1508427 (Refugee)

[2017] AATA 3079

1508427 (Refugee) [2017] AATA 3079 (24 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508427

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Lilly Mojsin

DATE:24 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2017 at 11:48am

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity – Tamil – Political opinion – Imputed political opinion – Suspected LTTE supporter – Member of Australian Tamil Progress (ATC) – Supporter of Transnational Government of Tamil Eelam – Social group – Victim of kidnapping and extortion – Fear of arrest and torture by CID and military groups – Involuntary returnee

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 417, 424AA, 438, 499
Migration Regulations 1994, Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081

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, initially arrived in Australia, as the holder of a fraudulently altered Sri Lankan passport ([number]) in the name of [Name 1], [in] May 2011.

3. The applicant had previously applied for the visa [in] June 2011. The delegate decided to refuse to grant the visa [in] September 2011 and on 3 July 2012, the Tribunal 1110035 [T1], differently constituted, affirmed the decision under review. The applicant appealed that decision and [in] April 2013 the Federal Circuit Court dismissed the appeal and, [in] August 2013, the Full Federal Court dismissed the appeal. [In] August 2013, a Section 417 request was made and refused.

4. The applicant again applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] May 2015.

5. [In] May 2015 the applicant married in Australia.

6. On 25 May 2015 the applicant appealed that decision to this Tribunal, differently constituted.

7. The applicant appeared before the Tribunal (T2) on 22 February 2017 to give evidence and present arguments.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. At the commencement of the hearing, the applicant acknowledged that he understood the interpreter and did not indicate during the hearing that he had any problems with interpreting.

9. The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal hearing.

   RELEVANT LAW

10. See ANNEXURE A

11. The primary decision record (a copy of which the applicant did not provide to T2) indicated that the applicant had been refused a protection visa in Australia. The visa application under review is a valid application because the applicant is considered `SZGIZ-affected’ as he has not left Australia since final determination of his previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicant has standing to make the application under review to afford hearing of his complementary protection claims. As the applicant has previously had his claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether he satisfies the requirements of ss.36(2)(aa) or (c).

    CONSIDERATION OF DISCLOSURE OF INFORMATION UNDER S.438

12. The Department file [file number] includes a certificate stating that information in folios 341-346, 83 & 116 and 112-115 in the file is subject to a public interest restriction pursuant to s.438(1)(a) of the Act. It states that the disclosure would be contrary to public interest because the information relates to internal working documents and business affairs.

13. I am of the view that the relevant certificate dated is not valid as public interest immunity. In the Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered s.438 certificate with similar wording. In light of this decision, I find that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity.

14. The documents, folios 341-346, can be described as information provided to the Assistant Minister for Immigration regarding s.417 consideration and contain a summary of migration history, his claims and the Tribunal decision. The information referred to contained information that the applicant gave during the process that led to the decision that is under review.

15. As for information at  83 & 116 and 112-115 that refers to enquiries made by the Department to [Country 1] authorities and enquiries about [several] passports claimed to have been used by the applicant, I have disclosed that information to the applicant and I have advised the applicant  that I do not rely on that information and it would not be the reason, or a part of the reason, for affirming the decision that is under review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Protection Visa Application PVA 1

16. In PVA 1 the applicant claimed as follows:

    ·He has had problems in Sri Lanka since his school days.

    ·Following a grenade attack on the military in 1997 he was accused of helping the Liberation Tigers of Tamil Eelam (LTTE).  He was taken to an army camp, detained and tortured.  He was released after his parents and the school principal made representations to the army commander but he had to report to the camp every week.

    ·The LTTE heard of his arrest and release and two of its members soon visited his home to pressure him to join their organization. He was scared and gave the excuse that he wanted to study.  The two then left.

    ·In 2000 the army entered his house and searched it for two LTTE members who had used the premises as an escape route.  His family lied to the army by denying that this had happened.  During this period the LTTE would approach his family for money.  His father would pay them to prevent them taking the applicant forcibly into the movement.

    ·After the government signed an agreement with the LTTE peace came to his area and he began his own business, selling [Goods 1] he obtained from Colombo.  The business was successful and he made good profits. 

    ·The LTTE was still operating and pressured him to pay them taxes, warning there would be severe repercussions if he refused.  He did not pay the tax, however, and in January 2003 he was taken to LTTE headquarters and warned.  He began to pay the taxes but was still able to make a profit.

    ·In mid-2003 he was pressured by the Eelam People’s Democratic Party (EPDP) to pay them taxes as well, as they knew of his payments to the LTTE.  The EPDP was working with the army at the time.  He decided to leave [Town 1] and travel to Colombo with his parents.  He began a business there with his Colombo-based [goods] supplier, [Mr A].  The business prospered and two years later he decided to open a [Goods 2] business.  This also did well.

    ·In August 2005 he returned to Jaffna to see his parents.  He was detained by the LTTE who demanded back taxes totalling Rupees [Rs] [amount].  He paid the money and was released.  They told him he should continue to pay the taxes, even though his business was in Colombo.

    ·In 2008 he made the acquaintance of a Tamil businessman in Colombo named [Mr B].  They met several times and kept in contact by telephone.  [Mr B] was arrested on suspicion of being connected with the LTTE and the police discovered the applicant’s number on his mobile telephone. 

    ·[In] June 2009 police came to his house to arrest him.  He was accused of having links with the LTTE and detained in police custody for ninety days, during which time he was interrogated and severely tortured.  He refused to sign a confession, written in Sinhala.  The International Commission of the Red Cross (ICRC) visited him and informed his parents in [Country 2] of his situation.  They gave money to a person who then bribed the police to release him.  He was produced to the [court] and released.

    ·His passport was returned to him by the police in March 2010 but he was made to report to the police station at fortnightly intervals.  During these visits he was harassed and forced to perform menial tasks.  In October 2010 during one of his visits to the police station he was detained and badly beaten. 

    ·Following this incident he dared not report again.  He moved to a friend’s house and sought help from his brother in [Country 1] to leave the country.  His brother arranged for an agent to be paid Rs [amount] to prepare a passport and organise the applicant’s departure.  However the agent took the money and disappeared.  The friend eventually asked him to leave the house and he had no choice but to return to his own home in Dehiwela.

    ·[In] January 2011 six people came to his house in a white van.  They broke the door open and abducted him.  They accused him of helping the LTTE and said they were going to shoot him.  He was detained in a dark room and tortured then released ten days later after a sum of Rs [amount] was raised by [Mr A]. 

    ·[Mr A] was very concerned over what had happened.  When he spoke to the abductors they told him they were members of the Karuna group.  [Mr A] advised the applicant to leave the country and flee abroad as these people were dangerous and could kill him even though he had paid the ransom.  He travelled out of Colombo and stayed with a friend of [Mr A] in Negombo.

    ·In March 2011 [Mr A] informed him that people in a white van had come to his house asking his whereabouts.  He became very scared and asked his brother in [Country 2] to expedite arrangements for him to leave Sri Lanka as soon as possible.  [In] May 2011 [Mr A] told him to be ready to leave at any time.  [In] May 2011 he left Negombo and travelled to a hotel near Colombo airport where he met a person named [name].  This person took his passport and identity card and gave him a different passport in a different name.  Another person, [name], escorted him through the counters at the airport and accompanied him to [Country 3].  He flew from [Country 3] to [an Australian city], arriving [in] May 2011.  He then travelled to [another Australian city] where he was assisted by his brother.

    ·If he returns to Sri Lanka he will be arrested and tortured by the CID and military groups such as the Karuna group.  He will be killed by them as they still believe he previously helped the LTTE.

17. The applicant submitted to the Department the following documents:

    ·Photocopied pages from a Sri Lanka passport [in] the name of [Name 1]. 

    ·A photocopy of a Sri Lankan driving licence issued [in] October 2003, with the applicant’s address in Dehiwela, Colombo. 

    ·A photocopy of a Sri Lankan birth certificate, completed in either Tamil or Sinhala, with an English translation showing the applicant to have been born in [Town 1] [Jaffna] [in date]. 

    ·A photocopy of a document from [a college] stating that the applicant attended the school from [year] to [year].

    ·ICRC [Red Cross] ‘detention attestation’ stating that the applicant was visited in detention in Colombo between June and September 2009 and that according to himself he was released [in] September 2009.

    ·A photocopy of a document in English said to be a translation of a ‘receipt on arrest’ issued by [a government department].  The document states that the applicant was arrested [in] June 2009 on suspicion of terrorist activity. 

    ·A photocopy of a document in English said to be a translation of a ‘journal entry’ from the [court] dated [in] August 2009.  This states that the applicant and another person had been detained for three months while investigations were carried out.  No charges had been brought against him and they were discharged.

    ·A report dated [in] July 2011 by [a] counsellor with [an organisation] prepared in connection with the applicant’s application for assistance under [a program].  The report states the applicant suffers from ‘a range of severe signs and symptoms associated with posttraumatic stress, depression and anxiety…’  He assessed the applicant as being incapable of undertaking paid employment.

18. Records indicating that the applicant unsuccessfully applied for a [Country 1] visa [in] January 2006 (in Colombo) and [in] January 2011 (in Chennai, India) using a different Sri Lankan passport each time are held on the Department file.  The applicant is recorded as having been fingerprinted for this purpose on both occasions.  The documents include (at f.98 of the Departmental file) a scanned image of the biographical details page of the passport used in the second application.  This passport ([number]) is shown as having been issued [in] 2010 to [the applicant].  It bears the applicant’s photograph and shows his date of birth as [date].  His place of birth is shown as Kandy.

19. Records indicating that in addition to the passport he used to enter Australia (in the name of [Name 1]) the applicant had possessed four other passports in the name of [Applicant’s name].  He had made a number of visits to Chennai as well as to Mumbai and [Country 4].

20. Also submitted were:

    ·A Statutory Declaration and a letter from, respectively, [Name] (friend of the applicant) who attests to assisting the applicant financially [and] (the applicant’s brother) provided in support of an application under [a program].

    ·A document[1] in Sinhala which is stamped as having been presented to the Department. Some pages were stamped [in] September 2009 and other pages were stamped [in] September 2009.

    [1] CLF 2011 Folios 136-146

21. At Departmental interview attended by the applicant [in] August 2011, he added to his claims, relevantly, as follows:

    ·There were no errors in his protection visa application which he wished to correct. He   had never had or used a previous passport or travel document. 

    ·He was taken into custody in 2009 and the passport was taken from him.  The earlier passport was taken and the second passport was given to him by the agent.  He had never used his earlier passport.

    ·Asked if he had ever travelled outside Sri Lanka prior to his visit to Australia he said he had not.  It was put to him that the Department had information concerning a passport issued to him in his name in 2000, expiring in 2009, which had been used for travel to India on two occasions in 2005, to India and [Country 5] in 2006 and to India on two occasions in 2007.  He said he had interpreted the question as asking whether he had used this passport to enter Australia, to which he had replied in the negative.  He had travelled to these countries in connection with his [business].  Asked why he had denied having travelled outside Sri Lanka, he repeated he had interpreted the question as asking whether he had gone to another country before coming to Australia.  He repeated this explanation when asked why he had indicated in his protection visa application form that he had never travelled to any other country before coming to Australia.

    ·His old passport expired in 2010 and he renewed it, he could not remember exactly.  He had attached his old passport to the application and sent it in November 2010.  He had not used this passport to travel outside Sri Lanka. 

    ·Asked if he had ever applied to any country for a visa for travel outside Sri Lanka he said he had done so in connection with his business, but not as a refugee.  There were many applications to India and he did not remember the dates.  He had also visited [Country 5] on business.  He applied for a business visa for [Country 5] in 2006 or 2007 but was given a one-month tourist visa.  He visited [Country 6] from [Country 5].  He had not gone anywhere else. 

    ·It was put to him that the Department had information that he had applied twice for visas to enter [Country 1].  He said he did not think this was so.  Asked again he said he did not remember doing so.  It was put to him that the information showed him as having applied for visas in 2006 and 2011, and that both applications were refused.  He denied having done so.

    ·Confirmed his claim to have been abducted [in] January 2011.  Asked if he was certain of the date he said he was.  He confirmed his claim to have been held for ten days.  It was put to him that the information held by the Department showed him as having applied for a [Country 1] visa [in] January 2011 in Chennai.  He said he was held captive and did not know what happened – he had not made the application in Chennai at that time. 

    ·He had moved away from Jaffna to Colombo in about July 2003.  His reason for doing so was that Rs [amount] was extorted from him by the LTTE and the EPDP and he wanted to start his business there.  The LTTE extortion demands had begun in 2002, when he started his business, and they escalated in 2003.  He had not paid anything to the EPDP.  The amount he paid to the LTTE in back taxes (Rs [amount]) was raised by his parents.  After returning to Colombo he did not pay the LTTE or the EPDP any further taxes, as they did not know where he was.

    ·He was arrested in June 2009, after the police found his number on the mobile telephone of a person they had arrested.  He was beaten, tortured and interrogated about his connections with the LTTE. 

    ·Nature of his business transactions with [Mr B], he said [Mr B] was a businessman who was helping him with his finances.  He would borrow money from him and return it.  Asked about his telephone conversation with [Mr B] the day before his arrest, he said it concerned some money he was to return to [Mr B].  His release from detention was arranged after he met someone from the ICRC.  This person called his parents in [Country 2] who arranged for money to be paid.  He submitted documents, in Sinhala, which he identified as relating to his arrest and the Court decision ordering his release.  These were accompanied by translations which he said were prepared in Sri Lanka.  He did not know who had done the translations. 

    ·He was required to report to a local police station every two weeks, beginning from the day of his release.  This was because they believed he might run away.  It was put to him that the documents he had submitted relating to his release, made no mention of a reporting requirement.  He said he was informed of it orally.  He did not have any documents relating to it.  On some of these reporting visits he was made to clean the toilets and on one occasion he was detained during the day and beaten.  

    ·Asked how the police had come to be in possession of his passport when he was first arrested he said they asked for all his documentation and took it.  He could not remember when the passport was returned to him but thought it might have been in March 2010, about six months after his release. He had not asked for it to be returned, for fear of being beaten and tortured.  The police did not explain why they were returning it.

    ·Asked when he had stopped reporting to the police he said he did not return after the occasion when he was beaten.  He went to live with a friend in another suburb of Colombo as he was afraid he would be detained again.

    ·His business was shut down after his release and not operating while he was detained.

    ·He confirmed his claim to have been kidnapped in January 2011 and held for ten days, during which time he was tortured.  He was eventually released when [Mr A] paid a ransom of Rs [amount].  He found out later that his kidnappers were from the Karuna group. 

    ·He denied that he had applied for a [Country 1] visa [in] January 2011 in Chennai. 

    ·After he was released by his kidnappers, he asked his brother and [Mr A] to find him a place to live outside Sri Lanka.  There had been no opportunity to leave as he did not have the documentation, he did not have a visa.

    ·When he was detained by the police they threatened to shoot him if he lied.  He feared for his life and if he returned he would definitely be shot.  Even while he was in hiding the Karuna group had gone to his house and his friend’s house enquiring as to his whereabouts.  they suspected him of helping the LTTE.  They also wished to extort money from him.  The authorities would not protect him.  They did not know what was happening and even if they had such knowledge they would not act on it.

1. On 5 September 2011 the Department received a submission from the applicant’s advisor, a brief notification of a decision by the [Country 2] Immigration [dated] [in] December 2008 which states that three persons (who the applicant claimed are his parents and brother) had been found to be refugees.

2. By Statutory Declaration made by the applicant [in] September 2011 the applicant states:

   ·At Question 30 of Part C of his protection visa application form he stated in error that he had not previously had a passport.  He had referred in his Statutory Declaration to the police having held his passport after he was released from jail in 2009, returning it to him in March 2010.  He had not noticed this error when he signed the form.

   ·During 2006 and 2007 he travelled to [different countries] on business.  In 2006 the situation in Sri Lanka was very dangerous and he thought his life was in danger.  ‘..I applied for a visa to [Country 1] but my agent supplied many false details about my life in order to improve the chances of getting a visa.’

   ·In the interview he stated he had made an error, in response to Question 33 of Part C of the protection visa application form, by stating he had never travelled to any other country before travelling to Australia.  He had not understood this question and had thought it was asking if he had visited any other countries on the way to Australia.  He was ‘scared and panicked’ when he gave this answer.  Before he consulted his solicitor, his brother’s friends had told him he should say ‘no’ in response to the question and that the question was only seeking information about the last six months before his arrival in Australia.  He did not know anybody at the time and relied on these people for advice.  He now knows the advice was wrong.

   ·There is an error in paragraph 22 of his first Statutory Declaration.  He was kidnapped from [a date in] January to [another date in] January 2011, and not [in a date in] January to [another date in] January as stated.  He had written his story in Tamil and his friends translated it into English on a computer.  He did not notice the error until after the Statutory Declaration had been lodged with the Department.  When he asked his friends what he should do they told him not to worry about it.  He did not discuss the error with his solicitor until after the Departmental interview.  He now knows he was given wrong advice by his friends.

   ·He applied for another visa for [Country 1] [in] January 2011 following his release from the kidnapping.  ‘I applied now because I was afraid for my life.  I wanted to get away from Sri Lanka.  Because of the dangerous situation at that time the [Country 1] Embassy moved to Chennai India for safety so I lodged the visa in Colombo but the processing was done in Chennai.’

   T1 hearing 1

3. The applicant advised the Tribunal that

   ·The applicant prepared his PVA himself, with some help from his brother. He wrote out his first Statutory Declaration in Tamil and had his brother's friend, who knew about such things, translate it into English. He told his lawyer about mistakes he had made earlier and, on his advice, prepared the 2^nd Statutory Declaration. He understood everything contained in these documents and everything they contained was true, as was the information he had supplied at the Departmental interview. He did not wish to change any of his claims

   ·If he returned to Sri Lanka the airport authorities would detain him on arrival. Once they did so they would receive all the reports about him, learn that he had left the country illegally and punish him accordingly. This was not the problem, however. He would be tortured because of all the activities in which he was suspected of having been involved. The police and 'the other group' would come to know of this. There were groups working in conjunction with the government, such as the Karuna group.

   ·He was a Tamil businessman and was under suspicion of having had contacts with the LTTE. He was also suspected of having associated with [Mr B]. The Karuna group would harm him because they worked in cooperation with the government. The police provide the group with information and they would come together to torture him.

   ·Asked if he feared harm from any other source apart from the police and paramilitary groups the applicant said he did not.

   ·He established a [Goods 1] business [in] [Town 1]. It stopped when he was arrested in Colombo in 2009. He stopped the business when he came to Colombo. When he moved to Colombo in 2003 he started a [Goods 2] business [there]. He stopped this in 2009. When he came to Colombo he was carrying on both his [two] businesses but ceased the [Goods 1] business in 2003.

   ·The [Goods 2] business ceased because he had been arrested and held for three months. [Mr A] was not exactly a partner but someone who supplied him with goods to sell. He had not put any money into the business.

   ·He arrived in Australia [in] May 2011 using a passport in the name of another person, this passport was given to him by an agent when he was about to leave the country and was surrendered to the Department when he lodged his PVA.

   ·He said he feared for his life in Sri Lanka and he was prepared to go anywhere. This was why he applied for the [Country 1] visas. He thought that if he admitted this he would not be allowed to stay in Australia. Once he was confronted with the facts he admitted having made the applications.

   ·He had not applied in Chennai but in Colombo. He was held by the kidnappers from [a period in] January 2011. As soon as he was released he applied for the visa, in Colombo, [in] January 2011. The visa processing was carried out in India. His fingerprints were taken in Colombo and sent to Chennai with the visa application. He said an investigation of his [Country 1] visa application would show it was lodged in Colombo. He had applied for a student visa - this was the easiest to obtain. He said he had decided to leave Sri Lanka in October, when they began to harass and torture him, and had collected the necessary documents for this purpose. As soon as he was released he lodged the application.

   ·In his 2^nd Statutory Declaration the applicant said that he had written the first Statutory Declaration in Tamil and friends prepared it in English on a computer. He had not noticed the error until after the application was lodged and, when he asked his friends what he should do, they told him not to worry about it. The applicant agreed that this was so and that he had been aware of the mistake after the application was lodged. His friends advised him not to change the date. He had already made a mistake about it and he had not wanted to confuse the situation by changing it. This was why he had insisted that the date was [in] December 2011. When put that in doing so he had stated something which had known to be incorrect, he said he knew it at the time and this was why at a later point he submitted another Statutory Declaration with the correct date.

   ·It was put that he had held five passports. He said only two of these were in his name. Another was in a different name. He agreed that he had travelled to [different countries]. Asked if he had ever sought protection in these countries as a refugee he said he had not. Asked why this was so he said he was doing business and had no problems.

   ·It was put to the applicant that his ability to obtain passports in his own name and leave and return to the country without any difficulty seemed to indicate the authorities did not have any interest in him. He said he used his first passport for travelling everywhere. He used his second passport to apply for the visas for [Country 1], and for no other purpose. All these things happened before 2009. It was in 2009 that he was arrested and all his problems began.

   ·Put that the Tribunal had information indicating that fraudulent documents are readily obtained in Sri Lanka, suggesting that weight could not be placed on the documents he had submitted as evidence in support of his claims. He said he used the documents to show that he was in trouble. He had not cooked this information up.

   ·He would be punished for leaving Sri Lanka illegally. When put that penalties imposed on him for breaking the law would not appear to represent persecution he said this would not be a problem for him as such but it would lead the authorities to bring up other information about him, at which point his other problems would begin.

   ·The applicant said he wished the Tribunal to investigate his claims about his application for a student visa in Colombo and he gave permission for the Tribunal to consult the [Country 1] authorities for this purpose. He added that, regarding the 'mix up' over the dates of his kidnapping, as he was kidnapped by an unofficial organization he was unable to provide any evidence to prove the date on which it occurred.

   ·He had never travelled out of Sri Lanka after 2009, when he was kidnapped and harassed by these people. If he returned to Sri Lanka he would be detained at the airport over his illegal departure. Past records could be brought up. He could be taken and tortured by the CID or the paramilitary groups. There was no guarantee that his life would be safe. In 2009 the police had retained his passport, made him report every fortnight and tortured him. His friend who had also been released on the basis of no evidence was re-arrested and tortured.

4. On 1 March 2012 the Tribunal received a further submission from the advisor in which he submits, in summary, that the applicant fears harm in Sri Lanka from the Sri Lanka security forces and ‘pro-government Tamil militant group,’ due to his Jaffna Tamil ethnicity, Jaffna Tamil businessman, imputed political opinion in support of the LTTE.

5. Attached to the submission is a document provided for the applicant by Amnesty International Australia compiling reports of human rights violations in Sri Lanka.  Also attached is a report from Human Rights Watch calling on [Country 1] to halt deportation of failed Tamil asylum seekers, on the basis that they are arrested and tortured on return.

   T1 hearing 2

6. The applicant told the Tribunal that if he returned to Sri Lanka he was sure he would be arrested at the airport and the authorities would discover he had used a forged passport.  He would be detained under the pretext of interrogation and he would certainly be tortured.  His past would come to light and his life would be in danger.

7. The Tribunal had investigated his application for a [Country 1] student visa and had obtained information confirming that the application, and fingerprinting of him took place in Colombo [in] January 2011, as he had claimed.  The application was subsequently processed in Chennai and refused. 

8. In response to s424A information [in] July 2012 the applicant’s advisor stated:

   My client has instructed me that he said in his departmental interview that passport number [that] he used to apply for a [Country 1] student visa was not genuine although it contains a photograph of himself, his name and his date birth. The passport was obtained through an agent in Sri Lanka.

   The birth certificate that he has submitted for his protection visa has been altered officially by the registrar of births at the time of my client's birth. The registrar of births at that time initialled himself as this alteration is genuine. It was evident on the original Tamil language birth certificate on the left hand side of the alteration.

   My client has provided his educational certificate from [a college] in Jaffna, Sri Lanka which indicates that he received his education at [the college] from [year] to [year]. This educational certificate's information is consistent with his Convention claims especially with the extortion demands he faced from the LTTE and EPDP.

   He firmly says that he was born in [Town 1] in Sri Lanka.

   My client gives full consent and authority to the Refugee Review Tribunal to contact the register of births in Sri Lanka to verify as to whether his birth certificate is genuine and whether that alteration has been officially made.

   My client gives you further consent and authority for you to contact [the college] in Jaffna, Sri Lanka to confirm his educational history in Sri Lanka.

   My client's [brother] is a settled Australian Citizen and is willing to give evidence on Oath as to my client's place of birth.

9. Attached to the submission is a Statutory Declaration from [Name of applicant’s brother] who states that he is the applicant’s brother and lives in Australia.  He states that the applicant was born in [Town 1] in the North of Sri Lanka and not in Kandy, and that the applicant’s claims submitted to the Australian government are true and correct.

   PVA 2

10. In his PVA 2 the applicant claimed that

    ·because he studied at the same [place] as the son of the LTTE leader, and he is a Sri Lankan Tamil from the northern part of Sri Lanka, that he was suspected of being a LTTE supporter

    ·he was arrested and detained by the Sri Lankan authorities in 1997 and [in] June 2009, and that he was questioned and tortured by them.

    ·he was released by the [Court] after [a number of] days because the police did not have adequate evidence to charge him.

    ·although he was released the Sri Lankan authorities continued to suspect him as a LTTE supporter and sympathiser.

    ·[in] January 2011, he was abducted by unknown people in a white van and he was blindfolded and accused of being a LTTE supporter and warned that he would be killed.

    ·he was kept in a dark room and tortured and he was released after a bribe of Rs[amount] was paid.

    ·after he was informed that some unknown people had enquired about him, he decided to leave Sri Lanka in May 2011.

    ·as he departed Sri Lanka on a false passport he will be implicated as having committed a criminal offence and he will be arrested at the airport, particularly as he was previously arrested and detained on suspicion as a LTTE suspect

    ·he has been involved in cultural and political Tamil activities in Australia and he would attend Australian Tamil Congress meetings with his brother.

    ·the college old boys in Australia started a charity organisation in the name of [Organisation 1] to support affected people in Sri Lanka.

    ·the Sri Lankan authorities suspect that this group promotes Tamil nationalism.

    ·he supports the Transnational Government of Tamil Eelam because in his view the Sri Lankan government has committed inhuman and crimes against humanity against Sri Lankan Tamils.

    ·he fears he will face serious harm if he is returned to Sri Lanka because the authorities suspect him of being a LTTE sympathiser and a Tamil nationalist.

    ·he cannot get state protection and fears that if he attempts to relocate to another part of Sri Lanka he will continue to face harm.

11. The applicant's representative provided a submission stating that the applicant's fears of returning were in relation to the cumulative reasons of

    • Belonging to Tamil ethnic minority in Sri Lanka;
    • Hindu;
    • Suspected as a Tamil nationalist or a LTTE supporter who holds a political opinion against the Sri Lankan government and the authorities;
    • Young Tamil who left Sri Lanka using a false passport

12. The applicant attended a Department interview [in] April 2015. A recorded copy of that interview is held on the Department file. I provide a brief outline of further information provided to the Department:

    ·the applicant's parents are living in [Country 2] and he had been in contact with them two or three months before his Protection visa interview.

    ·his married sister is living in Sri Lanka and his last contact with her was just after he came to Australia, in 2011.

    ·He had aunts and uncles in Jaffna but he had not been in contact with them for a long time.

    ·his problems were because [Mr B] had been kidnapped and he was still of interest to the Sri Lankan authorities because they were looking for him at the time he departed the country.

    ·in regard to his previous travel overseas on several occasions, between 2005 and 2007, and his visa application to [Country 1], when  put that he had been able to enter and depart Sri Lanka without any problems, which would have been an indicator that he was not of interest to the Sri Lankan authorities he responded that he had travelled on business during that period as he had initially owned a [business] in the Northern Province, but due to problems with the LTTE, he had relocated to live in Colombo with his parents who were living in their own home.

    ·he had managed a [Goods 2] business, from 2006 until 2009, when he was detained by the authorities. He exported goods to [Country 6] and [Country 5] and he had travelled to those countries on business.

    ·he had applied unsuccessfully for student visas to [Country 1].

    ·he departed Sri Lanka on a false passport so he will be implicated as having committed a criminal offence and he will be arrested at the airport, particularly as he was previously arrested and detained on suspicion as a LTTE suspect.

    ·as the applicant was a young Tamil who left Sri Lanka using a false passport he would be at risk of persecution if he were to return to Sri Lanka.

    ·he had obtained a false passport with the assistance of his brother in [Country 1]. The agent in Colombo had given him the passport at the airport and it had a visa to Australia stamped in it.

    ·it was put to the applicant that he may have departed Sri Lanka on his own passport, despite entering Australia on a false passport, he said that he had fled Sri Lanka for his own life on a false passport.

    ·he has been involved in cultural and political Tamil activities in Australia and he would attend Australian Tamil Congress (ATC) meetings with his brother. The college old boys in Australia started a charity organisation in the name of [Organisation 1] to support affected people in Sri Lanka. The Sri Lankan authorities suspect that this group promotes Tamil nationalism.

    ·he supports the Transnational Government of Tamil Eelam because in his view the Sri Lankan government has committed inhuman and crimes against humanity against Sri Lankan Tamils, and he will be seriously harmed, if he were to return to Sri Lanka

    ·he had not known about the Australian Tamil Congress until the end of 2013.

    ·he commenced his membership with Australian Tamil Congress (ATC), in April 2014, and he sought assistance from them and assisted them with setting meetings. He had attended 2 meetings, one in September 2014, and one previously but he could not remember exactly when. [Organisation 1] was a humanitarian organisation who he had sought assistance from.

    T2

13. The applicant provided a submission to T2, dated 20 February 2016, enclosing country information.

    T2 Hearing

14. The applicant produced an article by Australian Tamil Congress, stating that Sri Lanka is still unsafe for Tamil asylum seekers

15. The applicant was advised that according to Ministerial Direction No. 56, I take into account the country information assessments prepared by DFAT expressly for protection status especially DFAT Country Information Report Sri Lanka, 16 February 2015 (“the DFAT report”) January 2017 and DFAT Thematic Information Report People with Links to the Liberation Tigers of Tamil Elam, 3 October 2014 (the DFAT Thematic report). 

16. The applicant said that he [works]. He is married to a Sri Lankan. He has no children. His [brother] is in Australia, his parents are in [Country 2], 1 brother and 1 sister in [Country 2] and 2 [other] brothers are in [Country 1] and 1 sister is in Sri Lanka, in Colombia. His parents went to [Country 2] in 2008.  His father was an [officer] in a government position, he retired in 1990. 

1. The applicant said that finished his [qualification] in Sri Lanka, in [year] and then started to study [a course], advanced level at [a college]. He had started this study straight away.

2. When put to him that the certificate he had provided [stated] that he was reading [subjects] for his Advanced level he responded that he studied those subjects in his [grade] levels.

3. The applicant produced a medical certificate, dated [in] February 2017 from [Dr C], stating that he suffered from mixed anxiety/depression and is having regular counselling.

4. When asked about his medical issues, he said that he has been affected so much by the past and he cannot remember things. He gets memory loss and feels fatigue. Sometimes when somebody ask questions he cannot remember. He does not have Medicare and that is why he is working. He goes to a Tamil doctor whenever he gets pain. When asked if he goes to a specialist or to a Counsellor he said that he does not go as he cannot afford it, he does not have Medicare.  When put that he is working, he said he cannot afford it. When asked if he loses much time from work for his medical condition he said that he has to go to work, when he has pain he takes sick leave but that is only 10 days.

5. After he finished school he started a business in Jaffna and then in Colombo. It was a [Goods 1] business, and then exporting Sri Lankan food products [overseas]. He was captured and the business ended.

6. He moved to Colombo end of 2005 or 2006. At the start he was doing [Goods 1], until he was captured in June 2009. He initially said that he could not remember the name of his business but then said it was [Company name]. He said that he ran the business as a private individual,

7. When asked what was involved to set up a business in Sri Lanka, he said that he started the work with the help of a friend. He had no employees. One or 2 people were working for him on a needs basis. He exported to [overseas], to [Country 6] and to [Country 1].  He buys things and puts them into containers and sends things. His friend organised things.

8. It was put to the applicant that his business was a proprietary limited company and he would have had to set up some documents for that. He said he cannot remember. Asked if there is a place to go to opening up a business, he said he started bank accounts. It was put that he needed tax file numbers, memorandum and articles of association to do so. He said he did not get a tax file number. He was able to export goods without a tax file number.  When he gives the list to an officer that person will decide how much to charge and the amount was different for different things.

9. It was put to the applicant that an exporter was required to register at the following:  [different Government departments]. He responded that when he registered his company he was given all these things. The Tribunal discussed the legal requirements with the applicant. He said when he exports customs decides how much tax to take. It is not the tax that is registered in Australia. If you give the name of his company you would find information in Sri Lanka. The company was on his name and he was the one doing everything, the system is not like in Australia. You can pay money for customs people and can get things done in Sri Lanka. He did not pay tax but paid money to them i.e. Sri Lankan customs. “They will check the things we are sending overseas. We have listed out things on our letter head”.

10. He lived in Colombo in different places, from 2005/6, until he left. Until he was captured he lived in the family house. After he and his parent left, he does not know who now lives there, he thinks his parents have rented out the house. His sister lives in Colombo, he is not sure in whose house. He does not keep in touch with his sister, he spoke to them a long time ago.

11. In 2006 or 2007 he met [Mr B] at a party and they became friends.  [Mr B] helped him with money, for any emergency. In 2009 [Mr B] had a baby. [Mr B] had [a] [shop]. The applicant would meet him often, sometimes he would go to his shop and get money from him. He sold [certain] [goods]. When asked where he met [Mr B], he said that he went to drinks in Colombo he cannot remember the names of the clubs. When asked what sports [Mr B] played, he said that he cannot remember any sports. Even if they did not see each other they would talk on the phone, he is a good friend. Sometimes once or twice they went together to his shop. They would speak about his family, [Mr B] will ask him his business and he would ask about his business.

12. He went to [Mr B’s] home, it was [several] kilometres from his shop.  He always talks about his business, he had a gym at home. They became very close friends before [Mr B] was captured. [Mr B] called the applicant and that is how he got into trouble. Asked if any other friends were captured, he said that there were more than 11 other business people who were also captured.

13. When put that I had not found any information that [Mr B’s] friends were captured, he responded that the court documents contain the names of the others. I put to the applicant that the document referred to only referenced the names of other people, there was no information to connect them with [Mr B].

14. When put that if he was such a good friend of [Mr B] he would have known about his membership of the golf club and other sports clubs, he responded ‘he is in those clubs’. He does not go to all the clubs.  He does not know if he goes but he has membership.

15. It was put to the applicant that there was no need for the authorities to capture him. He said he got into trouble [in] June 2009. He was in prison for 90 days, he went to court after 90 days, because the authorities are not allowed to hold a person more than 90 days and he was released. They took his passport and he needed to go back and signs. They released him on condition every 2 weeks he had to go and sign. When he went there to sign the officer was there and would ask why he came and they would demand money and assault him. He went to sign at the Colombo Crime Division where he was arrested. It was put to the applicant that the document from the court did not say that he had reporting conditions. He said the court does not say but the police required him to go and put a signature.

16. There was an injury to his [body] in 2009 when he was attacked and assaulted. They put a bag on him and assaulted him.  Asked if he mentioned this to T1, he said so many times he told these things, they are not believed.

17. When put that he has a large number of passports, he responded there were only 2, because of his problems he came on a different passport, if he came in his name they would have arrested him on his passport. He escaped from them and did not put his signature. It was in 2010.  He left Sri Lanka because he did not go back to reporting to the police. He was kidnapped by another group, then he fled the country.

18. It happened in 2011 before he came to Australia. He cannot exactly remember, it was 2 months before he came, he thinks it was the beginning of January. He does not know the date exactly. He thinks it was [in] January. He was reporting every 2 weeks to put his signature. He stopped in 2010, they demanded money, attacked him and then he stopped going.

19. One night they came to his house in Colombo to kidnap him. He was at home alone, they knocked at the door and broke open the door. He was blindfolded, they started to assault him and demanded money. They released him after 10 days. He paid money, they gave him the phone and called his friend and told his friend to get the money, then he said he will ring somebody and the money was paid, but he did not know the place. He was released. They dropped him off. 

20. Put that he had stated it occurred 2 months before he came to Australia which was in May but he stated earlier it happened in January.  He responded that he thinks [a date] of January. He is getting old memories.

21. I discussed with him his claims that he had been assaulted very 2 weeks when reporting to the police. He then said that on the last occasion in October 2010 they demanded money and drinks and they assaulted him, they detained him for 1 day. This was severe torture so he stopped going to the CID and went and stayed at a friend’s house. From October 2010 he stopped going to the police and he was at his friend’s home for 2 months. He went back to his home in Colombo after 2 months and nothing further happened to him until 2011.

22. When asked why he needed 5 passports he said he did not have 5 passports.

23. When asked where he travelled to in 2007 he said that he went to [Country 6] in 2007, he went to [several other countries]. He had no fears about returning to Sri Lanka, at that time he had no problems before 2007, he had problems and he was travelling for his business. His problem started after 2009.

24. When asked if he had any other problems when he lived in Sri Lanka, he said he had during the time of the war he had small problems. They would demand money, they could not do anything freely or independently, when he was doing business he was helping LTTE and he was giving money to the LTTE. He did that in 2005 and 2006, there are lots of different parties. They would come and demand money.

25. Other than having money demanded from him, when asked if anything else happened he said EPDP got money but he cannot remember anything now.

26. When put that his doctor did not say he has memory problems, he responded that whilst he was lying down or sleeping he recalls being assaulted with a [bag].  First time he left Sri Lanka was in 2005. He is trying to recall and whatever he can remember, he is trying to tell.

27. [Mr B] is a Colombo Tamil. When put that [Mr B] is Tamil from India and his wife is Sinhala – he responded Tamils from Colombo are Indian, he is not a Jaffna Tamil.

28. I noted that there was information before the Tribunal indicating that the applicant had held a total of five passports. He said only two of these were in his name. Another was in a different name. He agreed that he had travelled to [different countries]. Asked if he had ever sought protection in these countries as a refugee, he said he had not. Asked why this was so he said he was doing business and had no problems.

29. The applicant requested that the Tribunal check the documents submitted by him, in Sri Lanka, that are critical to his credibility and corroborative evidence. It was put that in order to do so, the Department, acting on behalf of the Tribunal in the enquiry, may disclose his name and so inform the Sri Lankan authorities of his identity.

30. It was put that fraudulent documents are readily obtained in Sri Lanka, suggesting that weight could not be placed on the documents he had submitted as evidence in support of his claims. 

31. When asked what he fears about returning to Sri Lanka he said that he did not go back for signature to the police because he was abducted and they must have records. They function with the government. His friend who organised the money for him told him do not stay there “they are coming and looking for you again’’. He knew that if he came with his name in passport, that is why he came on different passport.  If he were to return they would arrest him as he did not come on passport on his own name. They would get all his details from them onwards. There is no guarantee for his life. The people who abducted him were talking Tamil and Singhalese.

32. He had not actually been politically active and that he had never been a member of any political organisation in Sri Lanka.  [Mr B] was released and he was abducted and murdered. His wife has reported this incident.

33. Asked why joined Australian Tamil Congress, he said that it was voluntary, they knew what is happening in Sri Lanka. Recently Sri Lankan President came to Australia and said everyone can come back but still people are arrested and they are occupying the land. As a Tamil he joined to help the Tamil people. He will be affected by that because of his membership.

34. Discussing his involvement with Australian Tamil Congress the applicant said he attended Australian Tamil Congress 2 to 3 times but after that because of work he was unable to go. He has no position within the organisation. He is only a member. He has not spoken publicly about any issues affecting Tamils. It was put that Sri Lanka's new government has announced plans to remove 16 groups and hundreds of Tamils from a list of "foreign terrorists" as part of reconciliation with its largest ethnic minority. He responded that among the 16 groups was the Australian Tamil Congress (ATC). They will say these things but when he returns they will show some reason to arrest him.

35. Put that other Tamils have returned and were not arrested. He said nobody knows what is happening to them. When put that he is from Colombo, he said he is a Jaffna Tamil.

36. The Tribunal put to the applicant, pursuant to s.424AA, the following information. The Tribunal stated:

    I propose to put information to you pursuant to s.424aa of the act. I will explain that information to you and I will give you the opportunity to respond or you may respond in writing or you may seek an adjournment or you may respond verbally.

    I propose to put information to you that would subject to anything that you might say form reasons or part of the reasons for affirming the decision under review.  You do not have to comment immediately and you can seek additional time to do so after the hearing.

    In your protection Visa in your first application before the Department you did not inform the department that you had made an application for a Visa to [Country 1] [in] June 2006 and [in] January 2011. You told the department in a statutory declaration dated [in] June 2011 which was witnessed by a solicitor and interpreted by an interpreter that [in] January 2011 you were abducted by people in a white van and you were released after 10 days. You told T1 that this abduction occurred from [a date in] January to [a date in] January 2011. You told the tribunal today that this abduction occurred from [a date in] January 2011 and that you were released [in] January 2011.

    The relevance of this information is that you have provided inconsistent evidence. If I rely on the information I would find it undermines your credibility and would lead me to conclude that your claims are not genuine. If this was the situation I would have no other option but to affirm the decision under review.

37. The applicant said he would respond to s.424AA information in writing. The Tribunal provided the applicant with a copy of DFAT report of January 2017.

38. The applicant subsequently responded to s.424AA information, in writing, as follows;

    It seems from what the member said, the member has already made up her mind in relation to my credibility. The reason is the member did not say that her view in relation to my credibility is subject to my comments or response. Though the member previously said that she would affirm the decision subject to my comments or response however in relation to the issue on credibility, the member failed to mention that her view on my credibility is subject to my comment or response. Therefore, from a lay man point of view that since the member did not say that her view on my credibility is subject to my comments of response, I think the member has formed an adverse view in my case when she provided her concerns under section 424 A/ AA.

    In my form 866 C at Question 33 in my first protection visa application, I said during the interview that I made an error saying that I did not go to any other countries before my travel to Australia because at that time I did not understand the question and thought it was asking if I had visited any other countries on the way to Australia. I was scared and panicked in giving that answer. Before I saw a lawyer in relation to my first protection visa, I spoke to my brother's friends with whom I lived at that time and they advised me to say `no' and that the question only wanted information about the last months before I came to Australia, I did not know at the time and came to them for advice.

    There was an error in my statutory declaration in relation to my first protection visa. At para 22, I was kidnapped from [a date in] January 2011 to [a date in] January 2011 and not [in date] January to [another date in] January 2011. I wrote my story in Tamil and my friends translated it into English on the computer. I did not notice the error until after the statutory declaration had been filed with the Department and I asked my brother's friends what I should do. They said 'Don't worry about it". I did not talk to my lawyer who assisted my in my initial protection visa about it until after the interview. When I realised the mistake and wrong advice, I responded to the Department through a statutory declaration. I provided truthful information to the previous Tribunal about these issues.

    Further, I applied for another [Country 1] visa [in] January 2011 when I was released from Kidnapping. I applied for the visa as I was afraid for my life.

    My current application is a fresh application and I did not provide any misleading information or documents in relation to this application. The Tribunal should consider information I provided in relation to the current application in assessing my credibility.

    During my first DIBP interview, I said that the passport number [that] I used to apply for a [Country 1] student visa was not genuine although it contained my photo, name and the date of birth, That particular passport was obtained through an agent in Sri Lanka.

    I give my full consent and authority to the AAT for contacting the relevant authorities including the Courts to verify the authenticity of the documents I submitted to the DIBP and to the Tribunal.

    I also have provided evidence that my parents and brother were recognised as refugees in [Country 2] in 2008.

    I request the Tribunal to consider and look all my claims and documents I have so far provided to the Australian authorities including all the files and documents associated with my first protection visa lodged [in] June [2011], first RRT matter [case no: 110035] and the current protection visa application.

    I do not have people in Sri Lanka who can provide financial guarantee or surety to get me
    released from prison. My sister will not do it as her family would not allow her to do it. Further I have no money to pay for the bail and therefore, if I returned I would be arrested and imprisoned and I fear I would face degrading, inhuman, cruel treatment and sexual assault in prison.

39. Post Tribunal hearing the applicant’s migration agent advised that a submission dated 20 February 2017 contained some “typo errors”. They requested the Tribunal disregard the country’s submission forwarded on 20 February 2017 and provided additional documents. They requested that the Tribunal verify documents regarding their authenticity.

40. In a submission dated 7 March 2017 the applicant provided country information and summarised the country information as follows:

    1. Sri Lankan authorities continue to engage in sexually abusing the suspects.
    2. Significant section of the Military continues to support Mahinda Rajapakse.
    3. Juan E Mendez, United Nations Special Rapporteur raised concerns on the condition of life in prisons in Sri Lanka.
    4. United Nations Special Rapporteur confirms that he has received allegations of a while van abductions.
    5. United Nations Special Rapporteur confirms that he is persuaded that torture is a common practice and carried out in Sri Lanka by the Sri Lankan authorities.
    6. United Nations Special Rapporteur confirms that people who are suspected as involve in anti-national activity and threat to the sovereignty of the country face increased fear of harm including severe.
    7. Persons viewed as sympathizers of the banned terrorist group the LITE face arbitrary arrests, detention and torture.
    8. Human rights violations by Sri Lanka's security forces reported in 2015 include harassment, arbitrary detention.
    9. Sri Lankan government continues to seize the lands belonging to Tamils.
    10. Sinhala colonisation continues in Tamil areas.
    11. Despite change of government, torture and sexual abuse continue in Sri Lanka.
    12. The Sri Lankan government consider members of Tamils diaspora and the Tamil diaspora organisations are real threat to the Sri Lankan state.
    13. Defence Secretary Hettlarachchi confirms the fear of the government and said that in spite of the eradication of the LTTE, Tamil Diaspora groups are hell-bent on causing trouble.
    14. The Sri Lankan government continues to perceive that the LITE and its supporters among the diaspora have not abandoned their long-term goal of secession.
    15. Dr Gunaratna who has closely worked with the Sri Lankan intelligence against the LTTE has recently opined that the LTTE's international network among the Sri Lankan Tamil diaspora remains intact and cautioned the Sri Lankan government to take appropriate steps to address it.
    16. Tamil returnees continue to face harm.
    17. Tamil National Alliance has now publically stated that it is disappointed with the current government in their treatment of Tamils.
    18. President Srisena has now publically declared that his government and the security forces would target any Tamils who passively or actively support the ideologies of the LTTE and support Tamil nationalism seeking a separate country for Tamils. We submit this public declaration by the President is relevant in our applicant's case because they hold political opinion supporting Tamil nationalism and seeking a separate country for Tamils. The applicant has provided corroborating evidence regarding his activities supporting Tamil Nationalism. They also have provided supporting letters from people confirming their active participation in the activities promoting Tamil Nationalism. We also have provided evidence that Sri Lankan intelligence service continue to monitor the activities of Tamil diaspora in their involvement in Tamil nationalism activities. We submit that the applicants including their minor child would face a real risk will be considered as traitors of the state and will be detained at the Sri Lankan airport and would face a real risk of significant harm including torture, degrading, inhuman, cruel treatment and sexual assault in Sri Lanka. We submit that despite the change of government, the Government leaders and authorities continue to target and harm Tamils who hold or perceived to be holding political opinion against the Sri Lankan state.
    19. Tamils returning from abroad continue to be arrested under the PTA.
    20. Sri Lankan authorities perceive that the LTTE's international network continue to pose significant challenge to Sri Lanka.
    21. Official statistics for 2014 indicate higher levels of serious crime in Colombo, Anuradapura, Galle, Gampha, Kalutara, Matara, Nugegoda, Ratnapura, and Tangalle.
    22. Discrimination against Tamils and other minority groups, many other serious human rights abuses and poor governance continue despite the change in the government.
    23. revival of the LTTE and Sri Lankan government's view on the Tamil diaspora groups are relevant. due to the suspicion of the members of the Tamil diaspora and their active or passive involvement with the Tamil nationalist diaspora organisations and their involvement with the Tamil nationalist events, the applicant will be particularly targeted and seriously harmed.
    24. Religious violations continue in Sri Lanka.
    25. Torture continues in Sri Lanka.
    26. recent country information is very relevant because the leader of the Tarnil National Alliance (TNA) has made a statement and confirmed that despite the change in the government, the current government does not have any interest or has shown any willingness to address the issues faced by Tamils in Sri Lanka. He further criticised the current government regarding its human rights abuses against Tamils. In addition, another senior leader of the TNA who is the Chief Minister of the Northern Province has also confirmed that Tamils return from overseas face arrests and detention. The above reports further confirms that there is no constructive changes in the government policy towards Tamils.

190. 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.

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

192. 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.

193.      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.

194.      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.

195.      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.

196.      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.

197.      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

198. 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’).

199. ‘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.

200. 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

201. 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.

202.      Relevantly, in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed.