1517759 (Refugee)

[2016] AATA 4348

1517759 (Refugee) [2016] AATA 4348 (26 August 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517759

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Christopher Smolicz

DATE:26 August 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 26 August 2016 at 5:31pm

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Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] September 2013.

3. On 17 February 2015 a differently constituted Tribunal (the first Tribunal) [1] affirmed the decision not to grant the applicant a protection visa.

   [1] Refugee Review Tribunal case file ref. 1314493

4. The applicant sought judicial review of the first Tribunal’s decision before the Federal Circuit Court of Australia (FCCA). [In] December 2015, by consent order, the FCCA quashed the first Tribunal’s decision because first Tribunal failed to consider an integer of the applicant’s claim, namely that the applicant’s well-founded fear of persecution or risk of serious harm for reasons of his imputed political opinion would be exacerbated as a result of the Sri Lankan authorities recent visit to the applicant’s mother.

5. Accordingly, having been remitted to the Tribunal from the FCCA the matter was brought back before the Tribunal for reconsideration.

6. The applicant appeared before the Tribunal on 27 July 2016 and 23 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the following country information assessment 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: DFAT Country Information Report Sri Lanka 18 December  2015.

12. The issue in this case is case is whether the applicant meets the refugee or complementary protection criteria because:

    ·     of his Tamil ethnicity (race)

    ·     of his actual or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE)

    ·     of his status as Internally Displaced Person (IDP) from Northern Sri Lanka

    ·     he is a failed Tamil asylum seeker who departed Sri Lanka unlawfully.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Summary of substantive claims

1. First, the Tribunal sets out the claims and evidence advanced by the applicant to engage Australia’s protection obligations.

2. The applicant is [an age] year old single male. He was born in Vavuniya District, Northern Province. He is an ethnic Tamil and a Hindu.

3. The Vavuniya District was heavily affected by the civil war and his family was displaced on numerous occasions including to [Town 1] in 1997. In 2007 he was displaced again and went to [District 1] but was forced to move regularly.

4. At the end of 2009, the applicant was placed into the [Camp 1] [Camp]. He remained at this camp for approximately one year before returning to his village.

5. The applicant said he was never a member of the LTTE but two of his [Relatives A] ([named] were involved with the LTTE.

6. [Relative A1] joined the LTTE in 2008 when the LTTE issued a directive that one member of each family must serve with them. At the time, the applicant was responsible for financial maintenance of the family so [Relative A1] decided to join to ensure that the applicant was not forcibly recruited and could still care and provide for the family. [Relative A1] surrendered to the authorities at the end of the civil war and was detained.

7. [Relative A2] was forcibly recruited to the LTTE towards the end of the civil war (May 2009) when he was still at school. He was given a weapon and expected to fight because he was recruited towards the end of the civil war. The applicant’s [Relative A] did not want to fight and approached the closest Sri Lanka Army (SLA) and surrendered himself. He was detained in prison for some time before he was released by the courts as he was still a minor at the time.

8. The applicant claims that he physically resembles [Relative A1] and the authorities often went to his home asking for [Relative A1] but had mistaken the applicant for his [Relative A]. Although the civil war has been over for some time the Sri Lankan authorities still regularly go to his home to check on the whereabouts and activities of his [Relatives A].

9. In support of his evidence the applicant submitted a photograph and various identity documents confirming the identity of his family members, his family refugee camp identity card and UNHCR “Return Form” dated [in] March 2010 confirming his family’s release from [a] [refugee camp].

10. The applicant also provided documentation confirming the detention and release of his [Relatives A] from detention issued by the Ministry of Rehabilitation and Prison Reforms including documents issued by the District Magistrates Court [in their area] confirming his [Relative A2] ([named]) was a minor at the time of his detention at [Camp 2] in Colombo.

11. The delegate had regard to country information[2] confirming that [Camp 2] was open in 2009 as part of the rehabilitation process for Tamil child soldiers who were forced to join the LTTE. The information confirms that detained boys and girls were returned to the north-east in May 2010 because the authorities considered the rehabilitation process was completed. The delegate noted that 52 of the children decided to stay and continue their studies at the Ratmalana Hindu College which supports the applicant’s claims that his [Relative A] was able to study his ‘O’ levels in Colombo.

    [2]Empowering Child Soldiers, The Sunday Times, 27 March 2011 and Children of War sent home, NewsLanka 27 May 2010

12. The Tribunal finds that the applicant’s claims relating to his [Relative A2] appeared consistent with the cited country information relating to the situation of child soldiers in Sri Lanka. The Tribunal accepted that the applicant’s [Relative A2] was forcibly recruited in the LTTE and spent time in a rehabilitation camp. The Tribunal also accepts the [Relative A1] joined the LTTE in 2008 because of a LTTE directive and was detained as a consequence of his involvement in the LTTE.

13. The Tribunal has had regard to the country information and found the applicant’s claims about his family history as internally displaced Tamils from Northern Sri Lanka to be credible and consistent with country information.

14. On the morning of the hearing the Tribunal received a declaration in which the applicant made further new claims.

15. The applicant declared that from July 2006 to December 2008 he worked as [an Occupation 1] in [a specified] Unit on the [Section 1] of the LTTE at [a town in] District. His duties involved [specified office duties]. His duties may also have included [other duties].  The applicant acknowledged that in his declaration dated [in] December 2012 he declared that he was not a member of the LTTE and only his [Relatives A] were involved in the LTTE. The applicant states that the original declaration was “partially incorrect”.  The applicant claims that what he meant to say that he was not an “active member” of the LTTE in the military section but he was employed by the LTTE as [an Occupation 1] in the [Section 1] area in 2007.

16. At the hearing the applicant said he was forcibly made to join because the LTTE had a policy of securing the membership of at least one family member. He claimed he was not a solider but worked in a civilian capacity in a wide range of duties.

17. The Tribunal questioned the applicant about why he had not previously disclosed his role working in [a particular] of the LTTE given its relevance to his claims. The applicant claimed that he was scared that to disclose any association with the LTTE because it would have put his life in danger. He said it was a criminal offence in Sri Lana to be associated with the LTTE. The Tribunal observed that he has made an application for protection in Australia and had already disclosed that his life was in danger in Sri Lanka because family his [Relatives A] were members of the LTTE. The Tribunal referred the applicant to his original statement of claim and noted that he said that his [Relative A] agreed to join the military section of LTTE in 2008 to ensure that he was not forcibly recruited and could remain with the family to care and provide for them.

18. The Tribunal found the applicant’s claim that he was forced to join the LTTE in July 2006 and worked in civil administration inconsistent with his original statement of claims and lacking in credibility.

    Political activist

19. The applicant claimed that in 2011 his maternal [Relative B], [named], stood for election as Chairman of the “[Political Party 1].” The applicant claims he was actively involved in political campaigning for his [Relative B] who was elected Chairman in 2011. The applicant claims his [Relative B] was a Tamil candidate for the area whose major opposition was a Sinhalese man.

20. After his [Relative B] was elected the CID accused them of using violence to secure election results. They started actively looking for the applicant and others who had campaigned for his [Relative B]. The applicant claims that after the election it was not safe for him to go to Vavuniya because he received many threats from the CID as well as Sinhalese customers who went to his [business] to buy produce. The applicant did not mention these claims in his entry interview.

21. During the protection interview the delegate noted that he could not locate any information on the “[Political Party 1]” in Sri Lanka. The applicant stated in protection interview that there was a translating error in his statement of claim and that his [Relative B] was a candidate for the [named] party for the [Electorate 1] in taking part in the Local Authority elections in 2011.

22. The Tribunal questioned he applicant about his political involvement in Sri Lanka. The Tribunal found the applicant evidence vague, inconsistent and lacking in credibility. When asked about his role in the election campaign the applicant said he distributed water. When asked about his [Relative B’s] political party the applicant could not recall the name of the party. He said the party was small and helped local people build roads.

23. The Tribunal finds that the applicant’s failure to indicate in his entry interview that he feared harm resulting from his political activities cast doubts about the veracity of this claim.

    Interrogation March 2012

24. The applicant claimed that in March 2012, the SLA went to the family home and asked for the applicant. They told him that they had a CD which contained evidence he was an active member of the LTTE. SLA took him and three other Tamils to the SLA camp in [a town in a named district]. The SLA told them that they had evidence on the CD of their active LTTE involvement and threatened to arrest, detain and mistreat them. The applicant claims he was interrogated for one day before he was released. This incident scared him and was a trigger for him to leave Sri Lanka. 

25. The Tribunal also found aspects of the applicant’s evidence about the interrogation vague and inconsistent. The Tribunal noted that the applicant had previously given inconsistent evidence about when he was interrogated and for how long. For example he told the tribunal the incident occurred at some stage between 2011 and 2012.  In his statement he said it had occurred in March 2012. In his protection interview he said it was at some state between January to June 2011. He also provided different evidence regarding the period of time over which he was interrogated.

26. The Tribunal does not accept the applicant’s claims relating to his involvement in political activity during 2011 and subsequent threats from the CID and Sinhalese people lacked credibility.

27. On 8 December 2014 the first Tribunal was provided with the following new information relevant to the applicant’s claims:

    ·his mother has informed him that his [Relatives A] in Sri Lanka were attempting to flee Sri Lanka because they were being targeted by the Sri Lankan authorities;

    ·one of his [Relatives A] had fled to [Country 1] but due to his visa status he was forced return to Sri Lanka;

    ·after June 2014 his [Relative A] was called in for questioning by the authorities;

    ·due to his [Relative A1’s] fear of the Sri Lankan authorities, their father attended a meeting with Sri Lankan authorities on [Relative A1’s] behalf, after which they went to the family home and searched for [Relative A1]. The authorities also examined the family photo album which created immense distress for the family and caused them to cry.

    ·The Sri Lankan authorities also interrogated his mother about him, asking such questions as “if he was innocent and not in the LTTE why did he flee Sri Lanka?”

28. The Tribunal questioned the applicant about how his [Relative A] departed Sri Lanka. The applicant said that [Relative A1] went to an agent and obtained a [temporary] visa and departed Sri Lanka legally on a valid passport and travelled to [Country 1]. When he was in [Country 1] the police revoked his visa because they recognised that he was a former LTTE member because he has scars on his face. The Tribunal told the applicant it found his evidence difficult to accept and noted that people have scars on their for many different reasons. The applicant maintained it was very well known in [Country 1] that former LTTE had scars on their face. The Tribunal showed the applicant a photo of his [Relative A] which was located on the Departments file. The applicant claimed the photo was taken in 2010. The Tribunal noted that his [Relative A] depicted in the photo did not have any scars on his face. The applicant claimed he obtained the scars afterwards. The Tribunal found the applicant’s evidence vague and lacking in credibility.

29. While the Tribunal has formed the view that the applicant’s evidence regarding his political activity in Sri Lanka, his interrogation by the CID in March 2012 and his [Relative A’s] travel to [Country 1] and subsequent interrogation are to be approached with caution, the Tribunal accepts that protection visa applicants who genuinely hold fears for their safety may be motivated to exaggerate or embellish aspects of their claims.

30. In assessing the applicant’s claims for protection the Tribunal accepts that the applicant is a Tamil who originates from a LTTE-controlled area of Sri Lanka and that he has [Relatives A] who were LTTE members. The Tribunal finds that the essential and significant reason for his fear of serious harm by the Sri Lankan authorities is for reason of his imputed pro-LTTE political opinion.

    Findings

31. The Tribunal finds country information is consistent with the applicant’s evidence and supports his claims of persecution as a Tamil IDP from Northern Sri Lanka whose family members were associated with the LTTE.

32. The UK Border Agency Country of Origin Report on Sri Lanka dated 7 March 2012 details the following relevant country information regarding the Sri Lankan government’s treatment of suspected members of the LTTE:

    Any alleged association with the LTTE appears to have been grounds for arrest. Those arrested include individuals who were recruited by the LTTE in the days and weeks before their defeat, as well as individuals who carried out official functions in LTTE administered areas and received a salary from the LTTE, but had not taken any active part in hostilities. Bona fide civilians who did not wish to be separated from relatives who had been identified as LTTE suspects were also detained at reception points such as Omanthai. The basis for arrests has included allegations by fellow IDPs and paramilitary groups in the internment camps, raising issues of credibility.

33. The Tribunal has had regard to country information which confirms that during the final stages of conflict, the Sri Lankan government set up camps intended specifically to house IDPs, who were fleeing the conflict in the north. Camps intended for IDPs were dubbed “welfare centres” by the government, whilst camps and other places of detention intended for holding suspected LTTE members were known as “rehabilitation centres” or “rehabilitation camps”.[3] [4] [5]

    [3] Human Rights Watch 2010, Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, February, pp.1-3 <

    [4] Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009-2011, 2011, pp.4; 9 < Amnesty International 2009, Sri Lanka’s Displaced face uncertain future as government begins to unlock the camps, 11 September <h ttp:// placed-uncertain-future-government-unlock-camps-20090911

1. The International Crisis Group (ICG) reported that over 280,000 Tamil civilians who entered government-controlled areas in the final months of conflict were detained in emergency IDP camps.

2. According to Human Rights Watch, security forces detained almost all ethnic Tamils exiting the Vanni from March 2008 onwards. Exceptions included some local humanitarian workers and clergy, who were allowed to enter and exit the region. Human Rights Watch alleges that no meaningful attempt was made to “distinguish between persons with suspected LTTE links and ordinary civilians”.[6] Human Rights Watch alleges that in a February 2009 interview, Sri Lanka’s Defence Secretary reportedly suggested that those left in the Vanni were legitimate targets. The secretary stated: “[t]here are no independent observers, only LTTE sympathisers. Radio announcements were made and movement of civilians started a month and a half ago.” However, government warnings to leave the Vanni were apparently ineffective because the LTTE prevented civilians from leaving areas under its control.[7]

   [6] Human Rights Watch 2008, Besieged, displaced and detained: The plight of civilians in Sri Lanka’s Vanni region, December, p. 11 <

   [7] Human Rights Watch 2009, War on the displaced: Sri Lankan army and LTTE abuses against civilians in the Vanni, February, p.20 <

3. Thus, as people exited the Vanni en masse during 2008 and 2009, they faced screening procedures, apparently aimed at separating displaced civilians from people with LTTE connections.

4. Families were often separated during these processes. Specifically, the military and the police Criminal Investigation Department (CID) set up several points where people leaving the Vanni would be initially screened by military personnel, then often transported to one of the hospitals in Kilinochchi for further questioning by security forces where they were encouraged to admit any LTTE association voluntarily.

5. This second stage at Kilinochchi could last for up to 36 hours. The government did not make public any information as to who was arrested during the screening process, or as to how many detainees were sent to IDP camps as opposed to LTTE detention facilities.[8] Aid agencies were denied access to points where the military received and interviewed civilians,[9] and Human Rights Watch suggests that there may have been enforced disappearances and extrajudicial killings of some LTTE suspects during the screening process.[10] Additionally, the ICG notes that intelligence agencies and Tamil paramilitaries[11] repeatedly screened civilians for LTTE affiliation once detained in the IDP camps.[12]

   [8] Human Rights Watch 2009, War on the displaced: Sri Lankan army and LTTE abuses against civilians in the Vanni, February, p.29 <

   [9] International Crisis Group 2009, Crisis in Sri Lanka, 30 April < Human Rights Watch 2009, War on the displaced: Sri Lankan army and LTTE abuses against civilians in the Vanni, February, p.29 < The Sri Lankan government was generally thought to have been aligned with some paramilitary groups during the conflict with the LTTE. See: Department of Foreign Affairs and Trade 2010, Sri Lanka: Paramilitary groups in post-war Sri Lanka,

   [12] International Crisis Group 2010, War Crimes in Sri Lanka, Asia Report No. 191, 17 May, p.6

Amnesty International also reported in September 2009 that the government was continuing to screen IDPs in attempts to “weed out” LTTE members hiding in the camps.[13] Human Rights Watch clarifies that some people first detained in IDP camps were later moved to rehabilitation centres. Security forces arresting people from IDP camps often refused to advise family members, government representatives or the Human Rights Commission on Sri Lanka where those arrested were taken.[14]

[13] Amnesty International 2009, Sri Lanka’s Displaced face uncertain future as government begins to unlock the camps, 11 September <h ttp:// placed-uncertain-future-government-unlock-camps-20090911>

[14] Human Rights Watch 2010, Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, February, pp.1-11 <

The Tribunal finds the applicant’s account of his and his family’s experience of forced recruitment by the LTTE and subsequent relocation to IDP camps and harassment by the authorities is consistent with the country information referred above and as provided by the DFAT in its Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014).

The Tribunal has had regard to the documents provided by the applicant in support of the claim. The Tribunal is conscious that document fraud is prevalent in Sri Lanka.[15] The Tribunal notes however that the documents provided by the applicant are consistent with his evidence and are also supported by country information.

[15] DFAT Country Report Sri Lanka 3 October 2014 and UK Home Office Country of Origin Information Report Sri Lanka, 7 March 2012

As stated above many of those caught up in the government’s “rehabilitation” camps were not hard-core LTTE fighters. Some were forcibly recruited in the final days of the war; others had lived under LTTE rule for decades and had to cooperate with their orders to survive. Nonetheless, country information confirms that when detainees are released and returned to their communities that they are treated with suspicion and come to the attention of the authorities.

The Tribunal finds that the applicant and his family originate from an area that was previously controlled by the LTTE. The applicant and his family were forced to relocate and placed in IDP camps and were registered and resettled and came under the scrutiny of the Sri Lankan authorities.

The Tribunal finds the applicant’s links to the LTTE go beyond his Tamil ethnicity and his residency in LTTE controlled areas. The Tribunal accepts the applicant’s [Relatives A] were members of the LTTE during the civil war and this fact is known to the Sri Lankan authorities.

The Tribunal accepts the applicant was questioned and threatened on several occasions by the Sri Lankan authorities. The Tribunal finds that the authorities continue to have an interest in the applicant and have visited his home and spoken to his mother since has travelled to Australia.

Does the applicant have a well-founded fear of persecution for a convention reason?

The issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.

In assessing the applicant’s claims the Tribunal has had regard to DFAT Country Report on Sri Lanka dated 18 December 2015 and the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka. The UNHCR Guidelines refer to a series of profiles which, whilst not intended to be exhaustive, indicate those categories of persons who the UNHCR considers may need international refugee protection, depending on the individual circumstances of the case.

The UNHCR indicates that not all Tamils from northern and eastern Sri Lanka are vulnerable to harm due to imputed links with the LTTE. However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case.[16]

[16] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012), pp.26-27

The UNHCR states that nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1) 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;
2) Former LTTE combatants or “cadres”;
3) 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);
4) 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;
5) 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;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

The Tribunal finds that the grounds of the applicant’s fear of persecution on his return to Sri Lanka is supported by the UNHCR Guidelines which identifies persons who are closely related to persons who were former LTTE combatants (cadres).

The Tribunal also notes that the UNHCR guidelines state the following in relation to persons with actual links to the LTTE:

Former “rehabilitees” reportedly face problems reintegrating upon release. Many are visited by military and intelligence agents, or are required to report regularly to local military “Civil Affairs Officers”, local police and military camps. Many are believed to have been put under pressure to act as informants. Should the individual fail to report to the military authorities on a regular basis, family members are directly questioned by the military on their whereabouts.[17]

[17] UNHCR 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012), pp.27-28

The Tribunal accepts and relies on the UNHCR guidelines, and finds the applicant falls into the identified profile of a person suspected of certain links with the LTTE and as a person with an imputed political opinion as an LTTE supporter.

According to the most recent report from DFAT:[18]

DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death.  Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections.  Incidents of torture are not confined to any particular ethnic, religious or political group.

Torture may be used to extract information or confessions from suspects.  

There were a total of 535 complaints of torture reported to the HRCSL in 2012.  However, it is difficult to determine the prevalence of torture with any accuracy which means that few reports are proved or disproved. Disciplinary action can also be taken if such complaints are made against the police or in prisons, but there have been few recent cases where charges have been brought against police officers for torture.

Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.  Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences.  This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.  It is too early to make an assessment as to whether this will change under the Sirisena government.

[18]    ‘Country Information Report: Sri Lanka’, DFAT, 16 February 2015 at pages 19-20. 

While the Tribunal accepts DFAT’s assessment that the risk of torture or mistreatment for the great majority of Sri Lankan returnees is low, including those suspected of offences under the I&E Act, the Tribunal finds that the applicant’s particular profile would distinguish him from the majority of returnees and making him a person of interest to the authorities.

As detailed above the Tribunal accepts that the applicant’s [Relatives A] were members of the LTTE and were detained by the authorities following the end of the civil war in 2009. [Relative A1] was imprisoned for his LTTE involvement and documents confirm he was released by the authorities [in] September 2011. [Relative A2] was released from detention in May 2010. The Tribunal accepts that the authorities regularly attended at his family home to check on the whereabouts and activities of his [Relative A]. Although his [Relative A] was freed from detention he was subjected to monitoring and harassment and was also required to sign at the army camp once a month. The Tribunal accepts that the authorities are aware of the applicant’s [Relative As’] previous involvement with the LTTE.

In particular, the Tribunal has regard to following current country information on patterns of unlawful arrest by security forces prepared by the OHCHR Investigation on Sri Lanka (OISL)  in assessing the applicant’s claims.

OISL conducted over 50 interviews with persons (one third were women) who had been unlawfully arrested or otherwise arbitrarily deprived of their liberty during the investigation period in the context of the armed conflict in Sri Lanka. It also reviewed other information on such cases, including many cases of enforced disappearance that reportedly occurred after unlawful arrests by security forces. The information gathered shows the widespread use of arbitrary and unlawful arrest and detention by the State, as well as arrests by paramilitary groups supporting the Government forces.  

In the overwhelming majority of cases documented by OISL, the manner in which the arrests and in some cases abductions were carried out failed to comply with international standards and were often unacknowledged. In all these cases, no warrant was produced at the time of the arrest or abduction, and in only a handful of cases were detainees informed of the reasons for their arrest and of the location to which they were being taken, were brought before a judge, charged, or given access to legal counsel.  Victims of such violations included suspected LTTE cadres or sympathisers, as well as journalists and civil society activists. OISL also documented a pattern of arrests of individuals of Tamil origin who were trying to leave the country, or who had returned to Sri Lanka from abroad, either voluntarily or after  having been denied asylum abroad.[19]

[19] Report of the OHCHR Investigation on Sri Lanka , 16 September 2015, paragraphs 343-34

Next, the Tribunal has considered the fact the applicant left Sri Lanka illegally and what is likely to happen to him on his return given his profile discussed above.

The Tribunal accepts that up until at least 2012, and some evidence in more recent times, that Sri Lankan Tamils returned from the United Kingdom and elsewhere have reportedly suffered torture and abuse from the authorities. The cases in relation to such returnees overwhelmingly involve returnees who have had some reasonably substantial form of connection with the LTTE or who are suspected of such linkages, or persons who have criminal connections.

The information from DFAT indicates that allegations of mistreatment of returnees without such links have not been substantiated.

The Tribunal has also considered information in the DFAT Country Report Sri Lanka, regarding the procedures for the treatment of failed asylum seekers at the airport and on their return to their home area. Returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport CID. These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person's name in immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person were of security interest or if there was evidence of involvement in people smuggling.

In the circumstances, the Tribunal accepts that there is a real risk the CID would question the applicant about his past and present circumstances, namely why he has departed Sri Lanka illegally.

The Tribunal accepts DFAT’s assessment that all Sri Lankans, regardless of ethnicity, are treated according to standard procedures. However, the Tribunal concludes the applicant is not an ‘ordinary Tamil’ and will be known to the authorities due to his [Relative As’] membership of the LTTE.

The Tribunal acknowledges that the applicant’s [Relatives As’] involvement with the LTTE was during the civil war and that most Tamils living in LTTE controlled and administered north and eastern provinces of Sri Lanka had some contact with the LTTE in their daily lives during the civil conflict.

The delegate noted that neither of the applicant’s [Relatives A] has suffered or been targeted for serious harm by the authorities following their release from imprisonment or detention. The delegate therefore concluded that being the [Relative A] of a former LTTE member, in itself, will not result in persecutory harm by the Sri Lankan authorities. The delegated noted that the applicant has not been detained as a consequence of his [Relative As’] association with the LTTE, despite their knowledge of his [Relatives As’] involvement with the LTTE.

However the applicant’s profile as a failed asylum seeker needs to assessed against the background of his family’s involvement in the LTTE.

Further, the evidence before the Tribunal confirms that his family has continued to receive further visits from the Sri Lankan authorities (CID) since his arrival in Australia.

The Tribunal considers that even if he is granted bail within a few days of returning as per the standard procedures, he will likely be subjected to closer monitoring by the local authorities than an ordinary Tamil returnee, and that such monitoring could involve significant harassment and physical mistreatment that would amount to serious harm. 

In this environment, this combination of factors leads the Tribunal to conclude that the applicant faces a real chance of persecution if returned to Sri Lanka now or in the reasonably foreseeable future for reasons of his [Relatives As’] past association with the LTTE and therefore his perceived support for the LTTE. The Tribunal finds the applicant’s claim to fear serious harm on return to Sri Lanka because of his imputed political opinion is well-founded.

The Tribunal considers the chance of him being detained and suffering serious physical harm is not remote or insubstantial and in fact is significant enough to amount to a real chance.  The Tribunal considers the detention and physical mistreatment would amount to serious harm.

The Tribunal notes that as part of its enquiry OISL made the following observations on torture allegedly committed by security forces not only during the Sri Lankan civil war conflict but also in the post-conflict period:

OISL is mindful, however, that torture and ill-treatment are prevalent in the broader criminal justice system in Sri Lanka, and some cases are routinely reported from police stations throughout the country. Also, not all of the alleged torture was inflicted in relation to the armed conflict. NGO reports suggest that torture has been widespread within the criminal justice system in general. One NGO reported that it had documented 1,500 cases of torture in police custody between 1998 and 2011.[20] These and similar allegations should be part of a broad effort to investigate and address the use of torture by Sri Lankan security forces.[21]

[20]Asian Human Rights Commission, 2011, A report on 323 cases of police torture. < >

[21]  Report of the OHCHR Investigation on Sri Lanka , 15 September 2015, paragraph 533

1. As the persecution feared is at the hands of local law enforcement (SLA/CID) the Tribunal finds the applicant cannot access state protection.  Further the Tribunal considers relocation is not an option in this case when the authorities, even local ones, are the agents of harm.

2. There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than Sri Lanka.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

3. The Tribunal is satisfied that the applicant has a well-founded fear of persecution in the reasonably foreseeable future in Sri Lanka.

4. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

   Christopher Smolicz
   Member