1614621 (Refugee)

[2018] AATA 1320

1614621 (Refugee) [2018] AATA 1320 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614621

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:7 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2018 at 11:08am

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Federal Circuit Court remittal – Fear of persecution – Tamil National Alliance (TNA) supporter – Abduction by the Karuna group – Failed Asylum seeker – Claimed mental health issues – Not of ongoing interest with Sri Lankan authorities

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

CASES

MIAC v SZQRB [2013] FCAFC 33

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] November 2012 and the delegate refused to grant the visa [in] July 2013.  He sought a review of that decision with the former Refugee Review Tribunal (RRT) who affirmed the delegate’s decision on 28 June 2014.  The applicant appealed the RRT’s decision and [in] September 2016 the Federal Circuit Court of Australia (FCCA) remitted the Tribunal’s decision to reconsider. 

3. The applicant appeared before the Tribunal on 9 February 2017 and 10 January 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearings.

5. The Tribunal notes on 12 July 2017 this case was reconstituted to a different Member. In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.190(4) of the Administrative Appeals Tribunal Act 1975.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Mental health considerations

11. The Tribunal notes in a letter[1] from the applicant to the Tribunal prior to the second hearing in January 2018 and in a post-hearing submission it has been submitted that the applicant is under mental stress, anxious and depressed in particular because of the lengthy review processes, and his related unemployment.  It is submitted he has been unable to access Medicare to help treat such issues. 

    [1] Dated 3 January 2018.

12. The Tribunal accepts the applicant may be stressed, depressed and anxious in such circumstances.  However, no medical evidence has been provided indicating the applicant suffers from mental health issues and apart from general assertions that he is depressed, the applicant did not claim at hearing to fear serious or significant harm on return to Sri Lanka because of concerns with his mental health.  For these reasons the Tribunal is not satisfied that the applicant’s stress, depression and anxiety are so severe as to result in a well-founded fear of persecution or a real risk of significant harm on return to Sri Lanka in the foreseeable future.

13. The applicant was lucid at the Tribunal hearings and the Tribunal was satisfied that he was able to meaningfully participate. 

    Country of nationality

14. The applicant arrived in Australia in June 2012 by boat without any identity documents.  Subsequently he provided to the Department of Immigration (the Department) copies of his Sri Lankan birth certificate, national identity card and marriage certificate.  The delegate and first Tribunal had no issues with the applicant’s claimed identity and nationality.  The Tribunal accepts the applicant is a national of Sri Lanka and has assessed his protection claims accordingly.

    Background and claims

15. The applicant is a [age] year old Tamil male from [a town in] [District 1] district in Sri Lanka’s eastern province, where his parents currently reside.  He is married and his wife currently resides in Trincomalee, also in the eastern Province, with her sister.  He has two brothers: one who resides in [Country 1] after being granted protection there in 2000 and the other who resides with his parents in [District 1]. 

16. The applicant set out his initial protection claims in a statutory declaration[2] that accompanied the visa application.  In it he sets out his past experiences in Sri Lanka including support to the Tamil National Alliance (TNA), problems with the authorities and paramilitary groups as a result, and reasons for leaving the country in May 2012.

    [2] Dated [October] 2012.

17. Material provided in support of his visa application included a copy of a card titled ‘Human Right Commission of Sri Lanka’ recording a complaint received from the applicant on [date] December 2010 and a document from [Organisation 1] titled ‘DETENTION ATTESTATION’ dated  [January] 2011.

18. A detailed written submission[3] was provided to the first Tribunal by the applicant’s then representative in which he summarises the applicant’s claims, identifies the Convention grounds to which they relate, and references country information from a variety of sources to support his contention that the applicant’s fears of persecution for these reasons are well-founded.

    [3] Dated 31 March 2014.

19. Also provided to the first Tribunal was a further statutory declaration from the applicant[4] in which he provided new information that his brother, [Mr A], was granted refugee status in [Country 1] as a former member of the Liberation Tigers of Tamil Eelam (LTTE).  He said he did not disclose that information before, fearful he would not be granted a protection visa because (he thought) the LTTE is banned in Australia.  After the hearing with the first Tribunal the applicant provided a copy of documents evidencing that his brother was recognised as a refugee in [Country 1] in December 2000 and documents which show the familial relationship. In a statutory declaration[5] that accompanied these documents the applicant explained further about his brother’s situation and claims that as a young Tamil male with a brother who has been involved with the LTTE and who departed Sri Lanka illegally, he will be suspected of being linked with the LTTE by the Sri Lankan authorities and paramilitary groups. 

    [4] Dated 24 March 2014.

    [5] Dated 29 April 2014.

20. As part of the current review the applicant gave oral evidence about his past experiences in Sri Lanka and fears about returning there now over the course of two hearings in February 2017 and January 2018, summarised where relevant as follows.

21. The applicant said he left Sri Lanka in May 2012 because of ongoing harassment from the Karuna Group in his home area primarily because he had supported a TNA politician, [Mr B], in the lead up to the April 2010 parliamentary election, for example, by driving him around and distributing pamphlets.  Sometime[6] after the election he drove [Mr B] from Colombo to [District 1] to attend a [public event].  Not long after he was abducted by members of the Karuna Group from the front of his store, blindfolded, taken somewhere and assaulted for four or five hours before they left him on the side of the road, presuming he was dead.  They told him not to support the TNA and to join them.  He spent two days in hospital getting treatment for wounds [then] returned home for the next two weeks.  His father took care of his shop and told him members of the Karuna Group regularly came and took products without paying and also asked for his van to use.  The applicant said earlier, prior to the election, Karuna Group members had visited his shop and warned him not to support the TNA and also threatened him over the phone.

    [6] At the January 2018 hearing the applicant said he thinks it was around July 2010 however the Tribunal notes he states this took place in November 2010 in his original statutory declaration provided to the Department. 

22. The applicant said he could not go to the police because the Karuna Group would have shot him.

23. The applicant said he reported his abduction by the Karuna Group to the Human Rights Commission (HRC) and [Organisation 1] in [District 1] but did not identify the Karuna Group specifically, afraid they would retaliate. 

24. The applicant said he lived in Trincomalee at his wife’s sister’s house for around three months prior to leaving Sri Lanka in May 2012.  (Before that he lived at his house in [District 1] with his wife.)  Karuna Group members continued to visit his parents’ house and their house (where his wife stayed) in [District 1] during this period, asking his whereabouts.  After he left Sri Lanka, Karuna Group members have continued to look for him, visiting his parents’ house and his wife’s parents’ house (in [an area of] [District 1]): the last time was around three months prior to the January 2018 hearing when men from the Karuna Group visited his parents’ house and asked the applicant’s father about the applicant.  When asked how many times they have visited his family members since he left the country, the applicant replied about four or five, or maybe six or seven, noting that this is the reason his wife also moved to Trincomalee to live with her sister, around a year prior to the (January 2018) hearing. 

25. The Tribunal notes in his March 2014 statutory declaration submitted to the first Tribunal the applicant states that his wife had told him that Karuna Group members and the Criminal Investigation Department (CID) had come looking for him at her parents’ home [even] after he fled Sri Lanka, and that his wife moved to Trincomalee a few months prior because of repeated visits and threats by them.  His parents also told him that Karuna Group members and CID regularly came and looked for him at his family home after he fled the country.

26. The applicant said he was also taken for questioning by the Special Task Force (STF) to their army camp [in] [District 1] one time – he thinks it was sometime after the elections in April 2010 but was not sure.  (In his statutory declaration provided to the Department in 2012 he states this occurred in December 2010.)  There he was accused of being linked to the LTTE and asked about his brother who had been in the LTTE and moved to [Country 1].  He was kept for three or four hours then let go.  In his statutory declaration[7] provided to the first Tribunal the applicant states that the officers questioning him said they had information that he was an LTTE supporter; he thinks this is because of his brother, his support to the TNA and his support to [Mr B].  He also stated he was taken in for questioning following his refusal to give his van to Karuna Group members to use.  In addition to reporting the threats and abduction to  [Organisation 1] and HRC the next day, the applicant states in that statutory declaration that he reported receiving threatening phone calls at the police [station] – he did not mention any names or that he had been abducted or questioned by the STF. He states the police took his complaint details but there was no follow up.  

    [7] Dated 24 March 2014.

27. At hearing when asked why the Karuna Group has maintained such an adverse interest in him, the applicant said maybe because he supported the TNA, because he reported being kidnapped (to the HRC and [Organisation 1]), and also because his brother was in the LTTE.  He added that the Karuna Group is still active and Karuna himself is contesting local government elections next month (following the January 2018 hearing) in [District 1]. 

28. The applicant said his parents are long-time associates of the TNA and his father is a member who was active politically for example by holding party meetings at his house to discuss local development projects and inform the TNA of any specific needs or concerns.  As a result his father was given a [certain] title.  His father is now old and has [medical] problems and therefore no longer active.  When asked, the applicant said his father has never been threatened or harmed by anyone because of his support to or involvement with the TNA.    

    Findings on the applicant’s past experiences in Sri Lanka

29. The Tribunal accepts the applicant is a Tamil from [District 1] who helped support a TNA [candidate], [Mr B], in the lead up to the April 2010 parliamentary election mainly by driving him around, using his vehicle to canvas votes, attending meetings and distributing pamphlets.  It accepts his claims – set out in his March 2014 statutory declaration provided to the first Tribunal – that [Mr B] also came to their family home approximately 10 to 15 times during the campaign period to meet with TNA supporters, organised by the applicant’s father.  It accepts his father was a TNA supporter and member and that some meetings used to be held at their home in [District 1].  The applicant’s claims in this respect have been broadly consistent over the course of the visa application and two reviews. 

30. The Tribunal also accepts the applicant’s claims that Karuna Group members used to come to his shop in [District 1] and took goods without paying during this period and used his van on occasion. 

31. The applicant’s claim that he was questioned by the STF in a camp close to his shop for around two hours in December 2010 has been reasonably consistent and the Tribunal notes such questioning by the authorities of young Tamil men was not an uncommon occurrence at the time.  The Tribunal therefore accepts it occurred as claimed.  It accepts he was questioned about possible links to the LTTE and, although a late claim, accepts they also asked him about his brother who was a former LTTE member and had fled Sri Lanka.  The Tribunal notes the applicant was not seriously harmed, and was released after two hours.  At hearing the applicant said the person who interrogated him is still there; he was in hiding after 2010; and ‘they’ went to his and his mother’s house to look for him.  The Tribunal has some doubts that the person who questioned him in the STF remains in his home region, however, even if that is the case, for reasons below the Tribunal does not accept the applicant was of any further adverse interest to the authorities and therefore finds remote the chance that this person would seek to harm him on return.  The applicant’s oral evidence to the Tribunal about the period he was purportedly in hiding was internally inconsistent: at times he said he was in hiding after 2010, however, he also said before he moved to Trincomalee around three months prior to leaving in May 2012, he lived at his house in [District 1] with his wife.  Given this, and other credibility concerns with the case as discussed above and below, the Tribunal does not accept that the applicant was in hiding after 2010 as claimed, or that ‘they’ (the STF) went to his mother’s house looking for him subsequent to him being questioned in late 2010. 

32. Given these considerations, and based on the country information discussed below that indicates the situation for Tamils, including those suspected of LTTE links, has improved significantly since the end of the war and immediate post-war period, the Tribunal finds remote the chance the applicant would face persecution on return to Sri Lanka from the authorities or anyone else because he was questioned by the STF in 2010, over seven years ago.

33. The Tribunal has concerns about the applicant’s claims to have been abducted by Karuna Group members in 2010 in large part because of inconsistencies between the applicant’s initial written claims to the Department about this (and related) events and his oral evidence to the current Tribunal in some respects.  For instance:

    a.The applicant states in his statutory declaration that accompanied his visa application that he was abducted by two men in November 2010 whereas at hearing he said three or four men came to his shop and took him in November 2010 (at the first hearing) and in around July 2010 (at the second hearing).

    b.In his statutory declaration the applicant states that his hands were tied, mouth gagged and a gun pointed at his neck then he was taken to an army camp close to the Karuna Group’s office where he was tortured and beaten by Karuna Group members and CID members.  However at hearing he said he was blindfolded, that he was not sure where he was taken (but thinks he was taken to the Karuna Group office), and his blindfold was only removed by ‘someone’ after he was left by his kidnappers on the side of the road.

    c.In his statutory declaration to the Department the applicant states he was abducted and mistreated by CID and Karuna Group members in November 2010 and after that, in December 2010 he was questioned (and threatened) at the STF camp for two hours on suspicion of being an LTTE supporter.   However, at hearing the applicant told the Tribunal that he was questioned by the STF around the time of the election (in April 2010) and was kidnapped by the Karuna Group after that, in around July 2010. Whilst the Tribunal appreciates the difficulties in remembering dates for example, given the passage of time, it would expect the applicant to remember the sequencing of events: for instance, whether he was kidnapped by Karuna Group members before or after being questioned by the STF. 

1. There are other aspects to the applicant’s claims to have been kidnapped and targeted by the Karuna Group which cause the Tribunal concern.  For instance, it makes little sense why the applicant was targeted in a kidnapping in November 2010, seven months after the elections (where [Mr B] won), given the applicant’s own evidence that he had not been politically active during this time apart from driving [Mr B] from Colombo to [District 1] for a [public event] just prior to the alleged kidnapping, and given the applicant’s support to the TNA was limited.  At hearing the applicant said the Karuna Group dominated and controlled the area at that time and people were harmed for less.  Also that in 2010, because of problems between the TNA and Karuna Group, even if someone was only distributing notices, the Karuna Group would assault them.  The applicant said in this context the Karuna Group presumed he was working for the TNA and they had previously warned him not to associate with them.  A related concern is the fact that the applicant was allegedly targeted by the Karuna Group for his limited support to the TNA, however, his father, who he claims was a long-time supporter and TNA member, was not.  The applicant explained at hearing that was because in 2010 he worked openly and transported [Mr B] everywhere.  However, apart from one time after the election, the applicant’s evidence was that he stopped supporting [Mr B] and the TNA after the election, which took place in April 2010.

2. The fact that nothing happened to the applicant after his alleged kidnapping and threats of serious harm by Karuna Group members for the almost 18 months he stayed in Sri Lanka also casts doubt on his claims to have been targeted by the group.  The applicant told the Tribunal that he lived in hiding with his wife’s sister’s family (who are Muslim) in Trincomalee, did not work (his father gave him money) and did not visit [District 1] (his wife stayed living in [District 1] when he moved to Trincomalee and he handed his shop over to his father to run).  He said the Karuna Group used to come looking for him at his wife’s, his parents’ and his wife’s mother’s houses in [District 1] during this period, apparently wanting to know if he was supporting the LTTE, his whereabouts, and what he was doing.  For reasons above the Tribunal does not accept the applicant was in hiding as claimed.  It follows that the Tribunal does not accept his claims that the Karuna Group used to come looking for him at his wife’s, his parents’ and his wife’s mother’s house during this period.

3. As well, the applicant’s claims that he is of ongoing intense interest by the Karuna Group up until recently is undermined by the fact that his parents have stayed in the same area near [District 1], and his brother returned there from Australia in October 2015.  Also, his wife stayed in their house up until around a year before the January 2018 hearing.  On this last point the Tribunal notes there are inconsistencies in the applicant’s evidence about when his wife moved to live with her sister in Trincomalee: that is, he told the Tribunal in January 2018 that she moved to Trincomalee around a year prior (therefore around January 2017) because of visits by Karuna Group members.  However in his March 2014 statutory declaration provided to the first Tribunal he states that his wife moved to Trincomalee ‘a few months ago’ because of repeated visits and threats by them: that is in around early 2014, not early 2017.  Such an inconsistency casts doubts on the applicant’s claims that his wife has continued to receive visits from Karuna Group members looking for the applicant.   The Tribunal does not accept the applicant’s claims that the Karuna Group looked for him in the past and continues to do so until now.

4. Given these concerns the Tribunal does not accept the applicant was kidnapped by the Karuna Group (and CID), temporarily detained and mistreated in late 2010 as claimed.  It accepts he has scars on his head and chest as shown at hearing, however, the causes of these scars are unclear and could be for any number of reasons.    

5. In reaching this conclusion the Tribunal has had regard to the documents allegedly from the HRC and [Organisation 1] the applicant provided to the Department.  He told the Tribunal he complained to both organisations in [District 1] after the kidnapping, about being fearful of and threatened by ‘unknown arm [sic] person’, but did not mention the Karuna Group by name out of fear of retaliation.  Whilst this is understandable, the Tribunal has concerns about the veracity of these documents due, for example, to obvious spelling mistakes and/or lack of capitalisation in the organisations’ titles.  As well, information provided in  [Organisation 1] letter that the applicant visited an [Organisation 1] delegate on [date] December 2010 in the head office in Colombo is inconsistent with the applicant’s oral evidence to the Tribunal that he made the complaint to  [Organisation 1] office in [District 1].  At hearing the applicant said he is unsure why there are spelling mistakes and why the [Organisation 1] document states he visited the office in Colombo given he attended their office in [District 1], with his father.  He said the documents were genuine and requested the Tribunal to verify as such directly.  The representative submitted that spelling mistakes may be attributable to the fact that small branches of these organisations are established in every regional area – where English is not the official language – who print their own letterheads.

6. Despite these concerns, the Tribunal is willing to accept the applicant may have made complaints to the HRC and [Organisation 1] in [District 1] in December 2010 as recorded.  However there is no mention of being kidnapped in the documents provided, and whilst they indicate the applicant made contact with the HRC and [Organisation 1] at the time, there is no evidence of any investigations or follow up.  These documents represent self-reporting by the applicant of his fear of ‘unknown persons’ (to the HRC) and claims that ‘unknown arm group’ were searching for him and often called him over the telephone (to the [Organisation 1]), but do not constitute  evidence that these events actually occurred.  They do not overcome the credibility concerns the Tribunal has with the applicant’s claims to have been kidnapped by the Karuna Group as set out above and the Tribunal gives them little weight. 

7. The Tribunal has also had regard to a letter provided to the Department allegedly from [Mr B] dated [August] 2012 which states, among other things, that the applicant and his family had a deep-rooted affiliation with the TNA, and as a result of his ardent work in support of the TNA in the last parliamentary election in 2010 ‘he faced life threat from unknown Para military group since 2010’.  The Tribunal notes the author makes no mention of the alleged kidnapping in his letter.  For reasons below (elsewhere) the Tribunal does not accept the applicant’s claims to have been of adverse interest to the Karuna Group or other paramilitary groups in the past, or now, and therefore gives this letter little weight.

8. The Tribunal has considered the applicant’s claims to have received threatening phone calls from people he believed to be Karuna Group members, and threats in person, whilst working at his shop in [District 1] in 2010.  In his initial statutory declaration to the Department the applicant states that in March 2010 members of the Karuna Group called him and threatened to kill him if he continued to be involved in the TNA election campaign and insisted he support the TMVP and Pillayan[8].  In his statutory declaration provided to the first Tribunal[9] the applicant states that he received phone threats during the election campaign, and the night after being questioned by STF in December 2010, he received a phone call on his home number from someone threatening him with death because he refused to assist Karuna Group members by refusing to give them his van.  At hearing the applicant told the Tribunal that prior to the election, Karuna Group members had visited his shop and warned him not to support the TNA and also threatened him over the phone. The Tribunal accepts his claims in this regard, noting that it was not uncommon for TNA supporters to receive such threats and intimidation around election times.  The Tribunal is also willing to accept the applicant may have received a threatening phone call the night after being questioned by the STF as claimed in his earlier statutory declaration. 

   [8] Sivanesathurai Chandrakanthan, commonly known as Pillayan, former LTTE member, former Chief Minister of the Eastern Province of Sri Lanka, and former leader of the Tamil Makkal Viduthalai Pulikal (TMVP).

   [9] Dated 24 March 2014

9. For the reasons above the Tribunal does not accept the applicant was kidnapped or seriously harmed by Karuna Group members and/or CID in the past in Sri Lanka.  It accepts he was questioned by the STF on one occasion in late 2010 but finds, for reasons above, his fears of persecution on return on this basis are remote.  It also accepts he may have received some threats – possibly from Karuna Group members – around the time of the 2010 parliamentary elections, the last time in around December 2010, because of his support to the TNA and [Mr B]. However, for the reasons below, the Tribunal finds he does not face a real chance of serious harm on return on this basis.  Further, for reasons above, the Tribunal does not accept that Karuna Group members and/or the authorities have continued to show an adverse interest in him through his relatives.  

10. Given these findings about the applicant’s past experiences in Sri Lanka and profile, the Tribunal has gone on to consider whether he faces a well-founded fear of persecution on return for the following Convention reasons. 

    Tamil National Alliance (TNA) supporter

11. The Tribunal accepts the applicant and his family supported the TNA in the past and that his father was a member.  In particular it accepts that the applicant supported a TNA candidate and father’s friend – [Mr B] – in the lead up to April 2010 elections, based on his reasonably consistent evidence in this regard and giving some weight to the letter from [Mr B] the applicant submitted to the Department.  However the support was limited to being his driver, using his vehicle to canvas votes and helping distribute pamphlets and attend meetings.  At hearing the applicant displayed some knowledge of the TNA, for example, he said about five parties joined together to form an alliance with Sampanthan as the leader.  He also said that [Mr B] belonged to the Federal Party.  However his knowledge was limited and he was unable to state when the alliance was formed or name all the parties.  He was also vague about why he supported them, apart from stating that it was because all Tamils supported them and they can win freedom for Tamils.   For these reasons the Tribunal finds the applicant was a low-level supporter whose support was limited to driving for a TNA candidate in the lead up to the 2010 elections (and on one occasion afterwards), distributing pamphlets and attending meetings.  On the applicant’s own oral evidence he was not politically active after the elections. 

12. The applicant claims he was kidnapped by Karuna Group members after the election and warned not to support the TNA but to support the TMVP.  For reasons above the Tribunal does not accept the applicant was kidnapped as claimed.  He has also claimed to have received threatening phone calls and was visited by Karuna Group members at his shop not to support the TNA, as discussed.  The Tribunal accepts the applicant may have received threatening phone calls and threats in person at his shop in an attempt to dissuade him from supporting the TNA and [Mr B] in particular, given Karuna contested that election.   However given these threats took place over seven years ago, in the context of elections and immediate post-election period, and the Tribunal does not accept there has been any further threats or follow up including with the applicant’s relatives who have remained in the east of Sri Lanka, it finds remote the chance the applicant would face persecution on account of threats he received not to support the TNA following the 2010 election.

13. At hearing the applicant was asked if he would support the TNA on return to Sri Lanka.  He did not reply directly to the question, stating instead that he does not know if he will reach home.  Given this, combined with his limited support to the TNA in the past and limited knowledge of the party, the Tribunal does not accept the applicant will support the TNA on return any more than possibly voting for them.  Even if he does support the TNA on return, the Tribunal considers he would only do so in a very limited capacity as he has before.  Country information[10] indicates that opposition political parties are able to operate relatively openly in Sri Lanka.  Specifically DFAT state:

    There are currently no banned political parties in Sri Lanka and all parties operate freely, subject to general legal restrictions. This freedom applies both to high-profile elected representatives and office holders and low-profile party members, supporters and volunteers. DFAT is not aware of any evidence to suggest this differs between representatives of Sinhalese, Tamil, Muslim or other parties. However, under the Prevention of Terrorism Act (PTA), certain actions by political parties or groups can be restricted. According to the PTA, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can be sentenced to a maximum of five years’ imprisonment.

    DFAT assesses that there are no official laws and policies that discriminate on the basis of political opinion nor is there systemic political discrimination against any particular group.[11]

    [10] See for example, Bertelsmann Stiftung’s Transformation Index (BTI)  2018 Country Report, Sri Lanka, 22 March 2018, p. 8,

    [11] DFAT Country Information Report Sri Lanka 24 January 2017 at 3.25 and 3.26.

14. In regards to the current status of the TNA, country information indicates that the TNA formally leads the opposition, with Rajavarothiam Sampanthan appointed as Opposition Leader in the Sri Lankan parliament in September 2015.[12]   With respect to treatment of TNA supporters, there is no information before the Tribunal that indicates that TNA supporters have experienced political violence post-2015 parliamentary elections, which was described as ‘largely peaceful and without hindrance’.[13]

    [12] Ramakrishnan. T, The Hindu, ‘TNA’s Sampanthan becomes opposition leader in Sri Lankan parliament’, 3 September 2015,

    [13] ‘Parliamentary General Election 2015 – Final Report on Election Related Violence’, Centre for Monitoring Election Violence, p. 58.

15. When this country information was discussed at hearing the applicant said there will be enquiries about his brother being in the movement; that the Karuna Group still operates freely in the villages; the STF camp is intact with the same officer; that these kinds of activities continue; and he would have to live without peace, would end up in gaol and probably dead.  For reasons set out separately below the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Sri Lanka on account of ongoing paramilitary activity or because his brother is a former LTTE member.  For reasons above the Tribunal also finds remote the chance the applicant would face serious harm on return because the same STF officer who questioned him in 2010 is still in his home area.  

16. On the basis of the above country information the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka in the foreseeable future on the basis of his past (limited) support to the TNA or if he supports them on return from the authorities or paramilitaries as claimed. His fear of persecution on the basis of an imputed anti-government/pro-LTTE political opinion on this basis is not well founded.

17. The Tribunal accepts the applicant’s father was a member of the TNA and supported them for example by holding meetings at his house to help resolve local village issues and development projects, meetings held as part of the election campaign, and was given a [certain] title. However on the applicant’s own oral evidence his father never experienced any problems from anyone as a result of his support to the TNA in the past, and is no longer politically active because of his age and health problems.  The Tribunal notes the applicant’s father has remained living in [District 1], which does not indicate that he is fearful of being harmed by those opposed to the TNA, including paramilitaries.  For these reasons, and taking into account the above country information about the status of TNA in Sri Lanka and relative political freedom to operate, the Tribunal finds remote the chance the applicant’s father would be persecuted on the basis of his past membership of and support to the TNA.  Consequently, the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution on return to Sri Lanka on the basis of being a member of a particular social group of his father’s family or on imputed (anti-government/pro-LTTE) political opinion grounds given his father’s past support to the TNA. 

    Brother’s former LTTE membership

18. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka on account of his brother, [Mr A], a former LTTE member who was recognised as a refugee in [Country 1] in 2000.  Although the applicant failed to mention his brother’s LTTE involvement to the Department at the visa application stage, including at interview when asked specifically (as set out in the delegate’s decision record, a copy of which was provided to the first Tribunal) it accepts as plausible his reasons for not doing so: that is as set out in his statutory declaration to the first Tribunal, he was afraid to do so, believing the LTTE was a banned organisation in Australia.  It is submitted that the applicant thought as a result he would be viewed as an LTTE supporter and refused protection.  Also that this information would place him at risk on return.  As mentioned, documents have been provided to the first and current Tribunal which indicate that the applicant’s brother was recognised as a refugee in [Country 1] in 2000 and the Tribunal accepts that was the case. 

19. In his statutory declaration provided to the first Tribunal the applicant states [Mr A] was forcibly recruited by the LTTE in 1993, when [age]: he was trained by them and made to ‘do things’; in November 1997 his brother managed to escape from an LTTE camp; and their father managed to get him out of the country with the help of an agent in December 1997 to [Country 2] where he lived for a year before moving to [Country 1] in December 1998.  At hearing the applicant claimed he was asked about [Mr A] by the STF when questioned in 2010 and by members of the Karuna Group when they kidnapped him that year.  For reasons above the Tribunal does not accept the applicant was kidnapped by the Karuna Group.  It accepts that he was questioned by the STF in 2010 and is willing to accept they may have asked about his brother at that time. 

20. At hearing the applicant was asked why he would be of concern to the authorities on return to Sri Lanka now because of his brother’s past LTTE membership, given he did not experience any serious problems in the past when living in Sri Lanka on this basis, including when the war was on.  The applicant said because he departed the country illegally he will be subject to enquiries and the information about his brother will come out.  However even if it did, for the reasons that follow the Tribunal does not find that the applicant would face a well-founded fear of persecution by the authorities because of his brother’s past LTTE membership. 

1. The Tribunal accepts that the applicant’s brother was a former LTTE member from 1993 to 1997.  However he left Sri Lanka in 1997, which is over 20 years ago and well before the end of the war in May 2009.  Further, apart from the STF asking some questions about [Mr A]’s whereabouts in 2010, the authorities have not shown any particular interest in the applicant because of his brother (or any other reason), including in the one and a half years the applicant remained living in Sri Lanka after he was questioned by the STF in December 2010. 

2. Country information from the UK Home Office, as discussed at hearing, indicates that in general, a person who evidences past membership or connection with the LTTE would not of itself warrant international protection, unless they have or are perceived to have a significant role or perceived to be active in post-conflict Tamil separatism and thus a threat to the state.[14]  The applicant has not indicated that he was ever involved with the LTTE in Sri Lanka, or that he has been active in the diaspora community since leaving Sri Lanka and the Tribunal finds the applicant has not been active in the diaspora community.  

   [14] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

3. The Tribunal also notes DFAT in their latest report assess that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring.[15]  The Tribunal doubts [Mr A] remains wanted by the Sri Lankan authorities given their lack of enquiries with family members who have remained in Sri Lanka.  With respect to whether or not [Mr A] would be considered high-profile, the Tribunal notes at hearing when this information was discussed the applicant said his brother held a ‘big position’ and when asked to provide more details, he said he was in charge of a battalion in [District 1] and that his name given to him by the LTTE was ‘[another name]’.  His evidence was vague, which could be because he was young when his brother left Sri Lanka and they rarely talk about such matters subsequently as submitted.  However the applicant’s failure to mention [Mr A]’s leadership position in his statutory declaration to the first Tribunal in which he first introduced his claims relating to [Mr A] casts doubt on his claim that [Mr A] held a ‘big position’.  The Tribunal also notes in this respect that whilst it states the applicant’s brother joined the LTTE it does not indicate that he was a leader or high profile in the translated copy of the [Country 1] Refugee Appeals Board decision provided by the applicant to the Tribunal.  For these reasons whilst the Tribunal accepts [Mr A] was an LTTE member for four years in the past, it does not accept he was in charge of a battalion or held a big position as claimed. 

   [15] DFAT Country Information Report Sri Lanka 24 January 2017 at 3.47.

4. For these reasons the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka on the basis of being a family member of a former LTTE member, even when considered cumulatively with other aspects of his claims discussed above and below.  His fear of persecution for this reason is not well founded. 

   Brother’s involvement with [Organisation 2]

5. The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Sri Lanka because his other brother ([Mr C]) had problems with [an official] when he was involved with [Organisation 2]. The applicant’s brother was recognised as a refugee on this basis in Australia in mid-2014.[16]

   [16] Refugee Review Tribunal (RRT) No. [file number].

6. In a written submission to the Tribunal dated 23 February 2017, following the first Tribunal hearing in January 2017, the representative advised that [Mr C] had returned to Sri Lanka following the death of his [age] year old son due to [medical] problems.  A copy of [Mr C]’s sons’ death certificate translated from Tamil to English was submitted along with a copy of an affidavit[17] from the applicant filed in relation to the applicant’s FCCA appeal.  According to the death certificate [Mr C]’s son died on [date] October 2015 in [District 1]. 

   [17] Dated 12 May 2016.

7. At the January 2018 Tribunal hearing the applicant confirmed that [Mr C] currently resides at his parent’s house in [District 1] with his wife and daughter, having returned there following the death of his son in October 2015.  He said his brother and his brother’s wife are severely depressed; his brother has been unable to get a job; and his mother told him he rarely leaves their house. 

8. The applicant was vague at hearing about [Mr C]’s protection claims, explaining that he does not know his problems very well.  He thought it was to do with problems at the time related to [deleted], and mostly related to Pillayan, who is now in gaol.  He was unsure if [Mr C] had a falling out with Pillayan directly. 

9. The applicant was asked if [Mr C] has experienced any problems in Sri Lanka from Pillayan, or his associates, or anyone else since his return to Sri Lanka.  Initially the applicant said he has not.  However later during the course of the hearing the applicant said the army went to [Mr C]’s house three or four times since he returned from Australia and asked what kind of information he had devolved to the Australian authorities.  This internal inconsistency, combined with the applicant’s failure to mention that the army went to his brother’s house three or four times since he returned during the course of the February 2017 Tribunal hearing causes the Tribunal not to accept it occurred as claimed.  The applicant said he did not mention it at the first Tribunal hearing because he was not asked; however, even if not asked directly, the Tribunal considers it to be a significant omission. 

10. The Tribunal accepts [Mr C] experienced problems with Pillayan in the past in Sri Lanka, and was found to be a refugee by the former RRT in mid-2014 primarily on this basis.  However subsequently he has returned to Sri Lanka – in October 2015 – to the family home in [District 1], the area where the alleged problems occurred and where Pillayan’s past influence was concentrated.  As well, for reasons above the Tribunal finds he has not experienced any problems from anyone since his return.  The Tribunal understands why [Mr C] returned to Sri Lanka in 2015 following the tragic death of his son, in order to support his wife and daughter, and has sympathy for him in such circumstances. The Tribunal accepts he and his wife are depressed as a result and may limit their movements to a certain extent.  However the fact that he has stayed in [District 1] for over two years and nothing has happened indicates that he is not of ongoing adverse interest to Pillayan or his associates.  Furthermore, as indicated by the applicant at hearing and supported by independent country information, Pillayan is currently in prison in Sri Lanka, after being arrested in 2015 in connection with the assassination of the late Tamil politician, Joseph Pararajasingham.[18]

    [18] Sunday Times (Sri Lanka), 26 July 2017,

11. For these reasons the Tribunal finds [Mr C], who it accepts came to the adverse attention of Pillayan in the past because of his involvement with [Organisation 2], no longer faces a well-founded fear of persecution in Sri Lanka from Pillayan or his associates.  It follows that the Tribunal finds the applicant’s fear of persecution as [Mr C]’s brother is not well-founded.

    Particular social group of ‘wealthy Tamil family’

12. The Tribunal has considered if the applicant faces a real chance of serious harm – in particular extortion and kidnapping for ransom – on return to Sri Lanka as a member of a particular social group of ‘wealthy Tamil family’ as submitted.  In a post-(second) hearing written submission to the Tribunal the representative states that the applicant and his parents were wealthy – owning [houses], [properties], and a [business]. 

13. At hearing the applicant said his family were wealthy and have the means to live comfortably given profit from their businesses, but they still live without peace, fearful something will happen to them.  He did not indicate that anything has happened to his family because of their wealth or perceived wealth. 

14. It has been submitted that because the applicant’s family were wealthy and supported the TNA, they were targeted by Karuna Group members, who would take items from the applicant’s shop without paying and use his vehicle. The Tribunal accepts the applicant’s claims that when he ran a shop in [District 1] in around 2010, members of the Karuna Group would sometimes take items without asking and ‘borrow’ his vehicle on occasion.  However the Tribunal does not accept these constitute instances of serious or significant harm and, given the Tribunal does not accept the applicant was of any ongoing adverse interest to the Karuna Group, it finds remote the chance the applicant would face serious harm because of these events that occurred over seven years ago.

15. As mentioned, his family who have remained in Sri Lanka have not experienced any harm in the past on this basis.  As discussed at hearing, DFAT indicates that although kidnappings for ransom frequently occurred in Sri Lanka during the war, particularly in the north and east, they have fallen considerably since the conflict ended.[19]

    [19] DFAT Country Information Report Sri Lanka 24 January 2017 at 4.5.

16. The Tribunal accepts the applicant comes from a reasonably wealthy Tamil family or one that could be perceived as such.  However, based on country information above that indicates kidnappings have fallen considerably since the end of war, combined with the fact that neither the applicant or his family have experienced problems as wealthy Tamils since Karuna Group members used to take items from the applicant’s shop and borrow his van in 2010, the Tribunal finds remote the chance the applicant would face a well-founded fear of persecution from the authorities, paramilitaries or anyone else because of his membership of a particular social group of ‘wealthy Tamil family’.   His fears of persecution on this basis are not well-founded. 

    Fear of paramilitaries

17. The Tribunal has considered whether the applicant faces a real chance of serious harm including kidnapping at the hands of paramilitary groups in Sri Lanka. 

18. The status of Tamil paramilitary groups and Karuna and Pillayan in particular was discussed at length at the Tribunal hearing in February 2017.  The applicant claimed that paramilitaries are still active in Sri Lanka; that although Karuna is not in power he stays involved with those who are; and that ‘white van’ abductions continue.   In a written submission[20] provided to the Tribunal after the first hearing, the main points were as follows:

    ·The Tribunal’s view discussed at hearing that Karuna was no longer active in politics in Sri Lanka, that he has retired, and returned to [District 1] is disputed.  Although Karuna and his group may have changed in their political form – because they have been labelled a terrorist group by the Sri Lankan government – they remain active and may grow further.

    ·News articles are referenced that indicate that Karuna Amman has formed a new party called the Tamizhar Aikkiya Suthanthira Munnani (Tamil United Freedom Front (TUFP)), soon to be registered with the eastern province.

    ·Whilst Karuna has shifted from more confrontational politics, he remains critical of more mainstream political actors, including the TNA.  

    ·Karuna is an ex-LTTE member for over 20 years and rose to prominence as leader of the TMVP as the breakaway from the LTTE took place.  He has been a member of a militant group and has been accused by many human rights groups to have been involved in disappearances of civilians and child recruitment in the past. 

    ·Karuna continues to speak at rallies along with former President Rajapakse, as indicated in the YouTube video links provided by the representative in his submission.

    [20] Dated 23 February 2017.

19. After the February 2017 Tribunal hearing the representative provided an update about Karuna, including articles indicating that Karuna leads the TUFP; that TUFP will join the Sri Lanka Podujana Peramuna affiliated with former President Rajapaksa at a general election; and that in October 2017 Karuna had unofficial talks with the United Peoples’ Freedom Alliance General Secretary, Mahind Amaraweera and afterwards met Basil Rajapakse.

20. The Tribunal has had regard to these submissions, the country information contained within them that indicates that Karuna still has some involvement in politics in Sri Lanka, and the applicant’s concerns about his (and other former and allegedly current) paramilitaries’ presence and influence in Sri Lanka.  Reports indicate that although there are no longer active paramilitaries in Sri Lanka, informants and intelligence operatives continue to work with the military.[21]   The Tribunal accepts that enforced disappearances occurred during the time of conflict in Sri Lanka and often Tamils were victims.  However, as discussed with the applicant at hearing, abductions were now seldom reported.[22] 

    [21] Austrian Centre for Country of Origin & Asylum Research and Documentation, December 2016, pp. 47-48. 

    [22] Statement by United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, at the end of his Mission to Sri Lanka, dated 9 February 2016.

21. On the basis of country information about the considerable decrease in abductions, among other things, since the end of the war, combined with the Tribunal’s findings that the applicant was not of ongoing adverse interest to the Sri Lankan authorities or the Karuna Group after 2010 and will not be on return, and its finding that the applicant does not face a well-founded fear of persecution on return as a family member of someone who had a falling out with Pillayan, or as a family member of a former LTTE member, the Tribunal finds remote the chance the applicant would face serious harm including being abducted and/or ‘disappeared’ by paramilitaries such as the Karuna Group on return to Sri Lanka in the foreseeable future. 

    Tamil ethnicity

22. The Tribunal accepts the applicant is a young Tamil male from [District 1] in the eastern province of Sri Lanka and that parts of [District 1] were under LTTE control in the past, prior to the end of the war.   However, as discussed at hearing, UNHCR Guidelines state that originating from an area previously controlled by the LTTE does not in itself result in a need for international protection.[23] 

    [23] UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December, p. 26.

23. The Tribunal accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, as discussed at hearing, country information indicates that the situation for Tamils in Sri Lanka has improved since the end of the war, and particularly since the election of the current Sirisena government.  For example, the Sirisena government claims to have prioritised human rights and reconciliation, and has made significant progress including: replacing military governors in the Northern and Eastern Provinces with civilians; returning some of the land held by the military since the conflict-era to its former owners; releasing some individuals detained under the Prevention of Terrorism Act (PTA); and committing to reform of the PTA. 

24. Country information also indicates, as discussed at hearing, that a person being of Tamil ethnicity would not of itself warrant international protection.[24]  Neither – as mentioned earlier – would a person who evidences past membership or connection with the LTTE, unless they have or are perceived to have a significant role, or to be active in post-conflict Tamil separatism, in general, be perceived as a threat to the state.[25] The applicant said he was never involved with the LTTE in Sri Lanka.  As well, the applicant has not indicated that he has been active in the diaspora community since leaving Sri Lanka and the Tribunal finds the applicant has not been active in the diaspora community. 

    [24] Department of Foreign Affairs and Trade 2017 DFAT Country Information Report Sri Lanka 24 January 2017; UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017; and UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from  Sri Lanka, 21 December.

    [25] UK Home Office Country Policy and Information Note, Sri Lanka: Tamil Separatism Version 5.0, June 2017 at 3.1.3.

25. In a written submission provided to the Tribunal the representative argues that there are ongoing concerns for Tamils in Sri Lanka and many unresolved post-conflict issues.  His main points are summarised as follows:

    ·Tamils continue to face discrimination in Sri Lanka, including lack of access to public services in their own languages, and people live in fear due to big military presence according to a statement by the United Nations Committee on the Elimination of Racial Discrimination.[26]

    ·During the civil war more Tamils were detained under the emergency regulations and the PTA than any other ethnic group.  Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by the security forces during the conflict and under the Rajapakse government.

    ·There are reports that whilst many Tamils voted for Sirisena, the new government seems to be pursuing the same old racially discriminatory policies.

    ·Despite a recent visit by Sri Lanka’s prime minister to Australia, urging Sri Lankan asylum seekers to return and that all is forgiven, government figures indicate as at January 2017 there were 86 Sri Lankan men in detention facilities and 24 men in community detention in Australia.

    ·Human rights violations have not been addressed by the previous nor current government. 

    ·Noting DFAT’s observations about the Sri Lankan Human Rights Commission in its latest report as effective yet suffering from lack of staff, it is questionable how it would have the manpower to safeguard the entire community of Sri Lanka.

    ·A recent article by P K Balachandran talks about racial segregation in post-conflict Sri Lanka, and the chance for initiation of another war.[27] 

    ·There are a number of reports about practices of land grabbing and illegal colonisation of Sinhalese in traditional Tamil homeland areas, in particular by police and army in the north and east.  The army has expanded its non-military activities and engaged in large scale property development, construction projects, and business ventures in the north and east.  Hotels and golf courses have been built on land seized by IDPs, or home to Tamils.  CV Wigneswaran, Chief Minister for Northern Province, claims only 5.2 per cent of private land has been given back.[28]

    ·There have been 20,000 cases of missing persons recorded in Sri Lanka, whilst not a single person listed as missing has been traced since the new government took office.[29]  Families of the missing continue to hold demonstrations seeking answers.  Widows and mothers of those missing Tamils since the end of the war have been on hunger strikes, to show injustice for Tamils continues.  (A New York Times article[30] about the hunger strikers has been provided.)  The applicant believes that with such unresolved conflict it is difficult to justify that there is equality and protection for Tamils in Sri Lanka or that the applicant would be treated as an equal on return. 

    [26] Dr Abdul Ruff, ‘UN – Tamils continue to face racial discrimination in Sri Lanka’, Foreign Policy News, 28 August 2016 is cited in the submission.

    [27] P. K Balachandran, ‘Shunned ex-Tamil Tiger Militants begin to find acceptance in Tamil polity’, South Asian Monitor.com, 2 May 2017 is cited.

    [28] P. K Balachandran, ‘Wigneswaran says only 5.2% of private lands belonging to Tamils have been returned’, The New Indian Express, 11 December 2016 is cited. 

    [29] Niro Kandasamy, ‘Not ‘all is forgiven’ for asylum seekers returned to Sri Lanka’, The Conversation, 10 March 2017 is cited.  

    [30] Dated 26 January 2017.

1. At the Tribunal hearing the applicant said the situation for Tamils in Sri Lanka had definitely not improved.  He said around three months prior to the (January 2018) hearing the Chief Minister of the Northern Province indicated that people who return from ‘these’ countries will face problems.  The applicant referred to the settlement of Sinhalese, especially in border areas, and commented that the Sinhalese are ‘running everything’. 

2. The Tribunal notes in a post-hearing submission provided to the Tribunal the representative submits, among other things, that Tamil lands have been taken over by the army and there is now planned Sinhalese colonisation on Tamils’ traditional land. 

3. The Tribunal has had regard to these submissions(and the country information contained within them) and the applicant’s concerns about the situation for Tamils in Sri Lanka.  It acknowledges that military and security forces remain in the Northern Province of Sri Lanka and parts of the east; that the military has been involved in other non-core businesses; and that although some land has been returned, the return of land used by the army to its owners remains an outstanding issue[31].  However, as discussed at hearing, DFAT report that the security situation in the north and east has improved dramatically since the end of the conflict, with greater freedom of movement and a reduction in the military’s involvement in civilian life; that the Sri Lankan police are now responsible for civil affairs across Sri Lanka; and while a sizeable military presence remains in the north and east, armed forces personnel are generally restricted to their barracks.[32] 

   [31] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.12

   [32] Ibid at 2.32.

4. In terms of concerns about monitoring of Tamils, as discussed at hearing, DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government.[33]  They state that while some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced; the government has begun reducing High Security Zones in the Northern Province; military checkpoints on major roads leading to the north and east were removed in 2015 and there are no restrictions on travelling to the north and east;[34] and that members of the Tamil community have also described a positive shift in the nature of interactions with the authorities.[35]

   [33] Ibid at 3.9.

   [34] ibid at 2.39.

   [35] Ibid at 3.9.

5. Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity and in the immediate aftermath of the war.  However, in light of the end of the war in May 2009 and the country information cited above that assesses that being of Tamil ethnicity does not on its own warrant international protection and the improved security situation, the Tribunal finds that the applicant does not face a real chance of suffering serious harm on account of being a Tamil, nor in combination with what the Tribunal has found in respect of the applicant’s imputed political opinion, as discussed above and below. Given these considerations, when combined with a significant improvement in the security situation since the end of the war and immediate post-war period, the Tribunal finds remote the chance that the applicant would be seriously harmed by the authorities on imputed political opinion grounds as an LTTE supporter or on the basis of his Tamil ethnicity even when considered cumulatively with other aspects of the applicant’s profile, considered separately below and above (including because of his brother’s former LTTE membership and other brother’s falling out with Pillayan).  The Tribunal finds the applicant does not face a real chance of serious harm on return to Sri Lanka by the authorities on the basis of an imputed (pro-LTTE) political opinion and/or his Tamil ethnicity in the foreseeable future.  His fears of persecution on imputed political opinion grounds and on the basis of his Tamil ethnicity are not well founded.

   Hindu religion

6. In written claims and his oral evidence to the current Tribunal the applicant also claims to fear persecution on return to Sri Lanka as a Tamil Hindu. 

7. At hearing the applicant said nowadays Hindu temples are destroyed and Buddhist temples erected instead.  He said Sinhalese – who are Buddhist – form the majority in Sri Lanka whilst Tamils are mostly Hindus.  Sinhalese want to introduce Buddhism and there is no freedom for Hindus.  He added ‘they’ are also instigating racial riots between communities. When asked if he experienced any problems as a Hindu in Sri Lanka in the past, the applicant said in Kathiragama – one of the holiest places – there is no freedom for them to go and worship there and they have replaced Hindu gods with a Buddhist god.

8. In a post-hearing submission provided to the Tribunal the representative submits that the constitution of Sri Lanka says that Sinhala and Buddhism shall be the official language and religion respectively; that Sinhalese-Buddhist armed forces intentionally destroyed most of the Hindu temples in the north and east; and now the army have built Buddhist temples and placed Buddha statues all over the north and east.  Further, it is submitted that the majoritarian Sinhalese mindset, helped by Sinhalese Buddhist nationalist ideology, is that Sri Lanka is an island of Sinhalese, and chosen repository of Buddhism; that Sinhalese Buddhists are ennobled to preserve and propagate Buddhism; that minorities live there thanks to Sinhalese Buddhist sufferance; and it is within this context those who promoted a political settlement with the LTTE or advocated devolution were branded traitors.[36]

   [36] Neil DeVotta, ‘Civil War & the Quest for Transitional Justice in Sri Lanka’, Sri Lanka One Island Two Nations, 26 September 2017 is citied.

9. The Tribunal accepts the applicant is a Hindu and a Tamil.  It accepts that Sri Lanka is a majority Buddhist country[37] and that the Constitution affirms that Buddhism occupies the ‘foremost place’ in the country and that it is the duty to protect the teaching of the Buddha. However, as discussed at hearing, country information indicates that in general a person will not face a real chance of serious harm from state actors because of their religion, including members of religious minorities such as Hinduism. DFAT relevantly state as follows:

   DFAT assesses official discrimination on the basis of religion is rare as there are no official laws or policies that discriminate on that basis. DFAT is aware of reports that the former Rajapaksa Government sanctioned religious discrimination, particularly through support provided to the extremist Buddhist group Bodu Bala Sena (BBS / English: ‘Buddhist Power Force’), the most serious recent example being the Aluthgama Riots which occurred between Buddhists and Muslims in 2014.

   ...

   DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. However, the risk of harassment or violence increases where practitioners attempt to proselytise/convert others.[38] 

   [37] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.6 and 3.11.

   [38] Ibid at 3.14.

10. At hearing the applicant said this not fully true; they cannot pray according to their religion; their temples are being targeted; the STF is taking a serious stand on this matter; they cannot go out at night and worship gods; and the STF and Karuna Group remain in force.  The representative said there is more reliable information (than DFAT’s) from people on the ground, noting that it is clear if someone travels the A9 highway in Sri Lanka that major Hindu temples have been destroyed and many Buddhist temples established. 

11. Whilst the Tribunal accepts some Hindu temples in the north and east of Sri Lanka may have been destroyed as claimed, on the basis of this country information from DFAT that most members of religious groups in Sri Lanka are able to practice their faith freely, the fact the applicant has not experienced any problems as a Hindu in the past in Sri Lanka, and given he has not claimed or indicated that he has or plans to proselytise, the Tribunal finds remote the chance the applicant would face serious harm as a Hindu on return to Sri Lanka in the foreseeable future.  The Tribunal also finds the applicant would be able to practice his religion as he did in the past, for example by going to the temple. 

12. The Tribunal notes on 6 March 2018 the Government of Sri Lanka issued a state of emergency following tensions between Sinhalese Buddhists and Muslim communities in Kandy, central Sri Lanka, which was lifted around 10 days later.  Violence and destruction of property owned by Muslims was recorded.  Although the applicant is not Muslim, such incidents indicate that violence said to be fuelled by hard-line Buddhist groups against religious minorities – primarily Muslims – has risen since 2012.  Whilst a concern, reports indicate that the state responded swiftly to the recent outbreak of violence, which was contained in the Kandy area, including by arresting a number of people suspected of inciting violence,[39] including soldiers.[40] Such measures confirm country information as discussed with the applicant at hearing about improvements in the security situation in Sri Lanka since the end of the war, including the Sri Lankan police becoming more responsible for civil affairs across Sri Lanka.

    [39] BBC News, ‘Sri Lanka violence: Nationwide state of emergency lifted’, 18 March 2018,

    [40] ColomboPage, ‘Two Sri Lankan soldiers arrested over communal violence in Kandy’, 9 April 2018,

13. It has been submitted that the applicant’s particular profile as a Tamil Hindu needs to be taken into account in the context of Sinhalisation (and related predominance of Buddhism) across Sri Lanka. In a post-hearing submission provided to the Tribunal the representative submits, among other things, that Tamil lands have been taken over by the army and there is now planned Sinhalese colonisation on Tamils’ traditional land.  At hearing when discussing country information that indicates the situation for Tamils has improved (as set out above) the applicant referred to the settlement of Sinhalese, especially in border areas, and commented that the Sinhalese are ‘running everything’. 

14. The Tribunal accepts, based on DFAT information, that in the post-war environment the military have become involved in commercial businesses, including the Northern Province, and that whilst President Sirisena has overseen the return of some land occupied by the army during the conflict to its original owners, the military continues to occupy fertile farming land in the north and restricts access to some of the more abundant fishing areas.[41]  However the applicant has not made claims that his own land (or that of his family members) has been appropriated by the army or the authorities, or that he or his family members have been directly affected by the alleged ‘Sinhalisation’ of the north and east.  The Tribunal therefore finds remote the chance the applicant would face serious harm on return to Sri Lanka for these reasons.

    [41] DFAT Country Information Report Sri Lanka 24 January 2017 at 2.12.

    Failed asylum seeker

15. The Tribunal has considered whether the applicant faces a real chance of serious harm from the authorities on a return to Sri Lanka as a failed asylum seeker.  The Tribunal has considered if he will be imputed with an anti-government political opinion on this basis (combined with departing the country illegally and other matters addressed elsewhere in the decision record). 

16. The Tribunal accepts that the applicant entered Australia without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka. 

17. DFAT sets out the standard procedures for processing involuntary returnees in their recent country information report on Sri Lanka as follows:

    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department.  These agencies check travel documents and identity information against the immigration databases, intelligence databases and the records of outstanding criminal matters. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo may meet charter flights carrying involuntary returnees. DIBP has observed that processing returnees at the airport can take several hours, primarily due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed. Individuals who return to Sri Lanka voluntarily and are eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration.[42]

    [42] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.19.

18. As discussed at hearing, DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.[43]

    [43] Ibid at 5.20.

19. As discussed at hearing, DFAT also state that during 2008-2015, over 1,500 failed asylum-seekers were returned from Australia to Sri Lanka, in addition to the many Sri Lanka asylum seekers who have been returned from other countries, including the US, Canada, the UK and other European countries.  As well, DFAT state that the majority of these returnees are Tamil and although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, either because it is their place of origin, because they have existing family links, or because of the relatively lower cost of living compared to Colombo and other urban areas.[44]   

    [44] Ibid at 5.27.

20. The UK Home Office reports, as discussed at hearing, that in the UK country guidance GJ & Others, the UK Upper Tribunal identified as one of four risk categories individuals who are or perceived to be a threat to the integrity of Sri Lanka as a single state because they are or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[45] Such country information indicates that the absence of any anti-government activity pre and post-departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.  The applicant has not indicated that he has been involved in any diaspora activities that could be construed as anti-government/pro-Tamil separatism and the Tribunal finds that he is not such a person.

    [45] UK Home Office Operation Country Policy and Information Note, Sri Lanka: Tamil separatism, Version 5.0 June 2017 at 2.3.9.

21. The representative disagrees with such country information that indicates that Tamil returnees can return safely to Sri Lanka in his written submission to the Tribunal, noting various speeches and comments made by C. V Wigneswaran, Chief Minister of the Northern Province, about dangers that exist for young Tamil asylum seekers returning to Sri Lanka (with a link to a meeting between him and Minister of Norway cited, among other things). 

100.   The representative also submits the applicant cannot return to Sri Lanka and live safely after so many years living in the west, seeking protection. 

101.   At hearing the applicant questioned why, if there was such positive change since Sirisena took over from Rajapakse, there remains such a strong army presence in the north and east. 

102.   The representative addressed this issue further in a post-hearing written submission to the Tribunal, the main points of which are summarised as follows:

·According to an article in the Sri Lankan Guardian on 18 February 2017 the Australian Tamil Congress state that the PTA remains in force and there have been several arrests in the past year, many people imprisoned have been forced to confess under torture, and there are no concrete plans to provide redress for those unjustly detained under the PTA.

·Reference is made to a psychological analysis report by Dr Jayatunga about the psychological problems prisoners of war face in Sri Lanka and to articles about how Tamil prisoners are treated with intent resulting in degrading treatment and punishment and about racial segregation and mistreatment in prison.

·The Justice Minister of Switzerland was advised by the Northern Province Chief Minister that asylum seekers in Switzerland should not be sent back at this time, because the PTA is still in place and powers of arrest so wide, and Tamil youth are still at risk. 

·Reference is made to the latest report by the International Truth and Justice Project (ITJP) which records witness testimony and alleges, among other things, that in 2016/17 military and police continued to engage in abductions, unlawful detentions, torture and rape and that white van abductions, illegal detention and torture continued throughout 2016 into 2017. 

·Ben Emmerson, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedom following his visit to Sri Lanka in July 2017 concluded, among other things, that the PTA was used against the Tamil community; that counter-terrorism measures have targeted whole communities and in particular Tamils; and he heard of torture being used against current and former detainees.

·At the 36^th session of United Nations Human Rights Council, which closed on 29 September 2017, 14 NGOS and the UN High Commissioner for Human Rights spoke critically of Sri Lanka’s human rights record, with no response from the Sri Lankan government representatives present.

103.   The Tribunal has had regard to these submissions and the applicant’s concerns about returning to Sri Lanka as a failed asylum seeker.  While the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and the findings above that he does not face a well-founded fear of persecution on imputed (pro-LTTE) grounds, and has not been involved with diaspora activities, the Tribunal is satisfied that the processing itself would not lead to serious harm and that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker, including as someone who has spent some time in Australia.  The Tribunal accepts the applicant was questioned by the STF in 2010 but it does not accept that he experienced problems from the authorities as a result nor would on return for these reasons. The Tribunal finds remote the chance that the applicant would be imputed with an anti-government political opinion on these bases and seriously harmed by the authorities as a result on return, even when combined with other aspects of his profile such as being Tamil, departing illegally and having family members who were former LTTE and who had a falling out with Pillayan, as discussed.    

104.   The Tribunal accepts that when the applicant returns to his home in [District 1] his arrival may be noted and he may be questioned by the Sri Lankan authorities. However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason.  His fear of persecution based on membership of a particular social group (‘failed asylum seekers’) and related imputed political opinion grounds are not well-founded.

Illegal departure

105.   The Tribunal accepts the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  At the hearing the Tribunal discussed with the applicant DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.  Also that in practice most penalties (which can include imprisonment of up to five years) are almost always a fine, that fine amounts vary on a case by case basis (but can be up to 200,000 Sri Lankan rupees/AUD2000) and can be paid by instalment.  Further, that DFAT advised that if a person pleads guilty, they will be fined and are then free to go.  In most cases where a returnee pleads not guilty, returnees are immediately granted bail by the magistrate on the basis of personal surety or they may be required to have a family member act as guarantor.[46]

[46] DFAT Country Information Report Sri Lanka 24 January 2017 at 5.21 – 5.26.

106.   As discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application and, as mentioned above, they advised that detainees are not subject to mistreatment during their processing at the airport. The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  For reasons set out above the Tribunal does not accept that the applicant has an anti-government profile or is of ongoing adverse interest to the authorities or anyone else for any reason, including in relation to his support to the TNA around the April 2010 elections and being questioned by the STF in late 2010.  The evidence before the Tribunal does not indicate that the I&E Act is being applied selectively or in a discriminatory manner for a refugee reason, rather, the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of the non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Act because it does not involve systematic and discriminatory conduct.

107.   Given the submission that the applicant comes from a wealthy family, the Tribunal is satisfied that they will be able to pay the fine amount if required.  The Tribunal notes at the first hearing the applicant said his family members cannot afford to pay for such things, however, at the second hearing he said his family are fairly wealthy and money is not a problem.

108.   At hearing the applicant stated that he is fearful of going into a prison in Sri Lanka because he feels in most parts murders have been committed and assaults and threats have occurred and continue to occur.  The Tribunal accepts that prison conditions in Sri Lanka are generally poor, and notes DFAT’s latest report states that in general prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions.[47] However, the Tribunal does not accept that the applicant faces a real chance of persecution for any reason during any short term period of being detained given its findings that he is not of any ongoing adverse interest to anyone.  The applicant said at hearing that although his family are fairly wealthy and money is not a problem, they would not be able to come and release him because his wife cannot go to Colombo alone (because she does not know places in Colombo) his parents are sick [and] his elder brother is not in a state of mind even to work, rarely leaves the house, and was visited by army personnel after returning from Australia.  The Tribunal is not persuaded by the applicant’s claim that his wife is unable to go to Colombo and/or Negombo: even if it accepts she has not been there before and is not familiar with the area, she is an adult who has lived independently for many years and can learn.  The Tribunal therefore does not consider that the applicant would be detained for more than a short period on return.  There is some country information that indicates that those with particular profiles, for example those with LTTE connections and/or facing (other) criminal charges may be subjected to mistreatment by the authorities and security forces in prison.  However as the Tribunal does not accept the applicant is of any ongoing adverse interest to the authorities for any reason – including as the brother of a former LTTE member and the brother of someone who had a falling out with Pillayan – including outstanding criminal matters, it does not accept that the applicant has such a profile and finds remote the chance that he will face a real chance of such harm.  The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population.  The Tribunal is not satisfied therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required nor does the Tribunal accept that the applicant being detained for a short period in prison conditions and fined constitutes serious harm as defined in s.91R(2) of the Act.

[47] DFAT 2017 Country Information Report Sri Lanka 24 January 2017at 4.25.

109.   For these reasons, the Tribunal is not satisfied that the treatment faced by the applicant who has departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when he is later dealt with by the courts, or when he returns to his home area, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.  The Tribunal does not accept that the applicant faces a real chance of serious harm on return to Sri Lanka because he departed the country illegally as submitted. 

Conclusion – Refugee grounds

110.   Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

111. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection

112. On the basis of the applicant’s claim to be a national of Sri Lanka and earlier findings about his identity and nationality with regard to his refugee assessment, the Tribunal finds that Sri Lanka is the applicant’s receiving country of the purposes of s.36(2)(aa).

113. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa): whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

114.   For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on imputed or actual political opinion grounds, or as a member of a particular social group of his father’s family (as a TNA supporter), as a Tamil, as a young Tamil male from [District 1], as a family member of a former LTTE member, as a family member of someone who had a dispute with Pillayan, as a Hindu, as a Tamil Hindu, or as a member of the particular social group of ‘wealthy Tamil family’ from the authorities, paramilitaries or anyone else.  In MIAC v SZQRB,[48] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Sri Lankan authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

[48] [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

115. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing. The Tribunal does not accept that the applicant is of ongoing adverse interest to the authorities. Based on the Tribunal’s earlier reasoning on this matter, it does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand. The Tribunal considers, if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine, and if a family member is required to act as a guarantor, accepts on the Tribunal’s earlier reasons above that he his wife can help him out in Sri Lanka. The Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing.

116.   In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of his family – who on the applicant’s own oral evidence are wealthy – in Sri Lanka to meet such a financial penalty.

117. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and do not meet international standards. However, if the applicant is remanded in prison for a short period, the evidence does not support that any pain or suffering as a consequence would be by an intentionally inflicted act or omission, as the poor prison conditions are due to a lack of resources (as indicated in the DFAT report, cited above) rather than any intention on the Sri Lankan government to inflict such harm,[49] and therefore does not amount to significant harm.

[49] As held in SZTGM v MIBP [2017] HCA 34.

118.   Similarly the Tribunal is not satisfied on the evidence before it that the process of questioning, the imposition of a fine as punishment and the applicant’s charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters, but to provide a modest punishment and possible deterrence for departing the country illegally. 

119. For reasons above the Tribunal does not accept that the applicant was of ongoing adverse interest to the Sri Lankan authorities in the past after being questioned by the STF in December 2010 and would not be on return. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) there is taken not to be a real risk that the applicant will suffer significant harm.

120.   Furthermore, the Tribunal is not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia.  The Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka.  However, as discussed above (elsewhere), taking into consideration the applicant’s particular profile as someone who has no criminal record and the findings above that he is not of ongoing adverse interest to the authorities as having any involvement with the LTTE or diaspora activities, and is not of ongoing adverse interest to the authorities because his brother had a falling out with Pillayan and his other brother was an LTTE member, the Tribunal is satisfied that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil failed asylum seeker.  Furthermore, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject.

121. Having considered the applicant’s claims individually and cumulatively, for these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSION

122. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

123. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

124. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

DECISION

125.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Nicole Burns
Member