1507662 (Refugee)

[2018] AATA 3493

1507662 (Refugee) [2018] AATA 3493 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507662

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Peter Vlahos

DATE:18 July 2018

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 18 July 2018 at 9:38am

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Ethnicity – Tamil – Religion – Hindu – Imputed political opinion– Supporter and member of the Liberation Tigers of Tamil Eelam (LTTE) – Prolonged presence in Australia – Membership of a particular social group – Tamil males originating from [a certain] Province – Failed Tamil asylum seekers – Tamils with diagnosed mental conditions –  State protection not available – Decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 45AA, 65, 91, 499

Migration Regulations 1994, r 2.08F, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
MIMA v Rajalingam (1999) 93 FCR 220

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 and Border Protection 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 and he applied for the visa on 19 December 2012 and the delegate refused to grant the visa on 27 May 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant appeared before the Tribunal on 17 May 2017 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. 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’).

19. ‘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.

20. 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

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

22. The issue in this case is whether Australia has protection obligations in respect of the applicant and for the reasons contained in this decision that follows, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of Nationality and Identity

23. The applicant identifies himself as [name], a Sri Lankan national of Tamil ethnicity and Hindu religion. He claims he is a Sri Lankan national by birth and that he was born on [date of birth] in Sri Lanka. The applicant provided to the Department of Immigration and Border Protection (the ‘Department’) his original National Identity card [issued] [in] 2004 and a certified copy of his birth certificate.[1] The applicant claimed that he had been issued in 2007 with a valid Sri Lankan passport [but] had been lost while he was in [Country 1].[2] The applicant declared that he is not a citizen of any country other than Sri Lanka. At his interview with the Department the applicant spoke in the Tamil language. This understanding of the Tamil language was also displayed to the Tribunal at the hearing and the applicant also displayed an adequate understanding of country knowledge regarding Sri Lanka.

    [1] Department of Immigration and Border Protection File no. [Folio] no [91-100]

    [2] Department of Immigration and Border Protection File no. [Folio] no [98].

24. The Tribunal finds that the applicant is a citizen of Sri Lanka and that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and his receiving country for the purposes of complementary protection. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any other country than Sri Lanka. The Tribunal finds that the applicant does not have a right to enter and reside in any other country, therefore, is not excluded from Australia’s protection obligations under s.36(3) of the Act.

25. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.

    Background

26. The applicant claims that he was born on [date of birth], in [City 1], Sri Lanka. He is [age] years of age. The Tribunal was told that he lived in [City 1] until 2006. He then migrated to Colombo in July 2007 and lived there for six months. While in Sri Lanka, the applicant worked as [Occupation 1], running his own business. He also told the Tribunal that he had completed all of his education and had gained his qualifications [while] still in Sri Lanka. There is family still living in [City 1]. This includes his wife and the applicant’s only child (now aged [age] years) and his elderly mother [and siblings]. The applicant’s father, the Tribunal was told passed away in September 2015. All the members of the applicant’s family are well and in good health.

    The applicant’s claims for Protection

27. The applicant’s claims before the Tribunal can be summarised as follows:

    §From November 1996 until May 1997 he was imprisoned in Sri Lanka as he was suspected of being a member of the LTTE during which time he was tortured and interrogated.

    §From 1997-2002 he was required to report monthly to an army base where he was asked to identify possible members of the LTTE and was beaten if he could not identify people.

    §The monthly reporting ceased in 2002 with the ceasefire between the Sri Lankan government and LTTE.

    §The applicant owned and operated a [shop] which was frequently visited by the Sri Lankan army officers who would question the applicant, search the shop and forcibly take his stock.

    §In 2006 the applicant’s friend, [Mr A] was killed by the Sri Lankan authorities.

    §In 2006 an employee of the applicant ran away and joined the LTTE.

    §Fearing for his safety the applicant fled to his mother’s house, then to Colombo where he lived for six months;

    §His wife and family arranged for his passport and visa and in November 2007 he went to [Country 1] where he lived until his departure for Australia in 2012.

    §If he returns to Sri Lanka he will be killed by the Sri Lankan authorities.   

28. The applicant also submitted a statutory declaration[3] dated 8 May 2017 in which he deposed the following facts in support of his claims for protection and sought to clarify his previous statements made to the Department:

    [3] AAT File no. 1507662 folio [24]-[26]

    §The applicant deposed that an employee of his [had] been imprisoned by the authorities. This person had been last seen by the applicant before his disappearance in September or October 2006.

    §After the ‘disappearance’ of the applicant’s employee, his ‘friend’ [Mr A] was shot by the Sri Lankan army in September or October 2006. The applicant stated that [Mr A] had been involved with the LTTE. He did [certain work] for the LTTE and the applicant believed that because of these actions he had been executed. The applicant explained that this information had been previously disclosed to the Department because the applicant was afraid of been characterised as an LTTE member and supporter.

    §The applicant deposed that because of his proximity to these two individuals he was detained and tortured by the Sri Lankan authorities who suspected him to be LTTE member.

    §As an [Occupation 1] the applicant only carried out [work] in his local area. He did not involve himself or display any interest in the activities of the LTTE.

    §Due to his shop’s proximity to [Mr A]’s shop, the applicant feared that the army would have suspicions about the applicant’s loyalties to LTTE so the applicant closed his shop and went into hiding.

    §The applicant explained that he returned to his village [once] or twice to see his wife and he went on to say that his wife did not accompany him because it was very difficult at that time for people to come and go as they wished. The army was in full control of the district.

    §The applicant clarified a previous statement made to Department that his wife had not been harassed, threatened or harmed by the army in his absence and deposed that that his wife had been subjected to torture in his absence but had been made aware of this [by his wife] after he had submitted his application for protection.

    §The applicant explained that he was able to leave Sri Lanka via Colombo International Airport on a validly issued passport because his wife’s aunt had made all the arrangements and had paid a considerable sum of money to various third parties. Also, an error in the spelling of the applicant’s name in the passport enabled the applicant allude the state authorities.

    §The applicant deposes that he was detained by army in 1996 and the reason for his detention was because the army suspected him to be an LTTE member.

    §After his release from detention, the applicant deposes that the army closely monitored his actions and movements and was compelled always to report his presence in the district.

    §When the ceasefire ended [according to the applicant] in 2006, his employee [joined] the LTTE and his neighbour, [Mr A] was shot by the Army and the applicant deposes that this two incidents explain the ‘suspicions’ the army developed towards him – thinking he was an LTTE supporter.

    §As a result of his past trials, the applicant’s mental health has significantly been compromised and has since July 2015 been constantly supervised for mental health issues by his psychologist, [Ms B]. The applicant explains that he has experienced torture in the past and because of this, he finds it difficult to remember specific events or to remember details at times and these effects of trauma have been under continuous therapy and monitoring by his psychologist.

    §The applicant fears that this therapy would not be available to him if he was to return to Sri Lanka. Sri Lanka as a country experiences major deficiencies in the provision of mental health services.

    §Currently, his daughter and wife are living in [a location] with his [father-in-law].  

    §The applicant fears that if he returns to Sri Lanka, the authorities would identify him at the airport and then proceed to detain him because they would suspect he was a LTTE member or sympathiser. This suspicion by the authorities would increase because the applicant has been overseas for a very long time.

    §The applicant deposed that if he returned to Sri Lanka he would not feel safe. He would not return to live with his family (so they are not targeted by the authorities).  

29. The applicant’s legal representative and registered migration agent [made] the following legal submission[4] [here reproduced in summary]:

    [4] Ibid, AAT File no. 1507662 folio [41]

    §There was a real chance that the applicant would face serious harm from the Sri Lankan authorities on account of the following Refugees Convention grounds:

    ·His Tamil ethnicity; and/or

    ·His imputed political opinion against the government and in support of the Liberation Tigers of Tamil Eelam (LTTE), on account of his

    ØTamil ethnicity; and/or

    ØDetention and torture in 1996 on suspicion of being involved with the LTTE; and/or

    ØFormer employees suspected of involvement with the LTTE; and/or

    ØOrigins from former LTTE-controlled areas/Northern Province;

    ØApplication for asylum and prolonged presence in Australia; and/or

    §His membership of a particular social groups, namely:

    Ø‘Tamil males originating from the Northern Province’, and/or

    Ø‘Tamil diaspora’; and or

    Ø‘Failed Tamil asylum seekers’ and/or

    Ø‘Tamils with diagnosed mental conditions’

    §The applicant will not be protected by the Sri Lankan authorities because they are an instrument of the harm.

    §Country information indicated that the applicant’s fears of persecution for Refugee Convention reasons are well-founded. Given the nature of the applicant’s claims and profile, it would be neither ‘reasonable’ to expect, nor ‘possible’, for him to safely relocate to another area within Sri Lanka because the threats and ‘fear of harm’ originate from the Sri Lankan authorities.

    §The ‘fear of harm’ is a ‘real’ and a ‘substantial’ possibility, which is not remote and that the applicant would face harm amounting to persecution, were he forcibly returned to Sri Lanka.

1. The applicant stated that on or about 1996, he was suspected by the military that he was a member of the LTTE and he was arrested. The applicant went on to tell the Tribunal that he was accused of providing assistance to the LTTE. As a result of this detention, he suffered repeated interrogation and torture.

2. The applicant’s detention lasted for three months at a Sri Lankan army camp. Thereafter, the applicant was transferred to the custody of the local police and was jailed without trial for a further six months.

   In this six month period of detention by the Sri Lankan police what were the applicant’s experiences?

3. The applicant stated that like the army so to the police accused him of being an LTTE sympathiser, supporter and member which the applicant denied. When faced with the applicant’s denials, the police similar to the military refused to accept his responses and proceeded to inflict torture upon him. Furthermore, the conditions in detention were not “at all good…” according to the applicant. He was provided with little nourishment and amenities.

   Can the applicant provide a description of the torture he suffered while being imprisoned?

4. The applicant stated that for three days he was [tortured]. The applicant told the Tribunal that on each occasion he was subjected to an assault on his person, his assailants’ would demand from him information about LTTE members he was accused of knowing and when the applicant repeated to them his lack of knowledge of LTTE members or combatants coupled with his denial of having been directly or indirectly involved with the LTTE or its activities – his beatings continued.

5. His ‘torture’ as described by the applicant was coupled during this period with a wilful deprivation of sustenance of any kind and what was provided by his captors was not of the quality expected to sustain a human being in captivity (according to the applicant).

6. The detention of a few days according to the applicant was extended to six months. The applicant was of the opinion that his detention was extended by the police because of the Terrorism Act which had been put into force by the Sri Lankan government at the time of the civil war and inter-communal violence.

7. The extended detention followed similar routines of abuse and torture as was the case in the early days of the applicant’s detention.

8. Describing his experiences to the Tribunal, the applicant recollected that on a daily basis, he and other detainees were manhandled, beaten indiscriminately and verbally abused. Being struck with a heavy ‘stick’ was a daily routine. On a daily basis, according to the applicant, he and other inmates were reminded that they were being detained and treated in the manner they were because they sympathised, supported and were members of the LTTE. Regardless of any protestation made to his captors about his innocence, it did not matter according to the applicant the beatings and abuse continued.

   Could the applicant explain why the authorities suspected him of being a ‘sympathiser’ or ‘member’ of the LTTE?

9. The applicant stated that it was a difficult time then, the army was doing everything possible to find who was a LTTE member or sympathiser. They were rounding up many people – all over Sri Lanka, in all areas. It was a plan on the part of the army to round up as many people as they could that they suspected were members or LTTE sympathisers. The applicant told of being arbitrarily rounded up by the army together with many other Tamils. He had no choice but to follow the others to where they were being taken by the military.

   What happened to the applicant after his six-month detention?

10. The Tribunal was told that after his six-month detention, the applicant was brought before a “court” was forced to “…pay a bond” and was “released” from his detention prison.

11. Following his release, the applicant returned to live in the north of the country. He hoped, he told the Tribunal that worst of his experiences had past but one day the army again came to where he lived at his mother’s home. The army officers asked him to go the local army encampment and “sign…the register” and warned him that if he did not do as he had been ordered to do they will return and detain him without question.

12. The applicant had no alternatives and out of fear of being detained again, he would sign the register of Tamils as required until he left in 2002. Thereafter, a brief period of “peace” returned, according to the applicant and he tried to continue with his own life – together with his wife, he had married in 1998.

    How did the applicant’s problems with the authorities re-commence?

13. The applicant told the Tribunal that in 1999 he established his own [shop] - a business he continued until 2006.

14. The applicant explained to the Tribunal that his problems re-ignited sometime in 2006.

15. The Tribunal was told that the applicant’s small business was situated close to the local military camp and would occasionally be subjected to visits and arbitrary searches by the military. Indeed, at times the military would ask him if he knew if any of the public who frequently visited his shop were sympathisers of the LTTE. For the soldiers’ questions and frequency of visits to his shop, the applicant told the Tribunal that he knew that the military continued to have some ‘suspicions’ about him being involved with the LTTE . Indeed, in that period – in 2006, the fragile peace with the LTTE had ended and again, according to the applicant the army was very suspicious of Tamils in his immediate district.

16. The applicant stated that in those difficult days of 2006, a nearby colleague –a [Mr A]  – also a [shop] owner had been “shot and killed….”and tensions in the area were very great.

17. It was in this period the applicant employed [an assistant] to assist him with his [business]. The Tribunal was told that the applicant’s assistant was also a “…member…” of the LTTE. The applicant had no knowledge of this but had his own suspicions about his assistant’s politics and sympathies towards the LTTE but kept them to himself.

18. One day, (the applicant could not remember the actual date) he learned that his [assistant], who was only [age] years of age, had “been killed…” Learning of the death of his assistant, the Tribunal was told that the applicant was captivated by “panic” and feared that he would the first to be suspected by the army and security police of colluding or even being a member of the LTTE. He closed his shop and left the town to live with his mother in the village.

19. While at his mother’s home in the village, the army came to his home in town and questioned his wife as to why the applicant’s business had suddenly ceased to operate. His wife, according to the applicant told the army that the applicant’s business was not doing well and he had decided to close it and that the applicant was doing other work.
    
    

20. The Applicant told the Tribunal that the army continued to “harass” his wife about his whereabouts. It was not a “violent harassment” but it was determined to intimidate and to cause panic to the applicant and his wife.

21. After a period of time, the applicant’s wife was asked to come to the local military camp for further interrogation. The applicant communicated to his wife not to go and to go instead to her father’s home which was 3 to 4KM away from the applicant’s mother’s home.

    What occurred after the applicant’s wife did not go to the local military camp?

22. After this incident, the Tribunal was told that the applicant did not feel safe and tried to find a safe haven to live in order to evade any arbitrary detention by the military or the security police.

23. Arrangements were made to go to Colombo and when in Colombo, the applicant and his wife lived at his aunt’s home. However, as the fighting between the army and the LTTE expanded throughout Sri Lanka, the applicant found the situation in his country difficult for him and he felt threatened on a daily basis. He believed that sooner or later, the army would locate him and again suspect him of having LTTE sympathies and again arbitrarily detain him and subject him to torture and cruelty.   He then determined with his family’s agreement that the only alternative for him was to escape the civil strife of Sri Lanka by leaving for [Country 1].

24. The arrangement for the applicant’s exodus from Sri Lanka to [Country 1] was arranged by his wife’s aunt’s family member in Colombo. The family procured the services of an ‘agent’ who made all the arrangements for the applicant’s travel. The applicant explained to the Tribunal that the agent was able to work out all the details with the authorities for the applicant’s passport and visa and he left without incident from Colombo International Airport. For these services – the agent involved was paid by the applicant’s [aunt].

25. The applicant remained in [Country 1] from 2007-2012 and while in [Country 1] made arrangements via another ‘agent’ [to] travel to Australia. The Tribunal was told that the applicant paid the agent AUD[amount] and he made the arrangements for the applicant to come to Australia by boat.

26. The applicant arrived in Australia in August 2012 and applied for a Protection visa. He first arrived [in a specified region] where he remained there for three months and then applied for protection on 19 December 2012.

    Is the applicant while in Australia in paid employment?

27. The applicant is currently employed at a local [factory] earning approximately AUD [amount] plus overtime per week.

    Does the applicant have regular contacts with his wife, child and family?

28. The Tribunal was told that the applicant had regular contact with his family in Sri Lanka and talks on a daily basis with his wife.

    What did the applicant’s wife tell him is the current political situation in Sri Lanka?

29. The applicant stated that his wife told him that “they are still living in fear….”The applicant described this fear as the family fearing that the authorities might come to find out through their own investigations the real reason the applicant (their family member) had left Sri Lanka and they might take a different attitude to the family. The applicant fears that if the military discover the reasons why he fled Sri Lanka in 2007, they will seize his family members and detain them. However, for the time being the family (according to the applicant) have not been harassed by the authorities.

30. Also, the applicant stated that the army had stayed away from his wife because her father is [works in a specified field] and the military remained at a distance from [his workplace] and his wife’s father’s house is close to the [workplace]. Over time, the authorities may have lost their interest in his wife (according to the applicant).

31. The applicant told the Tribunal that even today, in Sri Lanka, if “anyone is suspected of LTTE connections could be punished of forced to leave the country….” Many members of the “LTTE sought sanctuary overseas” the applicant told the Tribunal and the army and authorities have always been suspicious of these persons. Therefore, the applicant believed that though being here in Australia, the Sri Lankan authorities might not have an interest in him, if he was to return to Sri Lanka he “….would come to their attention….”

32. The applicant stated that he was genuine in his fears because his former employee who had been killed during the civil war was suspected of being a member of the LTTE and because of his employee’s actions, the applicant would be “suspected by the military of having LTTE sympathies…” increasing his possibility of facing immediate detention.

    Additional evidence before the Tribunal

33. The Tribunal was presented with psychological assessment report dated [May] 2017 prepared by clinical psychologist, [Ms B].[5] According to the report, the applicant presented consistently with a ‘low mood’ and ‘tearful.’ The applicant was described as very mistrustful of people around him and worried about his safety, which was influenced by his past experiences of being often targeted by the authorities in Sri Lanka. However, he did not display according to [Ms B] any ‘symptoms of psychosis.’

    [5] AAT File no. 1507662 folio [29]

34. Referring to the applicant’s current psychological state, [Ms B] described the applicant as being in a low mood, feeling hopeless and in a high state of depression. He was always tired, felt nervous and unable to calm down and to feel at peace with himself. This state of mental fatigue made him restless, unable to sit down, depressed and generally felt that ‘everything was an effort and that he was worthless.’ [Ms B] stressed that in her opinion, after rigorous testing and analysis over a period of eighteen months the applicant ‘scored consistently in the same severity ranges.’

    Post-Traumatic Stress Disorder

35. According to [Ms B], the applicant’s PTSD symptoms he experiences include [certain symptoms]. Since finding out that his application was rejected by the Department of Immigration, his symptoms it was reported to have worsened, because he ‘finds himself in a state of insecurity, threat and feeling unsafe.’ He was highly anxious and unable to feel secure around any group of persons, avoided being with people and was very subdued when he was with a group. He experienced chronic pain in his [various body parts] and was not sure of the reason for the pain, but (according to [Ms B]) identified it to when he was beaten by the army when he was detained. The applicant was often tearful and experienced racing thoughts, insomnia coupled with worries and anxiety about his future and the future of his family. [Ms B] reports that when the applicant thinks about the possibility of being sent back to Sri Lanka, he becomes ‘panicky’ experiences ‘difficulty containing his emotions’ and would often weep and be in a state of ‘heightened anxiety’.

36. [Ms B] goes on to describe the applicant’s situation as re-experiencing symptoms which include flashbacks about his past experiences, fears and recurrent nightmares. His re-experiences and has intrusive images of the past torture he has experienced. He struggles to manage his emotional state and feels very depressed about his situation. Sleep, [Ms B] reports could ‘trigger a high anxiety’ for the applicant, not knowing whether he would be ‘alive or dead’. The applicant was described as feeling flustered at night and in a state of confusion, not knowing where he actual is. We are told, that for ‘many years’, at night, he has been ‘scared’ if he heard a noise and would at an instant become fearful and worried about ‘dangers’ around him. He experiences nightmares every night, and this has caused him to fear sleeping because he did not want to dream of past events and this situation adds to his feeling that ‘he is at risk and unsafe’ and that ‘they are coming to capture me and execute me.’ [Ms B] opined that the applicant believed that his nightmares are ‘made up of memories, his thoughts and his fearful emotions.’ It all related to the time he was in Sri Lanka where he feared to sleep because ‘he didn’t know if he would be killed at any time’ and even in Australia where he is safe (according to [Ms B]) the applicant continues to live his life surrounded by ‘emotional fear.’

37. The report goes on to say that the applicant experiences hypo-arousal related trauma symptoms (a negative view of the world and negative mood). We are told that he feels he has no hope and no future. He is unable to plan for the future, has very limited functioning each day and his mental health has deteriorated over the years whilst he has been dealing with current circumstances. He has consistently reported symptoms of depression, concentration difficulties and insomnia. He has difficulties in concentration for long periods of time. He often has ‘suicidal thoughts.’ The report goes no to warn that if the applicant was to be sent back to Sri Lanka, he would ‘commit suicide before he has to go’ because he could not face torture or death at the hands of the people who tortured and detained him in the past. [Ms B] states that after discussions with the applicant on ‘many occasions’ about his suicide threat, ‘he has remained consistently determined to carry this out’, if he is returned to Sri Lanka. We are told that the applicant told [Ms B] that he had plans to take his own life and that he had the means to do it and intended to do this. However, the applicant would not reveal his plan to suicide or the means he would use. The conclusions arrived at by [Ms B] on the issue of suicide after the applicant’s revelations to her about his intentions was that “…the writer has assessed him to be at an extreme risk of suicide and this reflects his severe mental health issues and his inability to perceive any alternatives to his situation.” [Emphasis added]. The diagnosis of [Ms B] was that the applicant suffered from Post-Traumatic Stress Disorder which included a Major Depressive and generalised Anxiety disorder. [6]

    [6] AAT File, see folio [29]

38. Her opinion for the future as it concerned the applicant’s mental health status, [Ms B] opined that “…she had grave concerns that he [the applicant] would deteriorate further in his functioning.” If he arrived back in Sri Lanka, [Ms B] expressed her professional concern that “…he would find it difficult to access mental health services, due to his deteriorated functioning and his mistrust of any government services.” [Ms B] believed that the applicant is “extremely vulnerable in terms of his mental health….he has limited social supports because he has been very mistrustful of others for many years. He has severe PTSD symptoms and apart from attending work on a daily basis, [he struggles] to engage in any other activities.” [Ms B] goes on to write, “…it is difficult [because of the applicant’s having a strong sense of paranoia] to ascertain the difference between an unrealistic paranoia (given the length of time that he has not been in the country) and his real memories of being tortured that he is realistically afraid of occurring again….for the [applicant] who is suffering from PTSD, he continues to feel the threat is rea, is current, and is the same as it was ten years ago….For sufferers of PTSD, they have limited ability to process the passing of time, because they are stuck in fearful emotions, the fearful thoughts and the urge to run away from a threat…..The [applicant] recalls his torture and trauma as if it occurred yesterday, and is thus very vulnerable to suicide, to long term mental health issues and deteriorated functioning if he was forced to return to his threatening situation for him. He requires a sense of safety in order to improve in his mental health and functioning.”

39. [Ms B]’s opinion concluded by providing to the Tribunal a brief Treatment history of the applicant. The applicant has been consulting with [Ms B] since July 2015. The counselling sessions have been concentrated on psych-education, managing anxiety and depressive symptoms through CBT, supportive counselling and trauma based CBT. A number of treatment strategies have been put into place like – identification of cognitive errors and restructuring, alternative positive thinking, problem solving for the future, psychoeducation regarding PTSD and depression, distress, tolerance, relaxation and mindfulness skills.

40. In a letter addressed to the Tribunal dated 18 October 2017, [Ms B] provided the following update on the applicant’s mental health[7]:

    “….He [the applicant] continues to present with severe PTSD symptoms, depressive disorder and high levels of anxiety. The writer is concerned that he struggles to recover whilst his future is so uncertain. He does not appear to be able to move forward with his mental health until he has a feeling of safety and security. The writer understands that this feeling of safety is the first step in trauma treatment, and whilst I can provide a level of emotional safety for him in the therapy room, he is unable to have an overall sense of safety ….….I am still very concerned about his suicide risk in the future if the decision is negative and will provide psychological support to him whatever decision he is faced with…”

    [7] AAT File, see folio [29]

1. A further letter was received by the Tribunal dated 9 February 2018[8] from [Ms B] advising the Tribunal of the following:

   “…His psychological condition continues to be severe, including severe depression, suicidal ideation and difficult functioning. He also presents with a severe PTSD, with continued symptoms that make him feel unsafe and having flashbacks to the torture that he endured in the past…

   ….I will continue to provide him with psychological support…

   ….Given there is no improvement in his psychological state (as detailed in my previous report), I have concerns that he will deteriorate even further should he be not successful….”

   The Tribunal’s conclusions about the applicant’s claims

   [8] AAT File, see folio [63]-[64]

2. The Tribunal has assessed the applicant’s claims in light of the medical information relating to the applicant’s mental health as well as the Migration and Refugee Division’s Guidelines on the Assessment of Credibility and Vulnerable Persons. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who generally credible but unable to substantiate all of their claims.[9] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on basis that it might be possibly be true.[10] The Tribunal has also regard to the UNHCR Guidance note on the psychologically vulnerable applicant in the protection visa assessment process and in particular difficulties that the applicant, who is an man [age] years of age, suffering a significant mental illness and has faced difficulties remembering and articulating his memory of past happening and articulating his claims.[11]

   The applicant’s mental health and current circumstances

   [9] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph [196].

   [10] MIMA v Rajalingam (1999) 93 FCR 220.

   [11] UNCHR, Guidance note on the psychologically vulnerable applicant in the protection visa assessment process, November 2017, -the-protection.

3. The applicant is [age] years of age who now suffers from a significant mental illness. He has provided a number of accounts both in writing and oral before this Tribunal about his experiences in Sri Lanka and has had to revisit and revise some of his written statements in order to clarify his thoughts and his claims. The applicant has consistently claimed to have been subject to incidents of detention, assault and abuse at the hands of the Sri Lankan authorities. It is, therefore, not uncommon that a person might experience and exhibit difficulties remembering with clear precision traumatic events that took place in 1996, or in 2006 – when some considerable time had lapsed. Given the applicant’s age , the trauma that was inflicted upon him, the circumstances he was asked to recollect those events, and the passage of time, it is out of the ordinary that inconsistences may have surfaced in his re-telling of his experiences in Sri Lanka.

4. The Tribunal considers the applicant’s claims are plausible in the context of the country information about the torture and ill-treatment of Tamil men of all ages – especially – the young in conflict affected areas during the long running conflict between the government of Sri Lanka and LTTE in the years that followed the end of the conflict in May 2009. The Tribunal considers the applicant’s claims to have been detained, assaulted and mistreated by the armed forces in 1996 and later in 2006 are plausible in light of the country information about the torture and ill treatment of Tamil men during the long-running conflict between the government of Sri Lanka and the LTTE.

5. The Tribunal considers that the applicant’s description of his encounters with the Sri Lankan authorities does not indicate that, at the time, he was of serious ongoing interest to Sri Lankan authorities as a suspected LTTE member or combatant, because on the occasion that he was detained- though he was subject to a beating, after a period in detention he was released and allowed by the authorities to resume his normal life. The applicant has maintained all along in his evidence that while his employee was involved with the LTTE and his neighbour had been executed by the military because they had discovered he was assisting the LTTE, he was not actively involved (but feared his association with these two men might invite LTTE suspicions being placed on him by the authorities) in, or supportive of the LTTE. The fact that the applicant was issued a Sri Lankan passport [in] 2004 (and the Tribunal has doubts about how the applicant claims he received that passport and the means employed to get it issued) seems to suggest that he was not on any serious ongoing interest to the Sri Lankan authorities at that time.

6. The Tribunal accepts that the applicant was detained for a period of time and subjected to some form of torture while in arbitrary detention. Although emotionally charged in his recollection of this detention, the applicant’s account of this incident to the Tribunal was credible as the applicant described it. Indeed, the applicant’s subsequent actions following this incident that is in minding his own business and not desirous of attracting any attention to himself by the local military and security forces does suggest that the applicant experienced a significant traumatic event. Therefore, the Tribunal accepts that this incident occurred as the applicant described it. The Tribunal also accepts that the applicant was physically assaulted on that occasion by the military in his district and that that this caused him to be traumatised and mentally scarred.

7. The Tribunal has also considered the applicant’s clarifications concerning his previous statements to the Department’s delegate as set out in detail in his statutory declaration dated 8 May 2017. The Tribunal has considered the applicant’s declaration and the information therein he has provided concerning the circumstances that forced him to leave Sri Lanka and the Tribunal does not consider these latter responses undermining the overall credibility of his claims. The Tribunal understands that any initial contact for an applicant in the applicant’s state of mental health would be a stressful period and some facts may be expressed and others forgotten and remembered at a later stage.

8. The Tribunal has considered the effect of trauma upon the applicant’s ability to concentrate and to focus and to recall distressing events. Memories for traumatic events are subject to wider variation over time than significant non-traumatic events. The Tribuanl accepts that the applicant has consistently referred to these incidents in which he was mistreated by the Sri Lankan authorities.

9. The Tribunal makes the observation that it is not uncommon in cases where there is a complex narrative of a number of traumatic incidents that an applicant may confuse the sequence of traumatic incidents or confuse the details of separate traumas. The Tribunal acknowledges the very real possibility that, in an attempt to accommodate requests to provide a clear chronology of a complex narrative of traumatic encounters with the Sri Lankan authorities, the applicant might have confused the sequence of his encounters with the Sri Lankan authorities.

10. At the hearing before the Tribunal the applicant appeared apprehensive and withdrawn and the Tribunal was conscious during the proceedings with his overall state of mental health and provided when required a period of respite from questioning when the applicant requested it. Indeed, throughout the hearing process the applicant remained at very emotional state. The Tribunal notes that the UNHCR warns that while personal history associated with trauma may be relevant to the assessment of claims, the exploration of these experiences can cause distress and disorientation and sometimes it will be required for assessment body or decision-maker to consider the legal use of exploring the traumatic experience. Having regard to the significant mental illness, the substantial amount of written and oral evidence before the Tribunal, and the risk of unnecessarily re-traumatising the applicant through the examination of traumatic events an experience, the Tribunal accepted the applicant’s account of his experiences prior to his departure from Sri Lanka in 2012.

11. The outcome of this review does not turn on a factual finding about whether the applicant was assaulted by the military and their civilian conduits before he decided to leave his homeland. Even if it were the case that the applicant had endowed his accounts of his interactions with the Sri Lankan authorities before he decided to leave Sri Lanka and travelled to Australia, the Tribunal is satisfied that the applicant had been questioned about his links to the LTTE and, in the process, abused and assaulted by the authorities when he was detained in 1996 and later prior to leaving Sri Lanka when suspicions involved a former employee of the applicant’s and his neighbour. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    …the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

12. On the evidence before it and having regard to particular vulnerabilities of this applicant, the Tribunal accepts that the applicant has been essentially truthful, both about the reasons that he left Sri Lanka and the reasons that he is afraid to return to his country. While the fact that the applicant was never subject to ongoing detention and was able to obtain a passport indicates that the Sri Lankan authorities did not seriously suspect him of actual involvement in the LTT, his account of his abuse at the hands of the Sri Lankan authorities is consistent with the country information about the treatment of Tamil men living in conflict affected areas in the years immediately after the conflict ended. The Tribunal accepts that the applicant left Sri Lanka in the hope to build a better life elsewhere where he could not be harassed, detained or mistreated by the Sri Lankan authorities.

    Whether the Applicant faces a real chance that he will be persecuted if he returns to Sri Lanka now

13. The Tribunal has considered whether, having regard to what has been accepted of the applicant’s claims and circumstances, there is a real chance that he would be subject to serious harm or significant harm if he returned to Sri Lanka now or in the reasonably foreseeable future.

14. The Tribunal finds that the applicant is a vulnerable Tamil man who, as a younger man, was traumatised by the Sri Lankan authorities and who now suffers from a serious mental illness, PTSD with suicidal thoughts. The Tribunal accepts that the applicant has family – a wife and child in Sri Lanka who would no doubt provide him with some assistance in trying to cope with health condition if it was easy to manage. The evidence before the Tribunal suggests otherwise – especially when the Tribunal refers to the considered opinion of the applicant’s treating psychologist. Though it would seem that the applicant is coping with his illness and has a regular employment – the prognosis in the long term is not encouraging. The evidence before the Tribunal indicates his mental illness has manifested (over a period of time) into “a psychological condition which continues to be severe, [and] includes severe depression, suicidal ideation and difficulty [in] functioning… ”[12] and the applicant has been assisted and directed away from any self-harm by the on-going interventions of his psychologist.

    [12] AAT File no. 1507662 Folio no. [64]

15. The Tribunal has considered a range of independent reports about the availability of mental health services in Sri Lanka.[13] DFAT assesses that mental health services are scarce and that there is a general lack of institutional capacity to respond to mental health care needs.[14] According to the Sri Lankan Ministry of Health and Indigenous Medicine’s 2015 annual health bulletin one out of every ten people in Sri Lanka suffer from a mental illness and only twenty per cent of these people receive treatment.[15] The same report notes that there were 30 beds reserved for psychiatry patients at the hospital in Trincomalee[16] and, at the time of publication, there were 109 schizophrenia, schizotypal and delusional disorder patients receiving treatment.[17]

    [13] DFAT Country Information Report on Sri Lanka published on 24 January 2017, COIS Q and A Report CI1608171152119014 dated 25 August 2016 and recent reports by the UK Home Office.

    [14] “Sri Lanka – Country Information Report”, Depart of Foreign Affairs and Trade (DFAT), 24 January 2017, CISEDB50AD5596, p.175

    [15] Annual Health Bulletin 2015- Sri Lanka, Ministry of Health, Nutrition and Indigenous Medicine, 2017 CISEDB50AD5596, p. 175

    [16] ibid, p. 175

    [17] ibid p. 192

16. The Tribunal accepts that the State Pharmaceuticals Corporation of Sri Lanka (SPC) stocks a number of drugs treating various mental disorders.[18] As noted in a 2012 British High Commission report, the Sri Lankan Government, through the SPC, provides free drugs to patients with mental health problems.[19] However, though an amount of drugs is available in Sri Lanka, the country information indicates that a majority of people who suffer from mental illness in Sri Lanka do not receive treatment. The barriers to treatment created by the lack of institutional capacity to respond to mental health care needs are compounded by the societal stigma that attaches to mental illness within the Sri Lankan community. For example, in June 2017 the United Kingdom Home Office reported that:

    Mental health problems carry stigma at the community level. Families try to hide it from other people and will take their family member to a local healer to get rid of what they consider is ‘the devil’. There are mental facilities in district state hospitals and the INGO is currently supporting the mental health units in Kilinochchi and Mullativu with a small project to enhance awareness and referrals on this issue.[20]

    [18] ‘Products list – State Pharmaceuticals Corporation of Sri Lanka’ – State Pharmaceuticals Corporation of Sri Lanka, 22 February 2017, CISEDB50AD334

    [19] United Kingdom: Home Office, Country of Origin Information Report – Sri Lanka, 7 March 2012, p.181-182, available at:

    [20] ‘Country Policy and Information Note Sri Lanka: Tamil separatism’, UK Home Office, 15 June 2017, OG6E7028826

17. In a blog published in 2017 a mental health nurse visiting Sri Lanka from the United Kingdom described being taken ‘on prison visits, where we conducted ‘mental state’ examinations’, used in upcoming trials. The nurse makes the following observation:

    It became apparent that prison wasn’t only used for rehabilitation for criminals in Sri Lanka –it was also used as a safe house for the mentally unstable. One man we assessed was 87 years old and had severe dementia and nothing he said (or heard) made sense. It transpired he had been arrested because he was found wandering the streets, speaking incoherently, but had not committed any crime. In Sri Lanka, sheltered housing for the elderly isn’t common, so there was no other option for the police but to put him in prison. Another man 27 lost both of this parents and brother in the space of a few months and sunk into a deep depression. A concerned neighbour reported him to the police, and soon after he found himself imprisoned rather than receiving psychological support, like he might in the UK…. .[21]

    [21] ‘Mental Health Nursing in Sri Lanka’, Staffordshire University, 22 June 2017, CISEDB50AD5872

18. The Tribunal accepts that the applicant is currently receiving the required and necessary psychological treatment he requires and although with difficulties, he is attempting to live a ‘normal’ life. In the Tribunal’s opinion the country information indicates that there is a general lack of institutional capacity to respond to mental health care needs and that, while some people with mental illness in Sri Lanka do receive treatment, many do not. Having regard to the applicant’s significant mental illness and ongoing need for counselling and professional intervention, the Tribunal considers that there is a real chance that the applicant will be unable to access mental health care and any associated and necessary for his treatment medicines in Sri Lanka and, as a consequence, will suffer a deterioration, resulting in severe depression and suicidal ideation.

19. Furthermore, even if the applicant were able to access the appropriate professional and medical help for his mental illness in Sri Lanka, the Tribunal considers that there is a significant risk that he will not comply with a treatment regime. While here, in Australia, the evidence shows that the applicant has sought regular assistance for his mental illness and has been provided with the assistance and necessary interventions to safeguard him from any attempt towards self-harm. This is because in Australia, if a person suffers from any illness whatsoever, even mental illnesses, a person so afflicted is not looked upon by society as something that should be confined, or completely shunned and treated as a second class member of the community. This attitude allows persons like the applicant to engage with his everyday tasks while dealing with his mental illness in a positive way. The situation for him in his own country is very different and difficult. In Sri Lanka, the applicant would not have available to him a treatment regime which would include constant visits to his healthcare professional or with other medical practitioners nor would he be provided with necessary medications when he required them. Indeed he would be swept aside by the general community and treated as an outcast.

20. The Tribunal finds that, as a result of the procedures adopted by the Sri Lankan authorities with respect to failed asylum seekers who departed Sri Lanka illegally, the applicant will attract the attention of the Sri Lankan authorities immediately upon his return to Sri Lanka and that it is likely he will also be contacted by the authorities in his home area of [City 1]. Having regard to what the Tribunal has accepted of the applicant’s claims and circumstances, the Tribunal has considered whether there is a real chance that he will suffer serious harm during the process of being questioned by the Sri Lankan authorities or while in the custody of the Sri Lankan authorities.

21. The Tribunal accepts that on arrival at the airport in Colombo, the applicant would be questioned by the GoSL immigration authorities, the CID and potentially the SIS, and that, as part of the return procedure, enquiries about him will be made with the police and military in his home area, which the Tribunal finds to be [City 1]. [22] In these circumstances, the Tribunal accepts that the authorities would become aware of his personal details and that he was previously known to the police in his local area.

    [22] [Details deleted].

22. The Tribunal also accepts that the applicant would be charged with offences under the Immigrants and Emigrants Act of 2006 for his illegal departure by boat in April 2013, and that it is likely he would be remanded into the custody of the CID or the military intelligence for questioning.  According to the report published by DFAT in January 2017:

    As part of this process, most returnees will have their fingerprints taken and be photographed. At the earliest available opportunity after investigations are completed, the individual would be transported by police to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The Magistrate then makes a determination as to the next steps for each individual. Those who have been arrested can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. 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.

    According to the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, 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 departing illegally in the future. Fine amounts vary on a case-by-case basis (but can be up to 200,000 Sri Lankan rupees / AUD 2,000) and can be paid by instalment. If a person pleads guilty, they will be fined (which they can pay by instalment) and are then free to go. In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor. Where a guarantor is required, returnees may sometimes need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to the bail, 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 people smuggling venture. There is no general requirement to report to police or police stations between hearings.

1. The applicant has given evidence that his mother, wife [and siblings] are in Sri Lanka and that they could if the applicant required it act and be available to act as a guarantor. In any event, if he was granted bail he would return to his home area where the Tribunal considers that it is very likely that he would be questioned by the military or police. According to DFAT, the Sri Lankan military, intelligence and police maintain a high level of awareness of returned IDPs to the north and east.[23]  According to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the police Criminal Intelligence Division (CID) for interviews.[24]  In this regard the Tribunal notes that the UK Upper Tribunal found in GJ & Others that

   Any risk for those in whom the authorities are or become interested in exists not at the airport by after arrival in their home area, where their arrival will be verified by the CID or police within a few days.’[25]

   [23] DFAT Country Information Report on Sri Lanka published on 24 January 2017, p.33.

   [24] ‘Country Information Report: Sri Lanka’, DFAT, 16 February 2015 at 5.19. 

   [25] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), para 356(6).

2. The Tribunal has had regard to DFAT’s assessment that, while there have been credible reports of torture carried out by the Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath, the incidence of torture has reduced in recent years and of the thousands of asylum seekers who have returned to Sri Lanka since 2009, there have been ‘relatively few allegations of torture and mistreatment’. [26]   Notwithstanding the fact that DFAT acknowledges it does not routinely monitor the situation of returnees, DFAT’s assessment is that the risk of torture and mistreatment for the majority of returnees is low and continues to reduce. [27]   

   [26] DFAT Country Information Report on Sri Lanka published on 24 January 2017, p.28-29.

   [27]Ibid, p. 29.

3. The Tribunal notes that there continue to be credible reports that Tamils returning to Sri Lanka with actual or perceived links to the LTTE face a risk of torture or other forms of serious harm.  For example, in an August 2015 Freedom from Torture report on 148 torture cases perpetrated since the end of the civil war in May 2009, the majority (142 or 96%) described an actual or perceived association with the LTTE, related either directly to themselves, to family members or to both.[28] In an August 2015 report, the ICG reported that Tamils returning from abroad continue to be arrested under Prevention of Terrorism Act provisions on suspicion of old LTTE involvement.[29] The International Truth and Justice Project’s report on torture and sexual violence survivors (January 2016) indicates that ‘Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted along with their families’.[30]  In a recent report examining allegations of torture by the security forces in 2016/2017, the ITJP reported that witnesses described being tortured and raped by security forces, some as recently as 2017.[31]

   [28] Freedom from Torture Tainted Peace: Torture in Sri Lanka since May 2009, August 2015, p19.

   [29] International Crisis Group, Sri Lanka between Elections, 12 August 2015 (IV. Initial Steps on Reconciliation p.17) in UK Home Office Country Information and Guidance, Sri Lanka; Tamil separatism (March 2017).

   [30] International Truth and Justice Project Silenced: survivors of torture and sexual violence in 2015, January 2016, 

   [31] International Truth and Justice Project, Unstopped: 2016/2017 Torture in Sri Lanka, July 2017,

4. In early 2017 a UN Human Rights Council report assessing progress made in the implementation of Human Rights Council resolution 30/1, on promoting reconciliation, accountability and human rights in Sri Lanka between October 2015 and January 2017 observed that while some progress had been made, human rights concerns, including harassment, surveillance, excessive use of force and torture persisted. ^[32]  Amongst other instances of human rights violations, ‘incidents of police abuse and excessive use of force persist’ – for instance, on 20 October 2016, in Kulapiddy Jaffna, two students died, reportedly shot by police when they failed to stop at a road block.[33] The report continues:

   The use of torture remains a serious concern. In its report submitted to the Committee against Torture, in November 2016, the Human Rights Commission of Sri Lanka stated that complaints it had received illustrated the routine use of torture by the police throughout the country as a means of interrogation and investigation. The prevailing culture of impunity for perpetrating torture has undoubtedly contributed to this situation.[34]

   [32] UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, 10 February 2017, paragraphs 50, 51 and 54 – 58

   [33] Ibid.

   [34] Ibid.

5. The Tribunal accepts that the applicant will be detained and interrogated upon his return to Sri Lanka. As noted above, there are credible reports that the Sri Lankan authorities have carried out torture upon those in their custody in the post-conflict period and that a disproportionate number of Tamils are the victims of human rights abuses in Sri Lanka.[35]

   [35] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012 p.26.

6. The Tribunal has considered the particular vulnerabilities of the applicant, man of [age] years of Tamil ethnicity, who has been assaulted and abused by the Sri Lankan authorities in the past. He suffers from PTSD a significant mental illness, the symptoms of which can only be managed through ongoing treatment and medication. In particular, the Tribunal has had regard to the psychologists report, which assesses that:

   ‘[The applicant’s] psychological condition continues to be severe, including severe depression, suicidal ideation and difficulty functioning….’

7. The Tribunal has also considered the evidence of [Ms B], psychologist concerning the impact of the applicant’s past experiences when he was being detained and questioned upon his mental health in light of the independent reports about the prevalence of torture and ill-treatment within the Sri Lankan criminal justice system. The Tribunal has no confidence that, having regard to the applicant’s past experiences at the hands of the Sri Lankan authorities and the independent country information set out above, the applicant will be questioned in a manner that will not lead to the exacerbation of the symptoms of his mental illness.

8. The applicant has not claimed to have been a member or active supporter of the LTTE. The evidence before the Tribunal does not indicate he has any high profile links to the LTTE or any role in post conflict Tamil separatism.  While the Tribunal accepts that the applicant has been detained and beaten by the Sri Lankan authorities on occasions and may have been questioned about the activities of his employee and neighbour, the fact that he was released shortly after being detained on each occasion suggests that the Sri Lankan authorities did not seriously suspect the applicant had any actual involvement in LTTE at those times.

100.   However, having accepted that the applicant is a Tamil man from the northeast of Sri Lanka who has come to the adverse attention of the Sri Lankan authorities in the past, and who departed Sri Lanka in breach of the I & E Act, the Tribunal accepts that he will be questioned about his links to the LTTE, the circumstances that he left Sri Lanka and sought asylum abroad, and has had any links with the LTTE. While the Sri Lankan authorities may ultimately be satisfied that the applicant does not have any significant links to the LTTE, the Tribunal has considered whether there is a real chance that the applicant will be subject to torture or ill-treatment during the process of being questioned by the Sri Lankan authorities, either immediately upon his return to Sri Lanka or when he is contacted by the authorities in his home area of [City 1]. 

101.   The Tribunal considers that if the applicant relapses and exhibits disinhibited, delusional or even aggressive behaviour or relapses in to deep state of depression, the risk of torture or other forms of significant physical ill-treatment at the hands of the Sri Lankan authorities is greatly enhanced. The evidence before the Tribunal indicates that applicant’s anxiety and depressive symptoms coupled with his willingness to use all means to escape what he perceives to be harm to him especially when those around him challenge or question him would only worsen in a confined and restricted area. Therefore, the Tribunal considers that the applicant’s medical condition gives rise to genuine concerns  that, when placed in the stressful environment of being detained and questioned by the Sri Lankan authorities, the applicant would respond in such a manner that may place him at risk of torture or other forms of physical harm from those who are interrogating him. The Tribunal also considers that, in likely event that the applicant relapses and presents with psychotic symptoms in Sri Lanka, this will increase the risk that he will be harmed during the process of questioning by the Sri Lankan authorities, and that this process of questioning will involve a longer period of detention than other returned asylum seekers who do not have his particular characteristics and profile.

102.   Having regard to recent independent reports which indicate that torture and ill-treatment are still routinely used as a method of interrogation and investigation by the Sri Lankan authorities and the particular history and vulnerabilities of this applicant, the Tribunal finds that there is a real chance that the applicant will suffer serious harm at the hands of the Sri Lankan authorities while in their custody.  While the risk that this will occur is elevated because of the applicant’s vulnerable mental state and the risk that he will suffer a psychotic episode, the Tribunal is satisfied that the essential and significant reason for the harm feared is a combination of a particular social group of Tamil men who departed Sri Lanka illegally and his imputed political opinion.

103. Having considered the applicant’s claims cumulatively, the Tribunal finds that there is a real chance that should the applicant return to Sri Lanka now or in the reasonably foreseeable future he will encounter serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act. The Tribunal finds that the essential and significant reasons that the applicant will suffer serious harm will be his membership of a particular social group of young Tamil men who departed Sri Lanka illegally and sought asylum abroad and his imputed political opinion as an LTTE supporter or sympathiser as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c).

104.   As the harm feared by the applicant is at the hands of the Sri Lankan authorities, clearly he cannot relocate to avoid the harm he fears. State protection is not available to him. On the evidence before it, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion and his membership of a particular social group of Tamil men who departed Sri Lanka illegally and sought asylum abroad now or in the reasonably foreseeable future.

105. 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).

CONCLUSION

106. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a))

DECISION

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

Peter Vlahos
Member