herald, 8 December

27. The Tribunal notes the recent advice in relation to returning to Sri Lanka and being brought before the Magistrate. The DFAT information also provides the information regarding family members providing a personal promise or surety for the purpose of bail. The applicant’s evidence regarding his wife providing a surety for bail purposes is consistent with this information. The Tribunal further notes that the applicant’s wife has come under scrutiny for the applicant’s failure to attend future court dates, that she has been fined because of her broken promise to ensure that the applicant return to court at a later date.

28. In December 2013, DFAT advised that ‘For bailable offences under the I&E Act [Immigrants and Emigrants Act], post has been informed that, as a matter of practice, bail is granted to almost all people that were passengers on people smuggling ventures. Bail will be granted at the first available instance (and minors will not be charged with any offence)’.[7] In March 2013 DFAT advised that it is not aware of allegations of mistreatment of returnees while on remand. [DFAT] does not monitor the treatment of returnees while on remand.[8]

    [7] Department of Foreign Affairs and Trade (DFAT), Country Information Request No: LKA15326: Personal surety‘, 18 December 2013 CX316873

    [8] 43Department of Foreign Affairs and Trade (DFAT), RRT Country Information Request LKA41955 - Treatment of returned failed asylum seekers‘, 28 March 2013 CX305410

29. Information from DFAT suggests that individuals involved in people smuggling operations may be treated differently to others who have departed illegally. In October 2014, DFAT advised that the Sri Lankan “…Attorney-General‘s Department typically treats differently those suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising a venture. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can 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.”[9] DFAT has also advised that “the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender”.[10]

    [9] Department of Foreign Affairs and Trade (DFAT), DFAT Country Report Sri Lanka‘, December 2015  para 5.35

    [10] Department of Foreign Affairs and Trade (DFAT), DFAT Report 1479 – RRT Information Request: LKA41452‘, 4 March 2013 CX304258

1. In January 2014, DFAT advised that both boat captains and people smuggling organisers have been convicted of offences under Section 45C(1)(b) of the I&E Act. Penalties have included imprisonment and fines in accordance with the Act.[11]

   [11] Department of Foreign Affairs and Trade (DFAT), Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers‘, Country Information Report No. 14/02, 24 January 2014 (sourced from DFAT advice of 7 January 2014), CX317331

2. On 9 July 2014, BBC News reported that the adults among a group of 41 asylum seekers returned to Sri Lanka by Australia have been charged with leaving the country illegally. Most of them have now been released on bail‘. The Australian government said that “of the 41 people returned, only four were Tamils…‘[12] A Reuters article of 10 July 2014 stated, “The 37 Sinhalese and four Tamils on the first boat were returned to Sri Lanka over the weekend and appeared in court in the port city of Galle. Five people suspected of being the ringleaders of a people-smuggling operation were detained and 27 released on bail. Children were released without charge‘.[13] On 14 July 2014, an article sourced from Reuters reported that the five detained asylum seekers suspected of being ringleaders of a people-smuggling operation had not been charged, but a magistrate in Galle had extended their detention until 28 July 2014, pending a ruling on whether they can be charged‘.[14]

   [12] Australia asylum: Minister in Sri Lanka amid row‘, BBC News, 9 July 2014 

   [13] Aneez, S, Australian minister under fire for not meeting Tamil groups on Sri Lanka trip‘, Reuters, 10 July 2014 < CX323888

   [14] Aneez, S, Sri Lanka court keeps five in Australia asylum case in detention‘, Reuters, 14 July 2014

3. A return of a boatload of Sri Lanka nationals facilitated by the Australian authorities has been reported upon. Amanda Hodge of The Australian newspaper wrote:

   A FORMER returned Sri Lankan asylum-seeker, whose claims of torture by authorities there prompted Amnesty International to make a direct appeal for his safety, is again in custody and alleging torture, after his second attempt at asylum was foiled this week and his boat turned back by Australian authorities.

   Indika Mendis, 32, was jailed in October 2009 after he and brother Sumith were among the first group of 12 Sri Lankans to be returned to the island nation under asylum-seeker policies introduced by the Rudd government.

   They spent 11 months in Christmas Island’s detention centre. The brothers, Catholic fishermen from the country’s west coast, were jailed in Sri Lanka for alleged people-smuggling, after being charged with crewing a boat that arrived on Christmas Island in late 2008. Both denied the charges and made allegations of torture against Sri Lankan police authorities.

   Now, Sumith Mendis says his brother has again been assaulted in custody, days after Immigration Minister Scott Morrison defended his government against criticism from the UN Committee Against Torture that its boat-turn-back policy exposed asylum -seekers to an unacceptable risk of torture. Sri Lankan human rights advocate and lawyer Lakshan Dias told The Australian yesterday that Indika Mendis was among 38 Sri Lankan asylum-seekers whose boat was turned back from Indonesian waters on November 15 by Australian Customs authorities and escorted to the coastal city of Galle on Thursday by the Sri Lankan navy.

   Just one of the passengers on board was found to have a possible case for asylum and has been transferred to an Australian offshore processing facility for further assessment. A Colombo Criminal Investigation

   Department spokesman confirmed the other 37 had been taken into custody on arrival in the coastal city of Galle and were being questioned by the department’s anti-people-smuggling unit.

   Mr Dias said yesterday most of the passengers, including Mr Mendis’s wife, had since been released, but Indika Mendis was still in custody and Sumith had again made allegations of torture.

   “Sumith told me that Indika was assaulted and tortured,” Mr Dias said yesterday. “My advice was to submit a court motion to have him medically assessed. "When The Australian first met Sumith Mendis in October 2009, the then 29-year-old was deeply fearful for the fate of his younger brother, in Negombo jail. Several months later he too was imprisoned and allegedly tortured.[15]

   [15] Asylum-seeker in second ‘torture’ case, 1 December 2014

4. Further information regarding mistreatment of person accused of illegal departures is included in an Edmund Rice report of August 2014[16]. While referencing Sinhalese returnees, it is relevant to the present consideration.

   [16] John Sweeney, "Failed asylum seekers: Sri Lanka", Edmund Rice Centre, 01 August 2014, CIS29882

5. With regard to what procedures may be in place to identify failed asylum seekers or other wanted individuals at the airport, in March 2012 the UK Home Office cited a Foreign and Commonwealth Office report, which noted:

   …the DIE recorded the details of all returnees in a register (logbook). Returnees were then referred to the Criminal Investigation Dept (CID), or sometimes the State Intelligence Services (SIS), without any harassment…It was possible to establish whether a person had left the country illegally by looking at the passport as it would lack the embarkation stamp, but this would not be possible with an ETD [emergency travel document]. ETDs were considered full official documents issued by the Sri Lankan authorities. They were a proof of identity and were valid to go through any checkpoints…

   DIE had access to an alert list. This list contained information relating to court orders, warrants of arrest, jumping bail, escaping from detention as well as information from Interpol and the SIS computer system. The DIE computer system had its own alert system related to the alert list but this did not indicate the exact reason for the alert. Following an alert, DIE would refer these people to CID or SIS to establish the position.[17]

   [17] UK Home Office, ‘Sri Lanka: Country of Origin Information (COI) Report’, 7 March 2012, p.201

   Prison Conditions

6. Prison conditions in Sri Lanka are generally considered substandard in comparison to the international norm. Lower standards are to some extent attributed to overcrowding resulting in inhumane conditions for inmates. Prison overcrowding is largely the result of those in remand and court backlogs, and the detention of petty criminals and repeat offenders. The Ministry of Rehabilitation and Prison Reforms was established in 2010 to reform the prison system. The Ministry has implemented various measures that aim to reduce the prison population, clear court backlogs, propagate community based corrections as an alternative to imprisonment for minor offences and improve prisoner rehabilitation. Notwithstanding this, recent reports indicate prison congestion remains a serious problem. DFAT in its most recent report states:

   Detention and Prison

   5.13 In general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions. Sri Lankan prisons are estimated to hold three times their capacity. On 27 February 2015, the Sri Lankan government held a ‘High Level Roundtable on the Legal and Judicial Causes of Prison Overcrowding’, from which a taskforce has been established to address the issues. The ICRC will be providing technical and logistical support to the Task Force.

   5.14 The ICRC has access to all places of detention and detainees in Sri Lanka, including those held under the PTA. It receives notification of arrest but given resource constraints it may be some time before it is able to visit detainees to assess their welfare. The ICRC follows up with individuals after their release and provides support where possible.

7. A 2013 US Department of State human rights report on Sri Lanka describes prison conditions as ‘poor’ and not meeting international standards due to overcrowding and sanitary conditions.[18] According to the US Department of State report:

   In many prisons inmates reportedly slept on concrete floors and often lacked natural light or sufficient ventilation. According to prison officials and civil society sources, prisons designed for approximately 11,000 inmates held an estimated 32,000 prisoners. More than 13,000 of these prisoners were either awaiting or undergoing trial. There were approximately 1,400 female prisoners. In some cases juveniles were not held separately from adults. Pre-trial detainees often were not held separately from convicted prisoners. Petty criminals often were incarcerated with perpetrators of more serious crimes. Female prisoners were held separately from male prisoners and in generally poor conditions. Prisoners and detainees had access to potable water. Authorities acknowledged poor prison conditions, but cited lack of space and resources as limiting factors.

   There were no ombudsmen to handle prisoner complaints. There were alternatives to incarceration for nonviolent offenders, including community service and community-based corrections alternatives. Community-based corrections included elements of rehabilitation and counseling in addition to community service work.[19]

   [18] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014,  <

   [19] US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February 2014,  <

8. A statement made by the Minister for Rehabilitation and Prison Reforms in 2010 offers more a more detailed account of conditions in 2009 with information particularly relevant to prisoners on remand, as the applicant would be, for an uncertain period of time:

   Over 148,740 prisoners were admitted to prisons in 2009. Of them 37,872 were those convicted of various crimes while the majority - 108,868 were remand prisoners. The daily average of inmates at the Welikada, Magazine and Colombo Prisons was around 9,000 in 2009 despite accommodation and facilities available for less than one-third of them…The situation relating to remand prisoners is deplorable. Some of them are in prison for only a day while others are languishing for years until their release on a court order.[20]

   [20] UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, Section 11 ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/srilanka12/report-070312.pdf?view=Binary Accessed 9 May 2012

9. A 2012 International Committee of the Red Cross report indicated that overcrowding has been one of the most pressing issues within the Sri Lankan prison system.[21] A 2010 news article reported that overcrowding is a problem mainly within remand prisons due to the imprisonment of petty criminals.[22] In 2010 a UK Foreign and Commonwealth Office report indicated that, overcrowding was caused in part by large backlogs in court cases and large numbers of prisoners detained on minor charges due to their inability to pay fines.[23] That same source reports that the majority of the prison population consist of either pre-trial detainees or convicted inmates serving less than three months.[24]

   [21]International Committee of the Red Cross 2012 A systemic approach to tackling recurrent problems in prisons, 15 May 2012 < (CISNET CX297890).

   [22] Kanangara, N 2010 ‘Plans for Prison Reforms’, The Sunday Leader, 16 May < (CISNET: Sri Lanka CX248504).

   [23] United Kingdom: Foreign and Commonwealth Office, Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report - Sri Lanka, 31 March 2011, < (CISNET: Sri Lanka CX262354).

   [24] United Kingdom: Foreign and Commonwealth Office, Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report - Sri Lanka, 31 March 2011, < (CISNET: Sri Lanka CX262354).

10. A 9 September 2013 Colombo Page article reported on comments made by Sri Lanka’s Commissioner General of Prisons about the then current prison conditions:

    Sept 09 [2013], Colombo: Sri Lanka's Commissioner General of Prisons Chandraratna Pallegama said that the country's prisons are severely overcrowded.

    He said that seven prisoners are housed in some instances in the cells made for one prisoner. This has caused severe anxiety among the prisoners and the health conditions such as skin diseases have increased.

    The Commissioner said that at present, 27 prisons island wide house 27,000 prisoners including remand prisoners. Half the inmates are remand prisoners languishing in the jails until their cases heard in courts.

    Repeat offenders, the Minister pointed out were one of the main reasons for the overcrowding of prisons.[25]

    [25] ‘Severe overcrowding in Sri Lanka’s prisons’, 2013, Colombo Page, 9 September <

11. Official statistics reporting prison inmate figures vary. A Colombo Page article quoted the Commissioner General of Prisons report a total of 27,000 prisoners including remand prisoners in September 2013.[26] Whereas the Ministry of Rehabilitation and Prison Reform report the total prison inmate population as at 15 October 2013 was 22, 414.[27] This figure represents capacity of 190.6 percent according to the report.[28] Remand prisoners accounted for 49.3 percent of the prison population as at 15 October 2013.[29] A total of 13, 320 convicted were in community based correction between 1 January 2013 and 31 August 2013.[30] During that same period there were 64 deaths of prisoners and suspects in correctional facilities.[31]

    [26] ‘Severe overcrowding in Sri Lanka’s prisons’, 2013, Colombo Page, 9 September <

    [27] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <

    [28] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <

    [29] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka <

    [30] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 <

    [31] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 <>

    The current UK Operational Guidance Note on Sri Lanka states:

    3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 threshold and a grant of humanitarian protection may be appropriate - see exclusion below.

    3.16.11 The Tribunal in GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) [section 2.4 – Caselaw], found that if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection, see paragraph 356 (4). For both men and women perceived to be connected to the LTTE or as advocates of Tamil separatism, there may be a heightened risk in prison of ill-treatment and caseworkers will need to consider whether a grant of asylum based upon imputed political opinion is appropriate.[32]

    [32] UK Home Office: Operational Guidance Note Sri Lanka, July 2013. 

12. USDOS report that “isolated incidents of degrading treatment” including corporal punishment, maltreatment and abuse also occur.[33] A 2011 report published by Amnesty International states that “[s]ome detainees report being tortured and beaten by military personnel and paramilitary cadres working with government forces, such as the army and navy; by police, by inmates and by prison guards”.  In addition, the report states that “[e]nforced disappearances continue to be reported and bodies of victims of extrajudicial killings often show evidence of torture”.[34]  While no information was located specifying the exact frequency of such instances of maltreatment, media outlets report frequent instances of violence between inmates and prison guards.[35]

    [33] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1

    [34] Amnesty International 2011, Sri Lanka: Briefing to Committee Against Torture, ASA 37/016/2011, October , p.5 asa370162011en.pdf  Accessed 23 March 2012

    [35] Haviland, C 2012, ‘Sri Lanka ‘must seek’ UN help over deadly prison violence’, BBC News bbc.co.uk/news/world-asia-19274037 Accessed 19 September 2012; UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, Section 11   /policyandlaw/coi/srilanka12/report-070312.pdf?view=Binary Accessed 9 May 2012

13. According to USDOS, while authorities acknowledged poor prison conditions during 2011, lack of space and resources inhibited reform.[36]  Conversely, according to the UK Home Office, President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”.  In addition, the government has also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[37]

    [36] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1

    [37] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March a,0.html Accessed 7 April 2011; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1

14. The Tribunal has also considered country information drawn from research by the RRT’s former Country Advice Service which indicates that mistreatment, including torture, is sometimes carried out against Tamil inmates in prisons in Sri Lanka.  However there is conflicting information about whether authorities mistreat Tamils to a greater degree than other detainees, including Sinhalese and Muslim inmates, by virtue of their ethnicity alone. Mistreatment of Tamils in prisons appears to be linked to a greater extent to an inmate’s perceived or actual political affiliation or involvement with the defeated Liberation Tigers of Tamil Eelam (LTTE). UK-based group non-government organisation (NGO) Freedom from Torture stated in 2012 that their evidence demonstrates that “torture continues to be perpetrated in Sri Lanka following the conflict and that those at particular risk include Tamils with an actual or perceived association with the LTTE, including those returning from abroad.”[38]  

    [38] Freedom from Torture 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September net.com/img/publish/2012/09/Freedom_from_Torture_briefing92012.pdf

15. French NGO Action des Chrétiens pour l’Abolition de la Torture (ACAT-France) reported in 2012 that “[i]n 2011 and 2012 Tamil Sri Lankans who had returned to their country, sometimes after having their requests for asylum dismissed, indicated that they had been tortured and subjected to ill-treatments upon their return to Sri Lanka in order to confess to presumed links with the Tamil Tigers”. However, the same report also noted that “[t]he phenomenon of torture … affects Sinhalese groups as much as Tamils”.[39]   Similarly, the Danish Immigration Service cited comments made by a “leading human rights defender in Sri Lanka” in 2010 in which he stated that while torture is frequently practised in prisons, it is not targeted towards certain ethnicities, but rather “related to the conflict in general”.[40]

    [39] ACAT–France & ALRC 2012, When arbitrariness prevails.  A study of the Phenomenon of Torture in Sri Lanka, p. 16

    [40] Danish Immigration Service 2010, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010, October, p.50

1. A number of media articles and civil society reports were located documenting mistreatment of Tamil detainees, some of which appear to be discriminatory, in Sri Lankan prisons in recent years. Below is a non-exhaustive list summarising these instances.

   ·     The Asian Human Rights Commission (AHRC) reported that prison guards “severely tortured” seven Tamil detainees in Bogambara Remand Prison in Kandy on 14 June 2011. According to the AHRC, a dispute had arisen between two groups of Sinhalese prisoners, however the prison guards responded by attacking the group of Tamil detainees “who had no connection what-so-ever with the dispute”.[41]

   ·     A Channel 4 News article reported in November 2011 that there is “mounting evidence that the government is still torturing Tamil prisoners”.[42]

   ·     Several reports document an incident which took place in Vavuniya prison in June 2012 in which Tamil prisoners took three prison guards hostage, prompting a violent crackdown by authorities.  According to NGO Journalists for Democracy in Sri Lanka, 31 Tamil prisoners launched a hunger strike to protest the transfer of three fellow inmates to a different facility. Authorities then tried to forcibly bring an end to the hunger strike, which led inmates to take the guards hostage. The Tamil Guardian reported that Tamil prisoners were then brutally and disproportionately attacked by Sri Lankan security forces, resulting in at least 40 prisoners being severely injured.[43]   On 15 August 2012, the BBC published an article reporting on the same event, stating that the Sri Lankan government should seek help from the UN “in investigating serious violence in jails which has resulted in the deaths of two Tamil prisoners”. The BBC article also reported on claims by civil rights activists that the inmates were assaulted by prison authorities again “both before and after their transfers to other jails”.[44]

   ·     A report posted on human rights blogging site Sri Lanka Brief claimed that intoxicated Sri Lankan Defence force personnel arbitrarily attacked and tortured Tamil inmates in July 2012, including by urging other inmates to spit in their faces.[45]

   ·     The headline of a local news-site article claimed on 17 October 2012 that “[a]ttacks on Tamil political prisoners continues in the Lankan prisons”.[46]

   ·     A local newspaper article dated 29 November 2012 quoted a Tamil National Alliance (TNA) spokesperson as stating that “political prisoners”, namely Tamil inmates suspected of involvement with the LTTE, are “routinely strip-searched before they are taken to Courts for hearings and on their return stripped naked once again and searched”. The TNA further claimed that political prisoners are generally “treated in a humiliating manner”.[47]  

   [41] Asian Human Rights Commission 2011, SRI LANKA: Seven Tamil detainees hospitalised after severe torture by the prison officials inside Bogambara Remand Prison, 4 August

   [42] Miller, J 2011, ‘Sri Lanka ‘still torturing’ Tamils’, Channel 4 News, 7 November  com/news/sri-lanka-still-torturing-tamils  

   [43] Tamil Guardian, ‘Tamil political prisoners attacked in Vavuniya prison by security forces’ 2012, 29 June 

   [44] Haviland, C 2012, ‘Sri Lanka ‘must seek’ UN help over deadly prison violence’, BBC News, 15 August 

   [45] Sri Lanka Brief 2012, Tamil inmates were asked to lick Superintendent’s feet and were beaten up mercilessly, 5 July Accessed 8 January 2013

   [46] Lanka Sri News ‘Attacks on Tamil political prisoners continues in the Lankan prisons: Sinhala news website’ 2012, , 17 October   e9fREE0ade9fGT304dncvJ4304dt4uZ42

   [47] Neethavaan 2012, ‘Sri Lanka: 810 Tamil political prisoners’, Eelam News, 29 November news.com/?p=106448

2. The Tribunal has considered the country information and accepts that some Tamil returnees have been subjected to serious ill-treatment while detained.  Having regard to all the evidence before it, the Tribunal finds that as an asylum-seeker who departed Sri Lanka illegally, the applicant will be questioned at the airport on his return, where he may be held for up to 24 hours while investigations take place.  The Tribunal has accepted that the applicant was arrested in 2012, charged with attempting to leave the country illegally and bailed, and that he left the country while on bail and did not appear in court as required after that.  The Tribunal finds that the previous charges against the applicant, his failure to attend court as required and his breach of bail will come to attention in the course of the re-entry processing.

3. The Tribunal finds that the country information set out above indicates that individuals who are held in prison in Sri Lanka for anything other than a very short period of time face a real chance of suffering cruel or inhuman and degrading treatment because of the extremely poor conditions of prisons in Sri Lanka.  The Tribunal notes and takes into account the change of political circumstances in Sri Lanka, the Sirisena Presidency and new coalition government that emerged out of the August 2015 general elections. The Tribunal considers that these political steps, and the removal of the Rajapaksa regime that had facilitated the ongoing mistreatment of Tamils in custody is a significant development in Sri Lanka, and the prospect of improvement in the future exists. However the Tribunal also notes the issues that have existed in Sri Lanka for an extended time, and accepts that the change in political leadership will take time to influence all levels of society, including those who in charge of prisons and security services.

4. The Tribunal has considered the country information set out above in relation to the claim that prisoners of Tamil ethnicity will be mistreated in prison to a degree greater than prisoners of other ethnicities because they are Tamil. Given the range of country information, both current and historical, regarding the significant degree of harassment and mistreatment of Tamils, particularly at the hands of the Sri Lankan government and security forces, the Tribunal accepts that there is a real chance that prisoners of Tamil ethnicity may suffer, at the hands of the Sri Lankan security forces who control prisons, greater harm than prisoners of other ethnicities and that the chance that the greater harm they suffer may amount to serious harm, such as physical assault or significant physical harassment or mistreatment, is not merely remote.

5. The Tribunal has found above that it is likely the applicant will be imprisoned on his return to Sri Lanka and unlikely that he will be granted bail.  In light of the available country information the Tribunal finds that the chance of the applicant being imprisoned in Sri Lanka for a significant period of time, which could amount to between one and five years is more than remote. The Tribunal also finds that, given the applicant has previously been charged with attempting to leave the country illegally by boat, has breached his bail and failed to appear before the court as required, the chance of him suffering serious harm or mistreatment while in prison cannot be said to be remote. Having regard to its findings above about the treatment of prisoners of Tamil ethnicity, the Tribunal finds that the chance the applicant will suffer serious harm or mistreatment in prison because of his Tamil ethnicity equally cannot be said to be remote.

6. The Tribunal also finds that there is a chance that is not remote that the applicant, because of his ethnicity and his history of having previously been charged with attempting to leave the country illegally, will be imputed with a political opinion against the current Sri Lankan government. Having regard to the country information cited above, the Tribunal finds the chance the applicant will suffer more serious harm or mistreatment in prison than other prisoners will increase because of this imputed political opinion.

7. Article 1A(2) of the Refugees Convention requires that a person’s fear of persecution be “well-founded”. The High Court in Chan Yee Kin v MIEA (1989) 169 CLR 379 held that the concept of “well-founded fear” requires an objective basis for the fear. There is a basis for the fear if there is a “real chance” of being persecuted. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility: a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

8. Having considered the applicant’s claims cumulatively as well as individually, the Tribunal finds that there is a real chance that is more than remote that should he return to Sri Lanka now or in the reasonably foreseeable future the applicant will encounter serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act, now or in the reasonably foreseeable future, should he return to Sri Lanka.  The Tribunal further finds that the essential and significant reasons for the harm would be the applicant’s Tamil ethnicity and imputed political opinion as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).

9. The Tribunal must also consider whether the harm feared by the applicant is localised and whether he could relocate to another part of Sri Lanka to avoid it.  As the harm feared by the applicant is at the hands of state actors, the Tribunal finds that the harm feared is not localised and the applicant could therefore not avoid it by means of internal relocation. As the harm feared is at the hands of state actors, the Tribunal finds also that state protection is not available to the applicant.

10. On the available evidence the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion and Tamil ethnicity should he return to Sri Lanka now or in the reasonably foreseeable future.

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Stuart Webb
    Member

    
    
    

The Australian