1513736 (Refugee)

[2018] AATA 780

1513736 (Refugee) [2018] AATA 780 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513736

DIBP REFERENCE(S):  CLF2015/1003

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Paxton

DATE:6 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 March 2018 at 3:35pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Imputed political opinion – Human rights activist – Member of a political party – Social group – Royal heritage – Threats from intelligence officers – Published author – No difficulties departing Sri Lanka – Ministerial intervention sought – Previously a holder of a visitor visa – Son lives in Australia

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 345, 351, 391, 417, 454 , 417, 499, 501J
Migration Regulations 1994 r 1.12 Schedule 2

CASES
GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 on [date] September 2015 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 [date] January 2015. The delegate refused to grant the visas on the basis that there is not a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act and that there are not substantial grounds for believing that, as a necessary consequence of the applicants being removed to Sri Lanka, there is a real risk they will suffer significant harm.

3. For reference in this decision, where relevant, the first named applicant will be known as ‘the applicant’, the second named applicant as ‘the applicant’s wife’.

4. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. The applicant’s wife attended the Tribunal but did not give evidence.

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

6. A copy of the delegate’s decision record dated [September] 2015 refusing the applicants’ application for protection was provided to the Tribunal by the applicant.[1]

   [1] AAT 1513736, ff. 30–31.

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

   CRITERIA FOR A PROTECTION VISA

8. 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, he or she 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.

9. 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 because the person is a refugee.

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

11. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

12. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant has a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act or a real risk of significant harm on return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. The applicants last arrived in Australia on [date] November 2014, [visitor] visa.

16. A certified copy of the applicants’ marriage certificate was provided to the Department.[2] Based on this documentation, the Tribunal accepts the second named applicant is the applicant’s wife and a member of the applicant’s family unit in accordance with r.1.12.

    [2] DIBP CLF[number], f. 48.

17. Accompanying his protection visa application, the applicant submitted a statement of claims dated [January] 2015. In summary, the applicant declares the following:[3]

    [3] DIBP CLF[number], ff. 41–45.

    ·The applicant was born [date] (at the time of application he was [age] years old) in [Town 1], Jaffna district, Northern Province, Sri Lanka. He is Tamil and identifies as Hindu.

    ·The applicant fears persecution because of his race and his real and imputed political opinion as a human rights activist, political activist and journalist/writer, who has opposed the Sri Lankan government's human rights abuses against Tamils.

    ·The applicant served as [a] medical officer in the Sri Lankan Government for 28 years.

    ·The applicant was nominated for [an award] in 2009 for his medical research work in the Northern Province between 1990 and [1996].

    ·He was forced to retire early in 2004 because he feared for his life due to continuous shelling and bombing in [Town 2], Eastern Province.

    ·Since retiring, the applicant has been in private practice and acting as a resource person to [a government agency], Colombo. He is a ‘very popular, influential and well-known medical practitioner in Colombo’ [details deleted].  

    ·He has been described in an English publication, [Publication 1], written by a family member [Mr A], as belonging to the [name] royal dynasty, a Tamil dynasty, and as working hard to restore the Tamil rule in [a location] supporting the declaration by [certain] Members of Parliament in the Colombo Parliament [in] February 1976 to redeem their mother country as in 1505 and re-establish their own rule for the freedom and protection of Tamils.

    ·The applicant has always supported Tamil human rights freedoms in Sri Lanka, and is highly respected by the public and political leaders and he was invited [to] join the party. He became a member of the party and took part as a Tamil activist since 2006.

    ·The applicant is a writer/journalist who has written many articles about the Tamil crisis and fundamental rights, including a publication in Tamil, [publication], a history of Tamils in Sri Lanka released in 2007.[4]

    [4] DIBP CLF2015/[number], f. 91.

    ·The applicant also published [Publication 1], by [Mr A], a family member, in 2012.² As this was in English, Sinhala Buddhist activists and politicians came to know about his political activities.

    ·During the Liberation Tigers of Tamil Eelam (LTTE) period, the applicant was not involved in politics because he did not agree with Tamil separatism, but he did not want to oppose the LTTE. After the defeat of the LTTE in 2009, the applicant took an active part in human rights activities in Sri Lanka. He sought a lawful solution to the Tamil crisis and justice for affected Tamils through dialogue.

    ·In 2013, the applicant sent a report, under his title of [Prince B] of [name] royal dynasty, of alleged genocide and human rights abuses against Tamils occurring between 1948 and 2009 and recommending ‘legally justifiable and lawful solutions’.[5] The applicant sent this document to the United Nations and to prime ministers and foreign affairs ministers from various countries, including the United Kingdom (UK), Canada and New Zealand, and the President of the United States.

    ·In January 2014, the applicant received threatening phone calls several times from Sinhala Buddhist activists and politicians who became aware of this document. These people wanted the applicant to leave the county immediately or his life would be in danger. They warned him not to write or publish any facts about Tamils.

    ·The applicant feared for his life and his freedom of movement was restricted. He received a phone call inviting him to come to the intelligence service Colombo office.

    ·The applicant was scared and feared for his life and as a result he developed severe [medical] problems due to the stress. The applicant underwent 'urgent' [surgery] on 31 August 2014.

    ·After being discharged, neighbours informed him that members of the Sri Lankan Intelligence Service had visited his house and enquired about his whereabouts, and he relocated to Jaffna despite his bad health condition because he feared for his safety.

    ·The applicant changed his phone number. However, he started receiving threatening phone calls again, and he decided to come to Australia to protect his life.

    ·The applicant did not make any complaints about the threats because such complaints would not be accepted and may be held against him.

    ·The applicant is [a] man with no children in Sri Lanka. He has wealth, education, money and good social reputation but had to flee Sri Lanka because he feared persecution including abduction and death because he is perceived to be an opponent to the Sri Lankan authorities who could not tolerate his human rights activities.

    [5] DIBP CLF2015/[number], f. 90.

18. On 4 April 2017, the applicant submitted to the Tribunal a further statement outlining in detail areas of disagreement with the delegate’s assessment.[6] 

    [6] AAT 1513736, ff. 113–115.

19. On 4 April 2017, the applicant also provided to the Tribunal the following material:

    ·United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012;[7]

    ·DFAT Country Information Report Sri Lanka, 24 January 2017;[8]

    ·UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism, version 3.0, August 2016;[9]

    ·Various press releases concerning the security situation and human rights abuses in Sri Lanka collated by International Truth and Justice Project (ITJP).[10]

    [7] AAT 1513736, ff. 47–67.

    [8] AAT 1513736, ff. 68–86.

    [9] AAT 1513736, ff. 87–112.

    [10] AAT 1513736, ff. 119–134.

20. The applicant’s representative submits that the UNHCR identified ‘certain Human Rights activists’ as being at risk of persecution in Sri Lanka. It is submitted that the country information supports a finding that the applicant, as a person of Tamil ethnicity and real/imputed political opinion having opposed the Sri Lankan government’s human rights abuses as a human rights activist and as a political activist and journalist/writer, has a well-founded fear of persecution relating to all areas within Sri Lanka.[11]

    [11] AAT 1513736, f. 116.

21. It is further submitted that DFAT advice of 17 January 2017 refers to the change of government in Sri Lanka and notes that the new government led by President Sirisena has publicly claimed that military involvement in civilian activities has ceased, but stated that some individuals in the north and east still report being questioned and observed by the military and report the sizeable military presence remains a factor in aspects of civilian life.[12]

    [12] AAT 1513736, f. 116.

22. Also before the Tribunal is a letter from the applicant’s treating psychologist, [dated] February 2017.[13] 

    [13] AAT 1513736, f. 148.

23. The applicant provided to the Tribunal a medical report dated [February] 2017 from his treating [doctor].[14]

    [14] AAT 1513736, f. 149.

24. The applicant’s wife makes no claims to have a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka.

    Country of reference

25. The applicants claim to be citizens of Sri Lanka and provided copies of their Sri Lankan passports and birth certificates to the Department and brought their passports to the Tribunal hearing. On the basis of this evidence, the Tribunal finds that the applicants are citizens of Sri Lanka. The Tribunal accepts that Sri Lanka is the country of reference for the purposes of assessing the applicants’ claims under ss.36(2)(a) and (aa).

    Third country protection

26. On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.

    Assessment of claims

27. In assessing the applicant’s evidence, the Tribunal considered that prior to his interview with the delegate the applicant indicated that he had concerns that his memory may be affected. As discussed below the applicant provided to the Tribunal at hearing a report from his treating psychologist indicating her assessment that he is suffering from post-traumatic stress syndrome and has severe levels of anxiety. The Tribunal had regard to the AAT’s ‘Guidelines on Vulnerable Persons’ and at commencement of the hearing, the Tribunal encouraged the applicant to make the Tribunal aware if he had concerns that he was unable to present his evidence and argument or if he needed a break for any reason. The Tribunal indicated willingness to seek assistance from the applicant’s representative if any concerns developed. The Tribunal remained alert for any evidence that the applicant was unable to present evidence and argument. However, the Tribunal found the applicant responded appropriately to questions and the Tribunal identified no reason to consider that the applicant experienced any memory loss or difficulties in presenting his evidence. The Tribunal was satisfied the applicant was fully able to present evidence and arguments.

28. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[15]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well founded’, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [15] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, the Full Federal Court, Foster J at [482].

29. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[16]  For the reasons set out below, the Tribunal has formed the view that some parts of the applicant’s evidence should not be accepted.

    [16] MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169]-[70].

30. The Tribunal accepts the applicant’s evidence, confirmed at hearing, that he was born [date] (and was [age] years old at the time of the hearing), that he is of Tamil ethnicity and identifies as Hindu. The Tribunal accepts the applicant has two adult children; his son, who arrived in Australia in 2004 and with whom he and his wife stay, and his daughter who has lived in [another country] with her family since 2003.

31. The Tribunal accepts the applicant worked for many years as [a medical officer] in government service in senior positions in the North Eastern Province of Sri Lanka until 2004 when he retired at [age] years old.

32. The Tribunal accepts that as a doctor in Jaffna and later in [another district], both areas of conflict between the LTTE and Sri Lankan security forces, the applicant was caught up in fighting and that he had to flee fighting a number of times. As discussed further below, the Tribunal accepts the applicant spent his final years of medical service (1998–2004) in [Town 2], North Eastern Province. The applicant described this as an intensive war zone area and he feared for his life due to the continuous shelling and bombing in [Town 2]. The Tribunal accepts that civilian life in [Town 2] was affected through those years as the Sri Lankan government security forces carried out military actions against the LTTE, who were engaging in terrorist activity and intimidation, as they advocated a separate ethnic Tamil state in the north and east of the country. The Tribunal acknowledges that the applicant experienced fear and traumatising insecurity in [Town 2] at that time and that he attributes his [medical] problems to experiences during this period.

33. The Tribunal accepts that after his retirement in 2004 he moved to Colombo where he continued working in a range of capacities and according to the applicant became a popular, influential and well-known medical practitioner, [and] being called upon as a respected expert in [medicine] to provide advice to [a government agency].

34. The Tribunal accepts the applicant travelled frequently to [Country 1] for professional reasons and to [another country] about twice to visit his daughter. The Tribunal accepts the applicant had one previous visit to Australia in 2013 when he stayed with his son and his family for three months. The Tribunal accepts the applicant’s last arrival to Australia was on [date] November 2014 when he arrived as a sponsored family visitor.

1. The Tribunal accepts the applicant’s evidence that he has no convictions or charges against him and has never been detained.

   Actual/imputed anti-government political opinion

2. The applicant has put forward a number of reasons why he has a well-founded fear of persecution or a real risk of significant harm arising from an anti-government political profile with the Sri Lankan authorities. The Tribunal is considering these claims individually in chronological sequence, and, as discussed below, also considers the applicant’s profile as accepted, cumulatively.

   Country information

3. In consideration of the applicant’s claims, the Tribunal has had regard to the following advice, put to the applicant in summary, from DFAT’s Country Information Report Sri Lanka, from January 2017. The applicant also provided this DFAT report to the Tribunal:

   2.3 Under the leadership of current President Maithripala Sirisena, who was democratically elected in January 2015, the Sri Lankan Government is focused on post-conflict reconciliation, transitional justice, and governance and economic reform.

   Political System

   2.21 Sri Lanka is a democratic socialist republic with a mixed parliamentary and presidential form of government. The Constitution was promulgated in 1978 and last amended in April 2015.

   2.22 The President is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. At the January 2015 presidential election, Maithripala Sirisena defeated Mahinda Rajapaksa who had been President since 2005. Sirisena won 51.3 per cent of the vote. The election had a historically high voter turnout of 81.5 per cent. Subsequent analysis indicated that the split in the Sinhalese vote (Sirisena had resigned from Rajapaksa’s Cabinet to run against him, dividing the Sri Lanka Freedom Party (SLFP) into a Sirisena faction and a Rajapaksa faction), combined with a strong Tamil vote were significant to Sirisena’s victory. Sirisena, widely viewed as a consensus opposition candidate, also had the support of Ranil Wickremesinghe who was the leader of the United National Party (UNP), an opposition party at the time. Sirisena subsequently appointed Wickremesinghe as Prime Minister.

   2.23 The Sri Lankan Parliament is unicameral and consists of 225 members: 196 members directly elected from district electorates, with the remainder elected through proportional representation. The most recent parliamentary election was held on 17 August 2015 and was deemed credible by international and domestic election observers. The results reinforced the outcomes of the presidential election, ushering in a ‘national unity’ government. The United Front for Good Governance (UNFGG), a coalition of parties including the UNP and Sirisena’s SLFP faction, won 106 seats after campaigning on a ‘good governance’ platform, expressing commitment to; economic growth, transparency, ethnic reconciliation, and protection of individual freedoms and rights. Former President Rajapaksa's United People's Freedom Alliance (UPFA), including the Rajapaksa SLFP faction, secured 95 seats (this bloc, along with other minor opposition parties, is now commonly referred to as the ‘Joint Opposition’). The Tamil National Alliance (TNA), contesting as the Ilankai Thamil Arsu Kachchi (ITAK), won 16 seats and smaller parties won the remaining eight seats. Cabinet was sworn in on 4 September 2015. TNA leader Rajavarothiam Sampanthan was appointed Opposition Leader. Rajapaksa conceded defeat and issued a statement accepting the result of the election and vowing to work within the parliament.

   Sub-national governance

   2.25 The most recent Provincial Council elections were held in 2014, with members serving five-year terms. According to article 154F of the Sri Lankan Constitution, the Governor directly appoints the member of the Provincial Council who (in the Governor’s opinion) is ‘best able to command the support’ of the majority of members of the Provincial Council. The TNA currently holds the majority of seats in the Northern Provincial Council and the Chief Minister is a prominent Tamil leader. The current Chief Minister of the Eastern Provincial Council is a member of the Sri Lanka Muslim Congress (SLMC). Membership of all other provincial councils is dominated by UPFA members (Sirisena is formally the head of the UPFA political alliance, though Rajapaksa continues to wield significant influence, particularly at the grassroots level).  Currently, the majority of local councils are also governed by the UPFA. According to the Government, local council elections have been delayed until 2017 due to an electoral reform process, including changes to electoral boundaries.

   Constitutional Reform

   2.2 President Sirisena’s 2015 election platform included a commitment to reduce the powers of the President. On 28 April 2015 the parliament approved the 19th Amendment to the Sri Lankan Constitution, devolving some executive powers exercised by the President to the Prime Minister, the Cabinet of Ministers and Parliament. The 19th amendment also reduced the terms of President and Parliament from six years to five years, re-introduced a two-term limit for the President (which had been removed by former President Rajapaksa in 2010), created independent commissions to oversee the judiciary, police, elections, human rights and the office of the Attorney-General, and re-established a Constitutional Council to make appointments to the new commissions.

   2.28 Further constitutional reforms are underway with a view to finalising the text in 2017. The proposals include electoral reform and devolution of power in all nine provinces (which is particularly contentious in the Northern and Eastern provinces), but at the time of writing, a draft Constitution was yet to be released. If the new constitution is passed by a two-thirds majority in Parliament, it will need to be endorsed by a referendum.

   Reconciliation

   2.29 The Sirisena Government has prioritised human rights and reconciliation and has made significant progress, including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era back to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA) and committing to reform the PTA; and engaging constructively with the United Nations. The Government also established an Office of National Unity and Reconciliation (ONUR) to develop a national policy on reconciliation.

   2.30 Symbolic changes have also contributed to a more positive outlook for reconciliation. The 2015 Independence Day ceremony was attended by Tamil National Alliance (TNA) leaders for the first time since 1972 and President Sirisena delivered a trilingual Declaration for Peace in Sinhala, Tamil and English, paying respect to all victims who had lost their lives during the civil conflict (a significant step toward acknowledging losses on both sides). At the 2016 Independence Day ceremony the national anthem was sung in Tamil, as well as Sinhala. In 2015, the Government changed the name of the day commemorating the end of the conflict (held in May) from ‘Victory Day’ to ‘War Heroes Remembrance Day’ and for the first time gave official approval for memorial events to take place in the north and east.

   2.31 In September 2015, the report of the UN’s Office of the High Commissioner for Human Rights investigation into Sri Lanka (OISL) found that grave violations, including possible war crimes and crimes against humanity, were likely committed by both sides during the civil conflict. In response, the Sri Lankan Government co-sponsored a resolution in the UN Human Rights Council which, while recognising the progress Sri Lanka had made on reconciliation, committed Sri Lanka to implementing a range of transitional justice mechanisms and reconciliation projects.

   2.32 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 on Missing Persons; an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a Special Counsel. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms to conduct public consultations on the design of the four mechanisms, with a final report to the President expected in 2017. DFAT assesses that if implemented effectively these mechanisms will provide a platform to achieve genuine reconciliation.

   2.33 On 11 August 2016, the Sri Lankan Parliament passed a Bill to establish the Office on Missing Persons (OMP), the first permanent and independent body established to address the issue of missing persons in Sri Lanka. Members of the OMP are appointed by the President on the recommendation of the Constitutional Council. The OMP has the power to investigate disappearances and trace missing persons, including the power to search detention centres, obtain documents and summon people within Sri Lanka. The OMP has a mandate to investigate cases that occurred in the lead-up to and during the civil conflict and in the post-conflict period when Rajapaksa was still President (May 2009 - January 2015). It will also cover earlier periods of violent political disturbance in the 1970s and 1980s. The OMP does not have a prosecutorial mandate. The previous Presidential Commission to Investigate into Complaints Regarding Missing Persons collected over 23,000 cases during its term; the volume of cases submitted to the OMP would likely exceed this amount. At the time of writing, the OMP was still being established and had not yet begun staff recruitment. The OMP does not have a pre-determined end date and is expected to take years to complete its work.

   HUMAN RIGHTS FRAMEWORK

   2.34 Sri Lanka is a party to all major international human rights conventions, having ratified the Convention on the Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and Political Rights (and its First Optional Protocol), the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women (and its Optional Protocol), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, the Convention on the Rights of the Child (and its Optional Protocols), the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the International Convention for the Protection of all Persons from Enforced Disappearance, and the Convention on the Rights of Persons with Disabilities. Many international human rights are guaranteed in Sri Lanka’s Constitution under Chapter 3 on ‘Fundamental rights’.

   National Human Rights Institution

   2.35 The Human Rights Commission of Sri Lanka (HRCSL) is the national human rights institution, is headquartered in Colombo and has 10 field offices. Citizens can petition the HRCSL about breaches of their fundamental rights. The HRCSL maintains comprehensive inquiry and investigation processes for matters involving executive or administrative action. It also publishes annual reports on the number of complaints received and resolved. The majority of complaints received refer to alleged discrimination in school admissions and public sector promotions but can include complaints about torture, disappearances, extra-judicial killings, deaths in custody and arrest and detention practices. [17]

   SECURITY SITUATION

   2.37 Since the conflict ended in May 2009, the security situation in Sri Lanka has greatly improved. The Sri Lankan Government - through its military, intelligence and police - exercises effective control over the entire country.

   2.38 Crime rates across Sri Lanka vary, but are highest in Colombo District and tend to be higher in the Western Province and the Northern Province. The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries–UNODC estimated a murder rate of 2.9 per 100,000 in 2013. The rates of many other serious crimes, including assault and rape have either remained steady or increased slightly. DFAT is aware of increased reports of gender-based violence (GBV) in the north and east and understands they have not been met with an effective response.

   Security situation in the North and East

   2.39 The security situation in the north and east has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life. However, military and security forces maintain a significant presence in the Northern Province, including in Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In September 2016, DFAT observed a low-level, visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or the smaller surrounding military camps. The High Security Zones occupy fertile land and are well-established, with permanent structures and well-tended agricultural land. The Government has begun reducing High Security Zones in the Northern Province and to date, over 1,000 acres of land have been released in Jaffna (not just in the High Security Zones). Military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east.

   Monitoring, harassment, arrest and detention

   3.8 During the civil conflict more Tamils were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity (see ‘Political Opinion’ below). Since 2015 the Sirisena Government has reviewed and released some PTA detainees, including Tamils. DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict.

   3.9 DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable (and largely idle) military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities. [page 12]

   [17] DFAT Country Information Report, Sri Lanka, 24 January 2017, pp.7–9.

4. The Tribunal has had regard to country information provided to the Tribunal by the applicant, including the UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016.[18] 

   [18] UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016, AAT 1513736, ff. 87–112.

   Case in the Supreme Court and the Human Rights Commission

5. The applicant claims to have an anti-government political profile such that he has a real chance of serious harm or a real risk of significant harm on return to Sri Lanka as a person who has opposed the government because he initiated a case against the Health Ministry in the Supreme Court and later raised this matter with the Human Rights Commission.

6. The Tribunal accepts the applicant’s evidence that he was appointed to [a senior position] with the Health Ministry, North Eastern Province in 1998, but a few months after his appointment he was suspended and removed from his post. In the absence of any other evidence, the Tribunal accepts the applicant’s statement that this occurred even though he had not committed any illegal acts, and that he was not given reasons for the suspension. The Tribunal accepts that when the position was re-advertised, he applied for the positon but was not selected.

7. The applicant told the Tribunal that he believes he was removed from the position for political reasons because the authorities gave him no explanation or response to his request for reasons. The applicant applied to the High Court for reinstatement but there was no judgement. Subsequently, in 2001, he filed a complaint in the Human Rights Commission for violation of his human rights, on the basis that his human rights had been abused because the position had been given to him according to the law.  For reasons the applicant claims he does not know, this case was stopped and the file was closed. He states that the Court decision would have been postponed because the decision had to go his way against the government; he characterises this as being for political reasons.

8. The Tribunal has considered the applicant’s claims that his suspension from the senior position [in] the North Eastern Province and his transfer to a less senior position in [Town 2] was for political reasons because ‘no reasons were given’. The Tribunal has considered the evidence before it and acknowledges the applicant’s frustrations at the time. However, the Tribunal notes that the applicant continued to be employed in government service in a senior medical position after he lost the [role]. The Tribunal takes into account that the applicant retired voluntarily in 2004 while accepting the security environment in [Town 2] was unstable and that this influenced his decision. The Tribunal takes into account that when the applicant retired he received a government pension and maintained a public profile as a respected [medical] practitioner and was consulted by Sri Lankan government ministries and maintained a private practice. The Tribunal also notes the applicant’s evidence at hearing that he was nominated by academics and medical associations for [awards] for his work improving medical outcomes between 1987 and 1997 by providing information about [medicines] to which the community in the north had access. The Tribunal also takes into account the applicant’s statement at hearing that he did not experience any problems in Sri Lanka until 2014.  

9. The Tribunal has considered all the applicant’s circumstances and does not consider there is any evidence to support a conclusion that the applicant’s employment/professional experience and his subsequent attempts to be restored to the position he lost, are indicative that he had an adverse profile with the Sri Lankan authorities for ‘political reasons’ or for any other ground under s.5J(1)(a) of the Act. Further, the Tribunal has had regard to the non-exhaustive examples of serious harm set out in s.5J(5) of the Act and the definition of significant harm in s.36(2A) of the Act, and is satisfied that despite his employment experience and failed attempts to regain his former position, he was not subject to serious or significant harm.

10. The Tribunal considers that the past conduct of the applicant’s claimed discrimination is indicative that the applicant does not have a real chance of serious harm or a real risk of significant harm on this basis in the future. The Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm on this basis.

    Membership of the Democratic People Front

1. The Tribunal has considered the claim that the applicant has a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka due to an anti-government political profile arising from his membership of the Democratic People Front (DPF).

2. On the basis of the applicant’s consistent written and oral evidence, the Tribunal accepts the applicant was approached to join the DPF [in] 2006 in Colombo. The Tribunal accepts the applicant’s view that he was invited to join because he was regarded as a respected member of the Tamil community by the public and by political leaders owing to his public role in medicine and as a supporter of the human rights of Tamils. When the Tribunal sought to understand the nature of the applicant’s role in the DPF, noting his written claim to have been involved as a Tamil activist, the applicant’s responses were vague and limited. He stated that at the time, he travelled frequently so he only renewed his membership when he was in Sri Lanka. He stated that he did not have any position or role with the DPF other than as a member, but that he was a person people turned to for guidance when there was a problem. The Tribunal formed the view that the applicant’s involvement with the DPF was of a low level.

3. As discussed further below, according to the applicant, his private and public position of support for Tamil human rights was always made in the context of achieving change within Sri Lanka’s lawful structures. As below, while the applicant’s stated views incorporated a desire for recognition of the Tamil [name] Empire and his royal heritage within this dynasty, he did not support a Tamil separatist agenda and he did not support the LTTE. In this respect, as discussed with the applicant, his political views were aligned to those of the DPF which represents Tamils in the Colombo region where the applicant lived after 2004.

4. On the basis of the country information put to the applicant cited above in respect of Sri Lanka’s political system, and the oral evidence of the applicant, the Tribunal assesses that the DPF, led by Mano Ganesan, a Minister in the Sirisena government, forms part of the governing coalition, the United National Front for Good Governance. As discussed with the applicant the current political landscape includes the DPF, which has never supported Tamil separatism, continues to contribute to a government that has indicated its commitment to the protection of individual human rights, including Tamil human rights. The country information above, discussed with the applicant also indicates that representatives of other Tamil parties also won seats in parliament and have vowed to work within parliament.

5. Taking into account the country information cited above and put to the applicant, the Tribunal finds that the applicant was a low level member of the DPF which represented and continues to represent Tamil human rights within a lawful framework.

6. As discussed with the applicant at the hearing, DFAT in its most recent report of January 2017 advised that the UNHCR's December 2012 Eligibility Guidelines for Sri Lanka note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection in Sri Lanka. The Tribunal has had regard to the UNHCR's December 2012 Guidelines, noting that DFAT continue to reference these guidelines as being the most recent. This report advises that although the nature of these links can vary, this may include:

   ·     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;

   ·     persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. ^[19]

   [19] DFAT Country Information Report Sri Lanka, 24 January 2017, p. 16.

7. As discussed with the applicant the UK Home Office report of 2016 refers to a list of risk profiles similar to the UNHCR list, summarised in the case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), a UK case that considered significant country information and testimony regarding Sri Lanka. The UK Upper Tribunal held that the focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and the government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lanka state.[20] The Upper Tribunal stated:

   The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

   (a) 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.

   (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

   (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

   (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.[21]

   [20] UK Home Office, Country Information and Guidance on Sri Lanka: Tamil separatism from August 2016, p. 6.

   [21] UK Home Office, Country Information and Guidance on Sri Lanka: Tamil separatism from August 2016, p. 6.

8. The Tribunal notes the applicant has not indicated support for the LTTE at any time, and at hearing he stated that he believed Tamil human rights could be obtained through lawful means. The Tribunal does not accept that the applicant’s views were or will be perceived as a threat to the integrity of Sri Lanka as a single state. The Tribunal has accepted above that the applicant took a low level role in the DPF supporting achievement of Tamil human rights within a lawful framework. The Tribunal does not accept in this role the applicant had a profile as a political or human rights activist, or that there is any evidence before it that the applicant was perceived to have a significant profile within the DPF. The Tribunal also notes that the DPF broadly represented the applicant’s views and that the DPF are now part of the government.

9. Given the country information above, the Tribunal does not accept that as a member of the DPF, the applicant was or will be perceived to be a threat to the integrity of Sri Lanka as a single state or will be perceived to have a significant role in relation to post conflict Tamil separatism or a renewal of hostilities within Sri Lanka, on the basis of his low level political affiliation with the DPF. The Tribunal does not accept the applicant’s affiliation with the DPF confers on him an anti-government profile.

10. Giving weight to the independent information and assessment of DFAT, the UNHCR and the UK Upper Tribunal, the Tribunal assesses that the country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or a relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. The Tribunal has considered the applicant’s profile as a member of the DPF, and also noted that on the basis of his evidence, he has had no involvement with any Tamil separatist groups or identified with any group that may present a threat to the integrity of the single state of Sri Lanka, either in Sri Lanka, or more recently in Australia. The Tribunal does not accept that the applicant is a person in whom the authorities have any interest for his political involvement in the DPF.

11. The Tribunal finds that the applicant is not a person whom the authorities will be interested in, for the reasons of any imputed pro-LTTE or anti-government political opinion arising from his involvement with the DPF. The Tribunal finds that the applicant does not have a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka arising from his political opinion, real or imputed, for his political affiliation.

    Profile as a political activist/journalist/writer in support of Tamil human rights

12. The Tribunal has considered the applicant’s central claim that he is of interest to the Sri Lankan intelligence forces which continue to operate as they did in the past, and will abduct and kill him, because of his work as a political activist/journalist and writer in support of Tamil human rights.

13. On the consistent evidence of the applicant and the evidence of a booklet in Tamil provided to the Department, the Tribunal accepts the applicant’s claim that he wrote many articles, papers and publications about [medicine]. The Tribunal accepts the applicant gained some measure of public profile as an expert in this field. The applicant has made no claims to need protection in Sri Lanka on the basis of this profile and given the DFAT, UNHCR and UK Upper Tribunal information above, discussed with the applicant, the Tribunal finds that the applicant is not of adverse interest to the Sri Lankan authorities on this basis. The Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka on this basis.

    [Publication 1]

14. On the consistent evidence of the applicant and the evidence of a small book in Tamil, the Tribunal accepts that in 2007 the applicant self-published a book about the history of the [name] dynasty in Sri Lanka, a Tamil Kingdom in the north of Sri Lanka [in] which he mentioned his own status as a prince in this royal dynasty. The Tribunal accepts that in this publication he puts forward the premise that Tamils have rights in the north of Sri Lanka on the basis of their historical link to the area through the ancient Tamil [Empire]. On the evidence of the applicant, the Tribunal accepts that this document, which had a private publication of about [number] copies, was written in the Tamil language and that the contents drew no attention from the non-Tamil Sri Lankan community.

15. On the basis of the oral evidence of the applicant and the document he provided to the Tribunal, the Tribunal accepts that the applicant’s relative, [Mr A], authored a similar account of Tamil history in Sri Lanka in 2012, [Publication 1]. The Tribunal accepts that this is an English language publication and that there is reference to the applicant’s role as [Prince B] of [name] royal dynasty. The applicant indicated at hearing that he experienced no problems in Sri Lanka arising from either his own or [Mr A]’s publication, but that they elevated his profile as a respected Tamil in the community who supported Tamil human rights. For completeness and context, the Tribunal has considered the applicant’s claims to have a profile as an activist arising from the account of his activities in the English language publication.  

16. [Paragraph deleted].

17. The theme of this book is that Ceylon Tamils have lost their kingdom which stretched around the north of Sri Lanka, and their rights under this kingdom, because the history of the [name] Royal Dynasty has not been known.[22] In this book, the applicant, as [Prince B], is said to be endeavouring to restore the rightful heritage of the [royal] lineage, upholding the values and traditions of the royal line in lawful ways. One passage states:

    [Paragraph deleted].[23]

    [22][Source deleted].

    [23][Source deleted].

18. The applicant explained that in the 1970s, in his role as a member of the dynasty of the [name] Empire, and respected professional, he was in touch with political leaders in the Tamil United Liberation Front in an advisory capacity, and he believed that Tamils could obtain all their rights in Sri Lanka in a lawful manner.  The publication describes the applicant’s contribution at that time to bringing Tamil leaders together, and indicates that the applicant rejected the LTTE Constitutions of 1972 and 1978. While this document suggests the applicant’s support for the recognition of the history of the [name] Empire and endorses the view that Sri Lankan Tamils have a long-held historical association with the north of Sri Lanka through the [name] Empire, and implies his support for increased autonomy for the Tamils in the north, it does not indicate that the applicant advocates separatism or achievement of change through anything other than lawful means and the democratic process.

19. The author describes [his] work extending medical services over many years to provide free treatment to thousands of patients in the Tamil dominated area of Jaffna. The applicant’s work with services such as [with international aid organisations] is also outlined as is the applicant’s role as [a medical officer]. The applicant was described in the following terms:

    [Sentence deleted].[24]

    [24][Source deleted].

20. On the evidence before it, the Tribunal accepts the applicant is considered by some Tamils to have ancestral links to the former [name] dynasty, and that he has been extended respect on this basis, as well as on the basis of his extensive professional and community work, and that he has been described as a well-regarded Tamil figure on this basis. On the evidence of the applicant at hearing, the Tribunal accepts that the applicant supports a historical perspective that Tamil dynasties flourished in the past in the north of Sri Lanka, and their sovereignty was never taken away although they were overcome in various historical movements including Sinhalese colonisation. The Tribunal accepts that in the context of this history, this publication is critical of past governments in their treatment of Tamils. The Tribunal accepts this publication indicates that the applicant, as a person belonging to the [royal] dynasty, was working to re-invigorate the role of the [royal] dynasty as representatives of Tamils, and within the framework of Sri Lankan law, to strengthen the autonomy of Tamils in the north as a path to restoring and protecting Tamil human rights.

21. The Tribunal has considered whether the publications about the [name] Empire and the applicant’s place in the dynasty, confer on the applicant a pro-LTTE or anti-government profile that gives rise to a need for international refugee protection. In this consideration, the Tribunal notes that according to the applicant’s own evidence, few in the Tamil population or the Sinhalese population has an awareness of the historical context of the [name] Empire, or the role conferred on the applicant through his ancestry. However, the Tribunal accepts that as [Publication 1] is in English, some people in the Sinhala community including Sinhala Buddhist activists and politicians may have become aware of the applicant’s role in the Tamil community. The Tribunal acknowledges that this account of history may provide a basis for Tamil claims to a separate state in the north of Sri Lanka, and may confer on the applicant a leadership profile in this context. The Tribunal also acknowledges that this publication, and the applicant has supported this interpretation of history, has been critical of past government’s human rights records and proposes that the applicant has a role in providing guidance and advice in respect of Tamil rights. However, the applicant confirmed at hearing that the publications do not support the LTTE or a separatist solution in Sri Lanka.

22. The Tribunal notes these publications had limited circulation and there is no evidence to indicate that they held anything other than academic interest to their readers, or that the Tamil community have engaged with the contents. The Tribunal notes the applicant’s history in Tamil was published in 2007 and the English language history was published in 2012, and that the applicant continued to have a well-regarded popular public professional life in the mainstream of Sri Lankan life following these publications. The Tribunal also takes into account that the applicant’s publically expressed views have strongly supported peaceful achievement of Tamil human rights and that he has not supported Tamil separatism or a threat to the single state of Sri Lanka. Further, the applicant makes no claim that he was imputed with an anti-government profile on the basis of either of these publications and on the evidence before it, the Tribunal finds that he was not.

23. As above, giving weight to the independent information and assessment of DFAT, the UNHCR and the UK Upper Tribunal, the Tribunal assesses that the country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or a relationship to someone with such a role or responsibility, or Tamils who may be considered to present a threat to the integrity of the single state of Sri Lanka are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka through their past or present activities. The Tribunal has considered the applicant’s profile as [Prince B] of the Tamil [name] dynasty as discussed above, and has found that he does not advocate for Tamil separatism or separatist groups or is identified with any group, or as an individual, that does or may present a threat to the integrity of the single state of Sri Lanka, either in Sri Lanka, or more recently in Australia, on this basis. The Tribunal does not accept that the applicant is a person in whom the authorities have any interest for his political profile developed as [Prince B] of the Tamil [name] dynasty. The Tribunal does not accept there is any evidence that the applicant is a Tamil who is perceived to be a present threat to the integrity of the single state of Sri Lanka, or is 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, on this basis. Looking to the future, the Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka for these reasons.

1. At hearing, the applicant confirmed in his written statement that during the LTTE period, he did not involve himself in politics, but that after the defeat of the LTTE in 2009, he sought to support a lawful solution to the Tamil crisis and justice for affected Tamils through discussion with national and international political [leaders]. On the consistent evidence of the applicant, the Tribunal accepts the applicant’s claim at hearing that when he made visits to [Country 1] related to his [work], he spoke with [Country 1] Members of Parliament about his heritage and the role of the [name] Empire in Sri Lankan Tamil history.

2. The Tribunal accepts the applicant’s evidence that in Australia he had contact with the Australian Tamil Congress (ATC), an organisation advocating for reforms in Sri Lanka that support Tamil wellbeing, and advised them about his heritage as heir to the Tamil [name] dynasty, and of his view that although Tamils in Sri Lanka had been under foreign rule for over 300 years, the [king] had not formally lost sovereignty. On the evidence of the applicant, he presented the view to the ATC that the only role now for people associated with the [name] royal family is representational and to offer guidance at an advisory level.

3. The Tribunal considered whether the applicant’s discussion of his perspective on Tamil history and human rights, noting the applicant stated that he supports finding a peaceful solution to Tamil concerns through lawful means, confers on him a perceived or actual profile with the Sri Lankan authorities as a Tamil activist in the diaspora working for Tamil separatism and to destabilise the unitary Sri Lankan state. The Tribunal has noted, as discussed with the applicant, that the ATC was proscribed by the previous government, but has been de-proscribed ‘as the new government has sought to more accurately reflect the threat to Sri Lanka from groups and persons associated with terrorism.’[25] As set out in the UK Home Office report that the applicant provided to the Tribunal:

   Membership or affiliation to the above groups is no longer regarded by the government of Sri Lanka as terrorism or terrorist activity. The members of these groups whether active or lay, have no reason to fear persecution as a consequence of their affiliation to them from the government of Sri Lanka[26]

   [25] UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016, p. 7.

   [26] UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016, p. 34.

4. Having regard to the country information before it and the applicant’s individual circumstances as accepted, the Tribunal finds that the applicant is not a person whom the authorities will be interested in as a person who is regarded as an LTTE fundraiser and propaganda activist or those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE, because he engaged with political leaders in [Country 1] or presented his views to the ATC, for these reasons.

5. The Tribunal finds that the applicant does not have a well-founded fear of persecution real or imputed, arising from his conduct or views as [Prince B] of the [name] royal dynasty, within Sri Lanka or externally. Based on the considerations of the evidence before it, the Tribunal finds the applicant does not have a real risk of significant harm on return to Sri Lanka on this basis.

   Report to the United Nations High Commissioner for Human Rights

6. The Tribunal has considered the applicant’s claims that he is of adverse interest to the Sri Lankan intelligence forces as a political activist/journalist and writer in support of Tamil human rights because in 2013 he authored a report under his title of [Prince B] of [name] royal dynasty, which he sent to the United Nations High Commissioner for Human Rights (OHCHR) and various international political representatives, of alleged genocide and human rights abuses against Tamils occurring between 1948 and 2009 and recommending ‘legally justifiable and lawful solutions’. [27]

   [27] DIBP CLF[number], f. 90.

7. The applicant provided to the Department a document entitled ‘Earnestly Appeal to stop the Genocide of Tamils in Sri Lanka’ by [Prince B] of the [name] royal dynasty.  In considering this document, the Tribunal notes that it is undated and unsigned but on the consistent evidence of the applicant, the Tribunal accepts the applicant wrote this paper drawing on the histories referred to above of the [name] Empire. In the view of the Tribunal, the paper provides an account of Tamil history in Sri Lanka from the perspective of the Tamil [name] Empire, as set out above, and describes its collapse through a range of wars, colonisation and what he perceives as the rise of ‘Sinhalisation’. The paper is wide ranging encompassing such issues as Sri Lanka’s international support from [another country]. The paper addresses many issues including the rise of the LTTE, human rights abuses of Tamils over many years and particularly during the war to 2009, including the non-supply of essential drugs to Jaffna. Drawing from the public record, the applicant lists incidents and calculates the number of Tamil civilian deaths since 1948. The applicant told the Tribunal that he had estimated the number to be 429,000 up to January 2009.

8. The applicant stated that he did not publish this report but that he sent it to the OHCHR [in] September 2013. The applicant stated that he did not receive any response. The applicant also claimed to have sent the paper to representatives of states that had expressed interest or views about the situation in Sri Lanka, such as the British Prime Minister; Australia’s Foreign Minister, Julie Bishop, and opposition spokesperson on foreign affairs, Tanya Plibersek; the President of the United States; and the President of Canada. The applicant stated that in these communications, he proposed a lawful solution for Tamils of the [name] kingdom that includes acknowledgement of the sovereignty of the [name] royal dynasty, an international inquiry into the invasion of the kingdom of [name], punishment of criminals, and recognition of the lawful rights of Sri Lankan Tamils over the land to help them to live in peace, freedom, security and dignity. He stated that sometimes he received an acknowledgement of receipt from recipients of this document. The applicant has no evidence of having sent this document to these recipients. However, on the evidence of the paper provided to the Department, the Tribunal accepts that the applicant sent this paper that expresses his personal views, but otherwise has no formal status, to the OHCHR, and various international political figures. 

9. The applicant stated that after he sent his report to the OHCHR, the United Nations indicated publically that they wanted to identify the number of civilian deaths associated with the Sri Lankan civil war, indicating that it did not agree with Sri Lankan government reports of the day that there were no civilian deaths. The applicant provided no evidence that there is a link between his document and the OHCHR’s request but he believes that there is. The Tribunal has considered this claim, but does not consider it is plausible that, given the applicant received no response from the United Nations to his paper, this paper was responsible for raising the interest of the United Nations in exploring Tamil civilian deaths.

10. In the applicant’s written statement he claimed that in January 2014 he received several phone calls from anonymous Sinhala Buddhist activists and politicians, who became aware of this paper, threatening that he should leave the country immediately or his life would be in danger. At hearing, the applicant was vague and limited about these calls, stating that they were made anonymously and referring to them as calls from intelligence officers. The Tribunal also notes that the applicant last departed Sri Lanka for [Country 1] in March 2014. The Tribunal considers that it is not believable that in the circumstances where the applicant feared for his life from Sinhala Buddhist activists and politicians he would not have sought protection in [Country 1]. For these reasons, the Tribunal does not accept the applicant’s evidence in this respect to be credible, and the Tribunal does not accept the applicant received threatening phone calls from anonymous Sinhala Buddhist activists and politicians. The Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka from Sinhala Buddhist activists or politicians on this basis.

11. The applicant stated that he did not know how the Sri Lankan authorities became aware of his paper but they did and that as a result he is wanted by Sri Lankan intelligence officers. The applicant stated that in December 2013 after his return from a visit to his son in Australia he was threatened by intelligence officers for this reason. The Tribunal has carefully considered the applicant’s evidence in respect of this claim, listening recently to the hearing audio, and is not satisfied of his credibility. The Tribunal considered the following when forming this view:

    ·The applicant told the Tribunal that he received a threat from intelligence officers in a telephone call on only one occasion. In that call, he was told that he had written about human rights and the rights of Tamils and he must stop doing this.  The applicant stated that he did not receive any more calls because he noted the telephone number of the caller and he did not take any other calls from that number after that. The applicant said ‘they’ did not identify themselves but said they were intelligence officers. He did not ask questions just listened. The applicant then stated that in December 2013 he received two or three calls from intelligence officers who called on different numbers, but he did not answer because he knew they were related to ‘intelligence’ because they were on different numbers and numbers he could not identify. When the Tribunal asked him how he knew these calls were from intelligence, the applicant then said it was the same number as the first call. The applicant then stated that he took many threatening calls, and there was only one number from intelligence. Contrary to his earlier clear statement, the applicant stated that he did take calls from other numbers because he did not know it was from them. Overall, the Tribunal considered the applicant’s evidence inconsistent and illogical and this led the Tribunal to doubt the credibility of the applicant.

    ·The applicant stated that in a call in July/August 2014 ‘they’ invited him to the office for enquiries. When the Tribunal asked for more detail, the applicant said that they gave no instructions about how to do this, and they did not identify themselves but he assumes they were intelligence officers. When the Tribunal asked further about what arrangements they made for this enquiry to take place, he stated that they did not specify any particular day or time or location, they just said they wanted to meet during office hours. The Tribunal suggested that if they were Sri Lankan intelligence officers who wanted him to go in for questioning they would have arranged details with him. In response to the Tribunal’s enquiries, he said he thought they did not specify a time or indicate where he should go because he had not done anything illegal. He said that for people who committed criminal offences they would summon them to the office but for people involved in political activities they go to them. As discussed with the applicant at hearing the advice from DFAT cited above indicates that the security forces of Sri Lanka, the police, intelligence services and the military, developed over the course of the civil war had strong powers to detain and question people suspected of anti-government activity using powers such as the Prevention of Terrorism Act, used post-2009 by the former Rajapaksa regime. Given the country information, discussed with the applicant, the Tribunal considers it is very hard to believe that in the event the intelligence officers were interested in the applicant, they would not use their powers to question him. The Tribunal was not satisfied that the applicant was a credible witness in this respect. 

    ·The applicant said that the intelligence officers did not follow up their demand that he go to their offices for questioning because he changed his telephone number. On the basis of the independent country information provided by DFAT in the January 2017 report cited above, discussed with the applicant, the Tribunal considers that had the intelligence offices adverse interest in the applicant they had the capacity to locate the applicant regardless of a change of telephone number. On this basis, the Tribunal considered the applicant’s responses to be unconvincing, and this raised further serious doubts for the Tribunal about the credibility of the applicant in respect of these claims. 

    ·In response to Tribunal enquiries about whether the applicant had told anyone about the claimed threat from the intelligence officers, or spoken with anyone to seek advice and seek support for preventative action, he stated that he did not. The applicant stated that in his role as a member of [a particular group] in [Town 1], and later in [Colombo], community organisations comprised of trusted and responsible community members working with police to prevent the crime, he worked with police so he knew how the police operated. He stated that he knew that the activities of the police in requesting that he speak with them were illegal. He indicated to the Tribunal that despite being a politically well-connected, well-known professional, he did not seek any advice, because the government or leaders would not have taken any action as there is no legal framework to punish the intelligence officers. The Tribunal was not satisfied that had the applicant, who by his own account was a well-connected, well-known professional person, had concerns about threats from intelligence officers he would not seek advice or support to protect himself for the reasons he provided. The Tribunal considers the applicant’s responses were unconvincing, and the Tribunal was not satisfied that the applicant’s claims in this respect were credible. 

    ·The applicant stated that he went to [Country 1] in March 2014 to visit temples to calm his nerves. The Tribunal considers that in the event the applicant feared for his life from intelligence officers as a result of a threatening phone call in 2013, he would have taken this opportunity to seek protection. The applicant did not do this, leading the Tribunal to doubt the credibility of the applicant’s claim to need protection.

    ·The applicant stated that he went to Jaffna after receiving the threatening phone calls, and that he heard that officers went to his house in Colombo but the house was locked, so they talked with his neighbours and asked where he was. The applicant was vague in response to further questions about this claimed visit, stating that his neighbours did not give him any more details about this visit such as how many people came, except that they were from the intelligence department. He stated that he was not able to talk at the time because he was undergoing [surgery]. The applicant stated that the intelligence officers did not come again to the house, nor did he receive any visits from intelligence officers in Jaffna and he explained this by saying that this was because he changed his telephone number. The Tribunal considered that if intelligence officers had approached his neighbours the applicant would have made more enquiries with his neighbours about this visit, at least when he had recovered from his [surgery]. Further, the Tribunal considers that if the intelligence officers had an interest in the applicant such that they went to his home in Colombo it is not plausible that they would not follow up their visit at another time, or locate him at his Jaffna residence. In addition, the Tribunal considers that if the intelligence officers had the intention to kill or abduct the applicant they had the opportunity to do so but they did not. The Tribunal is not satisfied that the applicant is a credible witness for this reason.

    ·The applicant stated that after he sent his paper to international bodies, he did not have any difficulties departing Sri Lanka to go to [Country 1] or to go to Australia because it was the expectation of the authorities that he should leave and otherwise be killed or kidnapped. He stated that the view of the authorities was that people involved in human rights activities should not be allowed to stay. The Tribunal put to the applicant DFAT advice that Sri Lankan authorities retain comprehensive country-wide ‘stop’ and ‘watch’ lists of people of interest to Sri Lankan security services, including due to separatist activities, and that they take action against people of adverse action.[28]  In response, the applicant repeated that they said he should leave the country or he would be killed or kidnapped. Given that the applicant claims that he was of adverse interest to the authorities for raising Tamil human rights concerns with international bodies, it is not logical that the authorities would make him leave the country where he could be active in generating international criticism. The Tribunal considered the applicant’s claims in this respect to be contrary to the country information and illogical. For these reasons, the Tribunal is not satisfied of the credibility of the applicant’s claims.  

    [28] DFAT Country Information Report, Sri Lanka, 24 January 2017, p. 15.

12. Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant is a credible witness in respect of his claims to have been threatened by the Sri Lankan intelligence forces. On this basis, the Tribunal does not accept the applicant’s claim that intelligence officers called him and threatened that if he did not leave Sri Lanka he would be killed or abducted. The Tribunal does not accept that intelligence officers did not want the applicant to go to their offices. The Tribunal does not accept that intelligence offices made subsequent telephone calls to the applicant or visited the applicant’s house in Colombo. The Tribunal does not accept the applicant is wanted by intelligence authorities for any reason. Looking to the future, the Tribunal does not accept the applicant has a well-founded fear of persecution or a real risk of significant harm for this reason.

13. The Tribunal has accepted above that the applicant wrote a [paper] by [Prince B] of the [name] royal dynasty, and the Tribunal has considered whether the applicant has a well-founded fear of persecution or real risk of significant harm on return to Sri Lanka, for this reason. The Tribunal also takes into consideration the applicant’s representative’s proposition that the applicant, having written and circulated to international bodies a document about Tamil human rights in the past, may do so again. At hearing, the applicant stated he would be stopped at the airport, detained and killed because this is what happens to people who discuss the activities of the Sri Lankan authorities overseas. The applicant has also provided to the Tribunal information from various sources cited in the UK Home Office report of 2016 and implies that he will be arbitrarily detained and tortured, and his movements will be monitored by the military.

14. The applicant claims to be a human rights activist on the basis of his paper of 2013 and he cites a UK Home Office reference to the US State Department’s 2015 Country Report on Human Rights Practices (USSD Report 2015), Sri Lanka, published on 13 April 2016, which identified that:

    The major human rights problems reported during the year included harassment of civil society activists, journalists, and persons viewed as sympathizers of the banned terrorist group the LTTE as well as arbitrary arrest and detention, torture, rape, and other forms of sexual and gender-based violence committed by police and security forces.[29]

    [29] UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016 citing US Department of State, Country Reports on Human Rights Practices for 2015: Sri Lanka, 13 April 2016,

1. Having determined that the applicant does not face a real chance of being harmed for this reason, for the same reasons the Tribunal finds that there are no substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Sri Lanka.

   Tamil ethnicity

2. The applicant raised no claims to face serious or significant harm as a person of Tamil ethnicity in Sri Lanka. However, given the applicant has claimed he will be imputed with an adverse political opinion on the basis of his Tamil ethnicity and the potential of overlap with issues related to race, the Tribunal has also considered whether the applicant will suffer ethnic-based discrimination and harassment amounting to serious harm and as such, the Tribunal should accept that the applicant is at risk of persecution on return to Sri Lanka for reason of his race, irrespective of any profile.

   3.1 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’. However, ethnicity, along with communal issues surrounding language and religion, are a source of division in Sri Lanka. These three issues (ethnicity, language and religion) are defining features of day-to-day life in Sri Lanka and are fundamental to the reconciliation process.

   …

   3.4 DFAT assesses that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination as there are currently no official laws or policies that discriminate on the basis of ethnicity, including in relation to access to education, employment or access to housing. However, DFAT further assesses that societal discrimination on the basis of ethnicity can occur (see sections on individual ethnic groups below). [page 11] [36]

   Tamils

   3.5 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census in 2012, the Tamil population was 3.1 million compared to 2.7 million in 1981. Thirty-two per cent of Tamils reside in the Northern Province, where they constitute approximately 93 per cent of the population. Twenty per cent of Tamils reside in the Eastern Province and 12 per cent in the Western Province (which includes the district of Colombo). Twelve per cent live in the Central Province. The remaining Tamil population is present in small numbers in the Southern, North Western, North Central, Uva and Sabaragamuwa provinces. [page 11]

   3.6 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015. There are a number of Tamil political parties, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). The TNA currently has 16 members of parliament and holds the majority of seats in the Northern Provincial Council. The TNA leader, Rajavarothiam Sampanthan, is leader of the National Opposition. [page 12][37]

   [36] DFAT Country Information Report Sri Lanka, 24 January 2017.

   [37] DFAT Country Information Report, Sri Lanka, 24 January 2017.

3. On the basis of the DFAT assessment above, the Tribunal finds there is a low level of discrimination in the application of laws and moderate levels between ethnic groups. In this consideration, the Tribunal also notes the findings above that the applicant received financial support from the government through his pension and, according to the applicant at hearing, he received high level medical treatment including [surgery] in Sri Lanka. On the evidence before it, the Tribunal does not accept the applicant was subjected to significant economic hardship or denial of basic services such that his capacity to subsist was threatened in the past.

4. The Tribunal accepts DFAT advice put to the applicant that during this period of civil conflict more Tamils were detained under emergency regulations than any other ethnic group and that there were likely instances of discrimination in the application of these laws on the basis of ethnicity. However, the Tribunal also accepts on the basis of the DFAT assessment above put to the applicant that forced registration of Tamils has ceased and that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict in 2009.

5. Considering the future, the Tribunal also considers that the Sri Lanka the applicant will be returning to is very different to the place he left, with the Rajapaksa regime replaced by President Sirisena and a United National Party led coalition government. As described above, there are steps in place to improve the situation for Tamils, though it will take some time to change some attitudes and practices.[38] The Tribunal considers that the applicant will return to his home in Colombo or to his home in the north. The Tribunal does not consider that, given the applicant’s personal circumstances, as a respected retiree, the applicant will experience the discrimination that can occur in some circumstances.  The Tribunal does not accept that systematic discrimination that could be described as serious or significant harm occurs in Sri Lanka, and does not accept that the applicant has faced such discrimination in the past, noting, as accepted above, that the applicant was able to work in his chosen profession and contribute to civic life as a respected person in the Sri Lankan community. The Tribunal does not accept the applicant will be denied a livelihood, threatening his capacity to subsist because of the applicant’s Tamil ethnicity, or for any other reason.

   [38] Fresh torture allegations in Sri Lanka as government faces pressure to delay probe into civil war 

6. Given the circumstances of the applicant and the country information, the Tribunal finds that the applicant does not face a real chance of serious harm, now or in the foreseeable future, arising from the reason of race, or membership of particular social groups arising from their Tamil race. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason. Based on the considerations of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.

   The applicant’s wife: woman in Sri Lanka/Tamil woman from the north

7. The Tribunal has considered that although the applicant’s wife has not put forward any claims of her own, the applicant’s representative has suggested that she may be the subject of persecution on grounds of being a Tamil woman in the north. The applicant’s representative has provided to the Tribunal the UK Home Office report on Tamil separatism of August 2016 in which he highlights a discussion of an August 2015 City University of New York Colin Powell School report which noted that:

   Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region, but their lives are even more negatively impacted by the climate of fear and by a worrying uptick in violence against women within the Tamil community. The ever-present threat of violence by the military has led women to lead tightly circumscribed lives, limiting their daily activities in order to minimize their risk of sexual assault.[39]

   [39] UK Home Office, Country Information and Guidance - Sri Lanka: Tamil separatism from August 2016, pp. 18–19.

8. The Tribunal also gives weight to independent advice from DFAT from January 2017, discussed at hearing:

   3.71 Article 12(2) of Sri Lanka’s Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Although women are considered equal under civil and criminal law, the law favours males in relation to divorce, custody of children and inheritance. [page 22]

   3.73 Violence against women occurs throughout Sri Lanka. UNFPA reported in 2015 that violence against women cut across all socioeconomic groups in Sri Lanka but was worst in areas affected by the conflict. Rape and domestic violence are criminalised under the Prevention of Domestic Violence Act of 2005. Marital rape is an offence only in cases where the individuals are legally separated. Sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum five years’ imprisonment. Reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas, but the
   majority of cases are likely to go unreported due to social stigma. Incidence of domestic violence is high, especially in Tamil culture, and tends to be underreported. The Asian Human Rights Commission has said that most cases reported to authorities’ result in ‘settlements’ which do not proceed to prosecution, although sentences are sometimes given in serious cases. President Sirisena has expressed a commitment to taking action to prevent the abuse of women (and children), including speeding up the trial process for these offences. Some recent high-profile cases of violence against women, including the gang rape and murder of a schoolgirl in Jaffna (Northern Province) in May 2015, sparked community outrage and led to calls to implement the death penalty (see paragraph 4.10 below). [page 23]

   Conditions for women in the north and east

   3.74 There are approximately 90,000 female-headed households in the north and east, many of which are headed by women who were widowed during the conflict. Women in these situations face many challenges, including a lack of physical security for their family, a lack of permanent housing and economic opportunities and difficulties accessing health services. Women who are forced to seek employment outside the home face societal discrimination in Tamil and Muslim communities, who view these women with suspicion.

   3.75 There have been a number of allegations of sexual assaults and rape attributed to the Sri Lankan military in the north and east. While the military has been blamed for taking advantage of economically vulnerable women, credible NGOs report that some women, particularly war-widows, may also have been forced into prostitution as an economic necessity.

   3.76 Women IDPs who have returned to their place of origin claim that corrupt police officers accept bribes to turn a blind eye to domestic violence. Many IDP returnee women also find that language is a barrier to accessing support as they speak Tamil and cannot communicate effectively with the mainly Sinhala-speaking police. A recent report found that there are few female officers, none of whom speak Tamil and it is difficult to find female translators. Staff answering the police hotline mostly speak Sinhala. There is only one safe house for women in the north and east, located in Jaffna.

   3.77 Overall, DFAT assesses that women throughout all of Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in these circumstances.[40]

   [40] DFAT Country Information Report, Sri Lanka, 24 January 2017, pp. 22–23.

9. As discussed above, the Tribunal notes that prior to coming to Australia in 2014, the applicant’s wife, born [date], lived in Colombo from 2004, and the applicant’s husband indicated at hearing that they are an established, financially secure family with residences in Colombo and the north. The Tribunal finds the applicant’s wife has options about her future area of residence, and given that her last residence was in Colombo, that they will return to Colombo. However, the Tribunal has considered this claim on the basis that the applicant’s wife will return to the north as the applicant’s representative has implied.

10. On the evidence before it, the Tribunal finds that the applicant’s wife will be returning to Sri Lanka under the protection of her husband; that she does not have an LTTE or internally displaced person (IDP) background of any kind and will not be returning as a war-widow. The Tribunal finds the applicant’s wife has financial support through her husband’s pension and economic resources including accommodation in Sri Lanka and access to basic services such as health services. The applicant’s wife had the opportunity at hearing to put forward protection claims of her own but did not. The Tribunal concluded that it was also the applicant’s wife’s view that she did not need protection in Sri Lanka from societal discrimination and violence in any setting for any other reason.  

11. The Tribunal has had regard to the country information above that indicates that women in Sri Lanka/women in the north and east of Sri Lanka may face societal discrimination and violence. However the Tribunal has considered the applicant’s wife’s particular circumstances and does not accept that in her circumstances, she has a real chance of serious harm, now or in the foreseeable future, on the grounds of her membership of a particular social group, ‘woman in Sri Lanka/Tamil woman in the north’, or for any other reason. The Tribunal finds that the applicant’s wife does not have a well-founded fear of persecution. Based on consideration of the evidence before it, the Tribunal finds that the applicant’s wife does not face a real risk of significant harm for these reasons.

    Issues arising from the applicants’ health

12. The Tribunal acknowledges that the applicant suffers from physical and mental health conditions and that it is possible these have developed as a result of the applicant’s accepted experiences in Sri Lanka. The Tribunal also acknowledges that the applicant’s wife is aging and may have compromised health on this basis. The Tribunal has considered whether the applicant’s health status raises a well-founded fear of persecution or a real risk of significant harm.

13. The applicant’s psychologist [reports] that she has been seeing the applicant under a mental health care plan since [January] 2016 and has seen him six times to date. The applicant’s psychologist made the following comments:

    ·     The applicant has described many symptoms that consistent with a diagnosis of PTSD including significant anxiety, hyper-vigilance, sleep disturbance, nightmares and flashbacks. He reported significant impacts on his cognitive skills including impaired memory and concentration. Furthermore, his mental health symptoms have had a significant impact on his [health].

    ·     The applicant was showing some improvements in symptoms, however his stress and worry due to his rejection of a visa on humanitarian grounds and possibility of having to return to Sri Lanka has resulted in an exacerbation of his symptoms. She states that a DASS, which is a quantitative measure of distress along the axes of depression stress and anxiety, was conducted on the [date] February 2017. The result indicates that while the applicant has normal levels of depression and mild stress levels at present, he has severe levels of Anxiety. As such, the psychologist believes that based on his presentation, score on the DASS as well as self-reported symptoms, he is suffering from a post-traumatic stress syndrome, which has been exacerbated by him being concerned that he would face persecution again by having to go back to his country.

    ·     The applicant has been engaged with counselling and has attempted to improve his mental and physical health, but his anxiety about his future makes it very difficult for him to assimilate and move forward with his life. I believe that the fears he faces in his own country are graver than the ones he is facing here, or he would not continue to seek protection. I believe that his current situation is significantly impeding his recovery.

14. The applicant provided to the Tribunal a medical report dated [February] 2017 from his treating [doctor], certifying that the applicant is under the care of [a] Clinic for management of his [medical] issues. It is certified that due to his medical conditions, the applicant is unable to travel by air for medical reasons.

15. The Tribunal notes the applicant had access to a high level of health care, including [surgery], in Sri Lanka in 2014, even at a time when he claims to have been of adverse interest to the Sri Lankan authorities. In this consideration, the Tribunal has also taken account of the following country information from DFAT’s report of January 2017, that indicates that while mental health services are scarce, the applicant will have access to basic mental health and medical services under the universal health care system: 

    2.13 Sri Lanka spends approximately 3.5 per cent of GDP per annum on health. Universal, free health care is available through the public sector health system but facilities vary and some medicines or treatments may need to be purchased from private providers. According to the World Bank, life expectancy in Sri Lanka in 2015 was 74.8 years of age and the infant mortality rate was 8.4 per 1,000 live births. Health outcomes tend to be worse in the north and east, partly as a result of the destruction of infrastructure and diminution of human capital during the conflict.

    2.14 Mental health services are scarce and there is a general lack of institutional capacity to respond to mental health care needs. Mental illness is not widely discussed in Sri Lankan society; this can act as a barrier against individuals seeking proper treatment. Anecdotally, DFAT understands that the prevalence of trauma-related illnesses following the civil conflict is high, especially in the Northern Province. ... [41]

    [41] DFAT Country Information Report, Sri Lanka, 24 January 2017, p. 6.

16. The Tribunal concluded that the applicant was not denied access to basic services in Sri Lanka for any reason in the past. Looking to the future, the Tribunal does not accept there is evidence that the applicant or the applicant’s wife will be prevented from accessing appropriate basic services for one or more of the reasons mentioned in s.5J(1)(a) of the Act now or in the foreseeable future. The Tribunal finds that neither the applicant nor the applicant’s wife has a well-founded fear of persecution on this basis. Further, the Tribunal does not consider that these conditions raise a real risk of significant harm as defined in s.36(2A).

    Cumulative assessment

17. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the foreseeable future for the reasons he has claimed, or for any other reason.

18. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Sri Lanka.

    State protection/relocation

19. It is has been submitted that the country information supports a finding that the applicant as a person of Tamil ethnicity and real/imputed political opinion having opposed the Sri Lankan government’s human rights abuses as a human rights activist and as a political activist and journalist/writer, has a well-founded fear of persecution relating to all areas within Sri Lanka. The applicant has drawn attention to DFAT advice of 17 January 2017 that while the new government led by President Sirisena has publicly claimed that military involvement in civilian activities has ceased, some individuals in the north and east still report being questioned and observed by the military and report that a sizeable military presence remains a factor in aspects of civilian life.[42] The Tribunal has found above that the applicant and the applicant’s wife do not have a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka for any reason. The Tribunal has therefore not addressed the applicant’s claims relevant to relocation within Sri Lanka or that the applicant and the applicant’s wife cannot obtain protection from the Sri Lankan authorities.

    [42] AAT 1513736, f. 116.

    Referral to the Minister

1. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

2. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedural Advice Manual (PAM3) ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

3. Having regard to the findings above, particularly those in respect of the applicant’s health, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

4. In making this referral, the Tribunal has taken into account that the applicant is a lawful non-citizen, has complied with visa conditions and does not have a visa pathway open to him. This case is referred to the Department on the basis that the applicant’s circumstances are exceptional because there are compassionate circumstances regarding the age and health and psychological state of the applicant that if not recognised would result in hardship to the applicant.

5. In this case, the applicant is [age] years old, and the applicant’s wife is [age] years old, and both are frail due to their age. The applicant has provided a report from his treating psychologist, [who] has assessed the applicant as having mental health conditions consistent with a diagnosis of PTSD including significant anxiety, hyper-vigilance, sleep disturbance, nightmares and flashbacks.

6. The applicant has also provided a certificate from the applicant’s treating [doctor] that the applicant is under the care of [a] Clinic for management of his cardiomyopathy and other medical issues. It is certified that due to his medical conditions the applicant is unable to travel by air.

7. This referral is made on the basis of the reliable evidence provided to the Tribunal at hearing that the applicant’s physical and mental condition is such that it is likely to be so severe as to impact his ability to live a reasonably normal life if he were to return to Sri Lanka. The applicant and the applicant’s wife claim to have no support in Sri Lanka. They reside in Australia with their adult son and his family. The applicant’s other child, his adult daughter, is resident in [another country].

   CONCLUSION

8. For the reasons given above the Tribunal is not satisfied that either 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 criteria set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   Amanda Paxton
   Member

   
   

   ATTACHMENT – Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)   a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)   any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)   the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

as cited in the DFAT Country Information Report Sri Lanka, 18 December 2015 and confirmed as the most recent advice in the updated DFAT Country Information Report Sri Lanka, 24 January 2017.