1509450 (Refugee)

1509450 (Refugee) [2018] AATA 3193 (11 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509450
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Peter Vlahos
DATE:11 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 11 July 2018 at 7:45am

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity – Tamil – Political opinion – Imputed political opinion – Family affiliation of Liberation Tigers of Tamil Eelam (LTTE) – Particular social group – Failed asylum seeker – Subject of CID interrogations – Fear of arrest, detainment and torture – Subject of harassment – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 45AA, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2
CASES
Guo v MIEA [1996] FCA 1263
Minister for Immigration and Multicultural Affairs v Rajalingam (1993) FCR 220
Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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.
_________________________________________________________________________________
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 28 March 2013 and the delegate refused to grant the visa on 2 July 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.[1]
[1] Refer to Department’s decision record dated 2 July 2015 in Department File no. [number] Folio [141]
The applicant appeared before the Tribunal on 3 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of Nationality and Identity
The applicant identifies himself as [name], a Sri Lankan national of Tamil ethnicity and Hindu religion. He claims he is a Sri Lankan national by birth and that he was born [in date] in [Village 1], Sri Lanka. The applicant provided to the Department of Immigration and Border Protection (the ‘Department’) his original National Identity card bearing the number [number] issued [in] 2009 and a certified copy of his birth certificate.[2] The applicant claimed that he had been issued in 2008 with a valid Sri Lankan passport ([number]).[3] The applicant declared that he is not a citizen of any country other than Sri Lanka. At his interview with the Department the applicant spoke in the Tamil language. This understanding of the Tamil language was also displayed to the Tribunal at the hearing and the applicant also displayed an adequate understanding of country knowledge regarding Sri Lanka.
[2] Department of Immigration and Border Protection File no. [number] Folio no [84] and [85]
[3] Department of Immigration and Border Protection File no. [number] Folio no [86].
The Tribunal finds that the applicant is a citizen of Sri Lanka and that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and his receiving country for the purposes of complementary protection. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any other country than Sri Lanka. The Tribunal finds that the applicant does not have a right to enter and reside in any other country, therefore, is not excluded from Australia’s protection obligations under s.36(3) of the Act.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Background
The applicant claims that he was born [in date], in [Village 1], Puttalam District, North-Western Province, Sri Lanka. He is [age] years of age. He departed Sri Lanka in May 2012 by boat and arrived at Christmas Island, Australia [in] May 2012 as an illegal arrival on a boat codenamed [name], which was intercepted by the Australian border protection authorities. A Five Country Check (FCC) revealed a match with [Country 1] (dated [in] November 2013). The report indicated that the applicant had applied for a visa in Colombo for travel to [Country 1] but had no status in [Country 1]. The applicant claimed his father had applied for a residence for him but they had been unsuccessful. The applicant lodged his application for a Protection visa (Class XA) on 28 March 2013.
The applicant’s claims for Protection
The applicant submitted the following claims to the Department with his Application for Protection visa:[4]
[4] AAT File no.1509450 Folio [13]-[14]
§He claimed he resided and worked in and near his village, [Village 1], Sri Lanka.
§His mother sent him to school in [a town] in [year] to avoid being questioned by the Criminal Investigation Division (CID). He sat for his [exams] but did not pass. He also attempted studying for [a] course but lost interest and did not complete it.
§He returned to [Village 1] where he worked on his uncle’s [farm] and at fishing and assisting his brother in [his work]. He also spent a period of three months working in a [factory].
§His father left Sri Lanka and claimed asylum in [Country 1] in 2002. He was accused of supporting the Liberation Tigers of Tamil Eelam (LTTE) by providing [produce] and [items] to them. The applicant has not seen his father since he left Sri Lanka but has contact occasionally with him via the phone. He claims his father attempted to sponsor the applicant ton apply for a visa to [Country 1] as part of a family reunion scheme but he was rejected.
§He claimed men used to come to his home but he didn’t know why. Then in 2011 on two occasions the CID came to interview the applicant, his brother and his mother about their father’s involvement with the LTTE. He claims the men were aggressive and threatening.
§He claimed the CID took a greater interest in his brother who used to go to Batticaloa for work with his father. His brother [older] than the applicant. The applicant claims the CID took his brother once and held him for a day but later changed this to his brother being sometime in 2012 to report to the CID headquarters in Colombo which he claimed his brother ignored.
§He is fearful that the CID may suspect him and the entire family of having an affiliation with the LTTE through their father’s involvement.
§His uncle helped his mother organise for her two boys to leave on a boat to Australia, however as his brother was not present at the time, only he and his brother-in-law travelled with a group from [Village 1].
§He does not believe the authorities in Sri Lanka will protect him if he tries to re-locate he will have to register his name so the CID will still be able to find him.
The Tribunal asked the applicant whether these were the claims he wished the Tribunal to consider or whether he had any further claims to make. The applicant’s response was that the claims as submitted to the Department as part of his Application for Protection visa were the claims he wished the Tribunal to consider at this hearing.
The applicant’s evidence to the Tribunal
The applicant told the Tribunal that he had lived in [Village 1] for most of his life. He attended school and persisted with his studies until year [number]. After completing Year [number], he returned to his village where he worked as a local fisherman. The applicant also told the Tribunal that his father had gone to [Country 1] in October 2002, and while there he may have been granted asylum (but the applicant was not sure). However, his father (according to the applicant) had not returned to Sri Lanka. The Tribunal was told that his father had his own ‘….LTTE problems…’ because he had assisted that rebel movement while in Sri Lanka.
The Tribunal asked the applicant to elaborate on his statement that his father had ‘…assisted’ the rebel LTTE. The applicant told the Tribunal that his father had provided ‘…[items]’ and ‘….[produce]’ to this rebel group. However the applicant could not provide ‘details’ but he knew that he (his father) had provided ‘[items]’ to the LTTE to assist them with their in the [field]. He (the applicant) went on to tell the Tribunal that his father was also a ‘…fisherman…’ and that because the war had broken out ‘…he was drawn into it….’
The applicant was asked – when did you father who had gone to [Country 1] attempt to sponsor you? The applicant told that an attempt to sponsor him occurred in 2006 but it was refused by the [Country 1] government. The reason why the sponsor was refused was because the applicant’s father had very little accumulated funds. Another attempt was made in 2007 but this too was not successful because again, the applicant’s father had not the required accumulated fund in the bank and he had accommodation problems. After these two refusals, the applicant told the Tribunal that his father sent him [Country 1] sponsorship forms but when completed by him certain ‘…mistakes…’ were found in them by the authorities and not proceeded with and to date, no other attempts have been made.
The applicant was asked by the Tribunal – whether he has regular contact with his father in [Country 1]? He told the Tribunal that he has such contact with his father – once or twice a month.
The applicant also told the Tribunal that his father is currently [working].
The Tribunal asked the applicant – whether his father was involved any overseas LTTE-sympathetic organisation? The applicant told the Tribunal that he could tell the Tribunal of any political activity his father may have been involving himself in while in [Country 1] – the applicant did not know, nor had been told of any such activities.
The applicant’s concerns about the CID visits
According to the applicant the CID came to his village in 2011 and ‘…asked questions’ of his mother, brother and the applicant. The main question asked of all three (according to the applicant evidence) was “…what my father did with the LTTE…” The CID wanted to find out what the applicant’s father’s “….connection with the LTTE….was”. That was all the applicant could recall for the Tribunal. He then went on to tell the Tribunal that in 2012, the CID again came to applicant’s village and again made similar enquiries as before to all three. The applicant remembered that on this occasion there was a ‘….a lot of shouting…’ but the applicant could not provide any further details of this incident because “…he could not remember what happened after that….”
The Tribunal asked the applicant – why did the Sri Lankan securities would consider his father a person of interest because of his actions twelve years ago? The applicant told the applicant that the authorities held the belief that “…we [the applicant, his mother and brother] may know something about my father’s political activities…” The Tribunal was told that when it was his turn to be interrogated by the authorities he told them that he “did not know anything…” about his father or what he was doing or involved in. The applicant was asked if the authorities had again returned to interrogate his mother and older brother. The Tribunal was told that both his mother and brother face further interrogations but he could “….not remembers the dates….” As far as the applicant could remember– the CID officials returned to question his mother and brother “…twice…”

The Tribunal asked the applicant – how did he know that the CID had in his absence again questioned his mother and brother. The applicant stated that he has had regular contact with his mother on the telephone and his “….mother told him….” The applicant went on to say that his mother “….told him that the CID came and made some enquiries ….” and nothing more was said. The applicant concluded his recollection by telling the Tribunal that his mother “…did not tell him about any threats or violence…” having been used on these occasions by the CID in order to extract any information to assist with their investigations.

When did the applicant arrive in Australia?
The applicant told the Tribunal that he arrived illegally by boat, landing at Christmas Island, in 2013 after having sailed with others on a boat for seventeen days. It was the applicant told the Tribunal a very difficult time in his life.
Why does the applicant fear to return to Sri Lanka?
The applicant stated that if he was returned to Sri Lanka he would have to return to his village – where his mother is living and no other family member. His brother is still in India and this situation, the applicant feared would cause the CID to return to his village to question him.
The Tribunal put to the applicant that at the time of civil war in Sri Lanka, the applicant was only a child and therefore, why would the authorities be interested in the applicant. The applicant’s response was to tell the Tribunal that “….I think my father had done some major criminal activities and that is still continuing….”
The applicant also told of his fear of constantly being blackmailed for money and if he could not provide the authorities with money they would “…threaten him….” However, the applicant acknowledged that such extortion demand had been experienced by his mother.
The Tribunal asked the applicant – would the authorities consider and treat him differently from other Sri Lankan citizens because he has claimed asylum in Australia? The applicant stated that if he was to return to Sri Lanka in the future, he would upon his arrival at Colombo International Airport be stopped by CID questioned about his reasons for leaving Sri Lanka, be detained and further questioned about his activities while in Australia. The applicant also believed that he may be fined and subjected to further threats.
The applicant was asked if he knew or had any information about the current state of affairs in Sri Lanka. The applicant stated that he did not know any details about the current situation in Sri Lanka. However, he admitted that he “had some knowledge” but nothing specific about the day-to-day issues in Sri Lanka.
Country Information
The Tribunal then provided to the applicant a detailed summary of the current state of affairs in Sri Lanka as it concerned the treatment of ‘suspected’ LTTE combatants and sympathisers, Returnees and Tamils. The basis of this information was the Department of Foreign Affairs and Trade’s (‘DFAT’) Country Information Report – Sri Lanka dated 24 January 2017. It is also noted by the Tribunal that DFAT has released a new Country Information report dated 23 May 2018 which supplements and updates the previous information on the current situation in Sri Lanka. The ‘summary’ presented and discussed with the applicant appears within the body of this decision.
Having read the country information to the applicant, the Tribunal asked him for comment but the applicant declined to provide an opinion.
The Tribunal asked the applicant – did he have any concerns if he was to return to Sri Lanka? In his response, the applicant stated that having heard the information about the treatment of ‘failed’ asylum seekers by CID upon arrival at Colombo Airport, he did not believe that this will be the situation if he was to be forced to return to Sri Lanka. The applicant believed that he would be detained and would be considered by the CID as ‘bargaining influence’ because of his father and his actions. The applicant explained that his father had made an application for ‘asylum’ in [Country 1] citing political issues and is currently awaiting the decision of the [authorities].
Submissions made at the Hearing on behalf of the applicant by his Legal Representative
The applicant’s legal representatives [made] the following submissions at the hearing:[5]
[5] AAT File no. 1509450 Folio [90]
§That the applicant will face persecution and/or significant harm in Sri Lanka, as a result of his actual and/or imputed LTTE political opinion as a former supporter or sympathizer of the LTTE because of family’s affiliation with the LTTE as his father who was a fisherman was alleged by the Sri Lankan authorities as supporting the LTTE and working for the LTTE by transporting weapons, personnel and goods for the LTTE and as a Tamil who was born and lived in a Tamil area – [Village 1] where the LTTE was active
§The applicant’s representative went on to say that the applicant’s imputed political opinion in support of the LTTE and of someone who is against the government was enhanced because of:
§The applicant’s Tamil ethnicity
§The applicant’s father being a fisherman who had been accused by the authorities of smuggling weapons and LTTE personnel in his motor boat.
§The applicant’s illegal departure from Sri Lanka in 2012 and for his seeking asylum in Australia and his extended presence in Australia as an asylum seeker.
§ The applicant’s membership of a “particular social group being (i) a “failed asylum seeker” and (ii) perceived “wealthy” as the applicant has remained in Australia for an extended period and his father is now living in [Country 1].
The applicant also submitted a Statutory Declaration
The Tribunal also noted that the applicant submitted for the Tribunal’s consideration a statutory declaration dated 23 April 2017 in support of his application of review which declared the following:[6]
[6] AAT File no.1509450 Folio [82]
§ The applicant was a citizen of Sri Lanka and a Tamil by ethnicity and lived in the Tamil area [Village 1] where the LTTE was active before its defeat in 2009.
§ He was a fisherman.
§ The applicant reiterated that his issues with the Sri Lankan authorities occurred in 2011. CID officers came to his home and threatened the applicant, his mother and brother while also questioning all three about the applicant’s father’s whereabouts. The applicant’s father had fled to [Country 1] in 2002 after being persecuted by the LTTE and Sri Lankan authorities.
§ The applicant’s father had applied for asylum in [Country 1].
§ The CID accused the family of having past links with the LTTE and this was because his father had been forced the LTTE to support them.
§ The applicant described his father’s [Country 1] asylum claim as (i) the LTTE would use boats to transport goods, weapons and personnel and would require the fishermen in [Village 1] to transport these, thus strengthening the LTTE’s resistance against the Sri Lankan armed forces and (ii) the LTTE (in February 2001) took two his father’s boats by force. After three days his father found his boats but was arrested by the army detained and questioned. Subsequently, the father was released but remained under strict surveillance. He then moved to the Eastern Province and carried on his business in the Batticaloa area. While there, his father faced problems with the LTTE who controlled his business and later accused him of being a traitor. His father then fled to [Country 1].
§ He claims that once the authorities are suspicious of someone’s family of having past LTTE connections they would continue to harass and torture.
§ He claims that the authorities consider that his father had links with the LTTE and that because the LTTE used his father’s boats to transport goods, weapons and ammunition he too was under a continuing suspicion and he fears that if he returns to Sri Lanka he would be targeted because of his father’s issues.
§ He also believed that ‘irrespective of a change of government and policies’, the ‘culture’ of the Sri Lankan security forces including the police and CID has not changed. He feared arrest and even if he was released by the Court after pay any fine imposed, the ‘corrupt’ security forces would conduct surveillance of him and ‘mistreat him’ for ‘extortion’ purposes.
Country Information – Sri Lanka – Tamils – LTTE – Situation after the end of the civil war – returned failed asylum seekers
DFAT recent country information report on Sri Lanka[7] reports on the current situation as follows:
[7] 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
3.4Tamils 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 protr acted 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.
Post-hearing submission by the applicant and his representative

The applicant’s solicitors and migration agent provided further submissions dated 24 May 2017 which in summary provided the following information for the Tribunal to consider:[8]
§According to the applicant’s knowledge from what he has heard from his mother, his father has supported the LTTE by giving them [produce] and [items]. The Sri Lankan authorities have accused the applicant’s father of assisting the LTTE in the transportation of weapons and personnel as he had speed boats which he used for fishing and his boats were forcibly taken by the LTTE for their own use. The applicant’s father suffered persecution by the LTTE and fled Sri Lanka to [Country 1] and has been granted asylum.
§The applicant emphasised the fact that he is the son of a fisherman who was suspected of supplying and transporting personnel and goods for the LTTE. Hence, the applicant was a person with family links or who are dependent on or otherwise closely related to persons with the profiles listed by the UNHCR and who requires protection.
§The applicant reiterates that the CID continued to visit his home after he fled from Sri Lanka and, his brother had been taken into custody for questioning by the CID for a week and had been mistreated. He was later released after the payment of a bribe and he later fled to India illegally in order to avoid any further mistreatment.
§The applicant further claimed that as a fisherman who worked in [Village 1] – a Tamil area in 2008, the authorities may also suspect him as having past links with the LTTE. If the applicant is forced to return to Sri Lanka, he will be arrested, detained for questioning at the airport because he had fled Sri Lanka illegally. Even if the applicant is released by the authorities after paying a fine or on bail, when he returns to his hometown, there is a real chance that he would come to the adverse attention of the authorities, who will arrest and detain him for questioning and would mistreat him, because of their suspicion of him having past connections with the LTTE and would also attempt to extort money from the applicant as they would assume that the applicant would have money because he was returning from Australia after a being [here] for a considerable period of time.
The grant of asylum to the applicant’s father by [Country 1’s] Immigration [Department]
[8] AAT File, see Folio [103]
The applicant’s solicitors and migration agents also submitted for the Tribunal’s consideration the applicant’s father’s grant of asylum provided to him by [Country 1’s] Immigration [Department] dated [in] September 2003. In particular and relevant to this decision’s outcome the Tribunal notes the following comments made by the [Country 1 immigration department] concerning the applicant’s father’s encounters with the Sri Lankan authorities and the LTTE prior to fleeing Sri Lanka for [Country 1]:[9]
“…. [Details deleted].…”
Credibility of Claims
[9] Ibid see Folio [102] but in particular Folio [93]
When assessing claims made by the applicant the Tribunal needs to make findings of fact in relation to those claims and country information. Credibility issues may arise due to a number of reasons. For example applicants may provide inconsistent evidence. Evidence can be vague and lacking in detail. The Tribunal is also mindful that it must exercise caution when assessing new claims and evidence introduced late in the protection visa process.
When assessing credibility the Tribunal is also mindful of the difficulties faced by the refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The Tribunal is also aware that claims for protection are often complex and overlapping and can draw on a person’s whole life experience. In such circumstances it is often difficult for applicants with limited education and understanding of the protection visa process to articulate their claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (see Guo v MIEA [1996] FAC 1263 at [26] (Foster J), Minister for Immigration and Multicultural Affairs v Rajalingam (1993)FCR 220; Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682).
The Tribunal’s Guidelines on Assessment of Credibility (July 2015) state:
11. In relation to protection visa matters, if the Tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: (see Selvadurai v MIEA & Anor (1994)34 ALD 347 at 348).
FINDINGS AND REASONS
The applicant claims to be a Sri Lanka national. In the absence of any evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal accepts that the applicant is of Tamil Ethnicity and a Hindu and that he originates from North Western Province of Sri Lanka.
The Tribunal accepts that the applicant’s issues with the Sri Lankan authorities surfaced in 2011 when CID officers came to his home and threatened the applicant, his mother and brother while at the same time questioning all three about the applicant’s father’s whereabouts. Although the applicant’s recollections of these events were vague and at times disjointed and devoid of a proper time line, the Tribunal does not consider the applicant’s responses to distant but troubled events as lacking in credibility. The applicant was a young boy when his secure family environment was disrupted by intercommunal violence and civil war. It is reasonable for the Tribunal to conclude that traumatic moments in an individual’s life are often remembered but not with great detail for obvious reasons. That being so, the applicant’s claims in this instance are enhanced by the facts and details which both his oral and to large part his written evidence provide. The Tribunal has considered carefully that evidence and in particular, the decision of [Country 1’s immigration department]. In that decision, the applicant’s father’s situation prior to his fleeing Sri Lanka in 2002 provides convincing support for the applicant’s claims. If one refers to paragraphs [10] - [13] the magnitude of the applicant’s father’s ordeal at first at the hands of the LTTE and then with the Sri Lankan army, one realises as this Tribunal does, the magnitude of the applicant’s fears and whether what he has recalled that he had suffered as a result of his father’s misadventures was credible or not. The Tribunal considers that the applicant’s claim that his father had been a victim of the LTTE and the Sri Lankan Army to be credible.
The Tribunal also accepts the applicant’s evidence that as a Tamil male he experienced harassment as a result of his father’s activities during the civil war throughout his life in Sri Lanka. The Tribuanl accepts the applicant’s evidence that in the period he was living in Sri Lanka he had come to the attention of the army and had been vigorously interrogated about his father as were his mother and brother who is now living in India. The Tribunal found the applicant’s account of the actions of the security forces in Sri Lanka credible and consistent with the country information detailed herein.
The Tribunal finds that this evidence is relevant in assessing the applicant’s profile and whether there is a real chance the applicant would face persecution if he was to return to Sri Lanka in the reasonably foreseeable future.
Does the applicant have a well-founded fear of persecution for a convention reason?
The issue for the Tribunal to determine is whether the applicant has well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.
In assessing the applicant’s claims the Tribunal has had regard to the DFAT Country Report on Sri Lanka dated 24 January 2017 and 23 May 2018 and the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.
The UNHCR Guidelines refer to a series of profiles which whilst not intended to be exhaustive, indicate those categories of person who the UNHCR considers may need international refugee protection, depending on the individual circumstances of the case.[10]
[10] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (December 2012), at pp.26-27.
The Guidelines note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. The Tribunal accepts and relies on the UNHCR guidelines, and finds the applicant falls into the identified profile of a person suspected of certain links with LTTE through family links.
The Tribunal finds that the information provided by DFAT provides support for the applicant’s claim of a pattern of arbitrary arrests are still carried out by the security forces in Sri Lanka:
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.
Next the Tribunal has considered the fact the applicant left Sri Lanka illegally and what is likely to happen to him on his return given his profile discussed above.
Having in mind the applicant’s manner of departure from Sri Lanka and his father’s history with the LTTE and the Sri Lankan authorities before fleeing Sri Lanka to successfully seek asylum in [Country 1], the Tribunal would consider it highly plausible a warrant has been issued for the applicant’s arrest and it is likely that the applicant’s name would be on a watch-list and therefore would be subjected to questioning at the airport.
The Tribunal accepts that up until at least 2012, and some evidence in recent times, that Sri Lankan Tamils returning from [Country 1] and elsewhere have reportedly suffered torture and abuse from the authorities. The cases in relation to such returnees overwhelmingly involve returnees who have had some reasonably substantial form of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections.
The information from DFAT indicates that allegations of mistreatment of returnees without such links have not been verified.
The Tribunal has also considered the information in the DFAT Country Report, regarding the procedures for the treatment of failed asylum seekers at the airport and on their return to their home area. Returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the Colombo Airport CID. These processes involve police and security clearances, including checks with the person’s local police station and may take some considerable time. If these investigations reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against a person’s name in immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person were of security interest or if there was evidence of involvement in people smuggling.
Independent sources further state that past LTTE connection or involvement does not give rise to such a risk, unless the person had or was perceived to have a significant role in the post-Tamil separatism or otherwise of interest to the authorities.[11]
[11] UK Home Office Country Information and Guidance, Sri Lanka: Tamil separatism, March 2017; also see, GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
As stated above the applicant has been identified as a person with possible connections to the LTTE because of the activities of his father during the civil war and who is now in [Country 1] as a recognised refugee. He (the applicant) has departed Sri Lanka illegally in breach of the I&E Act. He has previously, together with his mother and brother (who is still in India) come to the attention of the local CID in relation to his father’s involvement with the LTTE and the authorities seeking his whereabouts. The applicant witnessed his mother and brother being vigorously interrogated and monitored. He too, in turn faced similar instances of control and monitoring by the authorities which caused him to fear and to run away and to seek sanctuary in Australia – illegally leaving Sri Lanka.
While the Tribuanl accepts DFAT’s assessment that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected under the I&E Act, the Tribunal finds that the applicant’s particular profile (because of his father’s past activities with the LTTE) would distinguish him from the majority of returnees and making him a person of interest to the authorities. In the circumstances, the Tribunal that there is a real chance the CID would question the applicant about his past and present circumstances.
The Tribunal also finds that country information indicates that despite an overall decline in allegations of torture, there continue to be reports of torture complaints perpetrated by Sri Lankan police, military and intelligence forces against Tamil victims;[12] DFAT is aware of reported instances of torture carried out by the police;[13] and those at particular risk include Tamils with a real or perceived association with the LTTE.[14]
[12] DFAT Country Information Report Sri Lanka, 24 January 2017 at paragraph [4.13]; also see UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 2.3.38; United States Department of State 2016 Country Report on Human Rights Practices, Sri Lanka, published on 3 March 2017, section 1c; UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, (paragraph 22), 22 December 2016, ; Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015; and International Truth and Justice Project Unstopped: 2016/2017 Torture in Sri Lanka, July 2017,
[13] DFAT Country Information Report Sri Lanka, 24 January 2017 at paragraph [4.15].
[14] Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015.
There is evidence that the security forces continue to detain individuals they suspect of having LTTE connections. If detained by security forces, there remains a real chance of ill treatment or harm requiring international protection.[15]
[15] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 2.3.39 and 2.3.40.
The UN Special Rapporteur on human rights and counter-terrorism at the conclusion of his official visit to Sri Lanka from 10 to 14 July 2017 stated that he had concerns that PTA remains on the statute books in Sri Lanka and stated that:
Though exceptional provisions that admit the use of uncorroborated confessions made to police officers as the sole basis for convictions, it has fostered the endemic and systematic use of torture. Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture….Since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus.[16]
[16] Full Statement by Ben Emmerson, UN Special Rapporteur on human rights and counter-terrorism, at the conclusion of his official visit, Colombo 14 July 2017 at -rapporteur-on-human -rights-and-counter-terrorism-at-the-conclusion-of-his-official-vist/
The report of the Special Rapporteur on minorities issues on her mission to Sri Lanka in early 2017 stated:
Reinforcing the stigmatization of the Tamil identity is the continued application of the PTA, which affects the Tamil population disproportionately. Despite the heavy criticism it has received nationally and internationally for allowing prolonged detention without due process, the Government has reportedly continued to rely on the Act to make new arrests, including exiled Tamils returning to Sri Lanka.[17]
[17] The UN Human Rights Council, Report of the Special Rapporteur on minority issues on her mission to Sri Lanka – Note by the Secretariat, 31 January 2017, (Specific groups of concern – C. Tamils in the North and East), paragraph [52] at p. 13, >
Amnesty International reported in February 2016 that Tamils suspected of LTTE links continued to be arrested and detained under Prevention of Terrorism Act provisions,[18] which was also confirmed in a May 2016 report by the ICG, which reported that some four dozen people have been arrested and help under the provisions in 2015-2016.[19]
[18] Amnesty International Report 2015/16 – The State of the World’s Human Rights – Sri Lanka, published 24 February 2016, (Arbitrary arrests and detentions), .
[19] ICG, Sri Lanka: Jumpstarting the Reform Process, 18 May 201, at -the-reform-process.pdf at p.15.
There continue to be credible reports that Tamils returning to Sri Lanka with actual or perceived links to the LTTE face a risk of torture or other forms of serious harm. For example, in an August 2015 Freedom from Torture report on 148 torture cases perpetrated since the end of the civil war in May 2009, the majority (142 or 96%) described an actual or perceived association with the LTTE, related either directly to themselves, to family members or both.[20] In an August 2015 report, the ICG reported that Tamils returning from abroad continue to be arrested under the Prevention of Terrorism Act provisions on suspicion of old LTTE involvement.[21]
[20] Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015, at p. 19.
[21] International Crisis Group, Sri Lanka between Elections, 12 August2015 (IV. Initial Steps on Reconciliation p.17) in UK Home Office Country Information and Guidance, Sri Lanka; Tamil separatism (March 2017).
Additionally, the DFAT country information reports that despite improvements and pledges towards reform the current government in Sri Lanka:
…has reviewed some cases of persons detained under the PTA and released some detainees, mostly Tamils. The PTA is currently suspended but remains legally in force.[22]
[22] DFAT Country Information Report, Sri Lanka, 23 May 2018 at paragraph [3.60] at p. 22 and in previous Country Information report at (1917) at paragraph [3.38].

In May 2016 the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and the UN Special Rapporteur on the independence of judges and lawyers after visiting Sri Lanka reported as follows:
They concluded that torture remained a common practice in both criminal and national security cases and that the criminal justice system facilitated the use of torture to extract confessions to build cases. They stated that police investigators used torture and ill treatment routinely.[23]
[23] As reported in the United States State Department’s 2016 Country Report on Human Rights Practices, Sri Lanka, published on 3 March 2017, section 1c.
In the circumstances, although the applicant has not claimed to have been an LTTE member or knowingly participated in any LTTE activities while in Sri Lanka or while he has been living in Australia, the Tribunal finds that there is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. The Tribunal having considered carefully and in detail the country information and the applicant’s profile, the Tribunal finds that there is a real chance the CID will attempt to extract information and details or gain intelligence details about why he departed Sri Lanka illegally, his knowledge of his father’s activities while he was in Sri Lanka and how he left and how he came to successfully claim refugee status in [Country 1]. The Tribunal finds that there is a real chance the applicant would suffer significant harm from CID because of his exposure to interrogation techniques that include torture. In conclusion the Tribunal finds that the applicant’s fear of persecution based on his Tamil ethnicity and his imputed political opinion because of his father’s activities with the LTTE prior to his father escaping and successfully seeking asylum in [Country 1] is well founded.
As the risk of harm feared is at the hands of local law enforcement (CID) the Tribunal finds the applicant cannot access state protection. Furthermore, the Tribunal considers relocation is not an option in this case when the authorities, even the local ones, are agents of the harm that the applicant fears.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant in the opinion and for the reasons the Tribunal provided satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Peter Vlahos
Member

[2018] AATA 3193

11 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies