1610523 (Refugee)

[2017] AATA 1673

1610523 (Refugee) [2017] AATA 1673 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610523

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Christopher Smolicz

DATE:19 September 2017

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 19 September 2017 at 4:01pm

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Federal Circuit Court remittal – Race – Tamil – Imputed political opinion – Perceived links to LTTE – Unlawful arrest

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migrations Regulations 1994, Schedule 2

CASES

Guo v MIEA [1996] FAC 1263
Haidari v MIAC (2008) 104 ALD 74
Minister for Immigration and Multicultural Affairsv Rajalingam (1993) FCR 220
Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZFYW v MIAC [2008] FCA1259
SZHKA v MIAC (2008) 172 FCR 1

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] March 2013 and the delegate refused to grant the visa [in] February 2014.

3. On 20 February 2014 the applicant applied to the then Refugee Review Tribunal (RRT) for review of that decision. On 7 January 2015 the applicant took part in a hearing before the RRT (first Tribunal hearing). The Tribunal member who was constituted to the matter was not reappointed to the Tribunal before he was able to complete the decision. On 11 January 2016 the Tribunal, differently constituted, affirmed the decision of the delegate not to grant the applicant a protection visa (the first Tribunal decision)[1].

   [1] AAT Decision Record [deleted].

4. The applicant applied to the Federal Circuit Court (FCC) for judicial review of the first Tribunal’s decision.  [In] July 2016 a Judge of the FCC remitted by consent the Tribunal decision on the basis the previous Tribunal had failed to consider the applicant’s claim to fear harm on the basis of his illegal departure from Sri Lanka.

5. On 17 March 2017 the applicant took part in a second hearing before the Tribunal. The Tribunal also received oral evidence by telephone from the applicant’s brother in [Sri Lanka]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The member who had conducted the hearing was subsequently not reappointed to the Tribunal.

6. On 19 July 2017 and the matter was re-constituted to the Presiding Member.

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

8. If the Tribunal is reconstituted following a remittal, the reconstituted Tribunal is not bound by any findings on the review made by the Tribunal as previously constituted.[2] The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination, according to the facts as the Tribunal finds them to be at that time.[3]

   [2] SZFYW v MIAC [2008] FCA 1259 (Flick J, 18 August 2008) at [9]; SZHKA v MIAC (2008) 172 FCR 1 per Gray J at [18].

   [3] SZFYW v MIAC [2008] FCA 1259 (Flick J, 18 August 2008) at [11]; Haidari v MIAC (2008) 104 ALD 74 at [8].

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In making this decision the Tribunal has had regard to new evidence which was not before the delegate or the first Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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).

12. 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.

13. 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’).

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to 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 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.

    Background

15. The applicant is [age] years old. He was born in Nuwara Eliya, [Central Province], Sri Lanka. He is a Hindu and a member of the Tamil ethnic minority group in Sri Lanka.

16. He arrived in Australia [in] August 2012 as an unauthorised maritime arrival. His wife and daughter have remained in Sri Lanka. His father passed away in 2007. His father had [wives], one of whom was the applicant’s mother.  The applicant’s mother and father had  [sons] together.  He also has step-brothers in Sri Lanka.

17. The applicant completed secondary school in [year]. He is [an occupation] by profession.  He worked as [an occupation] in Colombo from 1992 until he left Sri Lanka in 2012.  He also registered his own [business] in 2001.  The Tribunal was provided with financial records and various business certificates and accepts the applicant’s claims regarding his qualifications and employment in Sri Lanka.

18. In 2006 he travelled to for [Country 1] with the aim of securing employment. He was unsuccessful and returned after a short stay.

    Summary of claims

19. The applicant made a number of claims for protection which are detailed in the first decision record at paragraph 36. The central claim under consideration in this decision concerns the applicant’s fear of persecution because of his Tamil ethnicity and perceived links with the LTTE (imputed political opinion).

20. First, the Tribunal sets out the claims for protection detailed in the applicant’s declaration dated [in] January 2013.

21. He claims that since birth he has faced harassment and discrimination because he is a Tamil and because he is perceived to be a supporter of the LTTE.

22. The discrimination first started because a Sinhalese doctor who oversaw his birth refused to register his father’s name on his birth certificate. The applicant believes the doctor took this action as punishment because he suspected that his father was involved in race riots. The applicant claims he faced discrimination because he was unable to prove his father’s identity. The applicant’s father was only able to amend the birth certificate in 2003. The applicant was able to provide copies of his birth certificate and amended certificate in support of the claims.

23. The applicant claims that after completing his [studies] his employers accused him of being a Tamil Tiger. They thought that he was a Tiger because of his Tamil ethnicity and because of his lack of valid identity documentation. The harassment he faced forced him to resign from his employment.

24. He claims [one brother] died in suspicious circumstances and assumes that he was killed by the Sri Lankan Army (SLA).

25. His claims his mother’s brother was detained by the SLA in approximately 1987. He was held in cruel and inhuman conditions for three years, and in detention, he was subjected to torture.

26. In about 2003 and 2004 the applicant was detained by the SLA on approximately five occasions as part of the Tamil roundups that were happening during the civil war. When he was in custody of the SLA he was interrogated and assaulted. On each occasion, he and other Tamils were released into police custody, photographs were taken and details recorded.

27. After his marriage, he moved into his wife’s house in Colombo. The area was primarily Sinhalese but his wife and her family had lived there for many years. His wife’s family home had a small Hindu temple attached to the inside their house. In 2009 he decided to extend his home and the temple. He was subjected to harassment by the local Sinhalese community and the authorities because of the plans to extend the temple. He was forced to attend the local police station and sign an undertaking to leave the area.

28. After signing the undertaking he moved to a different town in Colombo. His relationship with his wife broke down and his wife did not accompany him. He formed a new relationship with a [woman]. The relationship did not last and he subsequently returned to live with wife.

29. In 2004 Sri Lanka was devastated by a Tsunami. Many people, particularly those in the Eastern Province, were badly affected by the tsunami. He helped the victims and gathered funds and travelled to the Eastern Province to distribute aid and offer assistance. To do this, he became involved in [Organisation 1], a Tamil group who are focused on supporting poor Tamil families, particularly poor Tamil [children]. He claims [Organisation 1] is not a political organisation, but it is affiliated with [a] Tamil political party. He remained an active member of [Organisation 1] since 2004, and frequently encouraged friends to join the organisation. Initially [Organisation 1] operated in secret but it subsequently obtained approval but was subject to monitoring by the authorities.

30. In support of his evidence the applicant was able to provide a number of receipts issued by [Organisation 1] regarding financial donations he made to the organisation. The applicant also provided an untranslated letter from [Organisation 1] dated [in] October 2013.

31. The applicant’s [brother] supported opposition candidate, Sarath Fonseka, in the presidential elections. In the lead up to the election, he was subjected to severe harassment by the government supporters. This harassment continued after the election. Due to the constant harassment, [the applicant’s brother] came to fear for his life. He went into hiding approximately three weeks after the election, and remains in hiding today. In support of his claim he provided a photograph of his brother with Sarath Fonseka. The applicant fears he will face persecution in Sri Lanka because of his brother’s political affiliations.

32. The applicant claims that on the morning April 2012, he was working at his [shop] in Colombo. Two men in civilian clothes came into his shop and told him that they needed him to come with them and [do something] for a [job]. They were friendly and seemed to be offering him a substantial new contract, he agreed to go with them. The men took him out to a van. They offered him a drink of water, which he accepted. After drinking the water, he does not remember anything until he was alone in a room in an unknown location. He assumed he was detained in an army camp. Armed soldiers came into the room and he was accused of collecting money and distributing goods to members of the LTTE in the Eastern Province in 2004.

33. His interrogators did not accept his explanation that he had only been providing assistance to tsunami victims. They accused him of continuing, through his work with [Organisation 1], to provide assistance to former LTTE members. He was accused of being a supporter of the LTTE, was beaten and passed out. That night, he was forced into a van and driven back to his place of employment. He was thrown out of the van and was semi-conscious.  While he was detained, the army personnel warned him that there was no point in telling the police about the incident. They warned him that the police would not help him.

34. After a few weeks he claims he was followed. He subsequently returned home to visit his family. He was told that while he was away the CID came to his home and interrogated his wife about his whereabouts. His wife was afraid and told him to get protection. 

35. He approached a member of Parliament [for] protection but was told that there was nothing that could be done. The applicant provided a letter issued by [the member of parliament] dated [in] February 2013. The letter states that the applicant had taken part in the tsunami relief in 2004 and that there was a misunderstanding that the applicant had assisted the LTTE and he came to the attention of the authorities.

36. He subsequently fled to Negombo, where he remained for a month before boarding a boat to Australia.

37. The applicant submitted that since he arrived in Australia, the CID have visited his workplace and his home and made enquiries of his whereabouts. His wife has told them that she is no longer in contact with him.

    Protection interview

38. The applicant took part in a protection interview [in] October 2013.

39. During his protection interview the applicant expanded on his claims. The applicant said that he had business dealings with a Tamil business man called [Mr A].[4] [Mr A] is said to have been involved in Tamil politics and financial support of the Tamil community.  [Mr A] provided funds to the applicant for the establishment of his business and the applicant made regular payments to [Mr A] and he cashed his business cheques for a commission. In support of his protection visa application the applicant provided copies of business bank statements which he claims establish his connection with [Mr A]. [Mr A] was abducted in early 2012 and the applicant believes his disappearance to be politically motivated. Two months after that disappearance, the applicant was questioned about his relationship with [Mr A].

    [4] The Tribunal notes that the applicant provided a name in the Tamil language for the business man which interpreted as [Mr A].

40. The delegate questioned the applicant about the April 2012 abduction. The delegate found aspects of the applicant’s evidence inconsistent with that in his statement of claims.

41. The delegate noted that in his statement the applicant claimed that the two people who abducted him in 2012 were unknown to him and were not wearing uniforms. During the interview the applicant said that the officers were wearing uniforms and he was familiar with the local CID officers who would regularly attend his [shop].

42. When asked to clarify the inconsistency the applicant said he knew the people who attended his shop were police officers because of what they were wearing and they had walkie talkies. After further questioning the applicant conceded that he made a mistake when giving his evidence at the hearing and said he now cannot recall if the officers were wearing uniforms.

43. The applicant attempted to clarify his evidence by saying that he knew the regular CID officers who would attend his shop but the ones that attended in April 2012 when he was abducted were unknown to him but he knew they were police because he heard their walkie talkies.

44. The delegate found that the applicant had not previously mentioned in his statement of claim that he knew a man called [Mr A] or that he had an association with any prominent businessmen. The delegate did not accept this claim to be genuine.

45. The delegate accepted that the applicant may have been involved with [Organisation 1] however the delegate did not accept that the applicant was detained due to his activities with [Organisation 1] as they were not a political organisation and they had no links with the LTTE.

46. The delegate questioned the plausibility of the applicant’s account that he would have travelled to [Country 1] and then returned to Sri Lanka where he claimed to have been persecuted and why the applicant did not try to flee Sri Lanka until mid-2012.  The applicant said that he approached an agent in Sri Lanka who told him that he would be able to stay in [Country 1] to work. The agent cheated him because when he arrived in [Country 1] he found out that he was only able to stay 14 days and could not work and had to return to Sri Lanka. When he returned he was questioned at the airport and accused of running away because he was involved with the LTTE. He was able to negotiate his release because one of the CID officers was based in his local area said the he knew the applicant and would keep him under observation.

47. The delegate further noted that the applicant had not, prior to the protection visa interview, made the claim that the Sri Lankan government had attempted to detain him at the airport following his return from [Country 1].

48. The delegate told the applicant that he had listened to the recordings of his Bio data interview and his Entry interview and found his evidence given at the interview inconsistent with his protection claims. Specifically the delegate referred the applicant to his protection interview and claimed he said that he came to Australia due to economic difficulties and no other reason. The delegate referred the applicant to his Entry interview and claimed the applicant said he left Sri Lanka because he borrowed money from people to start a [business]. It ran at a loss and he could not pay back the money and people wanted to kill him.

    New evidence

49. The applicant’s representative made further submissions before the first Tribunal hearing. The submissions are summarised in the first Tribunal decision record (paragraphs 47 to 70).

50. In particular, it was submitted that in 2014 the Sri Lankan authorities questioned the applicant’s mother and wife about his whereabouts, causing them to make a complaint to the Sri Lankan Human Rights Commission.  Although the complaint was reported, the applicant’s family is said to have received discriminatory treatment from the Commission.

51. The applicant provided a copy of letter from the Human Rights Commission of Sri Lanka dated [in] July 2014. The letter relates to a complaint made by the applicant’s wife in relation to the applicant’s kidnapping by the CID in April 2012. The letter also refers to the CID officers attending at the applicant’s home and asking questions about him in June 2012.

1. It was further claimed that since he departed Sri Lanka the authorities have issued a summons requesting him to provide evidence in relation to offences under the Prevention of Terrorism Act (PTA). In support of his submissions the applicant provided a copy of a document title “Summons to a witness to give evidence” dated [in] June 2014. The summons sought his appearance in court [in] August 2014.

2. In relation to the applicant’s dealings with [Mr A], it was submitted that the applicant did not mention [Mr A] earlier due of time limitations in his entry interview and because he thought the more important issue was his connection with [Organisation 1]. It has only subsequently become apparent that his dealings with [Mr A] have become central to his claims.

3. It was submitted that [Organisation 1] is a Tamil organisation and is connected with [a] Tamil political party.  Together with the inherent suspicion of the government authorities of Tamil organisations and individuals and their presumed connections with the LTTE, the detention, it was submitted, was understandable.

4. It was submitted that the applicant had intended to flee to [Country 1] but that he was unable to get work or a work visa and could only stay as a tourist in [Country 1] for a short time.  Rather than risk being involuntarily returned, he returned lawfully.  The representative submitted that when the applicant travelled again to [Country 1], the same thing happened.  Upon his return, he was questioned extensively at the airport and only released because of a connection he had with one of the officers.

5. The representative submitted that the applicant’s family has a profile with the Sri Lankan authorities that puts the applicant at risk, including the applicant’s brother’s known opposition to the government made evident by the past support for the UNP candidate. 

   Second hearing

6. The Tribunal was provided with new evidence regarding the applicant’s mental health. The representative submitted that the applicant is on a mental health plan and is taking antidepressants and participating in counselling sessions. The Tribunal was provided with medical evidence dated [in] March 2017 confirming that he applicant has attended seven sessions at the [Psychological] Services Program. The report confirms that the applicant has symptoms of stress, anxiety and depression.

7. The applicant also stated that since he has travelled to Australia the police and CID have attended at his home and questioned his wife about his whereabouts. The applicant said that his wife told the authorities that she did not know anything about his whereabouts however the police have returned on a number of occasions. The CID have also questioned his mother.

8. The applicant repeated his claims that he had business connections with a man called [Mr A]. [Mr A] had access to money and if he needed to cash a cheque he would go to [Mr A]. In 2012 [Mr A] went missing. The applicant was questioned by the CID about [Mr A]. He did not have any idea at the time why he was a person of interest to the CID and had no knowledge about his connection with the LTTE.

9. The applicant said that his wife has been in contact with the courts in Sri Lanka and has obtained documents in support of the claims.

10. The applicant provided a letter from a lawyer in Sri Lanka dated [in] March 2017 addressed to the Tribunal. The letter confirms that the lawyer has been acting for the applicant’s wife in her dealings with the police in Colombo. The letter confirms that the applicant’s wife has been visited by unknown people who have been asking about her husband and showed her documents summonsing the applicant appear in court to give evidence. The lawyer states that the authorities believe that the applicant is closely connected with a wealthy man called [Mr A] who supported the LTTE financially. The lawyer states that it was common knowledge that [Mr A] had a business connection with the applicant. The lawyer states that a warrant has now been issued for the arrest of the applicant because he has not appeared in court proceedings. The Sri Lankan authorities now believe that the applicant and [Mr A] had direct links with the LTTE and have provided substantial financial support to them over the years. As a consequence the applicant will face prosecution for contempt of court and under the PTA if he returns to Colombo.

11. The Tribunal was provided with a copy of a Sri Lankan Warrant for Arrest dated [in] August 2014 seeking the arrest of the applicant for aiding and abetting the re-establishment of the LTTE and harbouring terrorists. The Tribunal was also provided with a copy of a report issued pursuant to s.115 of the Code of Criminal Procedure Act 1979 by Sri Lankan police to the Magistrate. The document seeks the issue of the warrant for the applicant to enable the police to continue with their investigation of breaches of the PTA.

12. The Tribunal was also provided with an undated letter from [a] (Hindu) Society. The letter purports to be written by a close friend of the applicant who confirms the applicant’s dealings with “[Mr A]”.

13. The applicant said that the arrest of [Mr A] was reported by the newspapers in Sri Lanka in 2012. He said that he had emailed [a news company] in Sri Lanka seeking information regarding the arrest of [Mr A], of [address]. The Tribunal was provided with a copy of the email communication. The Tribunal provided the applicant with further time after the hearing to obtain further evidence regarding [Mr A], however no further information has been provided regarding the person called [Mr A].

14. The Tribunal took evidence by telephone from his [brother] in Sri Lanka. [His brother] said that the applicant lived in Colombo and worked as [an occupation]. He confirmed that the applicant had a connection with a man called [Mr A] and that [Mr A] was arrested by the authorities. The applicant’s wife told [the applicant’s brother] about the arrest warrant for the applicant.

15. [The applicant’s brother] said that the CID have also come to his house looking for the applicant in 2010. For about one year after the applicant travelled to Australia the police would come asking for him, however after about one year they stopped coming.

16. [The applicant’s brother] confirmed he was aware of the complaint made to the Human Rights Commission. The Tribunal asked [the applicant’s brother] what was the purpose of making the complaint. [The applicant’s brother] said the applicant needed the letter to support his claims and he wanted his brother to be safe.

17. The Tribunal asked [the applicant’s brother] what he thinks might happen to the applicant if the applicant returned to Sri Lanka. [The applicant’s brother] said his wife and child would be happy to see him. [The applicant’s brother] said he hopes nothing will happen. The war has ended and the government has changed and he hopes nothing will happen but he really does not know.  

    Credibility of claims

18. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims and the country information. Credibility issues may arise due to a number of reasons. For example applicants may provide inconsistent evidence. Evidence can be vague and lacking in detail. The Tribunal is also mindful that it must exercise caution when assessing new claims and evidence introduced late in the protection visa process.

19. When assessing credibility the Tribunal is also mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons.  The Tribunal is also aware that claims for protection are often complex and overlapping and can draw on a person’s whole life experience. In such circumstances it is often difficult for applicants with limited education and understanding of the protection visa process to articulate their claims.

20. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (see Guo v MIEA [1996] FAC 1263 [26] (Foster J), Minister for Immigration and Multicultural Affairsv Rajalingam (1993) FCR 220; Rajasundaram v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 682).

21. The Tribunal’s Guidelines on the Assessment of Credibility (July 2015) state:

    11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.

22. However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

    Findings

23. The Tribunal accepts the applicant was born in Sri Lanka and is of Tamil Sri Lankan ethnicity. His claim to refugee status is therefore assessed against Sri Lanka as his country of nationality.

24. Although the Tribunal finds that the applicant did exaggerate and embellish aspects of his claims overall the Tribunal has found that the applicant has provided a detailed and consistent account of his claims from the time he first arrived in Australia.

25. The applicant has taken part in a number of interviews since he has arrived in Australia on [in] August 2012. Bio data interviews took place [in] August 2012 and [in] September 2013. The interviews were conducted by different officers. The Bio data interview presents asylum seekers with the first opportunity to provide information regarding their personal circumstances. Applicants are advised that information provided will be re-confirmed at a later time.

26. The Tribunal requested the Department to provide it with the audio recordings of the Bio data interview so that it could assess the credibility of the applicant’s claims. The Tribunal was advised that no recording of the Bio data interview was located and that Bio data interviews are not normally recorded.

27. The Tribunal has had regard to the handwritten notes of the Bio data interviews located on the Department’s file. In response to a question (Q21) asking why the applicant is seeking protection in Australia it states “Economic difficulties. No other reasons.” There is no recording to confirm the applicant’s evidence. It is unclear if this is the applicant’s answer to question or the interviewing officer’s summary of the applicant’s claims. The Tribunal notes however that the second part of the Bio Data interview asks the applicant whether he had been arrested or detained or charged with any offence.  According to the handwritten noted the applicant is said to have stated that he was arrested for a few days on four to five occasions and questioned on suspicion of being associated with the LTTE. The Tribunal finds this evidence is consistent with his statement of claims.

28. The applicant also took part in an Entry Interview [in] March 2013 where he was able to provide information relevant to his claims. The Tribunal has had an opportunity to listen to audio recording of the applicant’s Entry interview and compare it to the notes of the interview appearing on the Department’s file (Part C Entry Interview).

29. In response to the first question “Why did you leave your country of nationality (country of residence)? It is stated on the on the Department’s file “I borrowed money from people to start a [Business]. It ran at a loss and I couldn’t pay back. Now these people want to kill me.” The Tribunal notes that the applicant’s answer did not form part of the recording provided to the Tribunal. In any event, the Tribunal does not find that the answer is inconsistent with the applicant’s claims for protection.

30. Further analysis of the Entry interview discloses that the applicant did disclose evidence in support of his claims (Part C Q2, Q3, Q4, Q6(a), Q6(b), Q7 and Q19). For example the applicant did state that he was a member of [Organisation 1] and that the movement was a threat to government ministries because they were supplying money to people in remote and poor [areas]. The applicant said that the government was concerned and suspicious that the movement was raising money. He stated [that] the movement is now approved.

31. The applicant stated that he was arrested by the police on five occasions and pulled for questioning on suspicion of being with the LTTE.

32. The applicant stated that he had business dealings in 2011 with a businessman. He said that his business dealing came to the attention of the military. He did state that due to his connection with this “gentleman” he had problems with the CID. Importantly the applicant said that he introduced other people to the business man and the police are now asking questions if he has links with a person who is collecting money for the LTTE. 

33. At the conclusion of the interview the applicant offered to provide further details about his dealings with CID. The applicant was advised by the interviewing officer that this was not part of the Entry Interview.

34. The Tribunal must therefore assess the applicant’s claims on the available evidence having regard to the consistency and credibility of his evidence. The Tribunal finds the applicant’s evidence about his dealing with [Mr A] credible and consistent. In reaching this decision the Tribunal has had an opportunity assess the applicant’s answers in the Entry and Protection interviews, the applicant’s evidence during the first and second Tribunal hearings and the evidence of his brother. The Tribunal also finds that the significance of the applicant’s dealings with [Mr A] have become central to his claims since a summons was issued by the courts in Sri Lanka and a subsequent warrant for his arrest. This evidence was not before the Department at the time of the delegate’s decision and may explain why it was not detailed in his original statement of claim.

35. The Tribunal must also determine if the documentary evidence provided in support of his claims is genuine and credible given that it has been produced after the applicant’s claim for protection was refused and the first Tribunal affirmed the Department’s decision.

36. The Tribunal is not in a position to independently verify the court documents with the Sri Lankan authorities in light of the applicant’s claims that he fears persecution from the authorities that issued the documents.

37. As stated above, the Tribunal was provided with a letter purporting to be issued by a lawyer in Sri Lanka seeking to corroborate the authenticity of the documents and the applicant’s claims. 

38. The Tribunal has had regard to DFAT’s country information report and is aware that document fraud is prevalent in Sri Lanka and that asylum seekers are known to have provided false documents in support of their claims.[5]

    [5] DFAT Country Information Report Sri Lanka 24 January 2017 paragraph 5.38

39. In assessing the authenticity of the documents the Tribunal has also had regard to the content and format of the court documents and finds that they appear to be genuine. For example the court documents appear to be issued by the Colombo Magistrate’s court and contain an image of court seal dated [in] March 2017 which coincides with the lawyer’s letter.

40. The Tribunal also notes that on-line information about the Human Rights Commission of Sri Lanka confirms that the address and contact details appearing on the letter are correct and the that the author of the letter is in fact [an official].[6]

    [6] >

    The Tribunal has also had regard to the evidence provided by the applicant’s [brother] in Sri Lanka. The Tribunal finds that [the applicant’s brother] did not overstate his evidence. He conceded that the civil war had ended in Sri Lanka and that the government had changed. He said that he hoped that nothing would happened to the applicant if he returned but he said that he really did not know what would happen. The Tribunal has accepted [the applicant brother’s] evidence about the applicant’s dealings with [Mr A] and his troubles with the Sri Lankan authorities and finds it corroborates the applicant’s claims.

41. Having considered the evidence the Tribunal accepts the applicant worked as [an occupation] in Colombo and had financial dealings with a prominent Tamil business man who has been referred to as “[Mr A]”. The Tribunal accepts that [Mr A] was a person of interest to the Sri Lankan authorities due to a possible association with the LTTE. The Tribunal accepts that the applicant became a person of interest in the CID’s investigation and was questioned in 2012. The Tribunal does not however accept the applicant’s claim that he was clandestinely drugged and taken unconscious to an army base for questioning. The applicant did not mention this evidence in his Entry interview. The Tribunal finds that the applicant embellished this aspect of his evidence to strengthen his claims. The Tribunal does however rely on the applicant’s evidence at his Entry interview that he was questioned by the CID because he was suspected of being involved with the LTTE due to his Tamil ethnicity, his membership of [Organisation 1] and his association with a Tamil business man with LTTE connections.

42. The Tribunal also finds that the applicant did detail his involvement in [Organisation 1] during the Entry Interview. The Tribunal notes that although [Organisation 1] may now be an approved organisation the applicant donated money to [Organisation 1] during the civil war which would have brought him to the attention of the authorities and is relevant to his claims.

43. The Tribunal finds that the applicant’s evidence demonstrated that he had personal involvement with [Organisation 1] and the ethnic Tamil community’s tsunami relief which is consistent with country information. For example, country information confirms that [details deleted].[7]

    [7] [Details deleted].

44. Country information regarding the tsunami states: “…the December 2004 Indian Ocean tsunami devastated coastal regions of Sri Lanka, killing more than 40,000 Sri Lankans and causing the displacement of over half a million people, in addition to the 390,000 persons already displaced by the conflict.  Although there were hopes that the tsunami response would revive the peace process – agreement was reached for instance on a joint management structure to coordinate relief[8] – the politics of recovery quickly descended into mistrust and acrimony. There was a strong sense of grievance among the Tamil population that assistance was going primarily towards tsunami-affected people in the South, mostly Sinhalese, while those affected by the tsunami in the North and East, mostly Tamil, did not receive a proportionate share. The conflict-displaced, mostly Tamils and Muslims in the North and East, also felt excluded.”[9]

    [8]An agreement to establish a Post-Tsunami Operational Management System (PTOMS) involving both Government and LTTE was signed by President Kumaratunga in 2005 but some provisions were subsequently struck down by the Supreme Court as unconstitutional following legal challenges.

    [9] Office of the UNHCR report on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka released on 16 September 2015 .>

    The Tribunal finds the applicant’s account of his involvement with [Organisation 1], a Tamil organisation, raising money for Tamils affected by the tsunami credible and supported by the country information. The Tribunal accepts that his conduct occurred during the civil war and would have brought him to the attention of the Sri Lankan authorities at the time. The Tribunal further finds that this evidence may have been known to the Sri Lankan authorities when questioning him in 2012 when he was suspected of having financial dealings with [Mr A], a suspected LTTE financer.

1. The Tribunal also accepts the applicant’s evidence that as a Tamil male he experienced discrimination and harassment growing up and throughout his employment in Sri Lanka. The Tribunal accepts the applicant’s evidence that in the period 2003 to 2004 he came to the attention of the army and was detained and interrogated because he was Tamil and suspected of being a LTTE member. The Tribunal found the applicant’s account of the interrogation by the Sri Lankan authorities during the civil war credible and consistent with country information detailed below.

2. The Tribunal finds that this evidence is relevant in assessing the applicant’s profile and whether there is a real chance the applicant would face persecution if he was to return to Sri Lanka in the reasonably foreseeable future.

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

100.   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.

101.   In assessing the applicant’s claims the Tribunal has had regard to DFAT Country Report on Sri Lanka dated 24 January 2017 and the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.

102.   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. ^[10]  

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

103.   The Guidelines note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. The Tribunal accepts and relies on the UNHCR guidelines, and finds the applicant falls into the identified profile of a person suspected of certain links with the LTTE.

104.   The Tribunal finds that the OHCHR Investigation on Sri Lanka (OISL) provides support for the applicant’s claims of the pattern of unlawful arrest by security forces in Sri Lanka:

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.[11]

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

105.   According to a report prepared by DFAT in 2015:[12]

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

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 [I&E 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.

106.   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.

107.   Having accepted that a warrant has been issued for the applicant’s arrest it is likely the applicant’s name would be on a watch-list and he therefore would be subjected to questioning at the airport.

108.   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.

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

110.   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.

111.   Independent sources further state that past LTTE connection or involvement does not give gives rise to such a risk, unless that person had or was perceived to have a significant role in post-conflict Tamil separatism or was otherwise of interest to the authorities.[13]

[13] UK Home Office Country Information and Guidance, Sri Lanka: Tamil separatism, March 2017; GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

112.   As stated above the applicant has been identified as a person with possible connections to LTTE fund raising activities. He has departed Sri Lanka illegally in breach of the I&E Act. He has previously come to the attention of the CID in relation to his involvement with [Organisation 1] and fundraising for Tamils affected by the tsunami. He has been interrogated and monitored by the CID in Colombo because of his involvement with a Tamil business with LTTE connections ([Mr A]). More recently he has failed to respond to a witness summons and a warrant has been issued seeking his arrest.

113.   While the Tribunal accepts DFAT’s assessment that the risk of torture or mistreatment for the great majority of 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. In the circumstances, the Tribunal accepts that there is a real chance the CID would question the applicant about his past and present circumstances.

114.   The Tribunal also finds that country information indicates that despite an overall decline in allegations of torture, there continue to be reports of torture complaints (including sexual abuse) perpetrated by Sri Lankan police, military and intelligence forces against Tamil victims[14]; DFAT is aware of reported instances of torture carried out by the police;[15] and those at particular risk include Tamils with a real or perceived association with the LTTE[16].

[14] DFAT Country Information Report Sri Lanka, 24 January 2017 at 4.13; UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 2.3.38; United States State Department 2016 Country Report on Human Rights Practices, Sri Lanka, published on 3 March 2017, section 1c; UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, (paragraph 22), 22 December 2016, Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015; and International Truth and Justice Project Unstopped: 2016/2017 Torture in Sri Lanka, July 2017,

[15] DFAT Country Information Report Sri Lanka 24 January 2017 at 4.15

[16] Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009, August 2015

115.   There is evidence that the security forces continue to detain individuals they suspect of having LTTE connections. If detained by security forces, there remains a real chance of ill treatment or harm requiring international protection.[17]

[17] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 2.3.39 and 2.3.40

116.   The UN Special Rapporteur on human rights and counter-terrorism at the conclusion of his official visit in Sri Lanka from 10 to 14 July 2017 stated that he remained concerned that the PTA remains on the statute book in Sri Lanka and stated that:

Through exceptional provisions that admit the use of uncorroborated confessions made to police officers as the sole basis for convictions, it has fostered the endemic and systematic use of torture.  Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture. 

...Since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus[18].

[18] Full Statement by Ben Emmerson, UN Special Rapporteur on human rights and counter-terrorism, at the conclusion of his official visit, Colombo 14 July 2017 at  The report of the Special Rapporteur on minority issues on her mission to Sri Lanka in early 2017 stated:

Reinforcing the stigmatization of the Tamil identity is the continued application of the PTA, which affects the Tamil population disproportionately.  Despite the heavy criticism it has received nationally and internationally for allowing prolonged detention without due process, the Government has reportedly continued to rely on the Act to make new arrests, including exiled Tamils returning to Sri Lanka[19].

[19] The UN Human Rights Council, Report of the Special Rapporteur on minority issues on her mission to Sri Lanka – Note by the Secretariat, 31 January 2017, (Specific groups of concern – C. Tamils in the North and East), Para 52, p13,

118.   Amnesty International reported in February 2016 that Tamils suspected of LTTE links continued to be arrested and detained under Prevention of Terrorism Act provisions,[20] which was also confirmed in a May 2016 report by the ICG, which noted that some four dozen people have been arrested and held under the provisions in 2015-2016.[21]

[20] Amnesty International Report 2015/16 - The State of the World's Human Rights - Sri Lanka, published 24 February 2016, (Arbitrary arrests and detentions), in UK Home Office Country Information and Guidance, Sri Lanka; Tamil separatism (May 2016) para 6.4.1.

[21] ICG Sri Lanka: Jumpstarting the Reform Process, 18 May 2016, at p 15.

119.   There continue to be credible reports that Tamils returning to Sri Lanka with actual or perceived links to the LTTE face a risk of torture or other forms of serious harm.  For example, in an August 2015 Freedom from Torture report on 148 torture cases perpetrated since the end of the civil war in May 2009, the majority (142 or 96%) described an actual or perceived association with the LTTE, related either directly to themselves, to family members or to both.[22] In an August 2015 report, the ICG reported that Tamils returning from abroad continue to be arrested under Prevention of Terrorism Act provisions on suspicion of old LTTE involvement.[23]

[22] Freedom from Torture Tainted Peace: Torture in Sri Lanka since May 2009, August 2015, p19.

[23] International Crisis Group, Sri Lanka between Elections, 12 August 2015 (IV. Initial Steps on Reconciliation p.17) in UK Home Office Country Information and Guidance, Sri Lanka; Tamil separatism (March 2017).

120.   The International Truth and Justice Project’s report on torture and sexual violence survivors (January 2016) indicates that ‘Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted along with their families’.[24]  In a very recent report examining allegations of torture by the security forces in 2016/2017, the ITJP reported that witnesses described being tortured and raped by the security forces, some as recently as 2017.[25]

[24] International Truth and Justice Project Silenced: survivors of torture and sexual violence in 2015, January 2016, 

[25] International Truth and Justice Project, Unstopped: 2016/2017 Torture in Sri Lanka, July 2017,

121.   Additionally, the Human Rights Watch (HRW) in their 2017 World Report, Sri Lanka, stated that despite improvements and its pledges under the Sirisena government, 

… the government failed to abolish the draconian Prevention of Terrorism Act (PTA), and instead used the preventive detention law during a series of arrests in April and May.

…

Sri Lankan police are not held accountable for routine torture and ill-treatment of individuals taken into custody. Sometimes torture is carried out to extract "confessions," but it is also used for personal vendettas or to extort funds. Police often used methods designed to leave no visible marks, suggesting a level of institutionalization. The National Human Rights Commission, though limited in resources, visited and actively monitored prisons and detention centers in 2016, and issued directives on procedures to be followed following arrest.

In April and May 2016, the UN special rapporteur on torture, Juan Mendis, visited Sri Lanka and reported that torture by the police Criminal Investigation Department was common. The rapporteur also found an increase in torture in cases of real or perceived threats to national interests by the Terrorism Investigation Division. He reported a near total impunity in both old and new torture cases.[26]

[26] The Human Rights Watch (HRW), World Report 2017 – Sri Lanka, 12 January 2017,

122.   The Tribunal has also had regard to the most recent United States State Department’s 2016 Country Report on Human Rights Practices, Sri Lanka, published on 3 March 2017 which noted that:

Civilian authorities generally maintained effective control over the security forces; however, there were continued reports that police and security forces sometimes acted independently.

The most significant human rights problems were incidents of arbitrary arrest, lengthy detention, surveillance, and harassment of civil society activists, journalists, members of religious minorities, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE).

...

Impunity for crimes committed during and following the armed conflict continued, particularly in cases of killings, torture, sexual violence, corruption, and other human rights abuses. The government made incremental progress on addressing impunity for violations of human rights. The government took some steps to arrest and detain a limited number of military, police, and other officials implicated in old and new cases, including the killing of parliamentarians and the abductions and suspected killings of journalists and private citizens.  

...

There were several reports that the government or its agents committed arbitrary or unlawful killings.[27]

[27] U.S Department of State, Country Reports on Human Rights Practices for 2016, Sri Lanka, published on 3 March 2017, Executive summary & s.1a

123.   In May 2016 the UN special rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and the UN special rapporteur on the independence of judges and lawyers after visiting Sri Lanka found as follows:

They concluded that torture remained a common practice in both criminal and national security cases and that the criminal justice system facilitated the use of torture to extract confessions to build cases. They stated that police investigators used torture and ill treatment routinely[28].

[28] As reported in the United States State Department’s 2016 Country Report on Human Rights Practices, Sri Lanka, published on 3 March 2017, s.1c

124.   In early 2017 a UN Human Rights Council report assessing progress made in the implementation of Human Rights Council resolution 30/1, on promoting reconciliation, accountability and human rights in Sri Lanka between October 2015 and January 2017 whilst noting some progress, also articulated ongoing concerns including harassment, surveillance and human rights abuses including torture.  They stated as follows. 

Overall, some progress has been made in the situation of human rights in Sri Lanka since January 2015, such as the visible signs of improvement in the respect for freedoms of expression and movement, and cooperation with United Nations human rights mechanisms. Progress has, however, been uneven.

…

Reports of harassment or surveillance of human rights defenders and victims of violations have continued, albeit to a lesser degree. In its report, the Consultation Task Force referred to instances of surveillance and intimidation by intelligence or security personnel during consultations it held in the North and the East, despite the steps taken to allay such concerns. The Task Force noted that this perceived “inability of the Government to rein in the security and intelligence machinery during the consultations is a grave concern.” On 1 October 2016, a prominent human rights defender was briefly detained and interrogated at Colombo airport by unspecified security services on his way to a human rights conference abroad.

Incidents of police abuse and excessive use of force also persist. For instance, on 20 October 2016, in Kulapiddy, Jaffna, two students died, reportedly shot by the police when they failed to stop at a roadblock. The incident, which was initially presented as a motorcycle accident, is under investigation. Five policemen have been arrested in connection with the incident and its apparent cover-up. In a separate incident, in Embilipitiya, on 6 January 2016, a group of policemen stormed a party, reportedly after an argument involving some of them. In the ensuing scuffle, a man died after falling through a window. One police officer was arrested on 2 February in connection with the incident.

The use of torture remains a serious concern. In its report submitted to the Committee against Torture, in November 2016, the Human Rights Commission of Sri Lanka stated that complaints it had received illustrated the routine use of torture by the police throughout the country as a means of interrogation and investigation. The prevailing culture of impunity for perpetrating torture has undoubtedly contributed to this situation.[29]

[29] UN Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, 10 February 2017, paragraphs 50, 51 and 54 – 58

125.   The Tribunal also notes that as part of its enquiry OISL made the following observations on torture allegedly committed by the Government of 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.[30] These and similar allegations should be part of a broad effort to investigate and address the use of torture by Sri Lankan security forces.[31]

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

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

126.   In the circumstances, although the applicant has not claimed to have been an LTTE member or knowingly participated in any LTTE fundraising activities, the Tribunal finds that there is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. Having considered the country information and the applicant’s profile the Tribunal finds that there is real chance the CID will attempt to extract a confession or gain intelligence about why he departed Sri Lanka illegally, his knowledge and involvement with [Mr A]. The Tribunal finds that there is a real chance the applicant would suffer significant harm from the police or CID because of his exposure to interrogation techniques that include torture. In conclusion the Tribunal finds that the applicant’s fear of persecution based on this Tamil ethnicity and his imputed political opinion is well founded.

127.   As the risk of harm feared is at the hands of local law enforcement (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.

128.   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 his country of nationality, and accordingly, the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act. 

129. 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

130. 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