1509071 (Refugee)
[2019] AATA 3867
•14 February 2019
1509071 (Refugee) [2019] AATA 3867 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1509071
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Peter Vlahos
DATE:14 February 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 14 February 2019 at 7:31am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity – Tamil – work as a mediator – victim of shooting – harassment by army officers – cousin’s LTTE involvement – returning asylum seeker – UNHCR registration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 45AA, 65, 499
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2
CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas on 21 November 2012 and the delegate refused to grant the visas on 25 June 2015.
3. The applicants applied for Protection (Class XA) visas. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas. Although the delegate refused the applications as applications for Protection (Class XA) visas, the effect of r.2.08F is such that the applications the Tribunal must consider are ones for Temporary Protection (Class XD) visas.
4. The applicants appeared before the Tribunal on 13 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [spouse].
5. Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
THE LAW –re: Protection
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.
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. 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’).
11. 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
12. The issue in this case is whether Australia has protection obligations towards the [applicant] and for the following reasons; the Tribunal has concluded that the decision under review should be affirmed.
Applicant Country of Nationality and Identity
13. Based on copies of the applicants’ passport which was provided to the Department of Immigration and Border Protection (the ‘Department’)[1], the applicants’ oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Sri Lanka and have been assessed as with regards to their claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
The applicant’s migration/personal history
[1] Department File [number deleted] Folio [203]
14. The applicant’s migration and personal history is as follows:[2]
[2] AAT File, see folio [25]
§From 1974 to 1976 he resided at [Address 1], Jaffna
§From 1976 to 1978 he resided at [Address 2], Jaffna
§From 1978 to 1979 he resided at [a town], Jaffna.
§From 1979 to 1985 he resided at[Address 2], Jaffna
§From 1995 to 1995 he resided at [Address 1], Jaffna (internally displaces a number of times and stayed at schools and temples due to problems with the army).
§For one month in 1995 he resided at [Address 2], Jaffna
§For month he resided at [Address 3], Jaffna
§From May 1995 to August 1995 he resided at [a town].
§From August 1995 to October 1995 he resided at [Address 4].
§From October 1995 to 1996 he resided at [Address 5].
§From 1996 to 1998 he resided at [Address 6]
§In 1998 he travelled to [Country 1] illegally by sea. He resided at [Refugee Camp 1][Country 1] until 1999.
§From 1999 to 2002 he resided at [a named town in Country 1].
§In 2002he travelled to Sri Lanka by air using his bogus [Country 1] passport. He resided at [multiple locations] until [July] 2007.
§[In] July 2007 he stayed at [an area of], Colombo.
§[In] July 2007 he travelled to [Country 2] by air using a genuine passport. He stayed at a [hotel].
§[In] July 2007 he travelled to [Address 1 in Country 3]. He remained there until August 2007.
§From September 2007 to May 2008 he resided in [Address 2 in Country 3].
§From May 2008 to November 2008 he resided at [Address 3 in Country 3].
§From November 2008 to June 2009 he resided at [Address 4 in Country 3].
§From June 2009 to May 2010 he resided at [Address 5 in Country 3].
§From May 2010 to January 2011 he resided at [Address 6 in Country 3].
§From January 2011 to 20 June 2012 he resided at [Address 7 in Country 3]
§[In] June 2012 he travelled to [Country 4] by sea. He resided at various locations in [Country 4] until [August] 2012. [In] August 2012 he travelled illegally by sea to Australia. He arrived in Australia [in] August 2012.
The applicants’ claims
15. The applicants’ claims can be summarised as follows:
§The applicant is a Sri Lankan Tamil from Jaffna
§In 1991 his second cousin, a member of Liberation Tigers of Tamil Eelam (LTTE), died in the Sri Lankan conflict
§In 1998 he (the applicant) fled Sri Lanka for [Country 1] as he feared being recruited to the LTTE.
§In 2002 he returned to Sri Lanka as there was a cease fire in the Civil War.
§When he returned to Sri Lanka he started a number of business pursuits and became [a prominent member] of a co-operative society.
§He was also a [Occupation 1] and would [work] for a local parliamentarian member.
§In 2006 Sri Lankan army officers approached him and friend of his and asked them to assist the officers in extorting Tamils in the area.
§Soon after he was called to an army base where he refused to assist the army officers.
§Following this he started being harassed and questioned by army officers and receiving threatening phone calls.
§In September 2006 he approached the Human Rights Commission and they advised they would not guarantee his safety.
§After this, both he and his wife were verbally abused by army officers.
§A friend of his helped him arrange a meeting with an army commander. He told the commander about his issues with army officers and he was told his complaint would be investigated.
§After this meeting his issues stopped for a while.
§In February 2007 he was riding his motor cycle with a friend when he saw a familiar army officer. The officer produced a gun and started shooting him. He crashed the bike and fought with the army officers.
§He was taken to hospital with bullet wounds and remained there for four months. His friend was also hospitalised.
§Whilst in hospital he was told that on one occasion an army officer came to the hospital and was turned away.
§Whilst he was hospitalised he heard that people with connections to the government had questioned his brother-in-law and tried to kidnap his wife.
§He and his wife received threatening phone calls and text messages.
§[In] March 2007 his wife approached the Human Rights Commission regarding his situation.
§[A Magistrate] investigated his injuries. He disclosed that he believed the culprit was the particular army officer that the applicant had seen when he met the local commander.
§A Christian group [a named organisation] helped facilitate him being flown to Colombo for medical treatment.
§He departed Sri Lanka in July 2007.
§He was told his friend who was in hospital was kidnapped.
§He has had family members questioned and harmed since he fled Sri Lanka.
§He was granted refugee status by UNHCR in [Country 3] in 2009.
At the Protection Visa Interview conducted by the Department and attended by the applicant, he added the further claim that:
§ In 1995 he sustained injuries as a result of aerial shooting conducted by the Sri Lankan Army (SLA).
EVIDENCE AT THE HEARING
16. The Tribunal first received evidence and submissions from the primary applicant, [named] (the ‘applicant’ herein) and from his wife, [named] (herein referred to as ‘the applicant’s wife’).
Does the Applicant have family still living in Sri Lanka?
17. The applicant told the Tribunal that his sister had departed Sri Lanka and was currently living in [Country 5]. His sister left Sri Lanka three years ago. The applicant’s mother has now passed away but his father is still alive but the applicant has very little contact with him. The applicant told the Tribunal when he and his sister were young, his father deserted the family. jobs
What education has the applicant completed prior to leaving Sri Lanka?
18. The applicant stated that he attended all levels of primary school and he attended secondary school up and including year 11.
What work was the applicant involved with prior to leaving Sri Lanka for Australia?
19. The Tribunal was told that the applicant had been employed doing a number of various jobs. He was a [Occupation 1]. He worked [in a variety of other occupations].
Is the applicant married?
20. The applicant married his wife (second-named applicant, hereinafter referred to as ‘A2’). His marriage occurred in 2003. However, the marriage has no children.
What were the applicant’s issues with the LTTE while in Sri Lanka?
21. The applicant stated that in 1991, there was a continuing bombing barrage was being directed against the city of Jaffna which at that time, was under the control of the LTTE. The applicant recalled that in and around Jaffna there were major battles going on between the LTTE irregular forces and the Sri Lankan armed forces.
Was the applicant involved with the LTTE in this local skirmish between the LTTE and the Sri Lankan Army (SLA)?
22. According to the applicant at that time, he had no involvement in this local fight between the LTTE and SLA. The applicant stated that during these battles he tried best to carry on with his life and was living on rural property. However, the applicant’s ‘second cousin’ was involved in this battle and fought on the side of the LTTE. The applicant stated that as a result of his cousin’s involvement in this local battle, he was killed.
How did the applicant’s second cousin’s death affect the family and the applicant?
23. The applicant stated that his late cousin was the same age as the applicant and his death affected everyone in the family. The applicant was asked did the applicant’s cousin’s death cause issues between the applicant and his family with the authorities because of his involvement with LTTE. The applicant said that no immediate issues surfaced with the authorities at the time of his cousin’s death. The applicant explained that at that time, the opportunity for some contact with the authorities did not surface because the area around Jaffna was still under the control of the LTTE forces and the SLA had not entered the city.
Why did the applicant leave for [Country 1] in 1998?
24. The applicant said that he did not willingly go to [Country 1] but he had his sister there and wanted to be reunited with her. Also, he was afraid of being recruited by force into the LTTE, who at that time were recruiting young Tamil males by force in the area of Jaffna. Therefore, the only way to escape recruitment into the LTTE was to go to [Country 1].
How long did the applicant remain in [Country 1]?
25. The applicant stated that he remained in [Country 1] until 2002. In that time, lived in refugee camp.
Was the applicant involved with any LTTE paramilitary forces while in [Country 1]?
26. The Tribunal was told that while in [Country 1] the applicant did not involve himself with any LTTE paramilitary organisation. The applicant stated that as he could recall, the LTTE did not have a good standing with the Tamils population in [Country 1] during this time.
Did the applicant work while he was in [Country 1]?
27. The applicant said that he did not work while he stayed in [Country 1]. He subsisted in [Country 1] by receiving moneys from international NGOs on a weekly basis which allowed him to purchase his necessities of life.
When did the applicant return to Sri Lanka?
28. The applicant said that he returned to Sri Lanka in 2002 when a ceasefire was declared between the SLA and the LTTE. Once in Sri Lanka, the applicant returned to Jaffna which was (according to the applicant) under SLA control but there were still ‘pockets of control’ or ‘areas’ controlled by the LTTE forces.
Why did the applicant return to Jaffna?
29. The applicant stated that Jaffna was the city he had lived in and knew well. He went on to say that he had been separated for considerable period of time and he wanted to return and he wanted to be re-united with his wife.
30. Once the applicant had re-established his ties with his wife and his family members who had remained in Jaffna, with the help of an uncle he established his business and became successful.
When did the problems return which forced the applicant to leave Sri Lanka?
31. The applicant told the Tribunal that he and many other Sri Lankans did not expect the war between the SLA and LTTE to begin again. Nevertheless, in this time, the applicant stated that he had become involved as [member] of a group that was known as [Organisation 1] and through this group, he would add ‘…his voice…’ in support of the ‘…people…’ He would also ‘identify…’ ‘Obstacles…’ which endangered the peace and welfare of the ‘…people…’
32. The applicant’s attempt to assist in the maintenance of intercommunal peace caused him to involve himself in opposing the incitement of intercommunal tensions between the Tamils and the wider community by the distribution of pamphlets which incited violence and hate. According to the applicant, he ‘…spoke up and against such activities….’ The applicant also demanded that the camps around and near Jaffna should be removed and in particular, those near schools.
33. After a period of time had passed, an army office came to see the applicant requesting that he borrow a vehicle from him. The applicant could not provide a definitive time-line for this meeting when asked by the Tribunal to inform the Tribunal of the time of this meeting. However, the applicant had no hesitation in allowing the army office to borrow his vehicle.
34. Also, the applicant stated that the army command approached him and asked him if he could cooperate with them and to act as communicator of the army’s intentions for local area with the locals.
35. As the applicant described the army’s proposal to him was to act as a local ‘…mediator…’ and by so acting as a mediator, he was told that he could claim certain benefits from the local military command.
When did the work as a mediator become extortion?
36. The applicant stated that ‘…initially they [the army officers].…did not talk about extortion…’ but the applicant had his suspicions that this would happen but did not ‘…say anything…’ Then, after a while ‘…they…’ (the military) ‘…started to give trouble…’ The applicant described this trouble as the military ‘…annoying him…’ Indeed, his neighbours and people generally, began to show their disquiet when they ‘…saw army persons…coming in and out…’ of the applicant’s home.
37. The applicant’s problem began more difficult for him when the army officers told him that he should use his ‘mediation’ skills to extract ‘…money…’ from the general population that engaged him to act as a mediator between them (generally ethnic Tamils) and the army and that money would be divided between himself and the military.
38. The applicant stated that he refused this ‘…deal…’ to cooperate and to profit by working with the local military.
39. After the applicant refused the army’s proposal to extort money from local Tamils with LTTE ties, he was under strict surveillance. The applicant told the Tribunal that he was told this by some of his relatives that had seen this. The Tribunal asked the applicant – how did his relatives know these people were following him? The applicant’s response was to tell the Tribunal that his relatives reported to him that they had observed a number of ‘…unregistered vehicles…’ in close proximity to where the applicant was at a given moment.
40. They also observed ‘…persons…’ with ‘…binoculars…’ observing his movements from a distance. Also ‘others’ not related to the applicant told him that he was a person who was under surveillance.
What did the applicant do when he received the news that he was under surveillance by the army?
41. The applicant said that he complained to the Sri Lankan Human Rights Commission. The Tribunal was told that he submitted a complaint to the Commission outlining to them in detail what had happened to him. The Commission’s response was that (according to the Tribunal) “… [we] are not able to provide you with protection…” The applicant told the Tribunal that the Commission also told him that ‘…he should attend the local prison and remain in prison” as means of providing him with protection.
Did the applicant seek protection at the local prison as was suggested to him by the HRC?
42. The applicant stated that he did not seek protection at the local prison as had been suggested by the Human Rights Commission. The applicant was faced with two dilemmas. First, if he sought the protection offered, there was no one to continue the running of his businesses. Also, the people in the village might think of his seeking protection from the authorities in a ‘…different way…’ Second, the applicant could not understand why ‘protection…’ was only available to him by the authorities – in a local prison.
What happened when the offer of protection was rejected by the applicant?
43. The applicant said that when this protection offer was rejected by him, he was threatened by elements of the army. Then, the applicant through a friend sought to talk about his security concerns with the local commander and he tried to do this through the good offices of a ‘friend’. When the applicant discussed his concerns with the local military commander, the surveillance and his problems with certain military ceased for a time.
When did the problems with the local military again surface?
44. The applicant’s problems with the local military surfaced when they came to purchase some ‘…[items]…’ and other goods the applicant was selling. The officers took the goods but after refused to settle their account with the applicant. When they were asked to make payment, they told the applicant that these goods were ‘…gifts…’ A complaint was made to the local commander and when the officers were asked to pay and this was not appreciated by these officers. It was also pointed out to the Tribunal that his villagers had seen him coming and going from the military barracks and they thought that the applicant was an informant for the army.
What did the applicant do next after his bona fides were questioned by the army and some of his fellow villagers?
45. The applicant described to the Tribunal of an incident that he was involved in where he was targeted by two individuals and one with gun shot at him, but missed. This was witnessed by a friend of the applicant who was with him.
46. Faced with danger, the applicant ‘…run into a [nearby house]’ seeking shelter. The applicant explained to the Tribunal that the ‘attack on him’ ‘…in those days they did not like a Tamil person being successful…’
The applicant stated that this attack on his person occurred in 2007.
What did the applicant do after he suffered an attack?
47. The Tribunal was told that after this attack the applicant left Sri Lanka for [Country 2] on a validly issued Sri Lankan Passport.
Did the applicant encounter any problems when seeking to be issued with a passport?
48. The applicant stated that he ‘…paid….’ For the passport. This payment was organised by his ‘uncle…’
Did you decide to leave Sri Lanka because you had been threatened and that threat continued?
49. The applicant said that he decided to leave Sri Lanka because he felt threatened and if he remained, he would have been killed by elements within the military. The applicant also recalled when in hospital for the injuries he received from the random shooting, a person who masqueraded as a ‘patient’ was next to him and had been put there to ‘…kill him…’ The applicant told the Tribunal that he noticed him and then immediately left the local hospital.
When did the applicant arrive in Australia?
50. The applicant arrived in Australia in 2012 and has been working at a warehouse for two years.
Does the applicant follow events in his homeland and what can he tell the Tribunal about what is going on there?
51. The applicant said that he does, when can attend events held by the Tamil Community and does know that events in Sri Lanka have worsened in recent times. The applicant regularly reviews the news from Sri Lanka but the news is difficult to accept and he tends to have lessened his interest in it. However, the applicant has compared politics between Australia and Sri Lanka and politics is better in Australia. According to the applicant – ‘…at least human beings are treated better here…’
52. The applicant stated that he arrived in Australia as a ‘…illegal…’ via a boat and while trying to get to Australia, he faced many dangers. The applicant expressed the feeling of satisfaction being in Australia and has willingly accepted the ‘law’ as it operates in Australia.
53. The Tribunal made reference to the available country information and to developments – current that have occurred in Sri Lanka and noted that although there has been deterioration in the politics of government there, the overall country is still significantly at peace with itself.
54. Regardless of this situation, the applicant stated that the Tribunal should understand that the situation in Sri Lanka is changing and is deteriorating and that the applicant had a great hesitation in returning to his country in the future.
55. The applicant had been determined by the UNHCR as a ‘refugee’ and therefore in the applicant’s opinion that refugee status has not been withdrawn and he remains a refugee.
56. The applicant also was of the opinion that the Sri Lankan Human Rights Commission was not a body that could guarantee the human rights of people like the applicant because they lack the resources to be effective.
57. Moreover, the army is still in occupation of the land from where the applicant conducted his various businesses and this created a concern for him if he was to return to his country. The army would not allow him to exercise control over his land. The applicant believed that the army was not the ‘protector’ of ‘order’ in Sri Lanka but was interested in protecting its own interests.
EVIDENCE PROVIDED TO THE TRIBUNAL BY THE APPLICANT’S WIFE
58. The applicant’s wife said that she feared returning to Sri Lanka. While in Australia, the A2 and her husband have been protected and were ‘…living in hope…’
Does applicant’s wife have family currently living in Sri Lanka?
59. The applicant’s wife said that her parents are deceased. Her family consisted of four brothers of varying ages. According to her, one brother had died; another had become an alcoholic (that brother had raised her from when she was a small child). Another brother had left.
Does the applicant’s wife have contact with any remaining family in Sri Lanka?
60. After she arrived in Australia she told the Tribunal she has had no contact with her family members in Sri Lanka (for the past 3 years). She stated that to the Tribunal that her ‘fourth brother’ had been taken into custody by the military and ‘beaten…’ and after that had gone ‘…into hiding…’
61. The applicant’s wife said that if one was seen as ‘…doing well’ the authorities would usual stop and beat an individual that wanted to target because of his success.
62. She went on to tell the Tribunal that her parents had passed away ‘…during the war…’ and when her mother died, she was relocated to another [town] (in 1995) and she stayed there until 1998.
Country Information – Sri Lanka – Tamils – LTTE – Situation after the end of the civil war – returned failed asylum seekers
63. DFAT recent country information report on Sri Lanka[3] reports on the current situation as follows:
[3] DFAT Country Information Reports on Sri Lanka dated 24 January 2017 and 23 May 2018
Recent History
2.2 In July 1983, conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE – formed in the 1970s). In May 2009, the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka. The long civil conflict displaced hundreds of thousands of people and killed tens of thousands of people on both sides.
2.3 The current president, Maithripala Sirisena, was elected in January 2015 on a platform of post-conflict reconciliation, transitional justice, good governance, anti-corruption and economic reform. Progress on these commitments has been slow, and the Sri Lankan public and other observers are increasingly uncertain that the coalition government will manage to deliver reform during the remainder of its political term.
Reconciliation
2.24 In September 2015, the report of the UN’s Office of the High Commissioner for Human Rights (OHCHR) investigation on Sri Lanka (OISL) found that both sides of the conflict likely committed grave violations, including possible war crimes and crimes against humanity. In response, the Sri Lankan government co-sponsored resolution 30/1 in the UN Human Rights Council (UNHRC), which, while recognising the progress Sri Lanka had made on reconciliation, committed the government to implementing a range of transitional justice and reconciliation initiatives. The UNHRC granted Sri Lanka an additional two years in March 2017 to implement its commitments under resolution 30/1.
2.25 On 18 December 2015, the Sri Lankan Cabinet approved the formation of the Secretariat for Coordinating Reconciliation Mechanisms within the prime minister’s office to oversee mechanisms for advancing truth, justice and reconciliation in Sri Lanka: an Office of Missing Persons (OMP); an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a special counsel. The Secretariat’s mandate runs until March 2019. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms (CTF) to conduct public consultations on the design of the four mechanisms, but at the time of publication neither the government nor parliament had endorsed the report published by the CTF in January 2017. DFAT assesses that, if implemented effectively, these mechanisms can facilitate genuine reconciliation.
2.26 In October 2017, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence reported slow progress on the government’s transitional justice agenda. In 2017, the government implemented the Right to Information Act (2016) in February, approved Sri Lanka’s first National Policy on Reconciliation and Coexistence in May, and formally established the OMP in September.
2.27 The OMP is the first permanent and independent body to address the issue of missing persons in Sri Lanka. It has the power to investigate disappearances and trace missing persons, to search detention centres, to obtain documents and to summon people within Sri Lanka. It does not have prosecutorial powers. Its mandate includes cases that occurred before, during and after the conflict until the end of Rajapaksa’s presidential term, including periods of violent political disturbance in the 1970s and 1980s. The previous Presidential Commission to Investigate into Complaints Regarding Missing Persons collected over 23,000 cases during its term from August 2013 to May 2016; the OMP may be asked to deal with a higher number. The OMP has no time limit on its mandate, and is likely to take years to complete its work. The 2018 budget allocated LKR 1.4 billion (approximately AUD 11.7 million) to establish the OMP, and the president appointed OMP commissioners in February 2018 on the recommendation of the Constitutional Council. The 2018 budget did not include allocations for the Office of Reparations, the truth commission, or the judicial mechanism.
Security situation in the north and east
2.35 The government no longer restricts travel to the north and east. It removed military checkpoints on major roads in 2015. Military involvement in civilian life has diminished, although military involvement in some civilian activities continues in the north.
2.36 In 2017, the government reported it had released 24,336 acres of private land in the north and east since the end of the conflict, while the military continued to occupy 6,051 acres. Slow progress on land return and missing persons is driving continuing protests in the north, over ongoing military occupation of private land, and conflicting claims over private land by displaced people. In October 2017, the UN Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence recommended relieving the security forces of the sole decision-making authority on the location and timing of land releases. The government has committed to pay compensation where security forces retain private land. Most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or smaller surrounding military camps. The government has released most land from the High Security Zones in the Northern Province.
RACE/NATIONALITY
3.1 Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.
3.2 Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
3.3 DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils
3.4 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
3.5 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
3.6 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.
Monitoring, harassment, arrest and detention
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
3.9 Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events. Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
3.10 Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
3.11DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.
3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils. The PTA is currently suspended but remains legally in force.
Hindus
3.29 Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.31 Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.
3.34 DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.
Liberation Tigers of Tamil Eelam (LTTE)
3.35 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.
3.36 Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.
3.37 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
3.38 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
3.39 DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.
3.40 Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
3.41 Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.
3.47 The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
3.48 In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:
§ persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;
§ former LTTE combatants or ‘cadres’;
§ former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
§ former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
§ LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
§ persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
3.49 Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.
High profile former LTTE members
3.50 The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict. Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.
3.51 On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.
3.52 DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.
Low profile former LTTE members
3.53 ‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
3.54 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.
3.55 Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.
3.56 Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.
3.57 A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.
3.58 The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
Family members of LTTE
3.59 The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, Detention and Prosecution
3.60 Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
3.61 Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
3.62 The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.
3.63 DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
TREATMENT OF RETURNEES
Exit and Entry Procedures
5.27 Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
5.28 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
5.29 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual 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; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals 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 detained for up to two days in an airport holding cell.
5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the
magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
5.34 The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
5.35 DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
5.36 DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.
FURTHER SUBMISSIONS PROVIDED TO THE TRIBUNAL POST-HEARING
64. The applicant’s legal representative provided a written submission to the Tribunal for its consideration supported by various articles which had been published in the press and by international NGOs. The key points of the submission are summarised as follows:[4]
[4] AAT File no. 1509071
§The High Court in the case of Chan considered the definition of “refugee” and held that a ‘real chance’ is one that is not ‘remote or insubstantial or a farfetched’ possibility. A person can have a well-founded fear of persecution even though the possibility of persecution is well below 50%.
§The applicants fear stem from a historical persecution in the past.
§Whether or not an individual’s fear is well founded must be assessed in the context of the situation in the country of origin, taking into account the personal profile, experiences and activities of the individual which could place him at risk. The essential ingredient however would be whether the country conditions have substantially changed, allaying the fear of the applicants since their leaving or whether it still gives rise to a ‘reasonable chance’.
§The objective evidence is that the human rights of Tamils have been violated frequently and persistently ‘with no regard to their lives, security or well-being’ amounting to pointers of genocidal intentions as remarked by former UN Secretary General, Ban Ki-Moon and consistently claimed by Tamils.
§The military occupation of the Tamil areas, coupled with the activities of the Buddhist monks, uncontrolled and encouraged by the security forces, at all levels and government manipulation towards its aim of a singular Sinhala Buddhist state confirms the state of mind of the majority. This is the theme of the government after the war ended in 2009, and even that of the “good governance” government of Mr Sirisena when he assumed office in 2015.
§The examination of asylum claims by Tamils should be seen from the overall relationship of them with the state rather than a short prism of whether the violence of the LTTE has been militarily ended, with some promises to redress those grievances. No such acts “in reality” have occurred for over 8 years. These are now seen to be manipulations to but time, to delay UN resolutions to sanction war crimes probe.
§Multiple actors and agents, are encouraged by the state/military, perpetrate human rights violations. Regular and reliable reports of unidentified individuals and unmarked vehicles involved in them continue to pose difficulty for the victim and these are directly pointed to the state. Persecution is not limited to acts which cause physical harm, but actions that instil fear for one’s safety for reasons attributed in the convention.
§The current assessment should be more an objective one in the current conditions in the country
§It is a heresy of the determination process to compel applicants to prove beyond definition requirements that they were involved with the LTTE at high profile, and be of interest to the forces for the authorities to mistreat them as an individual to qualify for refugee status.
§Individualisation becomes only a factor, and not the only factor or criteria as long as the applicants have a well-founded fear of being persecuted for Refugee Convention reasons, which is a reasonable chance in the continuing country conditions.
§The intent of the Sri Lankan authorities is to, even now, after the war and almost eight years, is to control Tamils and suppress their demands for self-determination and therefore instil fear about their human rights. The very recent ethnic riots against the Muslims overlooked by security forces demonstrate the willingness to repeat same every time. This is the parameter in which the fear of the applicant needs to be articulated with events in the North.
§The claims of the applicant were that the interest on him was intense at the local level by the military, demanding him to assist in various efforts of the military, to ‘extort” money from people of who they had information on. However, when the applicant tried to evade this, he was targeted.
§The applicant feared, continued attention because of his unwillingness to cooperate or to be seen as a man of the army.
§It is disputed that, the monitoring and harassment of Tamils, in day to day life has decreased significantly under the Sirisena government. It does not recognise that, such transient situation has happened, many times in the last 60 years, no resolution which addresses the fear of the Tamils about their lives has happened in a secure sense.
§Freedom guaranteed in the Constitution mostly becomes irrelevant in the operational politics of Sri Lanka, when it suits or is required for advancement of party politics.
§The above references accentuate the satisfaction of the “real chance” test enunciated by Chan unless it could be cogent evidence that the situation, “not to such an extent” is so farfetched that it eliminates the real chance.
§In the absence of facts indicating a material change in the state of affairs of Sri Lanka the applicants should not be compelled to provide justification for the continuing to possess a fear which they established as a well-founded at the time he left the country.
§The Tamils have suffered discrimination since Independence in 1948, and that developed to persecution by repeated amendments to the Constitution directed towards marginalising them for racial and ethnic reasons.
§The assessment of the claim, should then, be articulated in the context of this conflict and mindset of the majority to see whether the resolution of the ethnic conflict has dissipated the fear than to see the LTTE being militarily defeated and some semblance of redress to the injustices being made.
§It is reiterated that any promises or undertaking made by the Sri Lankan government to the Tamils or to the International community has not been advanced towards a genuine resolution of the conflict, irrespective of the hopes placed. It is now seen a time buying exercise to consolidate power for the majority.
65. The applicant’s legal representative also attached the following documents ‘in support’ of the submission made on behalf of the applicant:[5]
§Extract from “Tamils of Sri Lanka- The quest for Human Dignity”, a publication of March 2006 (just prior to the government withdrawing from the ceasefire to commence the onslaught, amplifying their intentions). It details the various peace negotiations and outcomes and is an indication of the current manoeuvres to deal with the Resolution before the UN Human Rights Council.
§A Report from the International Crisis Group (ICG) dated 16 May 2017 confirming that the promised transition in Sri Lanka is not going anywhere in comparison to the DFAT information report on 24 January 2017.
§UN Rapporteur urges Government to repeal PTA – press article
§UNHCR – Ground Views
§Looking at Systematic Torture in Sri Lanka
[5] Ibid AAT File
66. The applicant’s legal representative concludes his submission by emphasising how the situation in Sri Lanka had changed since the publication of the DFAT report of May 2018:
§Mr Sirisena attempted to grab total power as executive with all authority to appease the previous majority camp from which he defected – for example former President Mahinda Rajapaksa.
§He dismissed the Prime Minister. He assumed office in 2015 in coalition with him and preached “devolution and reconciliation”. To the agony of the people in the country Mr Sirisena installed the former President Rajapaksa to be the new Prime Minister
§Attempts were made by Mr Sirisena to restore the ‘clique’ from which he took office to “save the nation”.
FINDINGS AND REASONS
Assessment of the applicant’s claims
67. The applicant made a number of claims which the Tribunal considered its conclusions on each as follows:
(A). the applicant’s late cousin’s involvement with the LTTE and its impact on the applicant
68. The applicant claimed that a cousin had been involved with the LTTE as a combatant during the civil war and had been killed in a local battle by the Sri Lankan Army (SLA). The applicant feared that his late cousin’s involvement with the LTTE would if he returned to Sri Lanka invite suspicions upon him concerning his possible involvement with the LTTE. The Tribunal accepts that the applicant may have had a cousin involved with the LTTE separatists during the civil war. Many Tamils were involved in the civil war. That being so, the applicant provided very little specific information or examples of his cousin’s role within the LTTE which could at some future date, if he returned to Sri Lanka cause him to be the centre of attention by the state security services. The Tribunal also noted the persuasive decision of the country guidance case of GJ & Others(post-civil war: returnees Sri Lanka CG [2013] UKUT 00319 (IAC), where the UK Upper Tribunal identified as one of its four risks categories as “…Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and or a renewal of hostilities within Sri Lanka…”(paragraph 356 (7a)).[6]
[6] GJ and Others(post-civil war, returnees) Sri Lanka CG [2013]UKUT 00319(IAC) at p.81
69. The UK Upper Tribunal in GJ and Others also found that unlike in the past, returnees (like the applicant) who had a previous connection with the LTTE (the applicant through his late cousin) are able to return to their communities without suffering ill-treatment. The police interest, if any, is not in any previous involvement with the LTTE, but on whether the person has committed any criminal act. The Upper Tribunal goes on to state that “…those former LTTE members most at risk are those who are perceived to be a threat because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism……”[7]
[7] Ibid
70. The Tribunal accepts that in the past simply being a young person of Tamil ethnicity would have been sufficient to give rise of involvement with the LTTE or at least knowledge of LTTE activities. The Tribunal notes that according to the UNHCR Eligibility Guidelines there is no longer a presumption of eligibility as a refugee based only on Tamil ethnicity. This was earlier recognised in the 2010 Eligibility Guidelines. The 2012 Eligibility Guidelines state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons. The Tribunal considers and finds the applicant’s fears that he has a real chance of serious harm of being imputed as having political ties and sympathies to the LTTE in the past and present because of his late cousin being an active LTTE combatant during the civil war and having been killed fighting for the LTTE as less than serious chance of happening. The Tribunal was provided with no evidence to substantiate the applicant’s claim. Therefore, the Tribuanl does not accept on the evidence before it, that the protection of the Convention is invoked by the applicant’s claim, that there is a real chance the applicant would had a well-founded fear of being persecuted by the Sri Lanka authorities because he would be have an imputed political belief in favour of the LTTE because his cousin was an active combatant of the LTTE during the civil war and had lost his life fighting against the SLA.
(B). the applicant’s fears stem from a historical persecution of the past
71. The Tribunal noted the applicant’s legal representative submitted that that if the applicant and his wife returned to Sri Lanka they would face a ‘fear’ of persecution that stemmed from ‘a historical persecution of the past.’ In his evidence to the Tribunal the applicant stated that he decided to return to Sri Lanka in 2002 (together with many other Sri Lankans) because of the ceasefire between the SLA and LTTE. The applicant returned to Jaffna with the intention to re-establish his ties and to re-commence his interest in business. In time, the applicant, the Tribunal was told, became involved and became [a member] of a ‘group’ he described as [Organisation 1]. This ‘group’s’ aim was to ‘support the people’ and would ‘identify’ any obstacles which would ‘endanger the peace and welfare of the people…’ in the district. The applicant claims that his attempt at trying to maintain intercommunal peace was the cause of him becoming involved in ‘opposing’ the ‘incitement of intercommunal tensions between Tamils and the wider community. Thereafter, persons from the army (military officers) came to see him and according to the applicant was told by them to use his mediation skills in order to extort money from the general population (generally ethnic Tamils) and once extracted (the money) would be “divided” between the applicant and the army officers. The applicant refused to participate in this extortion and then he claimed he was placed under strict surveillance by persons-unknown who with binoculars ‘observed’ ‘his movements’. The applicant complained to the Human Rights Commission of Sri Lanka and was told that they could not provide him protection but could offer him ‘protection’ at a local prison. Failing assistance from the Commission the applicant through a friend, sought the assistance from the local military commander and for a while the surveillance stopped. The problem again surfaced when the same officer came to the applicant to purchase ‘some [items] and ‘other goods’ and when this was agreed to, the applicant was told that these goods were ‘gifts’ by the applicant to the officers and would not receive any payment. A second complaint was made to the local commander but on this occasion the complaint was not appreciated. To add to the applicant’s issues, it was also claimed that the local villagers had noticed the applicant’s attendances at the local military headquarters and considered him to be an ‘informant for the military’ and viewed him with contempt. As a consequence of these issues, on one occasion while the applicant and a friend were together they were shot at by unknown gunmen (sometime in 2007). After spending time at a local hospital, the applicant hurriedly made arrangements with the assistance of an uncle who paid for his Sri Lankan passport and left for [Country 2].
72. The Tribunal accepts that in the past, these instances (as described by the applicant that happened to him) of extortion, official corruption, constant surveillance and even attempted assassinations were the daily routine in civil war-ravaged Sri Lanka. The applicant may have experienced some of them in particular because of his role as a local mediator. However, having said this, the Tribunal finds it difficult to accept the applicant’s counsel’s submission that the applicant’s fears ‘…stem from a historical persecution of the past…’ which still subsists. The High Court in Chan devoted much time in interpreting the words “…well-founded fear of persecution” and Mason CJ described the persecution in question as a real chance that the applicant will suffer “some serious punishment or penalty or some significant detriment or disadvantage if he returns.” Furthermore, his Honour reiterated that ‘harm’ or the ‘threat of harm’ as part of a course of selective harassment of a person amounts to persecution if done for a Convention reason. Moreover, the denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm through not every deprivation of a guaranteed freedom would do so.[8] The events the applicant described occurred in 2007 – some twelve years ago. In that time Sri Lanka has changed dramatically. The civil war has ended. There has been a peaceful transition of government and the rule of law has been established throughout the country. The country information referred to by the Tribunal above, provides a strong indication that the applicant if he returned in the future to Sri Lanka he would not face a ‘monitoring’ ‘harassment’ or ‘arrest’ brought upon by the authorities. The applicant had no ‘ties’ or allegiances to the LTTE. The country information notes that the Tamils who are still subjected to various forms of surveillance were confined to those who were considered to be suspected operatives and sympathisers of the LTTE. DFAT assesses that, while monitoring Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, but this is confined to those associated with politically sensitive issues.[9] The applicant in his evidence provided no examples of having been involved in any ‘politically sensitive issues’. He tried to act as a local mediator to keep intercommunal peace. He rejected playing a part in the corrupt practices of some local SLA army officers and reported them to their superiors – exonerating him of any and all suspicions of collaboration and extortion. Therefore, the Tribunal finds that though the applicant has a genuine subjective fear that if he was returned to Sri Lanka and to his home district in the city of Jaffna he would face persecution because of historical attitudes towards the Tamil minority and because as a Tamil and a person who in the past acted as a mediator between ethnic Tamils and others in his home district in the city of Jaffna and had refused to participate in extortion activities instigated by some officers in the SLA these fears are less in the opinion of the Tribunal are less real, remote and inconsistent with information accessed by the Tribunal concerning the present situation in Sri Lanka.
(C). The intent of the Sri Lankan authorities is to, even now, after the war and almost eight years is to control the Tamils and supress their demands for self- determination and instil fear about their human rights
[8] Chan, per Mason CJ at p. 388
[9] DFAT Country Information Report – Sri Lanka, 22 May 2018 paragraph [3.11] at p. 15
73. The applicant’s counsel in his written submission claimed that if the applicant returned to Sri Lanka in the reasonable foreseeable future he would suffer serious harm due the attitude of the Sri Lankan authorities (even today) to ‘control’ Tamils and supress their demands for ‘self-determination’ and for ‘human rights’. In the opinion of Counsel nothing had changed for Tamils in today’s Sri Lanka. He made the point, that the Tribunal when in the place of the decision-maker, it should observe the current country information assessment in a more ‘objective’ way when coming to conclusions about the effect of the current situation in Sri Lanka on the applicant. As the Tribunal noted earlier in this decision referring to the country information, the situation for Tamils in today’s post-civil war Sri Lanka have changed for the better. According to country information Tamils have a ‘substantial influence’ and their ‘inclusion in political dialogue’ has increased since the change of government in 2015. Tamil political parties are numerous in number, with the largest coalition of parties operating under the umbrella of the TNA.[10] The Tamil Makkal Viduthalai Pulikal (formerly known as Karuna Group) contested and won some seats in the February 2018 local government elections.[11]It is also reported that Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections.[12] DFAT understands Tamils do not received unwarranted attention from authorities because their political involvement, including with the TNA. DFAT reports that there are no barriers to Tamil participation.[13] DFAT reported that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.[14] Also during the conflict, the authorities detained many Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils. The PTA is currently suspended but remains legally in force.[15]
[10] Ibid at p.13
[11] Ibid see paragraph [3.5] at p.13.
[12] Ibid at p.13 see Paragraph [3.5]
[13] Ibid at p.14
[14] Ibid at p.14, see paragraph [3.11]
[15] Ibid at p. 14, see paragraph [3.12]
74. In light of the above, the Tribunal considers and finds that the applicant’s evidence in relation to his past events concerning his fears as he described to the Tribunal as still subsisting to the point that he continued to face a real chance of serious harm of being persecuted because of his ethnicity and his activities as a mediator within his community and his refusal to extort money from members of his community to be less than real, remote and inconsistent based on the country information referenced and referred to by the Tribunal and does not invoke the protection of Convention for any reason.
75. The Tribunal accepts that in the past simply being a male of Tamil ethnicity would have been sufficient to give rise of suspicions of an involvement with militant Tamil groups or at least knowledge of militant groups’ activities. The Tribunal notes that according to the UNHCR Eligibility Guidelines there is no longer a presumption of eligibility as a refugee based only on Tamil ethnicity. This was earlier recognised in the 2010 Eligibility Guidelines. The 2012 Eligibility Guidelines state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons. Having made the factual findings above, the Tribuanl is not satisfied that there is anything in the applicant’s past experiences in Sri Lanka that would bring him into any of these categories.
(D). would the applicant face adverse effects upon his return to Sri Lanka because he sought asylum in Australia?
76. This matter was not raised either by the applicant in his discussion of his evidence with the Tribunal or by his counsel but it is a consideration the Tribuanl must turn its mind to and consider in its determination of the applicant’s review claims. As a person who has left Sri Lanka and has sought asylum abroad, the applicant in in a situation common to thousands of Sri Lankan Tamils. As the Tribunal notes from available information, thousands of asylum seekers have returned to Sri Lanka since 2009 with few reports of torture or mistreatment. It should be pointed out, that the applicant in these circumstances did not leave Sri Lanka by illegal means but through the proper channels and with a passport provided to him by the Sri Lankan state. Therefore, the Tribuanl does not consider it possible on the material it has before it, that there is a real chance or risk that the applicant would be regarded in this way or that there is a real chance or risk that the applicant would be regarded in this way or that he would be charged with, or suspected of having committed, any criminal act in having left his country legally but sought asylum in Australia. Whilst the Tribunal is prepared to accept that same returning Tamils may be of interest to the Sri Lankan authorities, the Tribunal is not of the opinion, having regard to all of the applicant’s circumstances, that there is anything in the applicant’s profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home.
(E). Applicant’s fears concerning the recent political crisis in Sri Lanka
77. The Tribunal notes that the applicant’s counsel advanced a claim on his applicant’s behalf that the political situation in Sri Lanka involves the likely return of Mahinda Rajapaksa and/or greater political violence given recent political events.
78. On 26 October 2018, Sri Lankan President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed former President Mahinda Rajapaksa in his place. However, Wickremesinghe refused to resign as Prime Minister, arguing that Sirisena’s decision was unconstitutional. Amid reports that Rajapaksa lacked majority support in parliament, on 28 October 2018 Sirisena suspended parliament and, on 9 November 2018, abruptly dissolved parliament and declared a snap election on 5 January 2019.
79. On 13 November 2018, Sri Lanka’s Supreme Court temporarily suspended the dissolution of parliament ahead of a final decision. Following the suspension of the dissolution order, Sri Lanka’s parliament reconvened, where two no confidence motions against Rajapaksa were passed despite the efforts of his supporters to disrupt proceedings. However, the results of these motions were not recognised by either Rajapaksa or Sirisena, both of whom claimed that they took place in violation of parliamentary procedure. In an interim judgement on Monday 3 December 2018, Sri Lanka’s Supreme Court temporarily barred Rajapaksa from acting as prime minister while it hears a petition challenging his refusal to step down. Following an extension of the interim injunction, Sri Lankan’s Supreme Court has subsequently ruled that the President’s decision to dissolve parliament was unconstitutional and illegal on 13 December 2018. Having lost the constitutional argument, the President reinstated Wickremesinghe as prime minister when he and his Cabinet Ministers took their oaths before the President on 20 December 2019.[16]
[16] New Cabinet Ministers sworn-in before President, Official Government website, 20 December 2019, According to the situational update prepared by the Department of Home Affairs about Sri Lanka’s political crisis (CR239EC81237), while analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three decade long civil war, there is only limited evidence to date to support this. Similarly, there are few reports at present of political violence stemming from the political crisis, or of related violence towards minorities. Conversely, if successful in returning to power, Wickremesinghe has pledged to increase the powers of provincial councils and come up with a lasting political solution that satisfies Sri Lanka’s Sinhalese and Tamil communities. The report further states that there have been few reports to date of threats or political violence stemming from Sri Lanka’s political crisis, or of related violence towards minorities. On 19 November 2018 – in the midst of this political and constitutional crisis, police used tear gas and water cannons on monks from the Sinhalese nationalist Bodu Bala Sena (BBS) organisation protesting in front of the Presidential Secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently servicing a six year prison sentence for contempt of court. Sirisena expressed his regret over the incident.[17]
[17] ‘President Sirisena Expresses Regret Over Tear Gas And Water Cannon Attack On Bodu Bala Sena Monks; Says He Was Unaware of Protest’, Asian Mirror, 19 November 2018, CXBB8A1DA39190
81. Based on this country information, there is insufficient independent information to indicate that it would proper for this Tribunal to accept that the political situation in Sri Lanka has significantly deteriorated during or immediately after the 2018 constitutional crisis. There remains the foreseeable prospect that a general parliamentary election can be held at any time after 8 January 2019 that would otherwise be called by November 2019 and scheduled before January 2020.[18] At the time of making this decision, no general election has not been called. Indeed the President has been careful to continue post-conflict reconciliations, albeit at a pace considered too slow for some international observers and has resisted providing support for Sinhalese and/or Buddhist extremists. Even if there were to be a change of government from one led by Prime Minster Wickremesinghe in favour of former Prime Minister Rajapaksa through electoral means, it is the Tribunal’s assessment that the good deal more country information regarding the sudden deterioration towards widespread political, religious and ethnic violence would be required beyond reported speculation or informed pessimism. For these reasons, the Tribunal finds that the levels of political, religious and ethnic violence between Sri Lanka’s rival parties and different ethnicities and religions will not lead to the applicant facing a real chance of serious harm based on his ethnicity or in his actions as a mediator or based on any political opinion, imputed or otherwise as result of his mediation work, in favour of Tamils parties or for any other related Convention reason, as the chances of serious harm from such general political violence or violence and other acts of serious harm directed at the applicant for a Convention reasons are remote and far-fetched based on his specific circumstances for the reasonably foreseeable future.
[18] ‘2019 may be Sri Lanka election year, hints president Maithripala Sirisena’s meet with party brass’ by Press Trust of India (Colombo) Hindustan Times, 26 December 2018, Findings on Convention Grounds
82. In considering the applicant’s written and oral evidence and the country information put to the applicant in the hearing, the Tribunal found the applicant a mostly credible and reliable witness despite his substantial embellishments in his protection claims and it has accepted that the applicant has been severely harassed and ill-treated during the period of time before he decided to leave Sri Lanka for Australia, in 2013. The Tribunal also accepted that between the time of departure and right up to the writing of this decision, the applicant has a genuine personally-held fear of persecution based on his race, his religion, and his political opinion (actual or imputed), as claimed.
83. The Tribunal has also considered if there is any real chance of harm arising from the applicant’s religion as a Hindu in a predominantly Buddhist nation, arising from of the material or findings above. The Tribunal notes that the applicant does not have any claims in this regard. Based on country information which states that Hindus face some societal discrimination that does not amount to persecution[19] the Tribunal does not accept the applicant has a real chance of serious harm arising for any religious reason, imputed or otherwise.
[19] DFAT country report – Sri Lanka, 23 May 2018, see paragraph [3.29] p.17
84. However, based on the applicant’s accepted circumstances and the country information about Sri Lanka since the cessation of hostilities in 2009, the Tribunal does not accept that the applicant has a profile which would be of any very limited concern or interest to others (former military) within the applicant’s immediate home area within the city of Colombo and that the applicant’s fears of persecution for a Convention reasons are not well-founded, in considering claims both individually and cumulatively.
85. While the Tribunal does not diminish there being a chance of serious harm arising from his accepted Conventions reasons based on ethnicity, religion and political opinion, imputed or otherwise, or a combination of these and related Conventions reasons, the specific circumstances of the applicant as Tamil Sri Lankan or a Tamil Hindu or as an active mediator within his community ensuring that no intercommunal violence occurs in returning to his home area of Jaffna and that he will be returning to his home area and there is little suggestion he will find difficulties in finding suitable work. He will be returning to a home area where there are no recent reports of anti-Tamil or anti-Hindu activities and where there is a substantial Tamil population. The applicant has not advanced that as Tamil he will be imputed political opinion in favour of any of the Tamil dominated parties or that he is sympathetic nor is a member of any Tamil separatist movement. Though the applicant is returning to a home area in the Northern Province (Jaffna), the applicant may have a real chance of being imputed with these views leading to monitoring and surveillance. As mentioned above, the Tribunal has already made a finding that the applicant does not have a chance of serious harm arising from the low levels of official and societal discrimination towards Tamils.
86. In summary, the Tribunal has considered all the applicant’s claims, both individually and cumulatively, it accordingly finds that the applicant does a chance of serious harm arising from his claimed and related Convention reasons; however it finds that the chances of serious harm for any these Convention reasons are remote and far-fetched, if the applicant were to return to his home area of Jaffna into the reasonably foreseeable future.
87. The Tribunal assesses there is a chance of serious harm arising from the applicant’s return to his home country based on his claims and personal circumstances, both individually and cumulatively considered, the Tribunal does not accept the chance amounts to a real chance of serious harm for a Convention reason. In particular, the Tribunal placed emphasis on the country information it put to the applicant in the hearing which suggests that the situation has improved for Tamils generally and that present government through a means of implementing a state of emergency in March 2018[20] has displayed a commitment not to tolerate sectional or religious violence against members of any religion or minority. Therefore, for the reasons provided above, the Tribunal does not accept the applicant faces official or societal discrimination that falls within a manner that would satisfy s.36(2)(a) of the Act.
[20] DFAT country information – Sri Lanka, 23 May 2018, see pp. 15-17
88. Accordingly, the Tribunal does not accept that the applicant will face a real risk of serious harm as a Tamil, of the Hindu faith, or as a sympathiser and supporter of Tamils seeking self-determination or devolution of power within Sri Lanka or as a Tamil male who has lived in the Northern Province and who belongs to the Hindu faith and who is a failed asylum seeker; or any combination of these Convention or non-Convention reasons, if he were to return to Jaffna specifically or anywhere within Sri Lanka more generally, now and into the foreseeable future. Neither does the Tribunal accept that the applicant will face a real chance of serious harm either on arrival or in the wider community for the same Convention and non-Convention reasons, both individually and cumulatively considered, now or into the reasonably foreseeable future, if the applicant were to return to his country of nationality.
89. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution for Refugees Convention reasons is not well-founded, pursuant to s.36(2)(a) of the Act.
90. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa) of the Act, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
91. As the real risk standard is the same as the real chance standard based on the Tribunal’s findings above, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, having the death penalty carried out on him, being tortured, or being subjected to cruel or inhuman or degrading treatment or punishment from the authorities or anyone else because of his Tamil ethnicity, his profile as a Tamil male and a Hindu or an actual or imputed political opinion based on his efforts as a mediator within his community trying to avert any outbreak of intercommunal violence or based on his ethnicity, being a failed asylum seeker or any combination of these factors.
92. In regard to any penalties the applicant may face as a person who though left Sri Lanka, legally and sought unsuccessfully asylum, based on the information cited above, the Tribunal does not accept that this will manifest itself in the imposition of a term of imprisonment or that the applicant would be compelled to pay any fine which would otherwise be imposed on him if he had departed Sri Lanka illegally and be subjected to the provisions of the Immigration and Emigration Act which would otherwise amount to significant to significant harm because there is no intention (given the applicant’s circumstances) on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to such matters. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is the real risk he will suffer significant harm, including, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention.
93. The Tribunal finds there are no other residual claims that would be captured by s. 36(2)(a) of the Act in which the applicant has a real chance of serious harm for a non-Convention reason.
94. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or cruel or inhuman treatment or punishment; or to degrading treatment or punishment, as required by s.36(2)(aa) of the Act.
Conclusions
95. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
96. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
97. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
98. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
99. The Tribunal affirms the decision not to grant the applicants Protection visas.
Peter Vlahos
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
0
1
0