1622633 (Refugee)

[2019] AATA 6813

1622633 (Refugee) [2019] AATA 6813 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622633

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:F. Simmons

DATE:13 December 2019

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 13 December 2019 at 5:46pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – ethnicity – Tamil – imputed political opinion – links to LTTE – family killed by peacekeepers and friends by army – arrested, detained and tortured – left country on own passport – arrest warrant issued – late claims – country information – status of Tamils at the time and now – decision under review remitted

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

CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
MZZLK v MIBP [2016] FCCA 3496
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).The applicant, who claims to be a citizen of Sri Lanka, who arrived in Christmas Island by boat [in] May 2012. He applied for the visa on 5 August 2012 and the delegate refused to grant the visa on 26 October 2012. The applicant sought review of the delegate’s decision and the Tribunal (differently constituted) affirmed the decision on 30 April 2013. [In] December 2016, the Federal Circuit Court quashed the Tribunal’s decision and remitted the matter back to the Tribunal to be determined according to law. 

2. The applicant in this case is a Tamil man who was born in [City 1] in North of Sri Lanka on [Date]. He claims that in 2005 his friends were killed by members of the Sri Lankan Army (SLA). These events led to his decision to leave [City 1] and move to Colombo. He claims he was arrested and detained in 2007 in Colombo for failing to register his address and, whilst in detention, was interrogated and tortured about his links to the Liberation Tigers of Tamil Eelam (LTTE). He claims that scarring on his [Body part 1] was sustained when he was tortured in 2007. He claims that after he was released from detention in 2007 on bail after paying a surety he travelled to [Country 1]. He claims that a warrant for his arrest was issued after he failed to appear in Court as required. The applicant claims that between 2007 and 2012 he resided in [Country 1] before travelling to Australia by boat in May 2012 and seeking asylum.

3. The issue in this case is whether the applicant is owed protection obligations by Australia because he is a refugee or, if not, whether he is owed complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL

9. The Tribunal has reviewed the Department’s file. It contains the applicant’s protection visa application, a statement of claims made by the applicant, a paper record summarising the applicant’s entry interview [in] June 2012, an audio recording of the applicant’s interview with the delegate, which the Tribunal has listened to, and the delegate’s decision record. The Tribunal has also considered the evidence that was before the previous Tribunal, including the applicant’s oral testimony at the video hearing held on 5 March 2013 and the documentation he submitted to the first Tribunal.

10. The applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent. The applicant was provided with time after the hearing to provide further information and the Tribunal has received further submissions and information received in November 2018 and August 2019, including a copy of biodata page of his brother’s [Country 2] passport and post-hearing submissions.

11. The applicant raised new claims before the current Tribunal. He claimed for the first time that he had been tortured by the Sri Lankan authorities while detained in [a] prison in 2007. He claimed that, in addition to the scarring on his [Body parts 2 and 3] which he showed to the first Tribunal, he also has scarring across his [Body part 1] and he showed the Tribunal this scarring. The applicant also gave evidence that he had provided support to the LTTE while he was in Sri Lanka by supplying the LTTE with [supplies] and that he socialised with members of the LTTE in Sri Lanka and also in [Country 1], where he lived between 2007 and 2012. Where relevant his evidence is considered further below.  

    Summary of claims before the Department and the first Tribunal

12. The applicant was born in [Village], [City 1], Sri Lanka on [Date]. His ethnicity is Tamil and his religion is Hindu. His father resides in Sri Lanka and his brother lives in [Country 2]. The applicant’s mother and uncle were shot and killed by [peace keeping forces] in front of the applicant in 1989 when he was [number] years of age. He sustained injuries to his [Body parts 2 and 3] during this event and sustained scarring. As a result of his scars he was subjected to close scrutiny at checkpoints. On several occasions in 2004 he was detained at Sri Lankan Army (“SLA”) camps for questioning but was not abused or mistreated. Then, in December 2005, his friends were at a local bar when they were killed by plain clothes members of the SLA. As a result of that incident he decided to leave [City 1] and move to Colombo.

13. The applicant claims that he was arrested in 2007 and detained while living in Colombo. The police visited his lodgings when he was not there and left a message for him to report to the police station. When he reported to the police he was detained and interviewed on suspicion of being an associate of the LTTE. Following his release he travelled to [Country 1] on a tourist visa and on a Sri Lankan passport issued in his name. He claimed that in [Country 1] he was questioned by the [police] so in May 2012 he decided to travel to Australia by boat.

14. The delegate accepted the applicant was generally credible but did not accept that he would be at risk on return, including for reasons related to his past incarceration and the scarring he sustained as a child.

15. The applicant sought review of the delegate’s decision. In response to questioning by the Tribunal, the applicant gave evidence that neither he nor his family had any association with the LTTE. He showed the Tribunal scars on his [Body parts 1 and 2] and stated that these scars were sustained in the incident in 1989 in which his mother was killed.

16. To the first tribunal the applicant provided what appears to be an extract from a police information book with accompanying translations headed Sri Lankan Police [Suburb] and dated 2007. These documents relate to the applicant’s claimed arrest, detention charging and court proceedings in Colombo in 2007. In the unaccredited English translation of a document in Sinhalese, dated [May] 2007, and headed Sri Lanka Police the following is set out in respect to the circumstances leading to the applicant’s  claimed arrest.

    “.. was on duty on [05]. 2007 at [address deleted] a gang of people were gathering without any reason and they were questioned by my officer-[Name] and came to know that they are residing temporary in Colombo and their permanent residences are at [Town 1] and [Town 2] and they were taken into custody under Section 33(1) of Criminal Procedure Code 15 of 1979 as suspects for terrorist activities and because of they were not possible to confirm their identifications.”(sic)

17. This document indicates that the applicant was released on bail on a surety of [amount] rupees and required to appear in court in October 2007.

18. A letter from [Mr A], Justice of Peace in [City 1] (dated [February] 2013) addressed To Whom it May Concern states that the applicant moved to Colombo in 2007 and that he was detained for a month on suspicion that he was an LTTE member and then went to [Country 1].

19. The Tribunal accepted the applicant was a Sri Lankan national of Tamil ethnicity from [City 1] in the North of Sri Lanka. The Tribunal accepted that he had scarring on his [Body parts 1 and 2] and that this had led to the applicant being subject to closer scrutiny by the authorities but noted he had not claimed that he was mistreated or abused while questioned. The Tribunal accepted that people known to the applicant were killed in 2005 by members of the SLA but noted that, while the applicant said this event led him to move to Colombo, he did not indicate he was sought after or implicated in these events. The Tribunal  did not accept the applicant was arrested and detained in Sri Lanka, pointing to the discrepancy between his claims that he was arrested when he complied with a request to report to the police station and the documentation submitted by the applicant, in which the police state he was arrested at[a location]. The Tribunal did not accept that the applicant had a profile that gave rise to a well-founded fear or substantial grounds for believing he would be at risk of significant harm on return to Sri Lanka.

20. [In] December 2016, the Federal Circuit Court quashed this decision. The Court found that the previous Tribunal, differently constituted, had failed to perceive the existence of a claim made during the entry interview, which refers to the applicant “playing” with those involved in the tigers. The entry interview states that he was detained in Colombo for a month ‘on the suspicion of LTTE’ and refers to the shooting of his friends. The entry interview record states in part:

    Since the shooting of my friend in 2005 they have been looking for me on suspicion.

    ...we used to go to the playground at [school name] playground at the school the Tigers also came to play. Because of that the army came and shot [Mr B] on suspicion ... the Tigers were using the playground and some informed that they were coming and play.

    Were you there at the time? Yes

    What happened to you? I was searched; I got scared when he was shot so I came to Colombo.

    Tell me what happened to [Mr C] who was also shot] ... the same problem and the same time.

    Why do you think there is a threat to your life? Because I was moving with him.

    But that was six years ago. – Yes in 2005.

    Why do you think there is a threat to your life now? When I was in Colombo in 2007 the police and CID came and caught me on suspicion of LTTE.[1]

    [1] Departmental file, f.91.

21. The Court read the entry interview to say that the SLA shot the applicant’s friend, presumably for reasons relating to having links with the LTTE and that since the shooting in 2005, the police had been looking for him for same reason, that after his friend was shot he took fright and fled to Colombo, and that there was a threat to his life and had been since 2005, and that the reality of that threat was borne out by the events of 2007 in Colombo. The Court held that Tribunal should have dealt with that claim made in the entry interview in one way or another, and failure to do so was a jurisdictional error.[2]

    Additional evidence and claims made to this Tribunal.

    [2] MZZLK v MIBP [2016] FCCA 3496

22. The applicant gave information about his background and family composition that was consistent with the information he had previously provided. He told the Tribunal his brother had been resident in [Country 2] since 1993 or 1994 and his father still lives in Sri Lanka. He expanded upon his claims that his two friends were shot by the SLA in 2005. He claimed for the first time that he and his father, who worked in a [workplace], provided [supplies] to the LTTE and that he socialised with people involved in the movement, including visiting LTTE camps and he suggested he had associated with high profile members of the LTTE although he did not provide any meaningful detail about this claim. He claimed that his friends who were shot also provided support to the LTTE and socialised with the LTTE but that, like him, they were not members of the LTTE.

23. The applicant maintained his claim that he was arrested and detained in Colombo in 2007. At the hearing the applicant claimed for the first time that when he was detained by the Sri Lankan authorities in 2007 he was tortured and that the scarring on his [Body part 1] was the result of this torture. He told the Tribunal that he was threatened that if he told anyone about this torture he would be no more. He also produced, for the first time, an arrest warrant. This arrest warrant indicates it was issued because the applicant failed to appear in court in October 2007.  The applicant claims that if he returned to Sri Lanka he would be tortured by the Sri Lankan authorities because they would suspect him of involvement with the LTTE and because he did not appear in court and there is a warrant for his arrest.

24. The Tribunal asked the applicant what he feared would happen if he returned to Sri Lanka.  The applicant maintained he would be in danger in Sri Lanka despite the passage of time. He claims he will be tortured, including sexual torture. He claims there is a warrant against his name so he will encounter issues at the airport and that authorities will say he was part of the LTTE or supported the LTTE. He claims informant groups and the paramilitaries, specifically the Ealam People’s Democratic Party (EPDP), would tell the authorities he was part of the LTTE.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Nationality

25. The applicant claims he is a national of Sri Lanka. He travelled to Australia by boat and presented copies of his national identity card and his family’s birth and marriage certificates. He gave evidence in the Tamil language and he has presented a consistent narrative about his identity and place of birth. On the evidence before it, the Tribunal accepts the applicant is a national of Sri Lanka and no other country. The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

26. The evidence before the Tribunal does not indicate that the applicant has a right to enter and reside in any third country for the purposes of s.36(3) of the Act and the Tribunal finds that he does not. Therefore he is not excluded from Australia’s protection by s.36(3) of the Act.

    Whether the applicant’s claims about his past experiences are credible?

27. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[3] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

    [3] The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

    [4] MIMA v Rajalingam (1999) 93 FCR 220.

    [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

28. The Tribunal considers that many elements of the applicant’s claims have been consistent since his first recorded interview: he has consistently claimed his friends were shot in [City 1], he was detained for a month in Colombo, before travelling to [Country 1] where he lived between 2007-2012. However, some elements of the applicant’s claims have grown and evolved since he first presented his claims to the Department. Before the current Tribunal the applicant claimed for the first time that he had been tortured in detention in 2007. Having seen this scarring and observed the applicant testify that he was tortured, the Tribunal accepts that the scarring on his [Body part 1] is a result of being tortured by the Sri Lankan authorities. The Tribunal accepts as plausible his evidence that he  did not disclose that he was tortured earlier in the protection visa application process because he had been warned that he would ‘be no more’ if he revealed what happened to him and that he was concerned the Australian authorities would share information with the Sri Lankan authorities.  

1. The applicant also raised new claims that he and his father had provided [supplies] to the LTTE and that he had friends who were part of the LTTE or who, like him, provided support to the LTTE.  As the Tribunal put to the applicant when he appeared before the first Tribunal he indicated that neither he nor his family had any involvement in the LTTE and nor did he claims his friends supported the LTTE. The applicant gave evidence that previously he was not in a situation to provide this information, but this was the last opportunity. He reiterated his evidence that he provided [supplies] to the LTTE. He told the Tribunal that the people he had mentioned had died, one died in the final battle and another person died before then. His evidence about his association with high profile members of the LTTE was vague and evasive: despite being reassured the Tribunal proceedings were confidential, he did not furnish these claims with any meaningful particulars and appeared reluctant to provide details.

2. The Tribunal has considered two possibilities: first, is that the applicant has either embellished his involvement with the LTTE; second, the applicant has understated his involvement in the LTTE. The Tribunal acknowledges that in his entry interview he described socialising with the LTTE and found his account of providing [supplies] to the LTTE as well as the support he and his friends provided to the LTTE to be plausible and persuasive having regard to his testimony and country information indicating that most Tamils in the North of Sri Lanka had contact with the LTTE during the conflict period.  While the Tribunal is not satisfied on the evidence before it that the applicant has any associations with any high profile members of the LTTE, the Tribunal considers his account of the low level support he provided to the LTTE in [City 1] was credible. Having regard to the country information about the situation of young Tamil men in [City 1] during the conflict period and the applicant’s evidence, the Tribunal is of the view that it is more likely that the applicant has understated his involvement in the LTTE for fear of the consequences of being associated with the LTTE than embellished his involvement in the LTTE.

   The applicant’s personal background

3. The Tribunal accepts that the applicant is a citizen of Sri Lanka of Tamil ethnicity and the Hindu faith who was born in [City 1] in the North of Sri Lanka. The Tribunal accepts that the applicant last departed Sri Lanka legally travelling on a passport issued in his own name in 2007 and travelled to [Country 1] where he resided for five years before coming to Australia. The applicant claims he lost his Sri Lankan passport in [Country 1] in 2008 or 2009 and did not have it replaced. The previous Tribunal did not accept that the applicant did not have a valid Sri Lankan passport. The applicant has now been in Australia since 2012. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is not in possession of a valid Sri Lankan passport.

4. The Tribunal accepts that the applicant’s mother and uncle were killed in 1989 by [peacekeeping] forces and as a result he sustained injuries to [Body parts 1 and 2]. The Tribunal accepts that as a result of this scarring he was subjected to close scrutiny at SLA checkpoints. The Tribunal accepts that on several occasions in 2004 he was detained at SLA camps for questioning but was not abused or mistreated. The Tribunal also accepts that in 2004 there was an incident in which he was questioned about an explosion [and] the SLA held a gun to his head before taking him to his home. The applicant did not claim and the Tribunal does not accept that he was of ongoing interest to the SLA in relation to this matter.

   Friends shot and killed by the Sri Lankan Army in 2005

5. The applicant told the tribunal he was living in [Village] when he obtained a Sri Lankan passport and before he travelled to [Country 1] he gave this passport to an agent. He told the tribunal he intended to travel to [Country 1] before he was arrested in Colombo in 2007. He had decided to go to [Country 1] ‘because of the fear’ as during that period people were being captured in Colombo. He also referred to the incident in which the SLA held a gun against his forehead and the extrajudicial killing of his friends. He gave evidence that three Tamil men, including two of his friends, were killed by the SLA in 2005. He wasn’t there when the killing occurred but he knew about it because they were his friends. One of his friends survived the shooting but later died in hospital. The applicant told the Tribunal that when the three people were shot by the SLA, people burned tyres in [Village] junction. He said he was there at this event and army and intelligence came and took videos and photographs of the event. He told the Tribunal his image would have been captured as well as the images of others present. One boy who was present at this event was beaten up and taken away and never returned. Another boy also disappeared. After these events he decided to leave [City 1] and travel to [Country 1]. He gave evidence that he did not have difficulty passing the checkpoints between [City 1] and Colombo: he was questioned but he was able to move through the checkpoints.  The applicant gave evidence that he had decided to go to [Country 1] while still in [City 1] but before he left Sri Lanka he was captured by the authorities in Colombo.

6. The Tribunal accepts that in 2005 the SLA shot three young Tamil men and that two of these men were friends of the applicant. The Tribunal notes that in 2006 the UN High Commissioner for Refugees (UNHCR) reported harassment, intimidation, arrest, detention, torture, abduction and killing at the hands of government forces, the LTTE and paramilitary or armed groups were frequently reported to be inflicted on Tamils from the North.[6] The applicant’s claims that his friends were shot by the SLA in 2005 were detailed in the first interview he participated in Australia (the entry interview) and maintained since this time. The Tribunal accepts, based on his oral and written testimony, his friends were killed by the SLA. While the applicant has not previously provided evidence about the incident where the tyres were burnt, his evidence about this event was detailed and spontaneous and the Tribunal accepts that it occurred.

   [6]  UN High Commissioner for Refugees (UNHCR), UNHCR Position on the International Protection Needs of Asylum-Seekers From Sri Lanka, 22 December 2006, p 5-6.

7. The applicant’s evidence to this Tribunal indicates that the SLA shot his friends because they suspected they were involved in the LTTE. At the hearing the Tribunal referred to his statement in the entry interview that the police were looking for him for the same reason as they were looking for his friend. The applicant told the Tribunal that his friend has been working with the LTTE and they suspected he was also involved in these activities. The applicant told the Tribunal that as a young man in [City 1] he socialised with people who were involved with the LTTE.  When he was young he had lived in the [Region 1] and during the peace period he went to [Region 1] to see his friends. He described socialising in the evening with ‘boys who were in the movement’ at the grounds of a local school. There was a food shop nearby; this was where his two friends were shot. He described his involvement with members of the LTTE as a ‘close interaction’; he described exchanging bikes and providing [supplies] to the LTTE to take the [Region 1].

8. The Tribunal finds that when the applicant travelled to [City 1] to Colombo he was frightened being harmed by the Sri Lankan authorities. This fear is understandable in the context of his personal experiences and the country information. At that time Tamils from North and East, areas which were or had been under LTTE control, were frequently suspected of having association with LTTE. In 2009 and 2006 the UNHCR recognised that Tamils from the North and East were at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures throughout Sri Lanka, but particularly in the North of Sri Lanka, parts of the East of Sri Lanka and in around Colombo.[7] The Tribunal accepts that, because of the experiences of his friends and because of the risks facing Tamils from the North of Sri Lanka at that time, the applicant left [City 1] planning to travel to [Country 1] because he was afraid of being suspected of LTTE affiliations.

   Arrest and detention in 2007

   [7]  UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009; UN High Commissioner for Refugees (UNHCR), UNHCR Position on the International Protection Needs of Asylum-Seekers From Sri Lanka, 22 December 2006.

9. The applicant gave evidence his address was registered in [City 1] and that when he arrived in Colombo he did register at a new temporary address before he was arrested but he was arrested anyway. He claimed that his friends were arrested at the place where he was lodging but he was not arrested at the same time as his friends as he was not present at this time. When he returned to the lodging house people staying there informed him that the police were looking for him. He explained that he went to the police station because he had been asked to report to them and if he did not do so they would certainly look for them. He did not believe he would be arrested because he had registered his address.

10. The Tribunal referred to the documents he provided to the last Tribunal (the police information book). The applicant claimed these documents were given to him by a friend who had recently relocated abroad and who had assistance from the lawyer who represented the applicant and his friends in 2007. The Tribunal put to the applicant that the police information book said he was in the company of others [and] the police questioned arrested five people, including the applicant, after they failed to produce their identity documents. The applicant said he had a registration and he also had an identity card but the police lost it. He said that the police report was written in the way that it was so that the police could safeguard themselves.  He maintained his account of his arrest was true. He paid money and the others paid money and they were released on bail. After he was released on bail he left for [Country 1]. He was the first amongst those who were arrested to go overseas but later the others started moving to different places.

11. Since his first recorded interview in Australia in June 2012 (the entry interview) the applicant has been consistent in his claim he was detained in Colombo in 2007. Given the passage of time and the traumatic nature of the events that occurred in 2007, the Tribunal does not consider minor variations in his recall of his detention to be significant. This claim is highly plausible in the context of country information about the treatment of young Tamil men by the SLA in 2007.[8] The applicant has maintained that the explanation for the discrepancy between the documentation he has provided and his narrative about his arrest and detention is that the information in the police information book is inaccurate. He claims that he was arrested on a false premise and then interrogated and tortured by the authorities. While the Tribunal is not without doubt, it considers that the records in the police information book are not accurate in this respect. Having regard to the applicant’s oral testimony and the country information, the Tribunal accepts that the applicant was detained in 2007 as claimed.

    Torture in detention

    [8] See, for example, UK Home Office Border Agency,   'Sri Lanka October 2008', 30 October 2008; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009.

12. Before this Tribunal the applicant has raised new and significant claims that he was tortured by the Sri Lankan authorities in 2007 and that, as a result, he has significant scarring on his [Body part 1]. The Tribunal noted that he showed scarring on his [Body parts 2 and 3] to the previous Tribunal but he had not mentioned scarring on his [Body part 1]. The applicant conceded he did not. When asked if he could provide a photograph after the hearing, he responded by lifting his [clothing] showing a long, thick scar that runs diagonally across his [Body part 1]. He told the Tribunal that this scar was the result of being tortured by the Sri Lankan authorities shortly after he was imprisoned in Colombo in 2007. He told the Tribunal that he was taken to a darker room by authorities in civilian clothes and he was interrogated. After that particular interrogation he lost consciousness. Later he was told that if he disclosed what happened to him would get in a lot of trouble and he would be no more. He said that until this day he is frightened by what happened on that day and this is why he didn’t mention it until now.

13. Having seen the scarring and listened to the applicant’s testimony about how it was sustained, the Tribunal accepts that the applicant has scarring on [Body part 1] because he was tortured by the Sri Lankan authorities in 2007. This claim is plausible in the context of the country information about the treatment of young Tamil men who were detained by the Sri Lankan authorities during the final years of the long running conflict between the Government of Sri Lanka and the LTTE. At the first Tribunal hearing the applicant gave evidence by video link and did not disclose that he had significant scarring on his [Body part 1] or that he was tortured. The Tribunal accepts that the applicant did not make this claim earlier in the protection visa application process because he was frightened of the consequences of doing so.   

    Travel to [Country 1] and failure to appear in Court 

14. The Tribunal accepts that the applicant was arrested, detained and tortured in Colombo before being released on bail after a surety of [amount] rupees were paid. After he was released on bail he did not attend court on the required date. He relied on agents to depart the country and he did so legally in around July 2007. He was able to depart Sri Lanka using his own passport and travel to [Country 1] (his departure while subject to a reporting requirement is not inconsistent with the country information available to the Tribunal about exit procedures during this period).[9] On the evidence before it, the Tribunal accepts that the applicant departed Sri Lanka legally in 2007 and travelled to [Country 1] where he registered with the [Country 1] police and resided for five years before travelling to Australia.

    [9] DIBP COISS 2015, Extended Q&A Report LKACI150819161210681, 2 September, (Question 5) <CRE6D9079240>  (citing country information that The Department of Immigration & Emigration (DIE) are notified only when a Court decides to impound the suspect’s passport or an arrest warrant is issued.)

15. The Tribunal accepts that the applicant may have been questioned by the [Police] while he was [Country 1] and that he may also have associated with people who were involved in the LTTE in [Country 1]. As the Tribunal put to the applicant, the country information indicated that the [Police were] active in arresting people that were supporting the LTTE and that where the [Police] suspected that a person was involved in supporting the LTTE that person might end up in a special camp for LTTE suspects or supporters and the fact he was not detained in such a camp might suggest the [Police] did not seriously suspect him of involvement with the LTTE. He said only if they found out and could confirm would they send a person to special camp. The Tribunal finds, based on the applicant’s evidence, that the [Police] did not seriously suspect the applicant of active involvement with the LTTE.

16. Having accepted as credible the applicant’s account of his detention, release and failure to report to court, the Tribunal now turns to the question of whether an arrest warrant would have been issued in respect of the applicant. He claims that as he was [Country 1] he failed to appear in Court as required. Given that the applicant was released on bail and failed to comply with a requirement to report to court, the Tribunal considers it is plausible that the authorities would issue a warrant for his arrest. The warrant that has been submitted by the applicant is consistent with country information about the appearance of arrest warrants. However, as discussed at the hearing, the Tribunal found the applicant’s account of how he obtained this documentation vague and his explanation for its late production problematic. Nonetheless, the Tribunal considers his account of his arrest and detention in 2007 has been generally consistent over time and consistent with country information about the treatment of young Tamil men by the Sri Lankan authorities at that time. The Tribunal accepts that he was detained in 2007 as claimed. The Tribunal also accepts his evidence that he was tortured in detention and that he has scars as a result of that torture.

17. The question the Tribunal must consider is whether it can confidently find that his claims are not credible. If the Tribunal is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[10]. Having considered the country information and all the evidence before it, including the entry interview records and the applicant’s oral testimony, theTribunal accepts that the applicant was arrested, detained and tortured in 2007 as claimed. While it is of concern  that the applicant’s claims that he has the subject of an arrest warrant was not raised at an earlier point in time, the applicant has consistently claimed he was arrested and detained in 2007 and that when he was released on bail he fled to [Country 1]. The Tribunal accepts that the applicant failed to appear at court as required in October 2007 and notes this is consistent with the information contained in the police information book.  The Tribunal considers it is plausible that an arrest warrant would be issued in respect of a person who failed to report to court as required. Therefore, while the Tribunal is not without doubt, because the Tribunal cannot confidently find that an arrest warrant has not been issued in respect of the applicant because he failed to appear in court the Tribunal has assessed this claim on the basis that it might possibly be true.

    [10] MIMA v Rajalingam (1999) 93 FCR 220.

    Whether there is a real chance that the applicant will be persecuted if he returns to Sri Lanka 

18. In light of its findings about the applicant’s claims, the Tribunal must consider whether, on the basis of the circumstances that exist now, the applicant’s fear of being harmed on return to Sri Lanka are ‘well-founded’.  This assessment is a forward looking test. The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Chan), the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[11]

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

    [11] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

1. The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring, however, the chance of it occurring must be more than “far-fetched” or “remote”,[12]  and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation”.[13]

   [12] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J).

   [13] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

2. The Tribunal considers that the applicant’s account of his experiences in Sri Lanka is generally consistent with independent country information about the treatment of young Tamil men from the North of Sri Lanka during the conflict period.  The security situation in Sri Lanka has greatly improved since the end of the conflict in May 2009, although allegations of torture and extrajudicial killings by the Sri Lankan authorities have persisted in the post- conflict period. The Tribunal acknowledges that the recent election of Gotabaya Rajapaksa as President of Sri Lanka has provoked fears that Sri Lanka will return to a more authoritarian era and meaningful accountability for war crimes or human rights abuses against the Tamil community will remain out of reach. [14]

   [14] 'Human Rights, Reconciliation, and Peace in Sri Lanka Under Gotabaya Rajapaksa', The Diplomat, 27 November 2019, 20191204155534; 'In Sri Lanka, the Rajapaksas will Rule Ruthlessly', Lowy Interpreter (The Interpreter), 26 November 2019, 20191126160809; Taylor Dibbert, ‘The RajapaksasOwn Sri Lanka Now’, Foreign Policy, 19 November 2019.

3. The Tribunal accepts that the applicant, together with his father, provided [supplies] to the LTTE during the conflict period. The Tribunal accepts that two of his friends were killed by the SLA in 2005 and that the applicant was involved in protests following their deaths. The Tribunal accepts that the applicant travelled to Colombo intending to travel [Country 1] because he was afraid of what would happen to him if he remained in Sri Lanka. The Tribunal accepts that he was detained in [a] prison Colombo in 2007 and, whilst in detention, he was tortured.  The Tribunal accepts that he has significant scarring on his [Body part 1] as well as scarring on his [Body parts 2 and 3]. The Tribunal accepts that he failed to report to court as required in 2007. The Tribunal accepts that he travelled to Australia from [Country 1] and as he is not in possession of a valid Sri Lankan passport.

4. The Tribunal accepts that if the applicant were to be forcibly returned to Sri Lanka he would be subject to the enhanced scrutiny that faces asylum seekers returning to Sri Lanka on temporary travel documents. DFAT reports that:

   For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This 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 police in their claimed hometown, contacting 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.[15]

   [15] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.67, 20191104135244

5. Failed asylum seekers may be subject to detention and questioning by the State Intelligence Services, Criminal Investigations Department, and Terrorism Investigation Department upon arrival at Colombo airport.[16] Returnees with a former LTTE connection will be questioned upon arrival in Sri Lanka.[17]  

   [16] ‘Coming Home Booklet – Sri Lanka’, 10 February 2015, UK Foreign & Commonwealth Office, CISEC96CF1147, p.2; ‘Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers’, Country Information Report No. 14/02’, Department of Foreign Affairs and Trade, 24 January 2014, CX317331 

   [17] ‘Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)’, UK Home Office, March 2017, OGD7C848D112, p.43

6. DFAT reports that between 2010-11 and 2018, over 3 716 failed asylum seekers were returned from Australia to Sri Lanka, in addition to the many Sri Lankan asylum seekers who have been returned from other countries, including the USA, Canada, the UK and other European countries. DFAT reports that some returnees, including returnees in the both and east with suspected LTTE links, have been subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department.[18] In this regard the UK Upper Tribunal found in GJ and Others that:

   Any risk for those in whom the authorities are or become interested in exists not at the airport but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.’[19]

   [18]  DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.69, 20191104135244

   [19] GJ and Others (Post-civil War Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(6).

7. At the hearing the Tribunal expressed doubts about whether the applicant would now be of any interest to the Sri Lankan authorities because of any involvement he had with the LTTE over a decade ago. The Tribunal put to the applicant that he was never a member of the LTTE and his only involvement appeared to be providing [supplies] and socialising with members of the LTTE before the end of the conflict. The applicant claimed that if he were returned to Sri Lanka, the authorities would come to know he had been imprisoned in the past; there was an arrest warrant and they would ask him questions about why he left. He thought that there were members of the LTTE who were in the UK and who were in Australia and they would ask him questions and he would be certainly killed. He claimed he would also encounter problems with the EPDP who might arrest and kill him as they were aware he was present when the tyres were burnt and there was a perception that he was LTTE.  He claimed that the attitude of the Sri Lankan authorities to Tamils has not changed and he referred to rumours that members of LTTE were poisoned in rehabilitation camps.

8. The current situation for Tamil men with actual or perceived links to the LTTE necessarily impacts on the assessment of whether the applicant has a well-founded fear of persecution.

9. Since 2009 the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. The UK Upper Tribunal has found that the Sri Lankan authorities know that everyone in the Northern Province had some level of involvement with the LTTE during the civil war and that in post-conflict Sri Lanka, an individual’s past history will only be relevant to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state[20].  That decision, which was cited in a June 2017 UK Home Office report on Tamil separatism, said that the Sri Lankan Government was focused 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. If detained by security forces, ‘there remains a real risk of ill treatment or harm requiring international protection’.[21]

   [20] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism March 2017 at 2.4.9 – 2.4.13

   [21] GJ and Others (Post-civil War Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4); UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, Version 5.0, June 2017 at 2.3.39 and 2.3.40 (the available country information does not provide grounds for departing from this finding).

10. While the Sri Lankan authorities know everyone in the Northern province had some level of involvement in the LTTE, the authorities remain sensitive to the potential re-emergence of the LTTE throughout the country.[22] Sri Lankan authorities may monitor returning Tamils to Sri Lanka, depending on their risk profile.[23] 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 and that 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, and the UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution. [24]

    [22] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.33, 20191104135244

    [23] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.37, 20191104135244

    [24] DFAT, Country Information Report Sri Lanka, 23 May 2018.

11. The Tribunal accepts that former members or supporters of LTTE may still be detained, interrogated or monitored by the Sri Lankan authorities depending on their circumstances and profile. According to expert testimony provided to 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. ^[25] DFAT understands these databases remain active. ^[26] ‘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. There are reports that the security forces continue to detain individuals they suspect of having LTTE connections or active involvement in Tamil separatism.

    [25] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, pp.33, 66, 20191104135244

    [26] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.33, 20191104135244

12. DFAT indicates that low-profile LTTE members who have not previously been detained and released from rehabilitation centres following the end of the conflict and who come to the attention of the Sri Lankan authorities would likely be detained for questioning and may be sent for rehabilitation.[27] Following their release from rehabilitation, a low-profile former LTTE member may be monitored but would not generally be prosecuted.[28] Credible sources state that as of November 2019, there was one rehabilitation camp still in operation in Vavuniya with one inmate, but that the centre may remain open and be used on a needs basis.[29] DFAT reports that it is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation centres and of allegations by Tamil political leaders that in in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. DFAT notes that the Northern Provincial Council directed its health ministry to investigate over 200 allegations and it concluded there was no evidence of injections. [30]

    [27] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.36, 20191104135244;

    [28] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.36, 20191104135244

    [29] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.34, 20191104135244; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, CIS7B839419490, p.11

    [30] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.35, 20191104135244

13. Having regard to what it has accepted of the applicant’s claims and circumstances, the Tribunal considers that there is a real chance that the applicant will attract the adverse attention of the Sri Lankan authorities if he returns to Sri Lanka. For the reasons given above, the Tribunal cannot confidently dismiss the possibility that he is on a ‘stop’ or watch list for failing to appear before court as required. There are also other risk factors in this case that arise because of the applicant has been tortured in the past and because he left Sri Lanka before the conflict had ended. The Sri Lankan authorities’ intelligence about former LTTE members and supporters was gathered in the post-conflict period during which LTTE members and supporters were detained in camps and interrogated.[31] With respect to the issue of scarring DFAT reports:

    DFAT is aware of reports that people with war-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. An NGO, Freedom From Torture, reported in 2011 that an unidentified number of people were detained by the Sri Lankan authorities in April or May 2009 because their scarring was deemed evidence of LTTE membership. The cases raised by Freedom From Torture date from the immediate end of the war and DFAT is unaware of more recent evidence of individuals being detained because of scarring.

    [31] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017

14. The Tribunal considers that the fact that the applicant is a young Tamil man from [City 1] who departed Sri Lanka before the war ended coupled with the fact that he has significant scarring increases the risk that he will attract the adverse attention of the Sri Lankan authorities upon his return.

15. In its report dated 4 November 2019 DFAT reported monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country continue, along with harassment of civil society organisations, journalists, lawyers, activists and human rights defenders who attempt to protect Tamil rights,[32] but at much lower levels than under the Rajapaksa government.[33] DFAT also assessed that under the current government the EPDP present a low threat of violence and intimidation to members of the Tamil community. ^[34] However, local sources, Tamil and non-Tamil, expressed concern to DFAT that the human rights improvements achieved since 2015, including in relation to freedom of expression, could be reversed if Rajapaksa or an individual close to him returned to power. ^[35]  DFAT assessed that substantive progress on accountability for war-era violations is unlikely in the near-term.

    [32] ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, CIS7B839419490, p.14

    [33] ‘Human Rights and Democracy: the 2016 Foreign and Commonwealth Office Report’, Foreign and Commonwealth Office,  July 2017, CISEDB50AD4891, p.45; 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.25, 20191104135244; ‘Alarming resurgence in Sri Lankan police attacks on Tamil journalists’, Reporters without Borders, 4 June 2019, 20190605114856

    [34] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.22, 20191104135244.

    [35] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, p.15, 20191104135244.

16. On 17 November 2019 Mahinda Rajapaksa’s brother, former Defence Secretary Gotabaya Rajapaksa, was elected as Sri Lanka’s new president, returning the Rajapaksa family to power. The election of Gotabaya Rajapaksa, who has been subject of allegations of war crimes and human rights violations, has provoked predictions that the military’s forays into civilian life—especially in the Tamil dominated north and east of Sri Lanka—will increase, that anti-minority violence will become more common, and perpetrators won’t be held accountable.[36] While the implications of Rajapaksa’s victory for the rights of minorities in Sri Lanka will become clearer in the coming year, his election would appear to mark the end, at least in the short term future, of any hopes for accountability for abuses committed against the Tamil community during the war.[37] Gotabaya has appointed General Kamal Gunaratne – who commanded an elite unit that hunted LTTE leaders in the closing days of the war – as Defence Secretary.[38] This appointment means that individuals alleged to have been involved in war crimes now serve as defence secretary, chief of the defence staff, and head of army.[39]

    [36] 'Human Rights, Reconciliation, and Peace in Sri Lanka Under Gotabaya Rajapaksa', Diplomat, The, 27 November 2019, 20191204155534;  'In Sri Lanka, the Rajapaksas will Rule Ruthlessly', Lowy Interpreter (The Interpreter), 26 November 2019, 20191126160809; Taylor Dibbert, ‘The Rajapaksa Own Sri Lanka Now’, Foreign Policy, 19 November 2019.

    [37] Taylor Dibbert, ‘The Rajapaksa Own Sri Lanka Now’, Foreign Policy, 19 November 2019

    [38] 'A polarising figure becomes president of Sri Lanka', Economist, The, 23 November 2019, 20191122115336 

    [39] '6 days', Sanjana Hattotuwa, 24 November 2019, 20191128105113; 'Sri Lanka Police looking for former Navy Commander over abduction of 11 youth', Colombo Page, 23 February 2019, 20190226132554

17. The applicant claims he will be tortured by the Sri Lankan authorities if he returns to Sri Lanka. The Tribunal accepts the applicant was a victim of torture in the past. As a result, he has significant scarring on his [Body part 1] increases the risk he will attract the adverse attention of the authorities if he is returned to Sri Lanka.  The latest DFAT report records that:

    Several local and international organisations have alleged torture by Sri Lankan military, intelligence and police forces, mostly from the period immediately following the war and involving people with imputed links to the LTTE. The 2015 OISL report found that ‘victims of war-related torture perpetrated by Government forces… were generally Tamil, often arrested and detained in Government controlled areas… under the PTA and the Emergency Regulations’. The OISL documented ‘particularly brutal use of torture by the Sri Lankan security forces’ in the immediate post-war period, following the LTTE’s surrender.

    In October 2016, the HRCSL submitted a report to the UN Committee against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that police use torture during interrogation and arrest regardless of the nature of the suspected offence. The UN Special Rapporteur on human rights and counter-terrorism concluded in July 2017 that ‘all of the evidence points to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds. Since the authorities use this legislation [the PTA] disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus’. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism found that 80 per cent of individuals arrested under the PTA in late 2016 had complained of torture and other mistreatment. The UK Home Office in 2017 reported a notable reduction in torture complaints, though highlighted new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions.

    The International Truth and Justice Project (ITJP) cited 76 alleged cases of torture between 2015 and 2017 involving individuals suspected of LTTE involvement, the majority of which followed ‘white van’ abductions. An Associated Press investigation, published in November 2017, claimed 52 incidents of torture, including some of the cases reported by the ITJP. Freedom From Torture, in a report released in February 2019, documented 16 alleged cases of torture of Tamils in the period 2015- 2017 (12 in the Northern Province, four in Colombo). According to this report, the individuals in question were allegedly detained either by the military or police and subsequently tortured in order to extract information or confessions about alleged LTTE or anti-government activities. Most were transported to detention in unmarked vehicles, including vans. All cases allegedly involved physical and psychological torture, including beatings, burning, asphyxiation and rape. None were charged, and most were allegedly released after the payment of a bribe. All have subsequently sought asylum in the UK. In September 2019, the ITJP identified 58 alleged torturers in the Terrorism Investigation Division of the Sri Lanka Police. The ITJP’s allegation was based on the testimony of 73 individuals, both Tamil and Sinhalese, who claimed to have experienced torture at the hands of the Terrorism Investigation Division between 2008 and 2017.

1. The Tribunal accepts that there have been credible reports of torture carried out by the Sri Lankan security forces during the civil conflict and in its aftermath. While the Sri Lankan constitution prohibits torture, several local and international organisations have alleged torture by the Sri Lankan military and intelligence forces, mostly perpetrated by the police against members of the Tamil community and involving people with imputed links to the LTTE.[40] DFAT states that the verification of these claims of torture is complex as many allegations are made anonymously, often to third parties and often involve individuals who are outside Sri Lanka and, in some cases, in the process of seeking asylum. Because few reports of torture are verified, DFAT states it is difficult to assess the prevalence of torture but assesses that the risk of torture by the military, police or intelligence forces has decreased since the conflict ended and is no longer state sponsored. In 2019 local sources told DFAT that police routinely mistreat suspects during criminal investigations as a way of extracting confessions[41]  and mistreatment – from a slap on the face to severe beatings and, in some cases, torture – was common in prison and not ethnically based. In the case of individuals detained by the authorities, DFAT assesses the risk of mistreatment to be moderate and that Sri Lanka lacks effective mechanisms to address complaints of torture. DFAT’s report was published before the election of Rajapaksa as president.

   [40] DFAT, Country Information Report Sri Lanka, 23 May 2018.

   [41] 'DFAT Country Information Report Sri Lanka', DFAT, 04 November 2019, pp.33, 66, 20191104135244

2. Independent sources indicate that even after the defeat of the LTTE in 2009, the police and security forces continued to routinely engage in torture and other forms of coercion as a shortcut to obtaining confessions and facilitating convictions, including for very minor alleged offences.[42] The use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, with reputable human rights agencies finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions.[43]  In July 2018, a UN Special Rapporteur described the use of torture as ‘systemic’ for those arrested and detained on national security grounds under the PTA and stated that he had been told by the most senior judge responsible for terrorism cases in Colombo that in over ninety per cent of the cases he had dealt with in 2017 he had been forced to exclude essential evidence because it had been obtained through the use or threat of force. [44] The Special Rapporteur described the Tamils as ‘overwhelmingly and disproportionately affected by the PTA’, reporting that a picture emerged of ‘widespread institutional stigmatisation of a single community’ before concluding: 

   The counter-terrorism apparatus is still tainted by the serious pattern of human rights violations that were systematically perpetrated under its authority. At the time of writing, the PTA remained on the statute book ... Individuals are still held in detention under the PTA, impunity is still the rule for those responsible for the routine and systemic use of torture, and countless individuals are the victims of gross miscarriages of justice resulting from the operation of the PTA. The Tamil community remains stigmatised and disenfranchised, while the trust of other minority communities is being steadily eroded. [45]

   [42] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 8.5.

   [43] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017

   [44] ‘Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism – Mission to Sri Lanka’, Office of the High Commissioner for Human Rights, 23 July 2018, p.8

   [45] ‘Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism – Mission to Sri Lanka’, Office of the High Commissioner for Human Rights, 23 July 2018, p.15 [56], 16 [60].

3. The UN Special Rapporteur on the Committee Against Torture visited Sri Lanka in April/May 2016, reporting that while the practice of torture was less prevalent than during the conflict and the methods used at times less severe, a culture of torture persists, with physical and mental coercion used against suspects being interviewed by the CID and the Terrorism Protection Division.[46] The UK Home Office reported in May 2016 that security personnel in Sri Lanka continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015.[47]

   [46] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 8.5.5.

   [47] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 2.3.3.

4. In July 2018 the United Nations Working Group on Arbitrary Detention reported that it ‘received accounts of Tamils who were arrested and detained in 2015, 2016 and 2017 when returning to Sri Lanka after seeking asylum in another country or working abroad’.[48] The Working Group reported that it ‘received testimony that, in some cases, the returnees were beaten and kept under surveillance once released, and charged with offences relating to illegal departure from Sri Lanka’. The Working Group also reported that ‘numerous alarming allegations were received concerning the use of torture and cruel, inhuman and degrading treatment by the police, including the Criminal Investigation Department and the Terrorist Investigation Division, in order to obtain confessions from detainees either to facilitate the investigation, or in certain instances, to be used as evidence in court’.[49]

   [48] UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, 23 July 2018, CIS7B839419490, p.14.

   [49] UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, 23 July 2018, CIS7B839419490, p.6.

5. In the Tribunal’s judgment there are a constellation of factors that, when considered cumulatively, lead to the conclusion that there is a real chance that the applicant will face serious harm if he is returned to Sri Lanka. The Tribunal considers that failed asylum seekers who are returned on temporary travel documents are subjected to a high level of official scrutiny including from the authorities in their home area. While this process will not expose failed asylum seekers who are not otherwise of any interest to the Sri Lankan authorities to a real chance of serious harm, the Tribunal considers the situation is different in cases where there are additional factors that will attract the adverse interest of the authorities. If a person who is of adverse interest to the authorities is detained and interrogated in these circumstances, the person may be at risk of torture and mistreatment. In this case the Tribunal accepts that this investigative process that will occur if the applicant is returned to Sri Lanka as a failed asylum seeker will flag the applicant as someone who was of adverse interest to the Sri Lankan authorities at the time he departed the country in 2007 and that he will questioned about his scars and his association with the LTTE, in Sri Lanka as well as in [Country 1] and Australia.

6. The risk that the applicant will attract the adverse attention of the authorities is also elevated by his personal history, to which his body bears witness, as a victim of torture. While there is nothing before the Tribunal that suggests that the applicant could be characterised as high-profile LTTE member or high-profile leader of pro-LTTE diaspora groups, the Tribunal accepts he provided some support to the LTTE in [City 1] and that he was arrested, detained and tortured in Colombo in 2007. Further, having regard to all the evidence, the Tribunal cannot confidently dismiss the possibility that he is the subject of an arrest warrant for failing to appear in court as required. Given the circumstances in which the applicant departed the Sri Lanka in 2007 and accepting that the scarring he sustained when he was tortured in the past increases the risk that he will attract the adverse interest of the authorities, the Tribunal considers there to be a real chance that the applicant will be detained and questioned when he returns to Sri Lanka, most likely when he returns to his home area of [City 1] but possibly at the airport.

7. The Tribunal considers that upon the applicant’s return to Sri Lanka he will be subject to a high level of official scrutiny that, when taken together with the additional risk factors that exist in this case, gives rise to a real chance that he will face serious harm in the form of torture or if he returns to Sri Lanka now or in the reasonably foreseeable future. Having regard to the applicant’s past experiences as a victim of torture in Sri Lanka and the circumstances in which he left Sri Lanka as well as the independent information about the culture of the police and military and the use of torture in interrogations, the Tribunal finds that there is a real chance that the applicant would suffer serious harm at the hands of the Sri Lankan authorities if he returns to Sri Lanka now or in the reasonably foreseeable future. The Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of his actual/perceived political opinion (support for the LTTE) and his membership of a particular social group of young Tamil men from the North of Sri Lanka who sought asylum abroad. Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.

8. The Tribunal finds that if the applicant returns to Sri Lanka now or in the reasonably foreseeable future he has a well-founded fear of persecution for reasons of his political opinion as a perceived supporter of the LTTE and his membership of a particular social group of young Tamil men who sought asylum abroad.

9. As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities who exercise effective territorial control throughout Sri Lanka, the Tribunal is satisfied that the real chance the applicant will face serious harm relates to all areas of Sri Lanka and that effective protection measures would not be available to him.

10. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution. It follows that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he satisfies the criterion set out in s.36(2)(a).

    CONCLUSION

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

    DECISION

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

    F.  Simmons
    Member

    
    
    

; 'Sri Lanka's most senior military official in court over civil-war abductions', 29 November 2018, CXBB8A1DA39688; 'Halt the deployment', Sri Lanka Campaign for Peace and Justice, 08 November 2019, 20191111110157; 'UN Takes Strong Stand on Sri Lanka’s Army Chief', Human Rights Watch (HRW), 26 September 2019, 20190927164459.