1605302 (Refugee) - [2018] AATA 5723

1605302 (Refugee) [2018] AATA 5723 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605302
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Peter Vlahos
DATE:18 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 18 December 2018 at 7:10am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – association with humanitarian activities – applicants’ son worked with foreign NGO – Tamil Makkal Viduthalai Pulikal – victims of extortion – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Sri Lanka, applied for the visas on 28 March 2014 and the delegate refused to grant the visas on 22 March 2016.
The applicants appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from both applicants.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether Australia has protection obligations in respect to the [applicants].
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of Nationality and Identity
Based on copies of the applicants’ passports, which were provided to the Department of Immigration and Border Protection[1] (the ‘Department’) and to the Tribunal[2] at the hearing, the applicants’ oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Sri Lanka and their claims have been assessed against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Act. On the basis of the above-mentioned evidence, the Tribunal further accepts the applicants’ identities as claimed.
[1] Department of Immigration and Border Protection File [number]
[2] AAT File no. 1605302
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to material referred in the delegate’s decision. The applicants provided a copy of the departmental record of decision to the Tribunal with the review application.
The applicants’ background and migration history
The first-named applicant (hereinafter referred to as ‘A1’) is [age] years old male of Tamil ethnicity from Sri Lanka. He was born in [City 1] and completed his secondary education [there]. He married the second-named applicant (hereinafter referred to as ‘A2’) in 1963 and they have three children, two of them migrated to Australia, and one migrated to [Country 1].
A1 worked for [Organisation 1] and retired in 1983. A2 was [an] [Occupation 1] by profession and retired in 1990. .
In 1991 both applicants were displaced from [City 1] [to] [Town 1], Central Province, where A2 had studied and lived previously. Three years later, the applicants moved to [City 2]. In 1997, they moved to Colombo.
In January 2011 the applicants applied for a Temporary [visa] to migrate to Australia. They were granted the visa on 26 June 2012 and arrived in Australia [in] February 2013.
On 28 March 2014 the applicants lodged an application for Protection visa (subclass 866). The applicants are currently holding a bridging visa (subclass 010) which was granted to them when they applied for a Protection visa.
The applicants’ claims for Protection
The applicants’ made the following claims for Protection:
§They are Tamils originating from [City 1], Sri Lanka. In 1991, they were displaced from [City 1] to [Town 1], due to the civil unrest. They left their home in [City 1] behind as surety for their departure from [City 1] and their youngest son’s exemption from being enlisted in the LTTE. They were also compelled to contribute money to the LTTE during the civil war.
§The applicants stayed in [Town 1] for approximately three years before moving to [City 2], where they stayed until 1997. They then settled in Colombo permanently.
§The applicants’ daughter [married] a Tamil man in [City 2]. She later found out that her husband was a LTTE supporter and filed for a divorce in 1998. The applicants’ daughter resigned her [job] in 2010 and migrated to [Country 1]. She has since re-married.
§In 2004 the applicants travelled back to [City 1] to check on their property. Their bus was intercepted at a checkpoint. When A2 was pulled out of the bus, she fell and broke her back. She was admitted to a hospital and received treatment. In 2005 when the applicants were notified by the LTTE to collect their property in person in [City 1], they were again stopped at checkpoints and decided not to return.
§The applicants’ sons migrated to Australia in 2008 and 2010 respectively. From 2009 the applicants started receiving extortion demands from the Tamil Makkal Viduthalai Pulikal (TMVP), an LTTE splinter group. The amounts were small [initially]. They complied with these demand as they were told that they would be abducted if they did not.
§In January 2011 the applicants applied for a Temporary [visa] to migrate to Australia. Their visa was approved on 26 June 2012.
§In December 2012 the applicants received another demand from TMVP requesting them to pay [amount]. They were instructed to go to a place 50-100 meters away from their house and to give the money to the people who awaited them there. They complied with the request.
§Again, in February 2013 the applicants were demanded to pay [amounts] to the TMVP. They made the payment as required and left for Australia three days later.
§Since arriving in Australia, the applicants have been advised by their neighbours that the TMVP continued to send extortion letters to their home address and threatened to kill them. In 2014 the applicants decided not to travel back to Sri Lanka for the funeral of daughter-in-law’s father, because they feared for their lives.
§The applicants fear that if they were to return to Sri Lanka now or in the reasonably foreseeable future, they will be killed by the members of the TMVP and other pro-government paramilitary groups, as they have failed to comply with their extortion demands. They claim that as the TMVP and the pro-government paramilitary groups have the support of the government, they will not be protected by the state. Nor could they relocate within Sri Lanka to alleviate the feared harm.
The Tribunal read the above claims to A1 and A2 and asked both applicants whether these claims as they had submitted them to the Department expressed in toto their claims for protection they wished the Tribunal to hear and examine. Both applicants told the Tribunal that both “…fear to return to Sri Lanka…” because “…the TMVP will ask for more moneys because the children are now overseas.”
Where did A2 and A1 live before they left Sri Lanka for Australia?
A2 stated that prior to leaving Sri Lanka both she and her husband lived in Colombo. The house belonged to her daughter who had immigrated to [Country 1]. They lived at their daughter’s home because they had no other property.
What happened to the Applicants’ property (house) in [City 1]?
A2 told the Tribunal that the house situated at [City 1] was given as a surety or ‘guarantee’. The house is still ‘…there…’ but A2 and her husband had ‘no idea’ what had happened to their home since they came to Australia.
What are A2’s main concerns with the LTTE prior to leaving Sri Lanka?
A2 said that her family’s problem with the LTTE was that during the period of unrest, it demanded from families in [City 1] to provide their sons to fight for their cause against the government. A2 said, she and her husband refused to agree to give their younger son who was still living with them in Sri Lanka to the LTTE. For their decision, the LTTE demanded that they provide a ‘…bond…’ or guarantee to the LTTE in lieu of them taking their son. A2 and her husband agreed to this and raised the required bond by agreeing to provide their home as a guarantee and they moved to [Town 1].
A2 explained to the Tribunal that her home was taken over by the LTTE ensuring that her second son would not be press-ganged into the LTTE. Once this exchange had been agreed, A2 and her husband left taking only a few possession – the bare necessities and nothing else
What was the applicants’ other son doing at that time?
A2’s older son was at that time studying at University in [City 2]. Both sons then left in 2008 for overseas and have since become Australian citizens.
When did the extortion by the TMVP/LTTE begin?
A2 could not provide a definite timeline when the demands for more moneys commenced but she said it could have commenced just after her sons left (but was not sure). However, what was clear for A2 was that demands were made on her and her husband – first, for small amounts to be paid to the TMVP. A2 stated that they provided the amounts demanded but then, it became difficult to make additional payments because they did not have the money. A2 went on to tell the Tribunal that the TMVP increased their demands for money because ‘…. they knew….’that A2 and her husband had children living and working overseas.
How did A2 explain the TMVP’s knowledge that she had children living and working overseas?
A2 told the Tribunal “…I do not know…” However, she told the Tribunal that ‘they’ - TMVP has a “…vast network…” and they came to know we had lived in [City 1] and had children living overseas.
How much money was demanded by the TMVP?
A2 told the applicant that on one occasion the TMVP demanded (first time) [amount] and then [amount]. This money, A2 stated was paid by the children.
How did the applicant and her husband give money to these extortionists?
A2 stated that the money demand was provided to the TMVP in person. A2 and her husband were contacted by the TMVP and were told where to go and at what time to hand over the money. However, A2 could not remember the actual date and time when this happened.
What happened after these payments were made to the TMVP?
A2 said that both she and her husband did not tell anyone about their problem and then left for Australia.
When did A2 and her husband leave for Australia?
A2 and her husband departed Sri Lanka for Australia [in] February 2013 (according to A2).
When did A2 and her husband apply for [temporary] Visa?
A2 was unable to tell the Tribunal when this visa was applied for.
A2 was asked to explain that since the extortion payments were made both she and her husband remained in Sri Lanka for eight months before leaving for Australia?
A2 told the Tribunal that after the payments were made to the TMVP as was demanded, both she and her husband left their home in [City 1] and took up residence at her daughter’s home which was situated in Colombo. A2 went on to say that at that time, A2’s daughter had left and was living in [Country 1]. Nevertheless, A2 stated that even when she and her husband were living in Colombo both were fearful of what would happen to them if they continued to remain in Sri Lanka. So, while their visa was being organised by their sons in Australia, they quietly made their plans to leave. Once, their visa was settled, they gave the ‘keys’ to their daughter’s home to a relative for safekeeping and left for Australia. A2 stated that the visa was granted by the Department on 26 June 2012 and expired two years later in 2014. After its expiration A2 and her husband applied for a Protection visa.
While in Australia with her husband what has A2 being doing and where has been living?
A2 said she has been living with her eldest son and his family. She went on to explain that she suffers from a number of ailments - she has severe problems with her ears, her husband (A1) has undergone an operation on his eyes which has not been successful – and has lost sight in one eye, A2 suffers from[various medical conditions].
A2 was asked whether she and her husband are receiving any government assistance. A2 told the Tribunal that her family had secured Medicare for her and her husband but no other government benefits are being provided to them.
Have A2 and her husband any relatives still living in Sri Lanka?
A2 told the Tribunal that she and her husband have no relatives that ‘she knows’ are still living in Sri Lanka. Since coming to Australia, A2 and her husband have had no contact with any family member or relative. A2 also went on to state that she would not know what had happened with her home in [City 1].
Do A2 and her husband keep informed about what is happening in Sri Lanka?
A2 told the Tribunal that when ‘…people come from Sri Lanka’ she ‘listens to what they say…’ concerning what is happening there. A2 believed that TMVP is still active but their activities are carried out ‘…secretly…’ A2 told the Tribunal that despite what had gone one on in Sri Lanka in recent years, in particular, the ‘peace’, ‘…. Sri Lanka was not a peaceful country…’ It remained ‘…not peaceful…’
A2 went on to tell the Tribunal to say that the ‘… civil war might have ended…’ but ‘…the resistance is still going on…’ and ‘…will come again…’
Do A2 and her husband receive any pension payments and other entitlements from Sri Lanka?
A2 confirmed for the Tribunal that she and her husband have a pension but ‘…do not draw from it…’ because it is an insignificant amount and even if they wanted to access it, they could not because they had to go to the actual bank in Colombo to receive their entitlements.
Concluding remarks by A2 to the Tribunal
A2 said that despite her problems she was fortunate to be with her sons here, in Australia. She enjoys the company of her three grandchildren who are of various ages and was happy to have been part of their lives while here in Australia.
A2 felt if she had to return to Sri Lanka she would not live for long without the constant interaction with her grandchildren and sons. In Sri Lanka, A2 said she and her husband have no family ‘…nothing to look forward to…’ Moreover, her health has deteriorated and even walking a few paces is an enormous struggle and she and her husband – she aged [age] and her husband aged [age] have no support in their country. Both of them, according to A2 relying totally on their sons and their families for support and daily assistance.
EVIDENCE PROVIDED BY A1 (husband of A2)
A1 said that both he and his wife fear returning to Sri Lanka. He went on to say, that in Sri Lanka there was no family for support and for help.
A1 said that he is very old and prefers what little life he has remaining to live here, in Australia with his family and his grandchildren.
A1 confirmed for the Tribunal that he had worked as clerk of ………and had retired in 1983. In his retirement, A1 worked as an [Occupation 2].
A1 said that he did not wish to return to Sri Lanka. Sri Lanka is not a ‘safe place’ and after living here, for six years, A1 said he and his wife would find it impossible to live independently.
A1 said that he feared that he would be victimised by sympathisers of the government because of his children being overseas and would be seen as a wealthy ex-pat.
A1 said he only had one wish in this life was to live out his life as he is with his family and grandchildren in peace and quiet.
EVIDENCE BY APPLICANT’S REPRESENTATIVE
On 6 November 2018 the applicants’ representative and [son] provided the Tribunal with a written submission which he stated the following:
§Both applicants’ fear was well-founded and they had not returned to Sri Lanka since they had departed. It was pointed out that A1 did not return to Sri Lanka for his sister’ funeral because he feared for his life.
§Both applicants live in fear to the extent that they have no connection with any surviving close relatives.
§Both applicants fear that if they were to return to Sri Lanka in the future they would fall victims to ransom demands from corrupt organisations associated with the LTTE. These demands for the payment of money would also occur because both applicants lived outside Sri Lanka a number of years and have children living and working overseas.
§Neither the applicants nor their children have any social media contacts with their relatives in Sri Lanka because they fear for their safety.
§Also, the applicants’ son and representative has worked for [Organisation 2]’ and has a profile with persons in Sri Lanka and overseas.
§Both applicants have debilitating illnesses because of their advanced ages and rely totally for assistance on their children here in Australia. That care is on a daily basis and both have had continuous consultations with medical practitioners concerning their persisting ailments.
§The applicants (according to their representative) fear that the situation in Sri Lanka has not improved but deteriorated further in recent times. This leads them to fear that extortions have been taking place in Sri Lanka and that the Sri Lankan government cannot do anything to provide justice to the Tamils who live in the Northern Province.
§This extortion has been taking place with the “connivance” of the Sri Lankan military.
§Both applicants are both innocents and vulnerable and if they are forced to return to Sri Lanka they will be totally vulnerable to attacks and without the support of their family.

The applicants’ representative also submitted to the Tribunal news article concerning ‘abductions for ransom’ in Sri Lanka[3] and a report on the Treatment of Failed Asylum Seekers dated May 2012 authored by the organisation known as ‘Tamils against Genocide.’[4]
[3] see AAT File folio [94] reference:
[4] Ibid AAT file folio [88] reference:
The Current Country information – Sri Lanka
Sri Lankan Tamils
The Department of Foreign Affairs and Trade (DFAT) published its Country Information Report on Sri Lanka on 23 May 2018, states:
3.4 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
The TMVP first contested as a political party at the local council elections in Batticaloa in March 2008. An article written by a Senior Fellow of the Institute of Peace and Conflict Studies (IPCS) published shortly thereafter stated that:
“The elections were relatively peaceful, but were neither free nor fair. Undue advantage was enjoyed by a particular group, the Tamil Makkal Viduthalai Puligal (TMVP). The TMVP cadres were not disarmed during the campaigning and this added to the fear factor among voters. Many saw the elections as a means to impart legitimacy on the yet to be disarmed group to carry on with its ‘control’ of the ‘East’ under the garb of elected representatives.”
No information was found to indicate that the TMVP is still active as a paramilitary group, however a number of sources indicate that it was active as a paramilitary force in the east, including in Batticaloa, as recently as 2014.
The UK Home Office has cited advice sourced from Jane’s Sentinel in February 2012, according to which the TMVP remained one of ‘a number of non-state, pro-government paramilitary groups operating in the country’. As reported by the UK Home Office:
“Jane’s Sentinel Country Risk Assessments, Country Report, Sri Lanka observed that ‘The security forces preferred to outsource much of the work of controlling major Tamil towns such as Jaffna, Vavuniya, Batticaloa and Trincomalee to non-LTTE paramilitary groups such as the People’s Liberation Organisation of Tamil Eelam (PLOTE), Eelam People’s Democratic Party (EPDP), Tamil Eelam Liberation Organisation (TELO) and lately the People’s National Liberation Tigers (TMVP).”
In 2014, Amnesty International Reported:
“Amnesty International continues to receive credible reports of unlawful use of force and       violations of the right to life by state agents and by paramilitary groups under the control of      the armed forces, including extrajudicial killings and suspicious deaths in custody. These              remain widespread and unpublished….
“Parties that have been accused of such abuse include police and army personnel, members of the Eelam People’s Democratic Party (EPDP), the Karuna faction within the United             People’s Freedom Alliance (UPFA) and the Tamil Makkal Viduthalai Pulikal (TMVP) .
“The Sri Lankan authorities have taken sufficient measures to prevent violations by      government forces and their affiliates by failing to adequately discipline personnel and by      failing to ensure that paramilitary agents and political parties aligned with the government are disarmed…”
In a report in August 2015, the International Crisis Group (ICG) referred to the TMVP as one of two ‘former Tamil militant groups’ in the UPFA coalition.
The TMVP leader, Pillayan, and Party secretary, Prashanthan, are both currently under investigation by the Central Investigation Division (CID) of the Sri Lankan Police in relation to past politically-motivated crimes.[5]
Extortion of civilians in Sri Lanka
[5] CR0D9DEFA86: Sri Lanka: CI160226081402908 – Karuna Group – TMVP – Batticaloa, 11 March 2016.
It is well documented that extortion was common in Sri Lanka.
The US Department of State country report on Human Rights in Sri Lanka for 2009 states:
“Human rights observers alleged that pro-government paramilitary groups and security forces participated in armed attacks against civilians and practiced torture, kidnapping, hostage-taking, and extortion with impunity.”[6]
[6] Country Reports on Human Rights Practices 2009 – Sri Lanka, Department of State, 11 March 2010
The US Department of State country report on human rights practices in Sri Lanka for 2010 states:
“In July a police official told the media that a report by the police department found that 1,700 persons were abducted in 2009-10, including 926 abducted in 2009 and 774 abducted in 2010. According to police, most of the abductions appeared motivated by extortion. Police took legal action in 275 cases, while 202 suspects were yet to be identified.” [7]
[7] OG7136A6734: Country Reports on Human Rights Practices 2010- Sri Lanka, Department of State, 8 April 2011.
The US Department of State report on human rights practices in Sri Lanka for 2013 state:
“Individuals suspected of association with pro-government paramilitary groups committed killings, kidnappings, assaults, and intimidation of civilians. There were persistent reports of close, ground-level ties between paramilitary groups and government security forces.”[8]
[8] OG1f18C90164: Country Reports on Human Rights Practices 2013- Sri Lanka, Department of State, 27 February 2014.
The 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka state:
According to reports, corroborated by records of interviews with people affected, pro-              government paramilitary groups (in particular EPDP and TMVP)[9] continue to operate in Sri Lanka.[10]
[9] It is difficult to find information regarding the current activities of other groups. In 2010, the Danish Immigration Service reported in a fact-finding mission report on the basis of an interview with a local NGO that “PLOTE is no longer as powerful in the North as they used to be”. Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka. Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka. 19 June to 3 July 2010, October 2010, F2B28A505CCD/0/FactfindingreportSriLanka2010FINALNY.pdf.
[10] Office Français de Protection des Refugies et Apatrides (OFPRA), Rapport de mission en République démocratique et socialiste de Sri Lanka, 13 au 27 mars 2011, September 2011, groups are reported to perpetrate serious human rights violations and engage in             criminal activities such as extortion, attacks, kidnappings and ransom collection.[11]
[11] Organisation Suisse d’Aide aux Réfugiés (OSAR), Rainer Mattern, Sri Lanka: situation des Tamouls originaires du Nord et de l’Est du pays vivant à Colombo et situation des personnes de retour, 22 September 2011, EPDP is reported to be primarily active in Jaffna in the north and the TMVP in the east,      although these and other paramilitary groups have also been said to be active in Mannar,[12]              Vavuniya[13] and Colombo.[14]
There is limited information from publicly available sources on the current strength, size and reach of the TMVP and EPDP, but several sources indicate that they have not completely disarmed.[15] Their activities appear to stem from both political and criminal motives.[16]
Both the TMVP and EPDP have established political parties and are represented by elected      members in regional and national government structures.[17]
It is reported that, throughout 2011, “these groups increasingly took on the characteristics       of criminal gangs as they sought to solidify their territory and revenue sources in the post-               conflict environment.”[18]
Several reports indicated that there are still close links between these groups and       government security forces.[19]
[12] United States Department of State, 2011 Country Reports on Human Rights Practices - Sri Lanka, 24 May 2012, United States Department of State, 2011 Country Reports on Human Rights Practices - Sri Lanka, 24 May 2012, Organisation Susise d’Aide aux Réfugiés (OSAR), Rainer Mattern, Sri Lanka: situation des Tamouls originaires du Nord et de l’Est du pays vivant à Colombo et situation des personnes de retour, 22 September 2011, These sources are referenced in two recent reports: Immigration and Refugee Board of Canada, Sri Lanka: The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups, 17 February 2012, LKA103950.E,
[16] See e.g. International Crisis Group (ICG), Sri Lanka's North I: The Denial of Minority Rights, 16 March 2012, Asia Report N°219, page 12-13: “EPDP’s current function seems to be to weaken the TNA and prevent the emergence of any serious political resistance to government rule. Even as Devananda and EPDP candidates were seen ostentatiously distributing government patronage in the run-up to the July 2011 local government elections, EPDP thugs were also accused of involvement in a series of physical attacks on TNA candidates during the campaign. As it was during the years of war and counter-insurgency, the party is also still regularly accused of physical attacks on other critical voices in Jaffna, including murders and disappearances; its members are widely believed to work in close coordination with the Sri Lankan military. The EPDP is also reportedly involved in a range of for-profit criminal activities, including illegal sand-mining. Its officials deny all such charges.”
[17] See IRB reports, footnote 113
[18] United States Department of State, 2011 Country Reports on Human Rights Practices - Sri Lanka, 24 May 2012, See e.g.: International Crisis Group (ICG), Sri Lanka's North I: The Denial of Minority Rights, 16 March 2012, Asia Report N°219, page 12-13, on the EPDP: “its members are widely believed to work in close coordination with the Sri Lankan military.” See also: United States Department of State, 2011 Country Reports on Human Rights Practices - Sri Lanka, 24 May 2012, “(…) there were persistent reports of close,
A 2015 State Department (USDOS) Overseas Security Advisory Council (OSAC) crime and safety report on Sri Lanka notes that kidnappings in Sri Lanka ‘…occur infrequently and mainly within the local community.’ The motive was ‘usually political or business-related rather than an organized kidnap and ransom enterprise. Victims and victims’ families have also blamed kidnappings on security forces (extra-judicial detentions and arrests, known as “white-van” kidnappings).[20]
[20] CISEC96CF12840: Sri Lanka Crime and Safety Report, US State Department Overseas Security Advisory Council, 4 May 2015.
According to the USDOS report on human rights practices in Sri Lanka for 2014, there ‘were persistent reports that the EPDP, led by Minister of Traditional Industries and Small Enterprise Development Douglas Devananda, engaged in intimidation, extortion, corruption, and violence against civilians in the Tamil-dominated northern district of Jaffna.[21] The DFAT country report on Sri Lanka dated 18 December 2015 also states that:
“Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and the Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role supporting it in the north and east. While these groups reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including criminal activity. While credible, there reports are difficult to verify.”[22]
[21] CISSEC96CF14143: Sri Lanka 2015 Crime and Safety Report, US State Department Overseas Security Advisory Council, 4 May 2015
[22] CISEC96CF14143: DFAT Country Report – Sri Lanka, Department of Foreign Affairs and Trade (DFAT), 18 December 2015
An earlier report in November 2012 indicates that the ‘EPDP and groups from the TMVP extort from the rich, no matter what their ethnicity.’ The report also mentions many kidnappings occurring in Colombo or in the Northern Province, with a number of sources suggesting ‘responsibility lies with the public security forces, the EPDP and TMVP.’ Some of the kidnappings appeared ‘to be politically motivated, since the victims are from the opposition, active members of civil society, human rights activists, and presumed sympathisers or ex-members of the LTTE. Demands for ransom are equally frequent and often target the rich, such as shop owners.’[23]
[23] CIS25579: Sri Lanka Current situation Update, Swiss Refugee Council, 15 November 2012.
TRIBUNAL’S FINDINGS AND REASONS CONCERNING THE APPLICANTS’ CLAIMS
The issue of credibility – some preliminary comments
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
....care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted…
The Tribunal also accepts that “….if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]) that:
….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts….
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of an applicant has not been made out (see, Randhawa v MILGEA (1994)52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994)34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998)86 FCR 547).
Are the applicants refugees?
Assessment of the applicants’ claims
The applicants claim to be Tamils from [City 1]. Having regard to the certified copies of their birth certificates and marriage certificates they submitted to the Department,[24] the Tribunal accepts that they are Sri Lankan Tamils and a married couple originating from [City 1]. The Tribunal also accepts that they retired in 1983 and 1990 respectively in [City 1] and moved from [City 1] to [Town 1] in 1991. The Tribunal also accepts that both applicants then moved to [City 2] before permanently settling in Colombo in 1997.
[24] Department of Immigration and Border Protection File [number]
The Tribunal accepts that the applicants’ daughter divorced her husband in 1998 and thereafter migrated to [Country 1]. The Tribunal also accepts that the applicants were extorted for money by the LTTE during the civil war and offered their property as surety for the return and exemption of the young son from being enlisted in the LTTE and after this, left [City 1] in 1991.
The applicants’ claim of being extorted for money in Sri Lanka
A2 (wife) told the Tribunal that her family’s problems with LTTE surfaced during the civil war period when LTTE operatives in her home district were actively recruiting young Tamil males as recruits for their rebel army. A2 and her husband (A1) did not wish their young son to be recruited and placed their property as a surety and brought the son’s reprieve from being recruited into the LTTE as fighter. The family home was thereafter seized by the local LTTE and A2 and her family moved to [Town 1]. Later, both sons left, in 2008 for Australia and remained there since. The daughter left for [Country 1]. While A1 and her husband remained in Sri Lanka, they received ‘demands’ for sums of ‘money’ from the TMVP. At first, A2 said the demands required her and her husband to pay a small amount to TMVP. These small amounts were met. However, with the passage of time the amounts increased dramatically [and] both applicants required the assistance of their children who were overseas to provide them with the money to satisfy these extortion demands.
Indeed, the Tribunal noted that A2’s evidence about how the extortion demands was communicated to her and to her husband (A1) and how and where the payments were made and to whom they were paid was difficult to recollect. The Tribunal was not provided with a timeline for the events claimed by the applicants except they told the Tribunal that they these demands were made before both applicants left for Australia. The Tribunal also noted, that the Department in its decision record found as plausible the applicants’ claim that they had paid ‘small amounts of extortion to the TMVP since 2009’, but that the ‘nature, severity and frequency of those payments’ were such that in the Department’s opinion did not amount to ‘serious harm envisaged by the Act.’ Even though there is a lack of clear recollection by the two applicants of the events they claimed to have occurred, the Tribunal acknowledges that a considerable period of time had passed and that the two applicants are at a very advanced age, and recollections of events and the details of those events do become frail and hard to recall but it does not mean they did happen nor does it the credibility of such claims.. The years may have diminished the applicants’ memories in part, but their fear when recollecting these difficult moments in their lives is both convincing and clear when witnessed by the Tribunal. That being the case, the Tribunal does not doubt the applicants’ credibility with regards to their claims about having endured extortion demands from the TMVP while in Sri Lanka. The country information referenced by the Tribunal [and included within this decision] and in particular, the UNHCR’s 2012 Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka makes specific mention of reports, corroborated by records of interviews with people affected by pro-government paramilitary groups (in particular EPDP and TMVP) continuing to operate in Sri Lanka.[25] These reports also suggested that these paramilitary groups took on the characteristics of criminal gangs and also had close links to the government’s security forces. A situation which allowed citizens like the applicants with no real long-term security in their own country. Therefore the Tribunal finds credible the applicants’ claim that they had received and had paid with the help of the applicants’ children extortion demands (consisting of various amounts of money) made of them by TMVP operatives in their district while they were in Sri Lanka.
The applicants’ claim that their sons work with a foreign NGO would cause them to be targeted if they returned to Sri Lanka
[25] 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka

The Tribunal was also presented with evidence by the applicants’ son[26] (and representative) that since he had left Sri Lanka with his brother, he had worked with a foreign NGO, [Organisation 2]. This [NGO aimed] to coordinate with various western governments which had direct links to Sri Lanka the ability to monitor human rights developments in Sri Lanka during and after the cessation of hostilities. The applicants’ representative provided the Tribunal with a letter from that NGO’s Program Officer; he worked with, [named][27] which corroborated his involvement. The applicants’ son told the Tribunal that his involvement with this NGO would cause the applicants’ difficulties if they were returned to Sri Lanka because organisations were still in existence with direct links to former combatants which could target the applicants if they were forced to return to Sri Lanka and subject them to extortion demands and even cause them to be kidnapped or even murdered. The Tribunal has considered carefully this evidence and it has done so, in light of recent developments that have taken place in Sri Lanka both as reported in the Department of Foreign Affairs and Trade report on Sri Lanka[28] and recently in the international press. Significant strides forward have been made by successive governments in Colombo since the end of the civil war but the recent political instability causes considerable and well-founded doubt that this peaceful co-existence might not continue in its present form. Having said this, it is possible that the applicants would, if sent back to Sri Lanka face a real and well-founded fear of persecution from certain militant elements within the community in Sri Lanka finding out or noticing or being told of their son’s past activities with a foreign NGO which was charged with protecting human rights in Sri Lanka and hence making them both the targets of extortion and the targets for other crimes. Therefore the Tribunal finds as credible the applicants’ son’s claim that the applicants would be targeted by local political organisations and groups because of the past activities of the applicants’ son who was working with a foreign NGO in the promotion and policing of human rights in Sri Lanka.
Do the applicants’ have a well-founded fear of persecution for a convention reason?
[26] AAT File folio [73]
[27] Ibid see folio [73]
[28] Department of Foreign Affairs and Trade Country Information Report – Sri Lanka (DFAT) 23 May 2018 at 11
The issue for the Tribunal to determine is whether the applicants have a well-founded fear of persecution for a Convention reason in light of the Tribunal’s factual findings above.
In assessing the applicants’ claims the Tribunal has had regard to the available country information on the current political situation in Sri Lanka it has assessed from credible international sources. The Tribunal was able to find sources which seem to suggest that extortions linked to political and criminal elements in Sri Lanka still occur and the authorities are lukewarm towards containing such activities which injure Sri Lankan citizens like the applicants.
The Tribunal finds that the information provided by various international NGOs and human rights organisations supports the applicants’ claim for the existence of a continuing culture of extortion in present day Sri Lanka.
Also having in mind the applicants’ son’s activities and work with [Organisation 2] once he had left Sri Lanka, the Tribunal would consider it highly plausible that if the applicants’ were to be returned to Sri Lanka they would be singled out by former combatants of the civil war (elements of and associated with TMVP) and victimised and also have their lives threatened because of their son’s past humanitarian activities.
The Tribunal accepts on the country information, that there is evidence of extortions still occurring in post-civil-war Sri Lanka perpetrated by groups with connections to political and criminal elements within Sri Lanka. There is also evidence to indicate that the Sri Lankan authorities are sometimes involved in such criminal activities and may not provide Sri Lankan citizens like the applicants with protection against such extortion demands. Therefore, it is highly plausible in the opinion of the Tribunal, that if the applicants were to be returned to Sri Lanka in the reasonably foreseeable future they would be at risk of being persecuted on the basis of their imputed political opinion because of their son’s activities in the past with western-based human rights NGO.
Finally, although the applicants have not made any claims of past or associated with any of the former combatants who were involved in Sri Lanka’s civil war (which has ceased) nor have they involved themselves in any activities of a political character while in Australia since their arrival in this country in 2013, the very fact that they had been subjected to TMVP harassment and extortion demands while in Sri Lanka and the fact that their entire family had left Sri Lanka because of the political strife there and had not returned and in particular, the involvement one of their sons with a western-based NGO overseeing human rights practises in Sri Lanka, the Tribunal considers it very likely that if these two elderly applicants were to be returned to Sri Lanka at any point of time in the future, they would very likely face extortion demands and would be subjected to harassment and harm by elements associated with former combatants of the Sri Lankan civil war. Therefore, the Tribunal finds that there is a real chance the applicants would suffer significant harm because they would be exposed to extortion demands and harassed, threatened and monitored by persons or groups of persons associated with the TVMP and other former combatants due to the applicant’s son’s association and work with western-based NGO. In conclusion the Tribunal finds that the applicants’ fear of persecution which is based on their fear of extortion by the TMVP and is based on their imputed political opinion because of their son’s work for a [western-based] NGO after he left and came to live permanently in Australia is well-founded.
Having regard to the available information, and considering the applicant’s claims cumulatively, the Tribunal finds that the first applicant has a well-founded fear of persecution for a Convention reason, pursuant to s.36(2)(a) of the Act.
There is no evidence before the Tribunal that the applicant as a citizen of the Sri Lanka has the right to enter and reside, either temporarily or permanently, in a third country, as required by s.36(3) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Peter Vlahos
Member

and Immigration and Refugee Board of Canada, Sri Lanka: The Eelam People's
Democratic Party (EPDP), including whether they mistreat Tamil populations in the north or in Colombo; if so, whether they extort Tamils; relationship between the EPDP and the Sri Lankan army (October 2010-December 2011), 8 February 2012, LKA103961.E, ties between paramilitary groups and government security forces". See also Organisation Suisse d’Aide aux Réfugiés (OSAR), Rainer Mattern, Sri Lanka: situation des Tamouls originaires du Nord et de l’Est du pays vivant à Colombo et situation despersonnes de retour, 22 September 2011, p. 18.