1622244 (Refugee) - [2018] AATA 895

1622244 (Refugee) [2018] AATA 895 (2 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622244
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Ms Christine Long
DATE:2 March 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 02 March 2018 at 1:44pm
CATCHWORDS
Refugee – Protection visa – Sri Lanka – Federal court remittal – Imputed political opinion – Supporter of Tamil separatist movement – Volunteer with Tamil militant group – Family member conscripted by LTTE – Fear of harm as an involuntary returnee
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
CAC16 v Minister for Immigration and Anor [2017] FCCA 2202
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559]
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Sri Lanka. He arrived [by] boat on [date] June 2012 and [in] August 2012 he was interviewed by an officer of the Department of Immigration and Citizenship as an irregular maritime arrival. He applied for a protection visa on [date] December 2012 and was interviewed by the delegate about his claims on [date] June 2013. The delegate refused to grant the visa on [date] August 2013.
[In] 2013 the applicant applied to the Tribunal (formerly the RRT) for review of the delegate’s decision. [In] 2015 that Tribunal (the first Tribunal) decided to affirm the decision under review. [In] 2015 the Federal Circuit Court dismissed an application for review of the Tribunal’s decision by the applicant and the applicant appealed from that decision to the Federal Court. [In] 2016 the Federal Court ordered that the decision of the Federal Circuit Court dated [in] 2015 be set aside, that a writ of certiorari issue to the Tribunal quashing its decision made [in] 2015, and that a writ of mandamus issue to the Tribunal requiring it to determine the applicant’s application made [in] 2013 according to law.
The matter is before the present Tribunal (the Tribunal) pursuant to the order of the Federal Court made [in] 2016.
The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The High Court has considered the Convention definition of refugee in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to this decision under consideration.
The issues in this case are whether the applicant has a well founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out in the Convention or, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file in relation to the applicant which includes a record of a short interview with the applicant on arrival, a record of an irregular maritime arrival entry interview with the applicant, an application for protection visa, a CD of the applicant’s interview with the delegate on [date] June 2013 and the delegate’s decision record dated [August] 2013. The Tribunal also has before it the applicant’s application to the first Tribunal for review and the Tribunal file in relation to that application, including a pre-hearing submission received by the first Tribunal on 27 January 2017 in support of the application for review; a bundle of photographs showing the applicant [at Activity 1] with others dressed with motifs of [Organisation 1] and holding [items] displaying pro-Tamil [messages]. The Tribunal also has before it the applicant’s additional statutory declaration made 3 September 2017 prior to the hearing before the Tribunal on 13 September 2017, and post-hearing submissions and country information references and printouts received from the applicant’s representative in support of the applicant’s application for review.
Claims recorded in short written interview form on arrival [in] June 2012
The applicant claims that he is a Sri Lankan citizen, that he is Hindu and Tamil, that his most recent address was in a Sri Lankan refugee (SLR) camp in [City 1] in India and that he is seeking protection in Australia. He gives the reason for wanting protection as, ‘Because of my brother I am here. He came to me in India and [officials] keep calling me (in India) and asking me where he is.’ He refers to relevant documents of identity being his national ID card from Sri Lanka and his driver’s licence from India.
Claims recorded as made by the applicant at Irregular Maritime Arrival Entry (IMA) interview in August 2012
The applicant claims that he was born in [year] in Sri Lanka in a village which he names in the Trincomalee District. He claims that his religion is Hindu and that his ethnicity is Tamil. Essentially he claims that he left his country in 1990 and has been living in India in various SLR camps, which he names, since 1990 prior to travelling to Australia in 2012. He gives the name of the most recent camp he lived in in [City 1] in India. He produced a Sri Lankan national ID card received by him in 1996, a refugee card from India and an Indian driver’s licence; the licence is in the name of [Mr A] and the date of birth on the licence is [year].
The applicant claims that he has no passport.
The applicant claims that that his parents lived in his village in Trincomalee, Sri Lanka but his father passed away when he (the applicant) was not in the country.
The applicant claims that before he left Sri Lanka he was educated to Year 9 and worked in his parents’ [shop] in his village in the Trincomalee District. He said that he worked in [a certain industry] in India after travelling there from Sri Lanka and that he was working in [a] company, which he names, in [City 1] in India from 2001 up until 2012. He also indicates that he did casual work in India [for] three months and that he worked doing [farming] in Sri Lanka.
The applicant claims that his spouse [whom] he married in April 2000 is living in [Country 1]working as a [Occupation 1]r, that his [children] [are] living with his wife’s sister in [City 1], that his mother [is] living in the village in Trincomalee, that his sister [is] living in[another country], that his other sister [is] living in the village in Trincomalee and that his brother ([Mr B],) [is] living in [Sri Lanka].
The applicant indicates that he has lived in India from 1990 till June 2012 and that he entered India legally: ’we were transported by the Indian army when they left Sri Lanka in 1990’. He said he was a refugee in India. He states that he left India illegally by boat to come to Australia.
The applicant claims that he left Sri Lanka when he was [age] because of the war there between the Liberation Tigers of Tamil Eelam (LTTE) and the army. They didn’t know where the war was happening and bombs were dropped. He said it was his parents’ decision to send him away from Sri Lanka because the army was shooting male youths. He said there were no other reasons that he left Sri Lanka. The applicant said that he left India because there was ’a lot of opportunity or possibility to be sent back’ to Sri Lanka and that in Sri Lanka people were being abducted in white vans. He said that he had no residency rights in India and had been there 20 years and that there was talk that people who had stayed in India for 20 years were being sent back to St Lanka. He said that this was being talked about by those who looked after security in the refugee camps in India. He said that he had received no written notice that he should leave India. He said that there were no other reasons that he left India.
In answer to questions about whether he had served with any police, security or intelligence organisation he said that in Sri Lanka he was in [Organisation 2]. The Indian army who had come to Sri Lanka provided the training. He finished the training and was on duty for six months in [Town 1]. He said he was in [Organisation 2] for one year before he left Sri Lanka in 1990. He said that he was a [Occupation 2] and had to check vehicles passing by. He was paid a monthly salary. The applicant said that the Indian army was stationed there fighting the LTTE and the common people there and ’They used us they did not know the language.’ The applicant said that the only thing he did in [Organisation 2] was check the vehicles passing by.
The applicant claims that when he was [age] the Sri Lankan army [damaged] his family’s shop. The applicant said that when he was a student people came to his house asking for him. The army/military came. He said that once they started asking anyone caught in that gender and age group is shot. He said that after that he went to [Town 2] and [became an Occupation 2] and stayed there and when the Indian army left Sri Lanka he left and went to India.
The applicant claims that he left India by boat from [Tamil Nadu] on [date] June 2012. He describes in his interview his arrangements for travel, and his travel to Australia from India.
The applicant claims that he cannot return to Sri Lanka because of the harassment. He might be interrogated. He has been away 20 years and his life will be in danger if he returns. People who return from India are abducted by the army and no one knows if they are shot or kept in gaol. Tamils have no rights there.
Claims in application for protection visa made [December] 2012
The applicant essentially repeats his personal and identity details and his employment history as provided in his IMA interview. He confirms he was born in[year]. He confirms the details of his family members and their places of residence. He notes that he is known by another name, [Mr A], spelt incorrectly on his India n driver’s licence produced by him as an identity document. He states that he was initially in India in 1990 unlawfully but later was issued a refugee card and was recognised there as a refugee. He left India illegally by boat to come to Australia. He confirms he has never had a passport and entered Australia without documents on [date] June 2012.
The applicant indicates that he is in regular contact with his family in India.
In his statutory declaration declared [December] 2012 in support of his application for a protection visa the applicant declares he is Sri Lankan, Tamil and a Hindu and that he was born in the Trincomalee District. He claims that he fled Sri Lanka in 1990 because of the ethnic conflict; it was not safe for young Tamil males to remain in the north at the time as they were targeted by the Sri Lankan army. He further states that he thinks his family helped the LTTE although they were not members because their [shop] was [damaged] by the Sri Lankan army on two occasions before 1990. He said that he entered India illegally but was eventually accepted as a refugee. He declares that he has not returned to Sri Lanka since he left there in 1990. He describes and names the refugee camps he lived in in India. He declares that none of his family members fled to India at the time. He learned about 10 years after going to India that his brother had been conscripted by the LTTE in Sri Lanka; he and his family lost contact with his brother ’until about one year ago’. His brother would have been an LTTE member for about [number] years but has never shared details about his involvement in that organisation.

The applicant declares that the Indian government has threatened to return Sri Lankan refugees residing in India and he would be targeted by Sri Lankan authorities because he fled Sri Lanka illegally in 1990. He claims he has no legal right to return to India.
He fears for his safety and the safety of his wife and children in Sri Lanka as he has heard of atrocities committed by Sri Lankan authorities in the recent past.
The applicant declares that he fears returning to Sri Lanka as he is a Tamil from the north eastern area of Sri Lanka who has resided for over two decades in India. He believes he is at risk of being arrested, detained and subjected to harsh treatment by Sri Lankan authorities as he left Sri Lanka illegally to go to India and remained in India for many years; the attitude of Sri Lankan authorities towards Tamils is the same as when he left Sri Lanka.
The applicant declares that it is unreasonable to return him to live in Sri Lanka, or for him to relocate to another part of Sri Lanka, as he and his family have become used to Indian Tamil culture. He has not been in touch with his parents and siblings in Sri Lanka in the same way he would have been had he been living with them. In India he has a network of friends and the support of his wife and children.
Claims made before the delegate at the interview on [date] June 2013
The applicant was interviewed by the delegate with the assistance of an interpreter in his language on [date] June 2013.
The applicant essentially repeated his claims made in his earlier interview but also included new claims to fear harm in his country.
He explained that details on one of his cards from India are incorrect; he stated that the date of birth shown as [year] is mistaken. He was born in [year]. The name on the card is a name used for him (nickname). He explained he got his national ID card from Sri Lanka sent to him in India by post from his mother in Sri Lanka. He said that he has never had a passport. He explained that his wife is in India having returned from working in [Country 1] and his mother and brother and sisters are in Sri Lanka. His wife is Sri Lankan and his children were born in India. The applicant explained that he has only lived in Sri Lanka and India. He has no right to enter and live in India.
The applicant said that in India he has worked as a [Occupation 3].
The applicant stated that his parents’ shop in Sri Lanka was [damaged] because his parents helped the LTTE; the authorities learned shoppers did not pay money for goods and they came and [damaged] the shop. The shop was [damaged] in 1990. The applicant then said that the LTTE bought things from the shop and they paid. He explained that he meant his parents helped the LTTE by people coming and buying things there. The applicant said that he did not know whether his family members have been questioned since 1990 by Sri Lankan authorities because he had little connection with them. The applicant said that his brother [Mr B] is still in Sri Lanka occupied in fishing in [another district]. He is now married with [children].
The applicant said that he heard from village people in India that [Mr B] was taken and arrested after he (the applicant) left Sri Lanka. [Mr B] called him once in India; after he went to the LTTE he spoke a short time with the applicant. He said that many people were taken by LTTE. The applicant said that he does not know what his brother did with LTTE.
The applicant said that his family in Sri Lanka are affected by the LTTE. After the shop was [damaged] his family members went to stay in the camp; that was around 1990. He does not know when his family returned to their area.
The applicant said that he has not been contacted by Sri Lankan authorities in India.
The applicant said that neither his mother nor his brother have ever been to India; the comments in his IMA about his brother coming to India and telling him things in fact happened in Sri Lanka. The authorities came many times looking for his brother. He agreed he was not in contact with his family for about seven years after he went to India but he found out the authorities were looking for his brother because he was told by villagers who had come to India.
The delegate asked the applicant why he would be in danger in Sri Lanka because of his brother if his brother is still living there. The applicant said that he himself has been staying illegally in India. He has also now come to Australia. He also went to [City 2, India] and [became involved in Activity 1 related to Sri Lanka]. Photos were taken of him [at Activity 1] for the Sri Lankan problem. This was in [year]. [Sentence deleted]. There is a problem because people are dying in Sri Lanka. This is the only [activity of this kind that he was involved with]. He [became involved with Activity 1] because of Tamil problem. The applicant said that [an incident occurred] in India for the Tamil people and he attended [the related Event 1] too; that was before [Activity 1] which was in [year]. The people in Sri Lanka knew about this through the photographs which were put on internet. The applicant agreed this was the first time he mentioned [Activity 1] and [Event 1] and hadn’t mentioned it before. He cannot return to his country. The applicant said that he did not mention this about [Activity 1] and [Event 1] at the prior interview. He mentioned the army and that he came back to India with the army. The applicant said that he had mentioned that his brother was involved with the LTTE at that time. The applicant said that one of his [other relatives] was taken by the LTTE too and he said that he mentioned that; he cannot go back to Sri Lanka. He agreed that apart from the matters he had mentioned he had not been involved with any other political groups. The group involved in [Activity 1] was [Organisation 1]. The applicant said that when he was in the camp this group asked him to [become involved with Activity 1] and he did so but he is not involved in/a member of that group.
The applicant said that he has been away from his country for over 20 years and does not know what will happen to him when he goes back. He [was involved in Activity 1] in [City 2] and people asked because he was [involved in that]. The applicant said that he fears serious harm in Sri Lanka; he [was involved in Activity 1 and Event 1] and the government in Sri Lanka is against these things. He cannot return to any other place in Sri Lanka. He left his country when he was young and has no idea where else in Sri Lanka he could go.
The applicant said that he fears harm in Sri Lanka from the Sri Lankan government and the military because he [was involved in Activity 1 and Event 1]. The government/military abducts people in white vans and maybe that will happen to him. The delegate told the applicant that as he had raised the claims about [Activity 1 and Event 1] late this raised doubts about whether those claims were true.
The applicant’s representative submitted that his brother has to get permission to travel in Sri Lanka and is constantly questioned. The representative further submitted that the applicant had a USB with him in connection with [Activity 1] in India and has had the USB all the time since arriving in Australia. He has offered the USB to [detention centre]employees to view; he does not realise the roles of the various people in the system. The representative requested and was granted time to view the USB and email photos/materials in support of the applicant’s claims.
The representative submitted that there are international concerns about human rights abuses in Sri Lanka and she referred to Sri Lankan country information about human rights abuses in Sri Lanka. She submitted that this information refers to those who have been overseas being seen as having a link with LTTE and being tortured on return. The representative also referred to a Refugee Review Tribunal decision citing UNHCR guidelines which suggest those with links to LLTE may be mistreated and that the Australian government does not monitor returnees. Also she referred to a recent television programme, the ‘7.30 Report’, about returnees from Australia being tortured in Negambo gaol. She further cited amendments to legislation which could mean that the applicant will be charged for leaving the country illegally and for alleged involvement with LTTE. It is submitted that the applicant fears that if he is detained on arrival he will be sent to prison, not granted bail and will disappear into the system. The representative submitted that there are fears for the applicant’s safety if he is returned to Sri Lanka.
Claims made in application for review
In his application for review the applicant makes no new claims.
On 27 January 2015 the applicant’s adviser sent the first Tribunal a lengthy pre-hearing submission addressing the concerns of the delegate about the applicant’s credibility and also referring to various country information in support of the applicant’s claims. It is submitted that the applicant is likely to face Convention related persecution in his country if he returns there because of his Tamil ethnicity, his imputed political opinion, the fact that he left Sri Lanka illegally, the area he originates from in Sri Lanka, his familial connection with the LTTE, including that his family helped the LTTE for which reason their [store] was [damaged] in 1990, the fact that the applicant has remained in India since entering there in the 1990s and has not returned to Sri Lanka, choosing to flee from India and enter Australia. It is submitted that the applicant’s reluctance to return to Sri Lanka since 1990 is likely to draw attention to him when he is questioned by the authorities on return which would expose him to Convention related harm.
It is submitted that the harm that the applicant may face on return to his country includes being exposed to a harsh sentence/prison sentence for an offence under the Sri Lankan Immigrants and Emigrants Act for departing Sri Lanka illegally by boat; torture and cruel, inhuman and degrading treatment during on-arrival interrogations by authorities or during a period of remand; police mistreatment, poor conditions in prison and in police detention facilities and also vulnerability to abduction and extortion by armed groups. The UK Guidance case of UK Upper Tribunal GJ & Others [2013] UKUT 00319 (July 2013) is referred to as indicating that if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
The submission also critiques the DFAT Country Information Report, Sri Lanka dated October 2014 and provides references to Tribunal decisions.
Claims at hearing before the first Tribunal
At the hearing before the first Tribunal on 29 January 2015 the applicant essentially repeated and expanded upon his prior claims in answer to questions from the member. In addition the applicant produced 25 photographs claimed by him to be photographs of [Activity 1] which he took part in in India which was organised by the [Organisation 1]. He is shown in the photographs. The photographs show [people], including the applicant, [with] the insignia of the [Organisation 1], and displaying [messages].
He claimed that [officials] in Sri Lanka had been making enquiries about his whereabouts and had approached his mother with photographs of [him]. He also claimed that [other] participants in [Activity 1] who returned to Sri Lanka were abducted by the CID and have not been heard of since.
The applicant’s adviser at the hearing submitted that the applicant will face harm in his country as a returnee who left Sri Lanka illegally; as a person having connections with the LTTE given his brother had an LTTE involvement and is being monitored; as a relatively young Tamil male returning to his country; as a person known to have taken part in [Activity 1] he will be questioned and will receive adverse attention by authorities which could amount to persecution; as a Tamil with his overall profile; and as a wealthy person returning from Australia. The advisor submitted that authorities in Sri Lanka fear a resurgence of the LTTE.
Claims before the Tribunal
On 3 September 2017 the applicant sent the Tribunal a statutory declaration in support of his claims, declared 3 September 2017.
In the statutory declaration the applicant claims that his statement made [date] December 2012 is true but he has not disclosed, either to his representatives or Departmental officers, further information until the making of the latest statutory declaration.
The applicant declares that when he was [age] years old he voluntarily joined a Tamil militant group known as [Organisation 3] which was active in his area; this was after he had seen atrocities committed by the Sri Lankan army which [damaged] the family grocery store twice.
He claims that he underwent weapons training in Tamil Nadu at the time when he was about [age] years old and he names the weaponry he was trained to use. He states that until the Indian Peacekeeping Force (IPKF) arrived in Sri Lanka Tamil militant groups, one of which he was a member, worked together and fought against Sri Lankan forces.
He declares that he was a combatant with [Organisation 3] with the nickname of ’[Mr A]’. He engaged in combat which he refers to as ’mini battels’ in various locations in Sri Lanka which he names, and after the arrival of the IPKF in Sri Lanka [Organisation 3] began to support and assist the IPKF. He states that it was confusing because the LTTE fought against the IPKF and also the Sri Lankan army.
The applicant declares that since leaving Sri Lanka in 1990 he has never returned to Sri Lanka and his wife and [children] remain living in an SLR camp in [City 1].
The applicant states that he fears harm in Sri Lanka because he was a member of [Organisation 3] which fought against the Sri Lankan government and he could be charged under the Prevention of Terrorism Act; the authorities in Sri Lanka were not aware that he left Sri Lanka; he is a Tamil who originates from a former LTTE controlled area; Sri Lankan authorities could be suspicious of him because he departed Sri Lanka illegally and has lived in India for over two decades as a refugee with a refugee ID card and was offered protection in India; he is a failed Tamil asylum seeker from Australia; he [was involved in Activity 1] against the Sri Lankan government whilst in India and could be harmed for this reason.
Tribunal hearing on 13 September 2017
The Tribunal spoke to the applicant about his identity documents, his illegal departure from Sri Lanka to go to India in 1990, his/his wife’s family members in Sri Lanka including his claim that his brother had involvement with the LTTE, his family members in India, his employment in India, his reasons for leaving India in June 2012, his involvement with [Organisation 2] for one year before he left Sri Lanka in 1990, the [damaging] of his parents’ shop in Sri Lanka, his involvement in [Activity 1] in India for the rights of Tamils in Sri Lanka, the photographs produced to the first Tribunal showing the applicant [involved in Activity 1], his claim that [officials] asked his mother in Sri Lanka about him and shown her photographs of his attendance at [Activity 1], his claimed membership of [Organisation 3] including the reason for his delay in making that claim, his training with [Organisation 3] in India and his return to Sri Lanka to fight, his delay in making the claim that he trained in India with [Organisation 3] and returned to Sri Lanka, his weapons training with [Organisation 3] and involvement in battles against the Sri Lankan army while fighting with [Organisation 3] on his return from India, the length of his stay in India, and his fear of abduction by the CID in Sri Lanka.
The applicant’s representative made oral submissions following the hearing addressing the Tribunal’s queries and concerns put to the applicant during the hearing. Those submissions were essentially contained in the written submissions received by the Tribunal from the representative after the hearing. The representative also submitted that the period that the applicant spent in India and his failed claim for asylum in Australia will result in the applicant being questioned ’beyond normal’ on return to Sri Lanka. The representative also submitted that [Activity 1] in India in which the applicant participated was [directed] against the Sri Lankan [government] and the applicant could have been [exposed] including through the media and social media. The representative also invited the Tribunal to consider the applicant’s claims cumulatively.
Following the hearing the Tribunal allowed the applicant further time to provide additional information in support of his claims.
On 24 September 2017 the applicant’s representative sent the Tribunal references to articles from various sources including TamilNet, the Daily Mirror, International Crisis Group and Refworld in support of the applicant’s claims that he will face torture and other ill-treatment if he is returned to his country; a TamilNet article dated 5 March 2016 reports that there is resumed surveillance of Eezham Tamils through [’registration’].
In a submission to the Tribunal dated [September] 2017 the applicant’s representative repeated the applicant’s claims including his more recent claim that he fears harm in his country because of his involvement with a Tamil militant group, [Organisation 3], which at the time the applicant was involved fought against the Sri Lankan government and authorities. He fears harm because he was involved with the commission of terrorism and related offences in Sri Lanka, although there has been a lapse of time since his involvement with [Organisation 3].
It is submitted that while the applicant was not a member of the LTTE he nevertheless engaged in combat roles and was a part of a Tamil militant organisation, [Organisation 3], in Sri Lanka. Relevant country information, including the most recent DFAT Country Information Report, Sri Lanka (January 2017), is cited to support the claims that there is a real chance of the applicant being arrested under the Prevention of Terrorism Act which is still in place, detained and sent for rehabilitation for being a [Organisation 3] combatant which could expose him to serious or significant harm.
It is further submitted that the applicant will attract adverse attention on return to Sri Lanka because of his activities in India ([Activity 1]); these activities will be perceived and regarded as pro LTTE activities. Paragraph 3.29 of the most recent DFAT Country Information Report, Sri Lanka is referred to which indicates that Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE and that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters.
The representative also submits that the applicant may face a risk on return to Sri Lanka as returnees are processed ’en masse’ and could be imputed with a political opinion due to one member of the group being found to be a person of interest.
The submission attaches a copy of the November-December 2016 Report of the Committee Against Torture by the Office of the United Nations High Commissioner for Human Rights which refers to allegations of ’routine torture’ during police detention and interrogation. Paragraph 9 of that report refers to allegations of routine torture of detainees during police interrogation regardless of the nature of the suspected offence. Paragraph 11 of that report refers to alleged ’white van’ abductions, detentions and torture of Tamils by both military and police in unacknowledged places of detention.
The submission also attaches a copy of the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka, dated February/March 2017, which concludes at Part V, amongst other things, that the issue of torture and other cruel, inhuman or degrading treatment or punishment is part of the legacy of Sri Lanka’s armed conflict; torture and ill-treatment still occur particularly in the early stages of arrest and interrogation, often so that confessions may be elicited. Further it is concluded that ’Procedural norms that entrust the police with full investigative powers over all criminal cases … are firmly in place. This enables an “open door policy” for police investigators to use torture and ill-treatment as a routine method of work.’

The submission also attaches further information in relation to the Prevention of Terrorism Act and its reform or repeal.
On 28 September 2017 the applicant’s representative submitted that recent attacks by radical Buddhists against Rohingya Muslims rescued by the Sri Lankan navy and taken into custody by Sri Lankan police indicate that there is a real chance that the applicant could face harm from radical Buddhists in Sri Lanka as Tamil Tigers/LTTE have been accused of killing Buddhist monks in the past.
On 17 October 2017 the applicant’s representative sent a further submission to the Tribunal stating that the applicant’s psychological distress together with physical harm should be considered when assessing whether the applicant will face serious or significant harm on return to Sri Lanka. CAC16 v Minister for Immigration and Anor [2017] FCCA 2202 (13 October 2017) is cited.
On 18 October 2017 the applicant’s representative sent the Tribunal references to further news articles published by TamilNet that support the argument that former Tamil paramilitary operatives are active and acting with impunity. It is submitted that the Northern Province remains an area where persons like the applicant could face harm.
On 10 November 2017 the applicant’s representative sent further country information in support of the applicant’s claims for consideration by the Tribunal.
Country information
In addition to the various country information referred to by the delegate, and the country information referred to by the first Tribunal and also by the applicant’s representative, including the DFAT Country Information Report, Sri Lanka, 24 January 2017, the Tribunal also consulted the World Report 2018: Human Rights Watch; DIBP’s Situation Update, Sri Lanka: Tamil Returnees, effective from 24 May 2017; the UK Home Office Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017; and the Full Statement by UN Special Rapporteur on human rights and counter terrorism, posted 14 July 2017, in relation to Sri Lanka.
FINDINGS AND REASONS
Essentially the applicant claims that he fears to return to his country, Sri Lanka, because he will be harmed there due to the following- his Tamil ethnicity; because he is a Tamil who originates from the northern part of his country; because of his imputed political opinion due to his brother’s recruitment by, and service with, the LTTE and the perceived support of the LTTE by his family when they ran a shop which was [damaged] by the Sri Lankan army; because he has been absent from his country for over two decades and has resided in India and been recognised there as a refugee; because he left his country illegally and went to India in 1990 he will be charged under the Immigrants and Emigrants Act; because of his imputed political opinion due to his involvement in [activities] in India against the Sri Lankan government and pro a separate Tamil state, in particular [Activity 1] around [year] during which he was photographed and which could have exposed him to authorities in Sri Lanka through the media and social media; because he did not return to Sri Lanka but left India and claimed asylum in Australia; because he was involved in a militant Tamil group, [Organisation 3], in about 1990 and fought with that group against the Sri Lankan army he will be seen as being opposed to the Sri Lankan government and will be charged under the Prevention of Terrorism Act which is still in place. Further the applicant claims that he will face torture and ill-treatment during any investigation or interrogation of him by authorities including the police/military/security services on his return to Sri Lanka. The applicant also claims that he fears harm from radical Buddhists in Sri Lanka as Tamils/LTTE have been accused of killing them in the past. He also fears harm from paramilitary operatives who abduct and torture people such as himself; they are still active in the Northern Province and they operate with impunity there.
Identity
In the completed notes on the Department’s file of the applicant’s IMA interview the applicant indicates that his identity documents consist of his Sri Lankan national identity card which he claims he received when he was in India, his Indian driver’s licence which he states has an incorrect name and date of birth for him, and his Indian refugee card which he indicates his family sent to immigration authorities from India. Elsewhere he indicates that he has never had a passport. At the hearing the Tribunal asked the applicant about his identity documents. He said that his documents were returned to him by Australian immigration authorities but he has mislaid them. When the Tribunal queried why one of his Indian identity documents has his incorrect name and date of birth he said that there is a language problem in India, that he went for a test but the information was messed up and that he tried to change the details but he did not want to pay bribes to do so. He said that he applied for his Sri Lankan identity card before he left Sri Lanka as it is an important document for Sri Lankans; he planned to leave Sri Lanka before he applied for the card.
For the purposes of this decision the Tribunal accepts and finds that the applicant is who he claims to be, that he was born in/around Trincomalee District in the north/east of Sri Lanka in [year] and that he is Hindu and Tamil. He has fairly consistently claimed his date of birth to be [year]. He communicated with the Tribunal through a Tamil interpreter.
Family members
The Tribunal asked the applicant about his family members. Having regard to the applicant’s evidence the Tribunal finds that the applicant’s mother, his younger sister and his only brother, [Mr B], live in Sri Lanka and that his wife’s mother and father moved back from India to live in Sri Lanka some time ago; he told the Tribunal that they moved there before 2000. The applicant also told the Tribunal that he thinks his wife’s parents live [in] the north of Sri Lanka. He also told the Tribunal that one of his wife’s siblings is in Australia having been granted a protection visa after coming to Australia by boat. The applicant told the Tribunal that his own mother continues to live in the village in Trincomalee where he grew up and she supports herself financially by running a small [shop] there. The applicant told the Tribunal that his younger sister is also still in [Trincomalee] she is married and has [children]. She lives about [distance] km away from his home village where their mother lives. The applicant said that his brother [Mr B] lives in [another district]. His brother is married with children. He is in [a certain industry] but is also a fisherman. He sometimes visits their mother and sister in Trincomalee and they also visit him.
The Tribunal accepts and finds that the applicant’s wife and children remain living in India, although his wife has travelled to Sri Lanka to visit her parents there. This was the applicant’s evidence to the Tribunal at the hearing.
The Tribunal does not accept that there is a real chance that the applicant would face serious harm in Sri Lanka, or that he would face a real risk of significant harm on return to Sri Lanka because of his imputed political opinion due to his brother’s recruitment by, and service with, the LTTE and/or the perceived support of the LTTE by his family when they ran a shop which was [damaged] by the Sri Lankan army during the hostilities between the army and the LTTE. Having reviewed the evidence before the first Tribunal the Tribunal considers that the applicant is unsure why his parents’ shop was [damaged] but in any event, as noted above, the applicant told the Tribunal that his mother remains living in the village in Trincomalee where he grew up and she is running a [shop] there. She visits his brother sometimes with his sister. The applicant did not mention any trouble that his mother or his sister was encountering living in Trincomalee. While the Tribunal accepts that the applicant’s brother may have been forcibly recruited and trained by the LTTE when he was young, as many young Tamil males from the North were according to country information consulted by the Tribunal, the applicant’s evidence is that his brother is now married with children and living in[another district], he is working in [a certain industry]and also does some fishing to support himself and his family. The applicant told the Tribunal that his brother lives about four hours by bus from his mother whom he visits sometimes and said that his mother and sister also visit his brother. While the applicant told the Tribunal that his brother has to get permission sometimes to travel out of the area and is sometimes questioned about incidents that occur in the area he also said that he has not contacted his brother for ’a long time back’. Given that the applicant’s family members are living and working in Sri Lanka, as the applicant describes, without significant difficulty, the Tribunal does not consider that the applicant would suffer harm in his country if he returned there for his imputed political opinion due to his association with his family members, including his brother.
Departure from Sri Lanka
The Tribunal accepts the applicant’s evidence and finds that he left his country illegally by boat in 1990 when the Indian army left Sri Lanka and that he lived as a refugee in India from 1990 until he left India illegally by boat to come to Australia in 2012. The Tribunal accepts that it was the applicant’s parents’ idea to send him away from Sri Lanka in 1990 because at the time it was not safe for young Tamil males there because of the conflict and fighting between the Sri Lankan army and the LTTE. The applicant has made these claims since his IMA interview. The claims also accord with relevant country information about what was happening in Sri Lanka in the North at that time. The applicant said in his IMA interview in August 2012 that he had lived in India from 1990 till June 2012 and that he entered India legally; ’we were transported by the Indian army when they left Sri Lanka in 1990’. He said he was accepted as a refugee in India. He states that he left India illegally by boat to come to Australia. He agreed with the Tribunal at the hearing that the main reason that he left his country was that he was vulnerable there as a young Tamil male and his parents decided to send him away.
Membership of [Organisation 3]
The Tribunal does not accept that the applicant was a member of [Organisation 3], or that he was taken by that group to Tamil Nadu in India for training when he was about [age] years old or that he returned to Sri Lanka from India with [Organisation 3] to fight against the Sri Lankan army as he claims. It does not accept that the applicant will face charges under the Prevention of Terrorism Act for that reason if he is returned to Sri Lanka.
The applicant told the Tribunal that he was a member of [Organisation 3] prior to being in [Organisation 2]; he was in [Organisation 3] before that group moved to support the Sri Lankan army. While the applicant could give the Tribunal details about his weapons training and places he claims to have fought against the Sri Lankan army when he returned to Sri Lanka with [Organisation 3] the Tribunal considers that if these claims were true the applicant would have made them earlier. The applicant first made these claims in his statutory declaration declared 3 September 2017 before the Tribunal hearing. When the Tribunal asked the applicant why he did not make this claim earlier he said that he was scared to mention it and that he forgot lots of things because of stress and because he is missing his family; when he remembered things he told his lawyers. While the Tribunal accepts that the applicant may been afraid to mention that he was a combatant with [Organisation 3] against the Sri Lankan army when he first arrived in Australia it does not accept that he would not have mentioned this claim for that reason on the several occasions he has had the chance to mention it since his arrival in Australia in June 2012. It also does not accept as plausible that the applicant would have forgotten to mention this claim until 2017.
[Activity 1]
The Tribunal accepts and finds that the applicant [participated] with other Tamils in [Activity 1] in India around [year] and attended another gathering around the same time which the applicant describes as [Event 1] for the Tamil people. It accepts that [Activity 1] was in support of Tamil rights in Sri Lanka and a protest against the Sri Lankan government and the deaths of Tamil people in Sri Lanka.
The applicant told the delegate at the interview that he went to [City 2] [for Activity 1] and that photos were taken of [him] for the Sri Lankan problem. This was in [year]. He said that this was the only [such activity] he attended and he did so because of Tamil problem and the Tamil people. The applicant said that [an incident occurred] in India for the Tamil people and he attended [the related Event 1] too; that was before [Activity 1] which was in [year]. The applicant told the delegate that people in Sri Lanka knew about this through the photographs which were put on internet. The applicant agreed with the delegate that this was the first time he mentioned [Activity 1] and [Event 1]. The applicant told the delegate that the group involved in [Activity 1] was [Organisation 1] formed for Tamil people affected in Sri Lanka. The applicant said that when he was in the refugee camp this group asked him to [become involved with Activity 1] and he did so but he is not involved in/a member of that group. The applicant told the delegate that he has been away from his country for over 20 years and does not know what will happen to him when he goes back. He went to [Activity 1] in [City 2] and people asked because he was in [Activity 1]. The applicant said that he fears serious harm in Sri Lanka; he went to [Activity 1] and [Event 1] and the government in Sri Lanka is against these things.

100. The applicant also told the Tribunal at the hearing that he fears to return to his country because he participated in [Activity 1] with [Organisation 1]. He told the Tribunal that his main reason for fearing harm in his country was his participation in [Activity 1] and the photographs of him to which the CID had access. He said that he [was involved in Activity 1] over [duration]. When the Tribunal asked him what [Activity 1] was about he said that it was in support of the Tamil people who were killed in Sri Lanka by the Sri Lankan government. He told the Tribunal that he was not a member of the group but [became involved] for the rights of the Tamil people in Sri Lanka. He said that [the others involved] took the photos of [him]; these photographs were produced to the first Tribunal.
101. Based on the photographs that the applicant has produced the Tribunal accepts that the applicant was photographed taking part in [Activity 1] in India as he claims. Country information about [Organisation 1] and [Activity 1] is referred to in the first Tribunal decision at paragraph 33 of that decision. The applicant first raised this claim at the interview with the delegate who allowed him time to produce photographs of himself participating in [Activity 1]. The photographs, which were later produced at the first Tribunal, were not produced to the delegate. When the Tribunal asked the applicant about the photographs and why they were not produced earlier, and why he did not mention this claim earlier, he said that the photographs were on a USB which he brought with him when he came to Australia and that he handed over the USB to immigration [authorities] when he first arrived in Australia but they did not take copies of the photos. He did not know why the photographs were not sent by his representative to the delegate after the interview. He said that he had the USB at the interview with the delegate, he gave it to his lawyer but he does not know why the delegate did not get the photos after the interview. The Tribunal accepts that the photographs produced by the applicant are genuine and that the applicant has had the photographs on a USB since arriving in Australia. The Tribunal considers that the applicant may not have mentioned taking part in [Activity 1] earlier because he felt that he had handed over the USB containing the photos of himself [at Activity 1] to immigration authorities when he first entered Australia.
102. The Tribunal also accepts and finds that it is reasonably possible the photographs of those [involved in Activity 1] in India have come to the attention of Sri Lankan authorities through [a variety of media] as the applicant claims. The Tribunal considers that given the [nature] of [Activity 1] it is reasonable to conclude there [was some coverage on a variety of media]. Country information consulted by the Tribunal indicates that Sri Lankan authorities continue to show an interest in and monitor Sri Lankan Tamils who attend Tamil diaspora events abroad; see for example the UK Home Office Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017 at paragraphs 12.2.14 and section 13. The Tribunal considers and finds that the messages on the [items] displayed in the photographs of [Activity 1] attended by the applicant could be interpreted by Sri Lankan authorities as advocating for, or supporting, a Tamil separatist movement.
103. The Tribunal questioned the applicant about his claim that [officials] went to his mother’s home in Sri Lanka with photographs of him [participating in Activity 1] in India and questioned her about his whereabouts. The first Tribunal understood that the applicant’s evidence about this event, as interpreted at the hearing, was that the event occurred, ’recently’ in the ’last two or three months’ before the hearing. Before the present Tribunal however the applicant said that his earlier evidence was not that this event happened three months ago but that it occurred three months after [Activity 1], that is, in [year]. When the Tribunal put to the applicant that he had told the first Tribunal at the hearing in January 2015 something different he denied saying that and repeated that the [officials] had only once visited his mother in [year] and that happened three months after [Activity 1]; they had never been back since to see her about him. The Tribunal also notes that the applicant appears to have briefly raised this claim before the delegate at the interview in June 2013 although it was not explored with him. He told the delegate at the interview that he went to [Activity 1] in [City 2] and ’people asked’ because he was in [Activity 1]. Not without some doubt about the matter, the Tribunal accepts and finds that Sri Lankan authorities may have seen photographs of those who [were involved in Activity 1], including the applicant, and asked his family about the applicant and his whereabouts shortly after [Activity 1] in [year]. Country information referred to above supports this claim by the applicant; see for example UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017 at paragraph 13.1.2.
Fear of harm as a returnee
104. The Tribunal accepts that the applicant would be returning to his country as a Tamil who was originally from the north of Sri Lanka, as a failed asylum seeker from Australia and as a person who has spent many years living in India as a refugee. The Tribunal does not accept that these factors of themselves would cause the applicant to face a real chance of serious harm in his country or a real risk of significant harm there. As the most recent DFAT Country Information Report, Sri Lanka indicates thousands of asylum seekers have returned to Sri Lanka, including from Australia, with relatively few allegations of mistreatment, and returnees are treated according to standard procedures regardless of their ethnicity or religion.

105. The Tribunal accepts that on return to Sri Lanka the applicant could be charged under the Immigrants and Emigrants Act because he left Sri Lanka illegally; paragraphs 5.17 and 5.18 of the DFAT Country Information Report, Sri Lanka, 24 January 2017, indicate that returnees who departed Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigrants and Emigrants Act. That law is clearly a law of general application and it is well established that non-discriminatory application or enforcement of generally applicable laws does not constitute persecution for the purposes of the Convention. The Tribunal does not consider that the evidence before it supports a conclusion that that there is a real chance that the law will be applied to the applicant in a discriminatory manner for a Convention reason if he is returned to Sri Lanka.
106. It is clear however that on arrival in Sri Lanka the applicant as an involuntary returnee will be questioned by authorities including about his identity and intelligence issues. Paragraph 5.21 of the DFAT Country Information Report, Sri Lanka, 24 January 2017 notes that most Sri Lankan returnees including those from Australia are questioned upon return and where illegal departure from Sri Lanka is suspected they can be detained and charged under the Immigrants and Emigrants Act; they are questioned and investigated before being taken before a Magistrate’s Court. Those who have been arrested 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 for some reason those charged can be held, including at a prison, pending the availability of a magistrate. It is noted that the same process is applied to those who travelled illegally to India and then onward to a third country.
107. Paragraph 4.16 of the aforementioned DFAT report also refers to a report to the UN Committee against Torture which claimed that torture was of a routine nature practised all over the country, mainly in relation to police detentions, and that torture is used during interrogation and arrest and is used ’regardless of the nature of the suspected offence’. At paragraph 4.22 DFAT assesses that the risk of torture and mistreatment is low and continues to reduce for the majority of returnees but it is noted that DFAT ’does not routinely monitor the situation of returnees’. Country information consulted by the Tribunal indicates that if a person is detained by Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection; see for example the UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017, paragraph 3.1.7.
108. While the Tribunal does not consider that it is likely, given the Tribunal’s findings at paragraphs 98 to 103 above in relation to the applicant’s attendance at [Activity 1] in India, and the photographs of him attending that event, which the Tribunal has found could have come to the attention of Sri Lankan authorities and which show [items] which in the Tribunal’s view could be interpreted as supporting a separatist Tamil movement in Sri Lanka, the Tribunal finds that there is a real chance that the applicant could face particular scrutiny and adverse attention during questioning by authorities on arrival if he is returned from Australia to Sri Lanka. In the Tribunal’s view, given the country information consulted by it, there is a real chance that on and/or after his arrival in Sri Lanka the applicant will face serious harm by way of torture and other mistreatment during interrogation and detention by police/security services because of his imputed political opinion due to his participation in [Activity 1] in India. At paragraphs 3.1.4 and 3.1.5 of the UK Home Office Country Policy and Information Note – Sri Lanka: Tamil separatism, June 2017, it is noted that participating in diaspora activities such as attending demonstrations is not in itself evidence that a person will attract adverse attention on return but at paragraph 3.1.3 it is indicated that a person who is, or who is perceived to be, active in post-conflict separatism could warrant protection.
CONCLUSION
109. The Tribunal finds that if the applicant is returned to Sri Lanka now or in the reasonably foreseeable future there is a real chance that he would be detained by authorities on arrival and mistreated and tortured during interrogation because of his imputed political opinion. The Tribunal considers that the persecution which the applicant fears clearly involves ‘serious harm’ as required by s.91R(1)(b) of the Act in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicant’s imputed political opinion is the essential and significant reason for the persecution which the applicant fears, as required by s.91R(1)(a). Further the Tribunal considers that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason, namely his imputed political opinion. The Tribunal also finds that the applicant is outside his country of nationality, Sri Lanka.
110. As the conduct which the applicant fears is conduct perpetrated by, or on behalf of, the authorities/government of his country, the Tribunal finds that the applicant cannot get protection from the harm he fears in Sri Lanka. Nor for that reason is relocation an option in the circumstances of this applicant.
111. For reasons given above, the Tribunal finds that the applicant has a well-founded fear of being persecuted because of his imputed political opinion if he returns to his country now or in the reasonably foreseeable future. The Tribunal finds that the applicant is unwilling, owing to his fear of persecution, to avail himself of the protection of the authorities in Sri Lanka. The evidence before the Tribunal does not enable it to conclude that the applicant has a right to enter and reside in any country other than his country of nationality, Sri Lanka.
112. It follows that the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Consequently the Applicant satisfies the criterion set out in s.36(2)(a) of the Act for the grant of a protection visa.
113. Given the findings above it is not necessary for the Tribunal to consider the remaining claims of the applicant, namely that he fears harm from radical Buddhists in Sri Lanka and harm from paramilitary operatives who abduct and torture people such as himself in Sri Lanka.
114. Having found that the applicant is a person to whom Australia has protection obligations under the Refugees Convention it is not necessary for the Tribunal to consider whether the applicant is a person who meets the criterion for the grant of a protection visa under s.36(2)(aa) (‘the complementary protection criterion’).
DECISION
115. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Ms Christine Long
Member