1621910 (Refugee)

[2018] AATA 4969

1621910 (Refugee) [2018] AATA 4969 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621910

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:David McCulloch

DATE:8 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2018 at 3:38pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – political opinion – Liberation Tigers of Tamil Eelam (LTTE) member – smuggling weapons – allegations of people smuggling – illegal departure – fear of torture – extortion – arrest and interrogation – rehabilitation programs for LTTE agents – decision under review remitted

Practice and Procedure – protection claims significantly altered in Tribunal proceedings – credibility concerns – requirement for reasonable explanation

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 December 2016 to refuse to grant the applicant a protection visa subclass XE-790 Safe Haven Enterprise Visa (SHEV) 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 on 7 September 2016.

3. The applicant appeared before the Tribunal on 26 September 2018. The Tribunal was assisted by an interpreter in the Tamil language.

4. The applicant was represented by his registered migration agent who attended the hearing.

   CRITERIA FOR A PROTECTION VISA

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Sri Lanka, 23 May 2018, contents of which were discussed in the hearing and which the applicant’s migration agent indicated he had a copy of.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background and claims

12. The record of the Irregular Maritime Arrival Entry Interview conducted with the applicant [in] July 2012 indicates that the applicant arrived on Christmas Island [in] June 2012. The delegate’s decision record, however, indicates an arrival date of [several days earlier].

13. The following details in relation to the applicant were provided as part of the application for the protection visa. The applicant was born on [date] in [Town 1], Puttalam District, Sri Lanka. The applicant lists his religion as Hindu. The applicant was married [in] 2003. The applicant lists his spouse and a son living in Puttalam District. The applicant lists both parents living in Sri Lanka. The applicant indicates that he is in contact with his family members daily by phone. The applicant lists living from birth until May 2012 in [Town 1]. The applicant had [number] years of education, finishing year [number] in [year] in [Town 1].

14. The applicant indicates that from [year] to 2005 he was unemployed and living with and supported by his parents. From 2005 until 2009 the applicant was a casual labourer in the fishing and aquaculture industry. From December 2009 until February 2012 the applicant was a full-time [Occupation 1] in a sole proprietor business in the fishing and aquaculture industry. From February 2012 until April 2012 the applicant was self-employed, [in specified farming]. In April and May 2012, until the applicant left for Australia, he was unemployed searching for a job and supported by personal savings.

15. The applicant provided as part of the application a statement setting out the following claims.  The Tribunal notes, as elaborated further, the applicant made a significantly altered set of claims in the proceedings before the Tribunal. The original set of claims follow.

16. The applicant indicates that he was not allowed to go to the Hindu temple because he did not know his biological parents. The applicant’s wife and child are also not allowed to attend.

17. In Sri Lanka, the applicant borrowed [amount] rupees from six to seven people in his village to establish a [specified] farm. The applicant’s [stock] died and the applicant became bankrupt. The Tamil people who lent money to the applicant hired a group of Sinhalese people to demand the money back. These people came looking for the applicant at home causing the applicant to flee into a jungle area for 10 days. [In] April 2012, two policemen came to the applicant’s house requesting that he report to the police station. [Later in] April 2012, three to four people came to the applicant’s home in a white van at night. The applicant saw them and managed to escape through the back door. On [a date in] August 2012 (after the applicant had left from Australia) a group of Sinhalese people came to the applicant’s home and damaged property. They threatened the applicant’s wife, son and parents. The applicant indicates that those returning to the applicant’s home village from Australia and his wife have indicated to the applicant that the local police and Sinhalese people are still looking for the applicant. They continue to threaten the applicant’s family saying that the applicant will be killed. This is despite the debt for the [specified] farm being settled. The applicant’s wife does not know why these people are looking for the applicant.

18. The applicant provided a letter and photographs as part of his application. He indicates that the photographs show damage to the family home from the incident [in] August 2012. In this incident a group of Sinhalese people broke the door, window and damaged the property. They threatened and injured the applicant’s wife, son and parents. They gave warning to the applicant’s parents that when the applicant returns they will kill him. The applicant provides a photograph of his parents and wife and child. He writes that his wife was assaulted and the child fell from her arms and hit his head. He indicates that his parents were attacked also. The applicant refers to the Sinhalese smashing windows and provides a photograph of a window covered in paper. The Sinhalese forced a door open and photographs are provided of what are said to be damaged front and back doors.

19. The record of the Entry Interview conducted with the applicant [in] July 2012 indicates that when asked on his day of arrival in Australia why he was seeking protection he indicated: ‘Problems caused by my ethnicity’. The record of Entry Interview indicates the applicant being asked why he left Sri Lanka. The applicant referred to poor income causing him to start a [specified] farm by himself. The applicant borrowed [amount] rupees to start his business from six or seven Tamils. The presence of the applicant’s mother assisted in securing the loan. The applicant refers to problems with his business resulting in most of his [stock] dying. This resulted in the applicant coming bankrupt. The individuals who loaned the applicant money requested repayment, which the applicant was unable to do. People to whom the applicant owed money came for the money. They started torturing and beating up the applicant. After that, [in] April 2012, police came to take the applicant for an interview.  The applicant was afraid to go with the police. The applicant stayed home and while there, at night, a white van arrived at the applicant’s home and four Sinhalese individuals emerged. The applicant suggests that these individuals are linked to the CID. They had been sent by the people to whom the applicant owed money. The applicant saw that they had guns. The applicant escaped through the back of the house.

20. The passport and ID documents the applicant had taken with him when he fled his home after the visit of the white van were lost. The applicant went to [another town] for 13 days. After that, the applicant spoke to his [relative] and found out that the individuals threatened they would take family members away. They were looking for the applicant and threatened his family that they would kill them. This caused the applicant to find an agent to facilitate the applicant’s departure.

21. In the Entry Interview the applicant is asked if there are any other reasons why he left Sri Lanka and he replied that he only came for this reason. The applicant indicates again that the white van and those in it is linked to the money that he owes. The applicant indicates that his wife is being tortured emotionally. They go to see her and use bad words, and say that if the money is not paid back they are going to take them.

22. The applicant provided a supplementary statement dated 12 July 2018 to the Tribunal substantially altering his claims. This statement, provided in full, is as follows (not corrected for spelling or grammar):

    Claims raised in Safe Haven Enterprise Visa application

    1.       On 1 July 2016 I prepared a statement of claims in support of my application for a Safe Haven Enterprise Visa ("SHEV statement"). I did not disclose in the SHEV statement all of the reasons why I left Lanka, and why I still fear persecution.

    2.       When I first arrived in Australia I was taken to [a named] detention centre. When I was there someone from my boat told the Australian authorities that I had been involved with the people smugglers who had brought us to Australia. This was not true. I affirm that I have never been involved in people smuggling.

    3.       After this allegation was made I was held in detention for three years. During this time I heard that Tamils who had told the Australian authorities that they were involved with the LTTE had also been put in detention. When I was eventually released I was terrified at the prospect of being put back into detention. This was the reason that I did not disclose that I was a member of the LTTE in my SHEV statement. I thought that if l told the authorities this they would think I was a criminal, and I would be locked up indefinitely.

    4.       I now wish to provide full disclosure to the Australian Administrative Appeals Tribunal and set forth the following in support of my application for a protection visa.

    Why I left Sri Lanka

    2005: Voluntarily Joined the LTTE

    5.       In 2005 I voluntarily joined the LTTE and became a sea tiger.

    6.       I joined the LTTE because I believed that they were fighting for Tamil people, and Tamil rights. I had grown up hearing stories of atrocities committed by the Sri Lankan Government against Tamils. In 2005 I witnessed a young girl being raped by a Sri Lankan Army officer at a checkpoint between Vavuniya and Mullaitivu. This incident stuck in my mind and shortly after I joined the LTTE.

    7.       I completed my compulsory three months training with the LTTE at [Camp 1] , which was located inside Sri Lankan Army controlled territory. The commanding officer was [Leader 1]. The camp was a small base inside the jungle, but close to the sea. It had a [building details] so as to make it look like a regular hut.

    8.       Our training began at 4:00 am in the morning. We had to run for approximately five-six kilometres. After this we did physical exercises for one hour. We had no breakfast, only black tea. After this we were trained in receiving weapons or fuel consignments from the sea, and taught how to bury them on the beach. After this we had lunch. After lunch we were taught to handle weapons, and how to shoot. We were not allowed to shoot the bullets because our camp was in Sri Lankan Army territory and we could not risk the army hearing the gunfire. I was taught how to operate AK47s, to throw grenades, and to make and throw a petrol bomb. At the end of the training we were given our cyanide capsules and LTTE identification numbers. We were also forced to swear that we would never disclose to anyone that we were LTTE members.

    2005-2009: Weapons Smuggling

    9.       Our division was responsible for smuggling weapons consignments and collecting intelligence. Because of this our base was an important strategic point.

    10.      After we finished our training [Leader 1] returned to the LTTE controlled area. I was made [rank] to [Leader 1] due to my proficiency in the training, and because we came from the same village, [Town 1], and knew each other prior to my training.

    11.      [Leader 1] spent most of his time in the LTTE territory, and when he was not at [Camp 1] I was the commanding officer. I would receive a call from [Leader 1] when weapons were scheduled to arrive at our camp. He would advise that boats would be coming on a certain date and how many boxes we could expect to receive.

    12.      On the date that the weapons were scheduled to arrive our division would take small fishing boats out to sea, usually at around 2:00 or 3:00 am. We would meet the large boat carrying the consignment. I was not told where the weapons or fuel were coming from in case I was captured by the Army. We would then ferry the weapons to the beach and bury them.

    13.      Three to four days after we buried the weapons I would receive another phone call or a text message from [Leader 1] advising that smaller boats were coming and Instructing us to be ready to load the consignment to those boats. These were destined for LTTE controlled territory.

    14.      [Leader 1] usually travelled in the smaller boats from the LTTE controlled territory to our camp, and he would direct how many boxes were to be loaded onto the boats. We would cover the boxes with our fishing nets so that they could not be seen.

    15.      So that the locals did not become suspicious of us we often went out with the other fisherman early in the morning to catch fish. We had lightweight nets In our boats so that there was more room to smuggle the weapons, but this meant could not catch as many fish as the locals.

    18.      During the day we had to dress like fishermen, and sit alongside boats on the beach. Unlike regular LTTE cadres we did not carry our cyanide capsules around our necks, because if anyone from the Sri Lankan Army saw this they would know that we were members of the LTTE.

    17.      Because [Camp 1] was a remote location we would not usually sleep there. We would only go to [Camp 1] when we were receiving a consignment, or fishing to keep up our disguise. [Camp 1] was approximately [travelling time] by motorbike from [Town 1].

    18.      Another one of our roles was to gather local intelligence from the villages surrounding     [the camp location]. Because I would often return to my house in [Town 1] I was primarily responsible for monitoring the villagers there. I received instructions from [Leader 1] as to whether there were any particular targets in [Town 1].

    19.      Because we were operating in the area in secret we were able to pass amongst the villagers as if we were regular civilians. One of our responsibilities was to monitor the villagers. I was required to pass along to [Leader 1] the names and identities of people who were socialising with the Sri Lankan Army or to the police. LTTE cadres from another division would then come to intimidate those people.

    20.      Our base was so secret that most people within the LTTE did not know about our division. No one in the area knew that we were sea tigers, not even my family.

    21.      When the ceasefire ended in 2007 my role with the LTTE became more important. We began receiving weapons with greater frequency owing to the higher need for ammunition.

    22.      I also continued operating covertly in the village gathering intelligence. One of my assignments was to specifically monitor a Tamil man by the name of [Mr A]. The LTTE believed he was assisting the Sri Lankan Army, and was receiving money from the Singhalese government. I monitored him for approximately one month and passed along the intelligence to [Leader 1]. [Mr A] was killed a short time later, I believe by members of the LTTE.

    23.      As the conflict intensified I was not asked to join in the fighting at the battlefront. Our base was used to supply weapons to many of the LTTE's key strategic points, and they relied on us.

    24.      In early 2009 [Leader 1] was called to a different part of Sri Lanka, and I received commands from a new officer, [named].

    May 2009-Feb 2012

    25.      When the war ended in 2009 I was still operating covertly in Sri Lankan Army territory. Because of the secrecy of our operation, and the fact that hardly anyone in the LTTE knew I was the [rank], and often acting commanding officer, of a smuggling operation, I was able to go back to [Town 1] as if nothing had happened.

    26.      Approximately a year after the war ended one of the members of my division was captured by the CID. He was taken to [Location 1], which is the CID headquarters in Colombo.

    27.      In July 2010 a white van came to my house in [Town 1]. I was living at that house with my wife and my parents. When the van came all four of us were at home. There were four CID officers that came with the van. The driver remained in the van and three people came inside. They showed their identity cards and said that they had come to arrest me. One of the officers grabbed my left arm and the other grabbed my right. They then forced me into the back of the van.

    28.      Out of the four officers in the van only one of them was Tamil. I asked him why I was being taken. He told me that one of the members of my division had disclosed that I was a member of the LTTE.

    29.      The CID took me to [Location 1] in Colombo. We left [Town 1] at around 11:00am and arrived in Colombo at 2:00 pm. I was placed in a cell, alone. The walls had no windows and were made of brick. It was approximately 3m by 3m. It had a single lightbulb hanging from the ceiling and a toilet.

    30.      At around 4:00 pm I was taken for inquiry. The inquiry lasted for around two hours. During the inquiry I was beaten severely. I was sitting on a chair. There was a Singhalese officer who would ask me a question and when I denied the question the other officer who was a Tamil would smash my ears together. This caused my ears to bleed. After this they slammed my head against the table. They then made me lie down on the ground and kicked my chest with their boots.

    31.      The next day I was given a small breakfast. An officer came into my cell and had a talk with me. He did not beat me. I was taken for inquiry again later in the day. I believe it was in the early evening time. They told me to undress. They forced me to lie down on my back. They then placed my legs up towards the roof and used a baton to beat me across my buttocks. They then used a stick to beat the soles of my feet.

    32.      On the third day I was not beaten and I was provided with breakfast, lunch and dinner. I discovered that on that day my parents had come to Colombo and paid a bribe of [amount] to the CID to secure my release. My father was a relatively wealthy person. He owned a [specified business] under his name [name]. He owned a large lorry and employed two-three works to transport the stock. He knew a Tamil in Colombo through his business, and this person had connections to the CID and gave the money to him. He then passed the bribe onto the CID.

    33.      I was released the following day. It was common practise at that time for the CID to arrest people and release them if they could pay a bribe. The CID would then come back a few days later so that they could collect another bribe.

    34.      Approximately ten days after I was released from [Location 1] two CID officers came back to my home in [Town 1]. Although they were in plain clothes I knew that they were CID officers because they showed their identification badges. They asked me what my involvement was with the LTTE and whether I had smuggled weapons. My father is fluent in Singhalese and he told them that he would pay a bribe of [amount]. They agreed to the bribe and then they left.

    35.      After the CID came I was routinely harassed by the police. In our area the police would rotate their station approximately every 3-4 months. Whenever a new batch of officers were assigned to the station they would approach me and request that I pay them a bribe, otherwise they would arrest me because the information on my file said I was suspected of being an LTTE member, I would pay them approximately [amount] rupees. They would come usually 2-3 times before being rotated to another station.

    36.      I was able to survive for the next year and a half by paying these bribes, and because the authorities had no evidence confirming that I was a member of the LTTE. I had never signed a confession and I believe at that point only one person had informed on me.

    37.      In order to pay the bribes I relied on financial support from my father and money that I made from my [farming] business.

    April 2012

    38.      In April 2012 all of the [stock] in my [farm] suddenly died.

    39.      A short time later, still within the month of April, I was badly beaten by a group of approximately seven village Tamil people. My father was not home at the time, only my wife and mother and my infant son. They came to my home and beat me. They told me that I was the one who had informed the LTTE about them during the war. They accused me of being the reason that they and others were beaten or intimidated during the war. I realised at this time that these villagers must have poisoned my [stock].

    40.      One of the villagers had a [specified weapon]. The other villagers had sticks. I could not defend myself and I was severely beaten. The beating lasted for about half an hour.

    41.      Soon after they left, my father came home and took me to the local government hospital. I was hospitalised for [number] days.

    42.      When I returned home, at around lunchtime, I began to prepare to leave [Town 1] because I feared that the villagers would return. At approximately 11:00pm that night a group of Singhalese thugs approached our house. I believe that the villagers hired these people to come and kill me because I had informed against them.

    43.      I took my passport, Sri Lankan driving license and National Identity Card and left through the back door of our house. I ran to the best of my ability for approximately half a km until I reached a small lagoon connected to the sea close to our villages. This was difficult because I was still injured from the beating [number] days before. I then used a small boat to cross to the other side of the lagoon, into the jungle on the other side.

    44.      I remained in the jungle for around two weeks. My father then arranged for a smuggling boat to take me to Australia.

    45.      I arrived in Australia in May 2012.

    46.      In August 2012 the Singhalese thugs returned to my parents' home. They broke the windows and beat my parents and my wife. They wanted to know where I was. They then returned in November and attacked my family again.

    47.      Approximately three months after I left Sri Lanka the CID approached my parents' house. I believe that they came back for the first time since 2010 because of the villagers. I believe that they must have collectively gone to the authorities and confirmed that I was involved in the LTTE, and that is why they retumed.

    What I fear may happen to me, by who and why, if I return to that country

    48.      I fear that if I return to Sri Lanka I will be killed by the villagers who know that I informed against them during the war.

    49.      I fear that the villagers have told the authorities that I was a member of the LTTE and that if I am returned to Sri Lanka the authorities will arrest me and detain me. I fear that during this time I will be tortured and interrogated. The CID have already taken me for interrogation at [Location 1] and this will be on my file.

    50.      Because it has been a long time since the war ended the Sri Lankan government has interrogated and rehabilitated thousands of LTTE members. The chance that one of the persons who I worked with smuggling weapons has disclosed that I was [rank], and often acting commanding officer, of [Camp 1] Is significantly higher than in 2012.

    51.      I fear that the Australian government will have contacted the Sri Laken government regarded the unfounded allegations that I was Involved In people smuggling and that if I am returned to Sri Lanka the authorities accuse me of being charged with people smuggling.

    52.      I fear that if I am returned I will easily be picked up at the airport because I left the country illegally, and because of the smuggling allegations made in Australia. This will give them cause to detain me and I will be harmed for any of the above reasons.

    Why I think the authorities of that country cannot or will not protect me ill were to go back to that country

    53.      The authorities cannot protect me as It is the authorities from whom I fear harm.

    Why I think relocation to another area in my country would still befall me to the same harm.

    54.      I cannot relocate to avoid suffering harm because I fear harm from the Sri Lankan authorities.

1. Together with this revised statement the applicant’s migration agent provided detailed submissions to the Tribunal in advance of the hearing.  The Tribunal notes the following from those submissions.

2. It is submitted that the applicant’s late claims to the Tribunal are due to a fear by the applicant of being jailed indefinitely as a result of an adverse security assessment by ASIO. This fear is justified when the close relationship between the Australian Government and Sri Lankan authorities is considered. It is submitted that the applicant should be given the benefit of the doubt.

3. Independent information is provided supporting the fact that [Camp 1] was used as a Liberation Tigers of Tamil Eelam (LTTE) smuggling route. It is submitted that the applicant’s claims are not undermined by the fact that he was released from detention in 2010. There is evidence of Tamils being arrested only to be released a short time later. Such release did not mean that they were no longer of concern. There is reference to United Kingdom authority to the effect that the release of a detainee following the payment of a bribe does not indicate that authorities have no continuing interest in that person.

4. It is submitted that efforts by authorities to monitor, question and extort the applicant following his release from detention between 2010 and 2012 is plausible and consistent with country information. Reference is made to independent information from 2011 and 2012 concerning Tamils being exposed to frequent checks by authorities. This is indicated as making plausible the fact that the applicant was monitored, harassed and extorted between 2010 and 2012.

5. It is submitted that the reason that the ill-treatment of the applicant did not escalate was the fact that the applicant was involved in an exceptionally secret division of the LTTE. It is plausible that in 2010 only one person had informed against the applicant. Further, the applicant had not made an admission when interrogated in Colombo. There was therefore no evidence to sustain a conviction. It is plausible that the applicant could have been allowed to remain in the community.

6. It is submitted that the perception of the persecutor needs to be considered in the applicant’s case even if the applicant has been persecuted for a political opinion that he does not have. It is submitted that any person who has connections to the LTTE remains at a real risk of monitoring, harassment, interrogation and torture. The views of the United Nation’s Special Rapporteur on Human Rights in 2017 indicate that any person who is suspected of association with the LTTE, however indirect, remains at a medium risk of detention and torture. Concern was also expressed by the Rapporteur against the widespread use of torture in 2017 by security forces. A report by the Special Rapporteur from 2016 contradicts any assessment of marked reform in Sri Lanka and refers to a ‘culture of torture’. Reports by Freedom House and Amnesty International in 2017 are cited as confirming this.

7. A decision of the Tribunal from September 2017 is cited as supporting the proposition that a person with limited connection to the LTTE would face arrest and interrogation about their past circumstances. Independent information is cited as supporting the fact that a risk currently remains despite a person holding low ranking connections to the LTTE.

8. Submissions are made concerning the 2018 DFAT report and a 2017 UK Home Office report on Tamil separatism. These reports indicate the fact of a risk existing in relation to those who have a role in post-conflict Tamil separatism. It is submitted that the risk is not indicated as only being applicable in such cases. It indicates that such individuals are at the most risk. It is argued that more authoritative reports from the United Nations High Commissioner for Refugees (UNHCR) make clear that indirect links to the LTTE result in an immediate risk of detention and torture.

9. In relation to the 2018 DFAT report, it is submitted that DFAT is not an independent organisation but a government agency concerned with Australia’s interests abroad including stopping the flow of illegal migration from Sri Lanka.  The DFAT report does not disprove submissions that the applicant will be exposed to persecution if returned. The DFAT report indicates that low profile LTTE members would be detained and may be sent to remaining rehabilitation centres. Although DFAT has indicated that it is not aware of any former LTTE members returned from Australia being rehabilitated, DFAT does not monitor returned asylum seekers. Further, even if a person is detained rather than rehabilitated there still remains a risk of harm requiring international protection. Reference is made to decisions of the Immigration Assessment Authority which are submitted as highlighting a continuing risk to all those with LTTE connections, which is not just limited to those involved in post-conflict separatism. It is submitted that DFAT makes specific reference to high profile LTTE members including person’s suspected of providing weapons or explosives to the LTTE. Reference is made to the applicant’s role in weapons smuggling.

10. It is submitted that there is a risk at the airport because the applicant’s identity will be checked and it will be evident that he has been previously charged for suspected terrorist activity. Is submitted that there is a real chance that, during identification checks or on remand while charges for leaving Sri Lanka unlawfully are processed, the applicant will come to the adverse attention of the Criminal Investigation Department (CID) over and above being a person who has only committed the offence of leaving the country illegally.

11. Reference is made to a 2017 Tribunal decision which determined that there was evidence that Tamils returning to Sri Lanka with actual or perceived links to the LTTE face a risk of torture or other serious harm, beyond the requirement for there being links to post-conflict separatism.

12. Reference is made to independent information claimed as supporting the risk to the applicant of harm requiring international protection on the basis of being held in custody. Findings of the United Nation’s Special Rapporteur are referred to. Reference is made to the DFAT report as confirming instances of torture carried out by police.

13. It is submitted that the risk of questioning or intimidation by authorities will not cease at the airport. Reference is made to surveillance continuing to be used as a tool of control and intimidation in the North and East of the country. Other reference is made to militarisation and surveillance in these parts of the country.

14. Reference is made to a report by the International Truth and Justice Project, an organisation which conducts extensive research into the situation in Sri Lanka. It refers to evidence from as recently as 2017 of individuals being tortured and raped by security forces in Sri Lanka. This happened to low level LTTE cadres. 

15. The applicant’s migration agent provided further submissions following the Tribunal hearing addressing various credibility concerns raised during the hearing.

    Independent information

16. DFAT Country Report – Sri Lanka, 23 May 2018 provides variously as follows (portions particularly relevant to this matter underlined by the Tribunal):

    RACE/NATIONALITY

    Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.

    Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.

    DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.

    Tamils

    Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.

    Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.

    Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.

    DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.

    Monitoring, harassment, arrest and detention

    Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).

    Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance  and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.

    Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.

    DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.

    During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[1]

    [1] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.1-3.12

    RELIGION

    Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity: most Sinhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian. Muslims are considered a separate ethnic group. The government has publicly declared its commitment to religious and ethnic reconciliation.

    Article 10 of the Constitution provides for freedom of religion, and Article 14 for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’. In 2003, the Supreme Court ruled that the state was constitutionally required to protect only Buddhism. The constitutional reform process has included discussion of amending Article 9. Acts intended to insult religion are punishable by a fine and/or a maximum of one year in prison. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years’ imprisonment.

    Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. Prominent Buddhist, Hindu, Muslim and Christian leaders attend national functions, although most events include only Buddhist rituals. Ministers with portfolio responsibilities for the four major religions are practising followers of the faith for which they are responsible. School students are able to study their choice of Buddhist, Hindu, Muslim and Christian religious classes in most public and private schools, depending on the availability of teachers. There are some Hindu and some Muslim public schools.

    DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, including by supporting the extremist Buddhist group Bodu Bala Sena (BBS, English: Buddhist Power Force). DFAT is aware of reports from 2017 of local authorities seeking to close places of worship, questioning the status of religious registration, and inconsistently applying the law against perpetrators of discrimination and religious violence. Some local government officials and police continue to refer to a 2008 circular of the Ministry of Buddha Sasana and Religious Affairs, revoked in 2015, which states that all new constructions of places of worship require the approval of the Ministry. DFAT is aware of reports of children being denied admission to schools because of their religious background, and of children being forced to observe Buddhist rituals in state schools.

    DFAT assesses that while no laws or official policies discriminate on the basis of religion, adherents of religions other than Buddhism face a low risk of official discrimination from local government authorities, which can affect their ability to practise their faith freely.[2]

    [2] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.13 - 3.17

    …

    Hindus

    Most Tamils in Sri Lanka are Hindu. In December 2016, Minority Rights Group International reported allegations by activists and politicians of violations affecting Hindu places of worship. The 2017 report by the UN Special Rapporteur on minority issues reported allegations of ‘… systematic, government-sponsored movements of Sinhalese settlers to the Tamil-speaking areas [in the north and east] that are intended to change the demographics of the region, to the political disadvantage of the minorities.’ This included the rapid development of new Sinhalese settlements and military-assisted construction of Buddhist statues and temples in areas that have no Buddhist population. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus, and as such cannot verify this information.[3]

    [3] DFAT Country Report – Sri Lanka, 23 May 2018, para 3.29

    …

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.

    Political representation of minorities, including ethnic and religious minorities

    No constitutional, legal or other restrictions bar minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious or ideological interests. Political representation in parliament is broadly proportional to the overall population. The current parliament includes 29 Tamils and 21 Muslims among its 225 members. President Sirisena presides over a diverse coalition of more than a dozen political parties, which are comprised predominantly of Sinhalese Buddhists but also include Muslim and Tamil members.

    Sri Lanka has no banned political parties and all parties operate freely within the same legal framework. DFAT is not aware of any evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment. The PTA restricts certain actions by political parties or groups. Specifically, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can face a maximum of five years’ imprisonment.

    DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.

    Liberation Tigers of Tamil Eelam (LTTE)

    At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.

    Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.

    Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.

    Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.

    DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.

    Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.

    Rehabilitation

    Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.

    Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, language, computer skills and vegetable cultivation. Women receive training in cookery, beauty therapy, tailoring, language and computer skills. Former child soldiers are able to complete their education. While many of those who have completed rehabilitation have reported difficulty finding regular employment following their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, conflict-related disabilities, and a reluctance to hire known former LTTE members. The 2018 budget allocated LKR 25 million (approximately AUD 209,000) for rehabilitated ex-combatants in the north and east to attain National Vocational Qualifications.

    According to the Bureau of the Commissioner General of Rehabilitation, by November 2017, 12,882 people, primarily former LTTE, had completed rehabilitation. Only one centre with eight inmates remained open in Vavuniya in December 2017. In 2016, Vavuniya inmates reported conditions were significantly better than in prison. Other centres have redeployed for drug rehabilitation.

    The rehabilitation program is expected to conclude once the last intake has completed the one-year program. The government estimates 5,000 undisclosed ex-combatants remain in the community. Ex-combatants are reluctant to identify as such for fear of rehabilitation or prosecution. A Sri Lankan official told DFAT that former LTTE members who are not already rehabilitated are unlikely to be rehabilitated now. Extension of the program would create an obligation for the government to support the families of new inmates while they undergo rehabilitation. DFAT is not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia.

    Although no formal parole arrangements apply, former LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. Most individuals released from rehabilitation centres have returned to their places of origin upon release and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Some may limit their own travel to avoid telling authorities of their movements.

    DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation camps. Some Tamil political leaders, including Northern Province Chief Minister Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations and concluded there was no evidence of injections.

    The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.

    Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)

    In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:

    ·     persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;

    ·     former LTTE combatants or ‘cadres’;

    ·     former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);

    ·     former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

    ·     LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and

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

    Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.

    High profile former LTTE members

    The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see Former LTTE members living outside Sri Lanka). Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.

    On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.

    DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.

    Low profile former LTTE members

    ‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.

    Former LTTE members living outside Sri Lanka

    At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.

    Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.

    Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.

    A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.

    The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.

    Family members of LTTE

    The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.

    Arrest, Detention and Prosecution

    Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.

    Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.

    The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.

    DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.

    Societal discrimination

    Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. Tamil populations in these areas understand that many people were forced to participate in LTTE activities, and DFAT assesses that societal discrimination against low profile LTTE members is low, although some have faced difficulty finding employment, as some potential employers are concerned about increased police and military attention (see Rehabilitation). Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste.

    Local NGOs report that female former LTTE members face additional difficulties, including the risk of sexual harassment and stigmatisation within the community, and difficulties finding a marriage partner or securing employment. DFAT has been unable to verify these claims. Women who were forcibly recruited are more likely to be accepted back into their communities than LTTE volunteers.

    DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.

    Scarring

    DFAT is aware of reports that people with conflict-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. Freedom from Torture’s 2011 report ‘Out of the Silence’ documents an unidentified number of people detained by Sri Lankan authorities in April or May 2009, because their scarring was deemed evidence of LTTE membership. The cases raised in the report date from the immediate end of the conflict and DFAT is unaware of more recent evidence of people being detained because of scarring. DFAT is aware of the conclusions of the UK Court of Appeal in 2017 of self-inflicted scarring in the case of an asylum claimant who alleged torture because of his previous links to the LTTE.[4]

    [4] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.31-3.67

    …

    TREATMENT OF RETURNEES

    Exit and Entry Procedures

    Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.

    Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

    Offences under the Immigrants and Emigrants Act

    Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.

    The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the  magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.

    Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.

    Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.

    The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.

    DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.

    DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.

    Conditions for Returnees

    Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.

    The government has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Sri Lankan Prime Minister Ranil Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with scepticism.

    Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN organisations and international NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan government promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.

    While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.

    Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.

    DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.[5]

    [5] DFAT Country Report – Sri Lanka, 23 May 2018, paras 5.27 – 5.42

1. UNHCR’s July 2012 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’ states, in part:

   … At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[6]

   [6] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p. 25 <>

   The 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers.  The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE.  It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :

   It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant. ^[7]

   …

   The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka.  Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[8]

   [7] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325

   [8]Ibid, para. 356(3)

2. The decision lists risk categories of those who are subject to persecution or serious harm, including: 

   Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[9]

   [9] Ibid, para.356(7)(a)

3. It goes on to state:

   The Sri Lankan authorities’ approach is based on sophisticated intelligence,
   both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities
   know that many Sri Lankan Tamils travelled abroad as economic migrants and also
   that everyone in the Northern Province had some level of involvement with the
   LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history
   

   [10] Ibid para. 356(8)

   will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[10]

4. Independent information indicates that those known to have supported the LTTE were rounded up into rehabilitation camps shortly after the end of the civil conflict. Most have now been released.[11]

   [11] International Crisis Group, ‘Sri Lanka's North I: the denial of minority rights’, Asia Report No.219, 01 March 2012, p. 10, footnote 73 CIS22742

   Hearing, credibility, findings and assessment

5. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

6. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

7. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.

8. The applicant provided in the hearing detailed and convincing evidence of him voluntarily joining the LTTE in 2005 and being involved at a location [travelling time] by motorbike from his village of [Town 1] in weapons smuggling. The evidence given by the applicant on this issue was consistent with his detailed written statement. The applicant indicated that there were [number] other individuals involved in this LTTE operation including the commander [Leader 1].  Whilst [Leader 1] was also from [Town 1] those others involved were from different areas unknown to the applicant because of the requirement for secrecy.

9. The applicant referred to the smuggling operation occurring undercover as a fishing operation. He indicated that weapons drops or pickups would occur two or three times a week and that on other occasions they would just undertake fishing.

10. The applicant gave evidence in relation to his task of having to monitor individuals in [Town 1] who were providing LTTE-related information to Government officials. The applicant said that over time there were two individuals that he reported were consorting with the army and police, including [Mr A]. Both individuals ended up being killed as a result.

11. The applicant indicated that after the conflict ended in 2009 his normal fishing operations continued for a period. He then helped for a period in his father’s [business], and then operated a [specified] farm, with the [stock] being poisoned in April 2012.

12. The Tribunal is satisfied that the applicant operated during the conflict with the LTTE in the way he has described.

13. The applicant provided convincing evidence, consistent with his written claims, of being taken by the CID in July 2012 with allegations made by them as to his involvement in the LTTE, on the basis of another LTTE member informing on the applicant. The Tribunal is satisfied from the applicant’s evidence, including that in the hearing, that this event occurred and that the applicant was tortured during his interrogation. The Tribunal is satisfied on the applicant’s evidence that his reasonably well-off father paid a bribe to secure his release.

14. The Tribunal accepts that after the applicant returned to [Town 1] there were a number of visits by police as a result of the previous suspicion of the applicant’s LTTE involvement, requiring the payment of bribes so that those issues would not to be pursued by authorities. Independent evidence as to corruption in Sri Lanka makes credible the payment of bribes in the various circumstances as claimed by the applicant.

15. The Tribunal has credibility concerns with the applicant’s account of being beaten by a group of Tamils in April 2012 shortly after the [stock] in the applicant’s farm died. The applicant indicated in the hearing that these individuals were both relatives of [Mr A] as well as Tamils from whom he had borrowed money for his [farm]. In this respect, the applicant appeared to be conflating his initial statement to the Department and his new claims to the Tribunal. The Tribunal pointed out to the applicant the unlikelihood of these two sets of individuals, who had different grievances against the applicant, attacking the applicant in one incident. Despite the Tribunal putting this concern to the applicant on a number of occasions, the applicant failed to respond meaningfully to the concern. The applicant at one point indicated that it could have been the case that relatives of [Mr A] also lent the applicant money for the [specified] farm. The Tribunal has concerns with this evidence and the seeming conflation of different events.

16. The Tribunal also has credibility concerns with the applicant’s claims concerning a later visit by the CID, after the events of 2010, on the basis of further information being provided to the CID as to the applicant’s prior involvement in the LTTE. In the hearing, the applicant said that the CID visited his parents during the period that he had escaped into the jungle following his escape from his home in April 2012. In contrast, the applicant’s second detailed written statement claims that it was three months after the applicant arrived in Australia that the CID came back looking for the applicant for the first time since the events of 2010.

17. When this inconsistency was put to the applicant in the hearing, he indicated that he thinks he has previously indicated in an interview that the CID visited his family home during the period that he was in the jungle. During a break, the Tribunal checked the informal transcript the Tribunal Member had made of the interview with the delegate together with the record of the Entry Interview with the applicant [in] July 2012. Following the break, the Tribunal put to the applicant pursuant to the procedural requirements of s.424AA of the Act the fact that the applicant appeared not to have made any claims in those interviews of the CID returning to look for the applicant during the period that he hid in the jungle in April 2012. The Tribunal noted that the consequence of relying on this information, in combination with the inconsistency as between written claims and in the Tribunal hearing, could cause the Tribunal credibility concerns with claims that the CID came subsequently looking for the applicant based on fresh information as to his LTTE involvement.

18. The applicant elected to respond in writing. In the response it was submitted that the inconsistency is not so material or substantial as to undermine the entire credibility of the applicant and his claims for protection.

19. Notwithstanding the above credibility concerns, the applicant was convincing in evidence as to the fact of individuals having attacked the applicant at his family home, and of subsequent visits by individuals to the applicant’s home since the applicant has come to Australia, causing harm to the applicant’s parents, and wife and child.

20. However, the credibility concerns create doubts for the Tribunal as to the cause of this harm. The Tribunal is inclined to consider that the truth is that, according to the applicant’s original claims, he borrowed money for his [farm] which he was unable to repay when he became bankrupt, and this caused certain individuals to attack the applicant and his family. The Tribunal, however, is not convinced that individuals have attacked the applicant and his family and continued to look for the applicant based on the applicant having reported to the LTTE Tamil informers to the Sri Lankan authorities during the course of the conflict.

21. At the heart of the applicant’s claims, however, is the fact that he previously had a not insignificant role in the LTTE and this in itself creates a risk for him on return. The Tribunal accepts that the applicant was detained and tortured as claimed in 2010. The Tribunal has accepted that the applicant was released initially through bribery, and that he had to continue to pay bribes to local police. The fact of the Tribunal’s credibility concerns as to the rationale for attacks on him and his family in 2012 and the claims of the CID continuing to look for the applicant after he was released in 2010 does not discount the fact that the applicant was a not insignificant LTTE operative, and that authorities had strongly suspected this. The Tribunal accepts it likely that in official records relating to the applicant, which would be accessed on the applicant’s return to Sri Lanka, this would become obvious to government officials.

22. The Tribunal does acknowledge that the key current concern of authorities in Sri Lanka is to guard against a re-emergence of the Tamil separatist cause, based on key independent information. However, whilst the Tribunal does not consider that the applicant himself has any desire to currently prosecute a separatist cause, that would not necessarily be known to authorities on his return. The Tribunal considers that authorities will likely become aware of the applicant’s suspected LTTE past and that this will subject him to particular attention on return.

23. The Tribunal considers that it is not unlikely that there will be attempts undertaken, as they were in 2010, to seek to obtain from the applicant confirmation as to his LTTE connections. Given that the applicant has spent a significant amount of time in Australia, the Tribunal also considers that there may be additional suspicion of the applicant having contact with the Tamil diaspora and being involved in or a current supporter of separatist causes. The Tribunal considers that the independent information as to the culture of police and the military, including as set out in the independent evidence provided by the applicant, leads to a real chance that the applicant will face physical mistreatment in his interrogation in this respect, as he did in 2010.

24. The Tribunal notes that the applicant has provided significantly new claims in his application before the Tribunal which were not made at the Departmental level.  Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the applicant if the Tribunal is not satisfied that the applicant has a reasonable explanation as to why the claim was not made. The Tribunal has taken this into account in assessing the credibility of the applicant’s new claims and has been particularly searching as a consequence. The Tribunal accepts the plausibility of the applicant’s claims as to a reluctance to earlier reveal his LTTE past for fear of the reaction of the Australian Government. The Tribunal’s positive credibility findings of the applicant’s claims have been made in full cognizance of his earlier inconsistent claims.

25. Considering all of the evidence, the Tribunal considers that the applicant has a well-founded fear of persecution for the reason of his political opinion and thus falls within the provisions of s.5J(1) of the Act. The Tribunal considers that the serious harm the applicant has a real chance of facing would be significant physical harassment or ill treatment of him, and thus fall within the provisions of s.5J(5). The Tribunal considers that the applicant’s political opinion would be the essential and significant reason for the persecution, as well as the persecution involving systematic and discriminatory conduct, thus falling within the provisions of s.5J(4).

26. As the risk of harm to the applicant will arise as he enters the country through designated channels, the Tribunal considers that the persecution cannot be avoided by relocation such that the real chance of persecution effectively relates to all areas of Sri Lanka, meaning that s.5J(1)(c) applies.

27. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country.

28. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    David McCulloch
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)    significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)    any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)    the person can access the protection; and

    (b)    the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …