1701570 (Refugee)

[2022] AATA 3262

1701570 (Refugee) [2022] AATA 3262 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas

CASE NUMBER:  1701570

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Damien O'Donovan

DATE:26 August 2022

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 26 August 2022 at 11:34am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and imputed political opinion – Tamil who provided assistance to LTTE – harassed, detained and tortured – returning failed asylum seeker – credibility – inconsistent evidence of passport and departure – new claims of membership and active service – unfavourable inference for late claims – fear of identification as security risk and inhibition in presence of female representative and interpreter – explanations not reasonable and documentary evidence consistent with original claims – new claims rejected and decision made on original grounds – particular social group – Tamils with a historical family link to the LTTE – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASE
Re MIMA: Ex Parte Duraurajasingham (2000) 58 ALD 609

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 on 12 January 2017 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 18 April 2016. He left Sri Lanka in June 2011 and flew to [Country 1]. In July 2011 he travelled to [Country 2] and in late November 2011 left [Country 2] by boat, headed for Australia. The boat he was travelling on was intercepted by Australian authorities and the applicant was taken to Christmas Island [in] December 2011.

3. In March 2016 the applicant made an application for a Safe Haven Enterprise Visa (SHEV). The applicant can only be granted a SHEV if he satisfies the Minister or his delegate (and now the Tribunal) that he is a refugee (as defined in the Act), or is owed what is known as complementary protection as set out in section 36(2)(aa) of the Act.

4. The delegate refused to grant the visa.

5. The basis of the applicant’s claims to be a refugee at that stage were that he was a Tamil, residing in the North of Sri Lanka during the civil war. He never formally joined the Liberation Tigers of Tamil Eelam (LTTE) which were the military arm of the Tamil separatist movement, but he did provide assistance to them periodically. Following the end of the civil war, the applicant claimed to have been detained and tortured for an extended period by the Sri Lankan Army (SLA) in an attempt to force him to confess to active involvement in the LTTE.

6. The applicant’s claims of extended detention and torture were rejected by the delegate. The delegate proceeded on the basis that the applicant was a Tamil man with no close connection with the LTTE who left Sri Lanka legally. The delegate was not satisfied that the applicant was a refugee or met the requirements for complementary protection.

7. On 30 January 2017 the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.

8. In June 2017 the applicant changed representatives. Accompanying the notice of that change was a statutory declaration which set out a new version of events concerning the applicant’s involvement with the LTTE which claimed much closer involvement with the LTTE than had previously been claimed.

9. In addition, the applicant provided documents described in the following terms:

   a.Three colour photos of the applicant, two of which show people in LTTE uniforms;

   b.Evidence of having been interviewed previously by the Australian Security Intelligence Organisation (ASIO);

   c.Evidence of the applicant’s sister having been an LTTE martyr; and

   d.Evidence of the applicant attending an LTTE event in Sydney.

10. The new version of events which the applicant provided, detailed the applicant’s membership of the LTTE and his significant involvement in active combat until the LTTE’s surrender in May 2009. The applicant claimed that he had not told the truth previously because when he arrived in Australia:

    …I was truly afraid to disclose my real identity, my rank in the LTTE, tasks I did for the LTTE reason being Tamil asylum seekers who disclosed their real LTTE identity were being detained indefinitely until ASIO clearances were obtained. I too feared I would be detained for a long period of time should I have disclosed my true identity in the LTTE.

11. On 4 July 2017 a statutory declaration made by [Mr A] was also forwarded to the Tribunal. It was provided to corroborate the applicant’s claims of membership of the LTTE.

12. On 26 June 2018 the Tribunal wrote to the applicant seeking any additional evidence which the applicant may have.

13. On 17 February 2021 the applicant was invited to attend a hearing on 6 May 2021. The applicant was invited to make a written submission setting out all his claims made and maintained by 29 April 2021. The Tribunal also sought an English translation of one of the articles submitted by the applicant and a copy of the applicant’s application for refugee status lodged on 14 December 2011.

14. The applicant subsequently confirmed that his application for refugee status was lodged in January 2012. He also provided the additional documents sought including his marriage certificate and a translation of a previously provided article concerning his sister’s involvement with LTTE.

15. On 11 April 2021 the applicant provided a submission to the Tribunal. The applicant claimed significant military involvement with LTTE and provided documents in support of his claims including:

    a.A comprehensive submission;

    b.A statement from the applicant stating, among other things, that he left Sri Lanka on a false passport and stating that when he arrived in [Country 1], he was given a different false passport which he used to travel to [Country 2]. The applicant also stated that he gave wrong information at his interview when he claimed he left Sri Lanka on his own passport;

    c.Correspondence from Home Affairs notifying relatives of the applicant that they had been granted a SHEV;

    d.Country information on Sri Lanka;

    e.A letter from the events co-ordinator – [Organisation 1];

    f.A news article concerning Tamil demonstrations in Australia and a translation; and

    g.An identity card issued by The International Committee of the Red Cross (ICRC).

16. On 4 May 2021 the applicant also sent in a link to a letter written by Senator The Honourable Marise Payne.

17. On 5 May 2021 an email enclosing an LTTE ‘Heroes Day’ flyer and translation were provided to the Tribunal.

18. On 6 May 2021 a further article concerning a crackdown on Tamil media by the Sri Lankan Government was provided.

19. A hearing was conducted on 6 May 2021, and the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

20. The applicant was advised that his credit was an issue and he was advised of country information which indicated that physical violence against monitored Tamils was not common in Sri Lanka.

21. Following questioning of the applicant, the hearing was adjourned.

22. On 25 May 2021 the applicant was provided with further documents obtained from the Department:

    a.A Detention Interview Part A completed on 21 December 2011;

    b.A Detention Interview Part C completed on 21 December 2011; and

    c.A Biodata interview form completed on 6 December 2011.

23. The applicant was advised that he could make any written submissions regarding the documents he may wish to.

24. The hearing resumed on 7 June 2021 and applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was again conducted with the assistance of an interpreter in the Tamil and English languages, and the applicant’s representative attended the resumed Tribunal hearing.

25. At the close of the hearing on 7 June 2021, the Tribunal indicated to the applicant that confirmation of the authenticity of the photographs submitted would assist the Tribunal, particularly the photos that were said to show the applicant in an LTTE uniform. The applicant was given until 21 June 2021 to provide digital copies of the photos. He provided a link to a YouTube video, which contained one of the submitted photos. The same photo was also claimed to be used in an article published on [a named] website.[1] He did not provide any other information which confirmed the provenance or authenticity of any of the photos.

    [1] [URL redacted].

26. I have considered all of this material and the answers given by the applicant at hearing.

27. On 23 December 2021, DFAT issued a new Country Information report on Sri Lanka. I have considered the updated information in relation to Sri Lanka.

    Application of section 423A

28. Before setting out my final factual conclusions I note that the applicant on multiple occasions prior to the matter coming to the Tribunal gave accounts of his reasons for seeking protection in Australia, none of which disclosed that he was involved in active service with the LTTE. Indeed, in some of the versions given he stated that he resisted becoming involved with the LTTE.

29. This raises a question about whether section 423A of the Act applies.

30. Section 423A provides:

    (1)This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:

    (a)Raises a claim that is not raised in the application before the primary decision was made; or

    (b)Presents evidence in the application that was not presented in the application before the primary decision was made.

    (2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

31. The applicant has offered two explanations for not being candid about his claimed involvement with the LTTE prior to 2017. First, because he feared being identified as a security risk and being indefinitely detained by ASIO. The second explanation is found in the submission to the Tribunal of 11 April 2021 where it is submitted that the fact that the interpreter and the applicant’s legal representatives were female inhibited the applicant’s ability to disclose his actual involvement with the LTTE. Dealing with this explanation first, I do not regard it as reasonable. The applicant should have obtained appropriate representation and asked for a different interpreter if he was unable to tell the truth in the interview.  

32. In relation to the explanation based on a concern about being detained following an adverse security assessment by ASIO, I understand from publicly available information that ASIO did issue some adverse security assessments in relation to persons believed to be LTTE members and it resulted in them being held in immigration detention. Accordingly, the applicant has provided a plausible explanation for his failure to disclose the information. The explanation, at least at a factual level can be readily accepted as a reason why a person may choose to not tell the truth about their circumstances. 

33. The applicant’s claimed deception is, if true, understandable. But is it ‘reasonable’ in the sense in which that word is used in section 423A?

34. To determine that, it is necessary to consider the word ‘reasonable’ in the context in which it appears. The modern approach to statutory interpretation requires context, in the widest sense, to be considered up front. Context includes the existing state of the law at the point at which the statute intervened, and the mischief the provision was intended to remedy.

35. Section 423A was introduced by the Migration Amendment (Protection and Other Measures) Act 2015. That Act included a suite of measures directed at a) emphasising that it was an applicant’s responsibility to establish claims and, b) discouraging the provision of false information including bogus documents.

36. At the time the amendment was introduced it had always been the function of the Tribunal to make findings of fact which in many cases required making findings about the credibility of an applicant (see for example Re Minister for Immigration and Multicultural Affairs:Ex Parte Duraurajasingham (2000) 58 ALD 609 at [67]). Prior to the amendment it was open to the Tribunal to make adverse findings on credit if a new version of events were given to it. Evidence to which the epithet of ‘recent invention’ is given is a well-recognised category of evidence which is suspect because it has been provided only recently and after prior opportunities to do so. Prior to the amendment of the Migration Act to include section 423A, it was common for evidence not to be accepted because it fell into that category. The legal framework prior to section 423A already accommodated these matters.

37. In this context it is necessary to read the new provision as adding something more than permitting an adverse finding to be made in relation to an unexplained or poorly explained change to an applicant’s version of events. That was already possible prior to the amendment. From context, it is clear that the Parliament was seeking to impose a statutory obligation unique to this jurisdiction when dealing with protection visas. Adverse inferences became obligatory absent reasonable explanation.

38. The Macquarie Dictionary defines ‘reasonable’ in a number of ways. The most relevant appears to be ‘agreeable to reason or sound judgment: a reasonable choice’.

39. This focusses the judgment not just on whether the explanation is coherent in a factual sense, or understandable in a human sense, but upon the soundness of the decision to fail to reveal information in the context in which it was made. The distinction between an explanation and a reasonable explanation is that when you hear an explanation you can understand why something occurred. A reasonable explanation does more than that. In my assessment, a reasonable explanation should leave the person receiving it in a position to agree with the underlying merit of what occurred and be able to accept that what occurred was appropriate and sound. That cannot be said of the applicant’s explanation.

40. The reasonableness of the explanation must be assessed in a statutory context of a clear expectation that applicants for protection visas will tell the truth and do so at the earliest possible time. That was the mischief at which the statutory amendments were directed.

41. In my assessment the applicant’s explanation is not a reasonable explanation for why the claim was not raised or evidence presented.

42. On the applicant’s account he made a calculated decision to withhold critically relevant information in his visa application.

43. The applicant has explained his reasons for not disclosing the information. To consider the reasonableness of the explanation, the circumstances in which that decision was made need to be expanded upon.

44. On 6 December 2011 the applicant provided information to the Department for the first time. The Introduction to that interview included the following:

    This is the first opportunity for you to provide information regarding your circumstances. We encourage you to be as honest and accurate with the information as you can be. 

45. The applicant made no mention of his claimed involvement with the LTTE.

46. When the applicant was interviewed about his claims and submitted material in support of his claims:

    a.He submitted a statutory declaration which contained the statement ‘They [the SLA] detained me under the false accusation of being a member of the LTTE’. The statutory declaration in which this was included stated the following

    I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959 and I believe that the statements in this declaration are true in every particular;

    b.He ticked the box ‘No’ in relation to the question

    Have you, or any other person included in this application ever been associated with or received training from an organisation engaged in violence, or been involved in an act of violence (including war, insurgency freedom fighting, terrorism, protest) overseas or in Australia?

    c.He then signed a declaration that ‘the information I have supplied in this form is, so far as I know or could reasonably find out, correct in every detail.’ Above the declaration is a warning ‘Giving false or misleading information is a serious offence’.

    d.He (on his current version of events) then gave false information about his whereabouts from 2005 onwards (and signed a declaration that the information was true); and

    e.He signed a declaration that he understood that under the Australian Criminal Code it is an offence to provide false and misleading information to Commonwealth officials.

47. The statement that the SLA wrongly believed that he was a member of the LTTE was repeated in a statutory declaration made on 28 March 2016 which formed part of his SHEV application.

48. The explanation which the applicant now gives for failing to make protection claims based on previous active involvement with the LTTE and for failing to bring forward the evidence of his active involvement with the LTTE until after the delegate made his decision, is that he feared detention as a consequence of an adverse security assessment by ASIO.

49. In my assessment that is not a reasonable explanation for why the claim was not raised or evidence presented.

50. As should be clear from the above, the blatant dishonesty which was involved in concealing the claims from the primary decision maker involved very serious improper and potentially illegal conduct. A desire to minimise the period in detention is understandable on the part of the applicant. However, it is not reasonable to deliberately conceal the truth and make positively false statements in order to avoid such an outcome in circumstances where you are dealing with a country which is considering whether to grant you asylum.

51. Accordingly, I am satisfied that the applicant does not have a reasonable explanation for failing to raise the claims and present the evidence that he ultimately did during the Tribunal process. The claims on which the applicant now relies should have been made before the primary decision maker. The desire to avoid detention is not a reasonable explanation for failing to provide the evidence or make the claim. In those circumstances I am required to draw an inference unfavourable to the new evidence and the new claim – the obvious unfavourable inference that I can and do draw is that the new claims are invented and the evidence on which they are based is concocted.

52. Consequently, I reject the evidence which the applicant has given since his change in migration agent. I will proceed to determine his claim based on the evidence and claims submitted to the delegate.

    the applicant’s version of events

1. The applicant arrived at Christmas Island [in] December 2011.

2. The first account he gave of himself was on 6 December 2011 in a document entitled Biodata. The applicant indicated on that form that he was seeking protection and described why in the following terms:

   I was held in a camp in Sri Lanka. I was threatened by [Eelam People's Democratic Party] (EPDP) and Sri Lankan Army and they got money out of me because my siblings are overseas.

3. The next account the applicant gave was in a detention interview on 21 December 2011. In the version recorded on that occasion he said:

   Original passport lost in [Country 1]…Refugee camp in SL sister involved with man from EPDP but then married another. EPDP member demanded money and took clients IOM refugee card when refused money. Client fled as a result (was asked to return to refugee camp).

4. The next account was given the same day in a different form which was as follows:

   Born Jaffna SL. Detained [in City 1] 2009-2011 1 year 11 mths. Refugee Camp

   April 2011 to Jaffna…

   [Occupation 1] up to 2005

   [Year] CGE Year 12

5. The next time he gave an account of his reasons for leaving Sri Lanka was 29 January 2012. At that point in time he was detained at [Immigration Detention Centre].

6. In material he submitted on that occasion the following factual picture emerged.

7. The applicant gave his date of birth as [date]. He said he was born in [Village 1] Vadamarchchi Jaffna Province. He expressly denied ever having served in a paramilitary organisation.

8. His father’s name was [Mr B] who died in 1989 following a beating by the Sri Lankan police. His mother’s name was [Ms C]. The applicant identified two sisters as deceased; one who died in 1991 (killed by grenade – LTTE). The applicant identified [number] other sisters and [number] brothers.

9. The applicant claimed that he had no valid passport. He had applied for a passport but he did not use this passport to journey to Australia. He identified his ethnicity as Tamil and his religion as Hindu. He reported that he left Sri Lanka on [in] June 2011.

10. He recorded his movements within Sri Lanka as follows:

    2001 - 2005                [Location 1, Village 1]

    2005 - 2007                [Location 2], Town 1] Vanni
    2007 - 2008                [Location 3, Town 2]
    12/2008 - 04/2009      [Location 4, Town 3]
    04/2009 - 06/2009      [Location 5] (displaced)
    06/2009 - 04/2011      Army Detention Camp [City 1]
    04/2011 - 06/2011      [Location 1]
    06/2011 - 07/2011      [Country 1]

    07/2011 - 11/2011      [Country 2]

11. Between [year] and [year] the applicant said he went to school at [School 1] [Town 4].

12. During 2005 he was employed in a [workplace] in [Village 2].

13. From December 2005 to December 2008 he was employed in his sister’s business in [Town 5]. After that he was displaced due to the war and then detained from June 2009 to April 2011.

14. He stated that he left Sri Lanka using fraudulent documents. He previously had a genuine Sri Lankan passport but he lost it. He registered with the United Nations High Commissioner for Refugees (UNHCR) in [Country 2] in 2011.

15. The applicant signed a declaration that he understood that if he gave false or misleading information that his request for refugee status may be refused, or if his claims were recognised the recognition may be revoked if it affects the basis of his claims.

16. The applicant stated that he fled Sri Lanka because:

    I feared I would be killed by the Sri Lankan national army and the EPDP because I was accused of being a member of the LTTE because I am a young Tamil and I lived in Vanni.

17. The applicant gave the following account of his movements:

    In 2005 my sister [Ms D], my mother and I lived together in [Village 1], Jaffna. Our home was near the Sri Lankan army camp and my sister was experiencing regular harassment from a member of the Eelam People’s Democratic Party (EPDP) who works with the Sri Lankan National army. This man had asked my sister to marry him however she married someone else and emigrated to [Country 3].

18. In retaliation, the applicant and his mother were detained and beaten for six days. After they were released, they moved to Vanni in December 2005.

19. In August 2008 the applicant claimed that he was approached by the LTTE. He refused to join them and in 2009 moved to a camp organised by the Sri Lankan army and protected by the NGOs. He remained there until June 2009 when he was rounded up by the Sri Lankan army and detained because he was suspected of being a member of the LTTE. The applicant denied being a member of the LTTE and as a result was subjected to extreme torture. During his detention the applicant was registered with the ICRC.

20. In March 2011 the applicant’s uncle paid a bribe to an army chief in [City 1] and the applicant was released [in] April 2011.

21. The applicant returned home to [Village 1] ([Town 4]) in Jaffna. He was regularly interrogated about his LTTE involvement and beaten. His mother was held at gun point at one stage and the document given to him on release from detention was confiscated. The applicant decided to flee Sri Lanka with the assistance of his uncle.

22. He described himself as fearing that he will be killed by members of the Sri Lankan army or the EPDP if he is returned to Sri Lanka.

23. In addition to the statement he gave at the time, the applicant also submitted supporting documents. One was a set of results from the Department of Examinations Sri Lanka dated [date]. One was a reference from the principal of [School 1]. He certified that the applicant was a student from [year] to [year]. He sat for his A levels twice – once in [year] and once in [year]. He was a class monitor in [year].

24. Also attached was a pupil’s record sheet. It was dated [date]. It recorded the applicant’s mothers permanent address as [Location 6] [Village 1] South. It recorded the date the applicant left the school as [date].

25. A further set of academic results indicate that the applicant sat the A level examination a third time in [year]. His home address is recorded as [Village 1] South, [Location 2]. He is not recorded as enrolled at any school.

26. On 4 April 2012 an officer of the Department of Immigration and Citizenship found that Australia owed the applicant protection obligations.

27. The applicant however was not allowed to apply for a visa until the bar in section 46A of the Migration Act was lifted. The bar was lifted in 2016 and on 31 March 2016 the applicant applied for a SHEV.

28. The claims in his visa application were similar to those he made in January 2012.

29. In his application the applicant confirmed that he had not been associated or involved in any political group or organisation. He expressly stated that he helped in his sister’s [shop] between 2005-2008.  He stated he was in [City 1] in a detention camp from 2009 to 2011.

30. The applicant’s account included some things which were new, or different to his earlier accounts. He stated that he was required to return to [Village 1] by the SLA in 2011 (rather than being released and returning voluntarily) and he said his mother (who up to that point had been living with his sister in [City 1]) accompanied him. 

31. The applicant stated that on arrival in [Village 1], he was required to report weekly to the SLA and he decided to leave Sri Lanka because of the harassment. He then indicated that he left Sri Lanka legally on his own passport which he had acquired when he went to his brother’s wedding in 2005. He did not encounter any problems at the airport.

32. The delegate did not accept that the applicant was transferred to an SLA detention camp in 2009. The delegate found that the applicant resided in an Internal Displaced Persons camp and not a detention camp on the basis that this was consistent with him receiving the government identity card in June 2011 and leaving Sri Lanka legally using his own passport in June 2011.

33. The delegate found that the applicant was not a refugee and did not qualify for complementary protection. The applicant appealed the decision.

34. The next account the applicant gave about his life in Sri Lanka and departure in 2011 was to the Tribunal. The account was given in a submission to the Tribunal which was accompanied by supporting documentation. The applicant claimed, for the first time, significant involvement with the LTTE, something which he had denied since his arrival in Australia.

35. A statutory declaration filed 27 June 2017 which relevantly included the following:

    I arrived in Australia [in] December 2011 by boat. Upon arrival I was truly afraid to disclose my real identity, my rank in the LTTE and the tasks I did for the LTTE reason being Tamil asylum seekers who disclosed their LTTE identity were being detained indefinitely until ASIO clearances were obtained. I too feared I would be detained for a long period should I have disclosed my true identity in the LTTE. In my written statement dated 28/3/2016 and in my protection visa application I did not disclose the following;

    a.I joined the LTTE sometime in 2002. I was initially given 3 months training which involved weapons training based in [Town 2] in the Vanni area;

    b.After completing training I was transferred to the LTTE intelligence base situated in [Location 7] in the Vanni area. During the period 2002 to approximately 2003 I was attached at the LTTE Intelligence base situated in [Location 7];

    c.Sometime in 2003 the LTTE sent me to my home area ([Village 1] situated in the Jaffna district), I was attached to the Intelligence wing of the LTTE, however my role after I moved to [Village 1] where my parents resided was to perform intelligence related tasks in the army controlled area (ie [Village 1]);

    d.Sometime end of 2005 I entered the LTTE controlled area in the Vanni (LTTE Intelligence base situated in [Location 7] in the Vanni area). I was attached to the LTTE Intelligence base situated in [Location 7] in the Vanni area for approximately one month;

    e.Thereafter I was transferred to an LTTE training base which was close to [Location 8] area. I underwent six months of training at this LTTE training base. The training  underwent at this base was for “Training Masters”. The LTTE chose me to be one of their Training Masters, and I was trained on how to train other new LTTE recruits.

    f.After I underwent the 6 month training given for Training Masters, I was transferred to another LTTE Intelligence training base situated in [Location 9] which was close to [Location 7] in the Vanni area. My role at this base was to train new Intelligence recruits at this base, physical training. I was attached to the LTTE Intelligence training base situated in [Location 9] for approximately 2 months;

    g.Towards the end of 2006 I was transferred from the LTTE Intelligence training base situated in [Location 9], to LTTE’s sea training base situated in [Location 3] in the [Town 2] area which is in the Vanni area. At this base in [Location 3], I was given a new LTTE name “[Alias]” and a new LTTE plate [number]. My role was to train new recruits at this base. While I was an LTTE training master at tis base I also was the ‘[position]’ meaning [position in English];

    h.Sometime in 2008, as the war intensified I had to engage in combat and manage and lead a small team. Though not officially informed I was aware that if I died at that point in combat I would be given the rank as Major. I have seen the charge sheet which confirmed this;

    i.After the war ended I was detained at the following detention and rehabilitation centers:

    i.[Location 10] check point (1 day);

    ii.[Location 11] – Red Cross officials visited me here,[2] (see ICRC identity card) – I was detained for approximately 15 days;

    iii.[Location 5] (those confirmed who were in the LTTE were detained at this detention centre there were only males (8 months). Taken to [Prison] twice. Once for 3 months once for 15 days – at [Prison] I was tortured several times and sexually assaulted, suffocation and severe beatings;

    iv.[Location 12] rehabilitation center those confirmed who were in the LTTE were detained at his detention centre. Detained for approximately 6 months – tortured here including sexual assault;

    v.Prior to release in April 2011 I was transferred from [Location 12] rehabilitation centre to [Location 5] in March and released in April. The ICRC issued an ID card prior to transfer from [Location 12].

    [2] The applicant’s ICRC card has no useful details on it.

36. This is a dramatically different account of the applicant’s movements and associations from 2002 onwards when compared to the versions previously given.

37. Evidence which was said to corroborate this account was also supplied.

38. Included with the application was a statutory declaration from [Mr A], a Sri Lankan visa holder who arrived by boat and was found to be a refugee on 3 November 2016. He confirmed that he knew the applicant during the period he served in the LTTE and that the applicant is a former member of the LTTE and was stationed near [Location 3] in [Town 2] which is in the Vanni area. It was an LTTE basic training school/camp.

39. Also included was:

    a.A document recording that the applicant’s sister who was killed in 1991 was regarded as an LTTE Martyr;

    b.Evidence that the applicant attended a Tamil Genocide Remembrance Day service [in] May 2017;

    c.A letter from the Department of Immigration and Citizenship to the applicant dated 18 October 2012 setting up an interview for the grant of a protection visa. This appears to have been submitted in the belief that the document established that the applicant had previously been interviewed by ASIO – in his oral evidence the applicant stated that he was told by the people interviewing him that they were from ASIO; and

    d.Three colour photos which were claimed to be of the applicant, two of which included him in LTTE uniform.

40. Later the applicant submitted further country information.

41. At hearing, the applicant gave a version of events which reflected his relatively recent claims of having been an active combatant with the LTTE. He claimed to have been a member of the LTTE since 2002. From 2002 to May 2009, he took on a variety of intelligence and combat roles until the LTTE surrendered in May 2009. He was then held in a variety of places until he secured release in April 2011. After April 2011 the applicant was subjected to harassment by the EPDP including arrest and torture. He insisted that he had lied previously about his lack of involvement with the LTTE and that he was now telling the truth.

42. As discussed above I am satisfied that as a consequence of section 423A I am obliged to draw adverse inferences in relation to this evidence and the supporting evidence and claims made after April 2017. Even if I were not required to do so by section 423A I would reject the evidence. The applicant gave a largely consistent account of his time in Sri Lanka and the reasons for his departure for over five years. The account which he gave is consistent with documents provided when his original claims were made. In particular his schooling records (which the applicant has not suggested are not genuine) provide reliable evidence that he was studying at [Town 4] between [year] and [year] rather than training with the LTTE as he now claims. The photos which the applicant has provided in support of his claims are unconvincing. In one photo the applicant claims to be a person who has his back to the camera. The photo provides no corroboration. In another photo a person who could be the applicant is in the background and in shadow. It is possible that it is the applicant. It is equally possible that an original photo has been altered in some way to make it look like it is the applicant. I sought more information about the provenance of the photo and a digital copy to allow for greater scrutiny of it. The applicant did not produce a digital copy of the photo. He said he had previously found it on an LTTE website and couldn’t locate it again. I am not satisfied as to the genuineness of the photos. Accordingly, even absent section 423A I would not be satisfied that the applicant was ever an active member of the LTTE.

43. I am however satisfied that the applicant is a Tamil man and that he had the low-level involvement with the LTTE that he originally described to Australian authorities in 2011/2012. I am also satisfied that he left Sri Lanka illegally to escape harassment at the time.

44. I am satisfied that the applicant was generally truthful in the information he provided on 29 January 2012 and I will assess the applicant’s claims on the basis that he is a Tamil man with low level LTTE involvement during the civil war. He has a sister who was an LTTE martyr. He attracted adverse attention from the SLA and the EPDP during the civil war (particularly as a result of the interest of an EPDP member in one of his sisters) and was incarcerated and tortured by the SLA between 2009 and 2011 and suffered further harassment following his release. He is perceived by the SLA as having been closely involved with the LTTE even though this is not the case.

    COUNTRY INFORMATION

45. The applicant relied upon the Freedom House, Freedom in the World 2016 Report on Sri Lanka dated 20 June 2016. This states:

    Police and security forces occasionally engage in abusive practices including arbitrary arrest, extrajudicial execution, forced disappearance, custodial rape torture and prolonged detention without trial all of which disproportionately affect Tamils as described in an October 2015 Human Rights Watch report.

46. The applicant also relied on a report by International Truth & Justice Project Sri Lanka which indicates that Tamils have continued to be subjected to human rights abuses since the Government changed in 2015.The report records abductions which took place after the 2015 elections.[3] Findings specifically identified Tamils returning from overseas as at risk of being detained and tortured on return.

    [3] International Truth & Justice Project Sri Lanka, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015 (Report, July 2015).

47. When the applicant made his new claims about being an active member of the LTTE, he provided further country information. This included:

    a.A report by the Refugee Council of Australia entitled ‘Tamils still at risk, UN Special Rapporteur warns international community’. The UN report was published on 25 January 2017. The Rapporteur urged the international community to stop returning Tamils to Sri Lanka where they will be at risk of torture and other cruel, inhuman or degrading treatment and punishment. The report concluded that the culture of torture was still pervasive. Tamils and any individuals or families thought to be linked to the LTTE are particularly at risk.  ‘White van’ abductions continue to occur in Sri Lanka; the practice of systematic surveillance as a tool of control and intimidation continues. Those targeted include individuals who have been forced to return to Sri Lanka after fleeing persecution and who are deemed to have links to the LTTE. Procedural norms allow for prolonged arbitrary detention and routine torture and ill-treatment by police. Conditions in detention, whether in rehabilitation, remand or in prison, amount to cruel, inhuman or degrading treatment. There is ‘severe overcrowding, insufficient ventilation, excessive heat and humidity’.

    b.In a submission dated 11 April 2021 the applicant relied on the following additional sources of country information:

    i.An article published by the UN Human Rights Office of the High Commissioner dated 18 July 2017 and titled ‘Sri Lanka routinely tortures security suspects amid stalled reform process, UN expert finds’;

    ii.Freedom from Torture document dated February 2019 entitled ‘Too little change: ongoing torture in security operations in Sri Lanka’;

    iii.The article published by Refugee Council of Australia titled ‘Tamils still at risk, UN Special Rapporteur warns international community’;

    iv.An article titled ‘24, Lankans deported from Switzerland, Germany return’ dated 31/3/2021 published in the Daily Mirror; and

    v.UNHCR 2012 Eligibility Guidelines for Assessing the International Protection needs of asylum-seekers from Sri Lanka.

100.   Of particular significance is the excerpt from the report published by Freedom from Torture dated February 2019 attached with the submission. Freedom from Torture is a UK Charity which provides care for survivors of torture. The report relevantly states:

This briefing examines 16 medico-legal reports prepared by Freedom from Torture for Sri Lankan nationals who were detained and tortured between 2015 and 2017.

All of the people detained and tortured in our case set were Tamil. Most of those targeted and detained were accused by state authorities of ongoing involvement with the Liberation Tigers of Tamil Eelam (LTTE) – as part of a so-called ‘revival’ or failing to surrender after the war, even though none disclosed any current affiliation…In all cases, state officials used torture to extract information or confessions about alleged LTTE or anti-government activities. All experienced physical and psychological torture including beating with various instruments, burning, positional torture and asphyxiation, as well as threats and humiliation. Over half were raped and most disclosed sexual torture…The majority of people were arrested and detained in districts of the Northern Province, though four were arrested in Colombo…

Who was detained and tortured and why:

-    Twelve men and four women.

-    All are of Tamil ethnicity.

-    …

-All 16 were detained between 2015 and 2017.

-Nine had been detained on a previous occasion, all for reasons related to previous or alleged involvement with the LTTE.

In all cases, the authorities linked detention to an alleged or actual past association with the LTTE, or some form of anti-government activity. Ten of the 16 described having previous links to the LTTE during the conflict, half of whom had been forcibly recruited, although none were active in the LTTE post-2009. Previous LTTE involvement included…digging bunkers…During the interrogation the authorities commonly claimed that either the person had not surrendered, rehabilitated, or been processed as required at the end of the conflict;
A historical family link precipitated arrest or was raised by the authorities during detention in three cases.

101.   The applicant relied on UNHCR Guidelines of December 2012.

102.   The applicant also provided:

a.‘Australian Statement for the interactive Dialogue with the UN High Commissioner for Human Rights on Sri Lanka, 24 February 2021’

b.An article titled ‘Rajapaksa regime step up crackdown on Tamil social media and journalists.’ This latter article included a report of the detention of two YouTube presenters on ‘Tube Tamil’.

103.   I also had regard to the most recent country information report prepared by the Department of Foreign Affairs and Trade dated December 2021. It relevantly records:

Tamils

3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's

Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP.
…
Monitoring, harassment, arrest and detention
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).

3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).

3.10 Communities in 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. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also
monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).
…
3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation.
According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police.
…
3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

POLITICAL OPINION (ACTUAL OR IMPUTED)
3.38 Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly
proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.

Liberation Tigers of Tamil Eelam (LTTE)
…
3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021
decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism.

Rehabilitation
3.45 Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE
members).

3.46 Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).
…
Low-profile former LTTE members
3.49 ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would
likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.

Monitoring of former LTTE members
3.50 Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.

3.51 Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter
years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).

3.52 DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result
of their past association with the LTTE.

Former LTTE members living outside Sri Lanka
3.53 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.

3.54 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the
Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

3.55 In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
…
3.57 DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the following Tamils would be of particular interest to the authorities:

-those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views;

-those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles;

-those who are suspected of raising funds for the LTTE during the war; and

-those who actively advocate for Tamil statehood.

Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
…
3.58 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE
cadres have been subject to harassment and detention.
…

ARBITRARY DEPRIVATION OF LIFE
4.1 The report of the UN’s OISL, covering the period 2002 to 2011, found frequent occurrences of extrajudicial killings, disappearances and kidnappings for ransom during the war, particularly in the north and east. The report largely attributed these to government forces, the LTTE and paramilitary groups, although some related to business or personal disputes. The number of incidents of extrajudicial killings, disappearances and abductions for ransom, including incidents of violence involving former LTTE members, has reduced since the end of the war. However, such violations are likely to have not ceased entirely.
Furthermore, a culture of impunity exists with regard to those plausibly accused of such crimes (see Political System).

Extrajudicial Killings
4.2 Extrajudicial killings continue in Sri Lanka, though they have decreased since the end of the civil war in 2009, and local sources say the principal victims of state violence at present are underworld figures rather than politically-targeted victims. In May 2021, an apparent underworld figure, Tharaka Perera Wijesekara, was shot dead by police while in custody, allegedly while trying to attack police. In the same month, another criminal figure was killed in a similar fashion. In the former case, the victim’s lawyer, reportedly upon learning the previous day that his client had been transferred to a different police unit and
suspecting that he may be killed in custody, informed the Bar Association, the IGP, the Director CID and the Human Rights Commission of these concerns. Less than a day later his client was killed. DFAT is not aware of ongoing investigations in either case.

4.3 No legal mechanism exists to initiate independent investigations for state violence, including extrajudicial killings. Numerous historical cases of extrajudicial killings remain unsolved.
…
Enforced or Involuntary Disappearances
4.4 In May 2016, Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearance. Parliament passed domestic legislation (the Enforced Disappearances Act) to implement the Convention and criminalise enforced disappearances in March 2018. In September 2017, a gazette to establish the Office of Missing Persons (OMP) was issued and commissioners were appointed in February 2018 (see Reconciliation).
4.5 While there is no agreed figure, the number of missing or disappeared persons in Sri Lanka is thought to rank among the highest in the world. In June 2016, the ONUR said 65,000 people were missing from the war with the LTTE and separate Marxist insurrections (including members of the armed forces and police identified as missing in action). In 2018, OMP estimated at least 20,000 people had disappeared without explanation and remained missing since 1983. The majority of the missing or disappeared are from
the north and east, and are likely to have been members or perceived supporters of the LTTE.
…
4.6 Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. In its September 2021 report, Sri Lanka: Torture & Sexual Violence by Security Forces 2020-21, the ITJP reported on 15 cases of abduction, torture and rape of Tamils in the north and east by security forces since the change of government in 2019, purportedly for participation in commemorative events, or protests, or for receiving funds from abroad. In September 2021, the UN Report of the Working Group on Enforced or
Involuntary Disappearances noted that more than 6,000 cases remain outstanding in Sri Lanka (though most date back to war time) and criticised the Government for a lack of accountability with regard to such disappearances. It did not, however, have any disappearances reported to it in the last two years. One human rights defender claimed disappearances have been replaced with ‘warrants, seizures and disinformation campaigns’; that is, mechanisms of the legal system have been used or arguably misused by
the Government to suppress dissent rather than resort to extra-legal violence.

…
TORTURE
4.11 Article 11 of the Sri Lankan Constitution and several other laws specifically prohibit torture. Sri Lanka has ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and, in December 2017, acceded to its Optional Protocol. In line with its treaty obligations, Sri Lanka received a visit by the UN Sub-Committee on Prevention of Torture in April 2019 and facilitated access to all requested places of detention. Torture is an offence punishable by imprisonment of between
seven and 10 years.

4.12 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.

4.13 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 ITJP cited 76 alleged cases of torture between 2015 and 2017 involving Tamils suspected of LTTE involvement, the majority of which followed ‘white van’ abductions, and were reportedly conducted by
Counter-Terrorism Investigations Division (CTID), CID and members of the armed forces. All cases allegedly involved physical and psychological torture, such as beatings, burning, asphyxiation and rape. In its 2020 report on human rights, the US Department of State stated that ‘torture and excessive use of force by police, particularly to extract confessions, remained endemic.’ [emphasis added].

4.14 Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various
departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.

4.15 Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take
many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.

4.16 Local sources told DFAT that when the HRCSL was independently investigating and documenting torture cases, while it could not bring about the prosecution of responsible state agents, it could offer some protection by scrutinising places of detention and putting perpetrators on notice. However, those sources maintained that with the passage of the 20th Amendment to the Constitution, the HRCSL had ceased to be truly independent and was thus much less effective in its anti-torture role.

4.17 DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment,
while increasingly creating an environment of impunity for its agents accused of violence.

4.18 DFAT assesses that Sri Lankans face a low risk of torture overall. DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government.

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.19 Although Sri Lankan law prohibits arbitrary arrest and detention, it does not explicitly provide persons under arrest and detention the right to a lawyer or interpreter, or an obligation to inform family of an arrest. Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons. Local and international sources claim that arbitrary arrests have occurred in the last few years.

4.20 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that
confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any
other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these
detainees are still being held.

4.21 DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.

4.22 The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually
charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.

4.23 The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.
….
4.25 In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent
extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.

4.26 In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee
presented its report to the President on 15 November 2021.

INTERNAL RELOCATION
5.13 The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.

5.14 In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.

5.15 Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. The Government has reduced the level of monitoring, but some individuals have reported that their movements continue to be observed.

5.16 Sri Lankan authorities retain comprehensive countrywide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences (see Liberation Tigers of Tamil Eelam (LTTE)).
Individuals on either list will not be able to avoid adverse attention from security forces. However, DFAT assesses that individuals seeking to relocate internally to minimise monitoring or harassment by local-level officials for petty issues can safely do so.

TREATMENT OF RETURNEES
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State
Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

5.20 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. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
…5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
…
5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

Conditions for Returnees
5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the
relatively lower cost of living compared to the south.

5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and
had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.
…
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their
communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees,
including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

THE APPLICANT’S CLAIMS

104.   In his original submission in support of his SHEV application the applicant identified his fear of harm upon return in the following terms:

The applicant fears that he would be subjected to serious harm upon return to Sri Lanka. He is fearful that he would either be killed or subjected to torture and serious harm.

He was forced to flee because Sri Lankan Authorities believed he was an affiliate of the LTTE due to his race and area of origin. Prior to departure he was subjected to prolonged detention and ongoing torture.

He fears harm on the basis of:

a.His Tamil Race;

b.Imputed Political Opinion;

c.Membership of a particular social group, a returnee from the West/failed asylum seeker.

When assessed individually and cumulatively these claims give rise to a real risk the applicant would be subjected to serious and significant harm.

105.   In relation to imputed political opinion the applicant claimed:

…given the applicant is a Tamil male who was born in the north of Sri Lanka, was previously considered an affiliated (sic) of the LTTE Lanka and fled Sri Lanka close to the conclusion of the Civil War and has remained in Australia for a long period of time and claimed asylum, it is highly likely he would be treated with a high level of suspicion and subjected to serious harm upon return to Sri Lanka…The applicant’s anti-government profile would be further exacerbated by the fact he has travelled to a Western Country and claimed asylum…it is highly evident that the Authorities had a high level of interest in the applicant and genuinely believed he was affiliated with the LTTE…if he was to return to Sri Lanka, it is highly likely that he would be detained upon re-entry to the country…and..subjected to interrogations and torture.

106.   In relation to his claims in respect of being a failed asylum seeker the applicant submitted:

…failed asylum seekers can be considered a particular social group given that all members share the characteristic that they have fled their country and claimed asylum. This characteristic is easily identifiable and not the feared risk of persecution. The fact he fled to Australia…will simply increase his chances of being detained by the SLA authorities upon his return…he will be interrogated by the authorities upon his arrival and either killed or imprisoned indefinitely…the authorities will accuse him of being a spy and punish him accordingly.

107.   The applicant claimed that country information supported the notion that the applicant would be at risk of serious harm due to his membership of the identified social groups.

108.   On the basis of the Freedom from Torture report it was submitted that even if the authorities do not become aware of the applicant’s ‘real’ LTTE identity, there is a real chance that the applicant would face Convention related persecutory treatment due to an alleged past association with the LTTE. The applicant’s participation at a protest in Sydney could also be regarded as an anti-Sri Lankan government protest.

Criteria for a protection visa

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

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

111.   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: section 5H(1)(a).

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

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

   Fear of persecution

114.   I am satisfied that the applicant holds a subjective fear of persecution if he is returned to Sri Lanka.

115.   The applicant is a Tamil. The country information establishes that Tamils were monitored, harassed and detained or arrested during the civil war. Monitoring of Tamils has continued since the end of the war. However, when viewed as a whole, the country information suggests that it is only a subset of Tamils who are at risk in Sri Lanka – Tamils suspected of supporting the LTTE.

116.   Tamils are over 15% of the Sri Lankan population. There are active Tamil political parties and Tamils who are members of parliament. To the extent that anyone who is a Tamil is persecuted in Sri Lanka it is not for reasons of their race. To the extent that Tamils are the subject of continuing adverse attention in Sri Lanka, it is by reason of their political opinion or imputed political opinion.

117.   The question then is whether the applicant has a well-founded fear of persecution by reason of the imputed political opinion that he is a supporter of the LTTE. For many years, the applicant denied being a supporter of the LTTE. That is the version of events which I am prepared to accept. Accordingly, I am not satisfied that he actually holds views supportive of the LTTE and its Tamil separatist ambitions. I am however prepared to accept that some members of the SLA and the EPDP have formed the view that the applicant is an LTTE supporter. This explains his lengthy detention following the end of the civil war and the ongoing harassment which prompted his departure from Sri Lanka.

118.   While the delegate was not prepared to accept the applicant’s version of events concerning his post-civil war treatment, I am not so sceptical. The applicant gave versions of events in 2012 and 2016 which were consistent except for a few matters of fine detail, and which were consistent with the documents provided with the application which I am satisfied are genuine.

119.   I am also satisfied that the applicant’s sister was an LTTE supporter who was killed during the civil war.

120.   Accordingly, it is unsurprising that local SLA and EPDP forces would suspect that the applicant was involved with the LTTE and supportive of its cause.

121.   I am satisfied that the applicant’s professed fear is genuine. The applicant broke down several times during the hearing when recalling his treatment between 2009 and 2011. I accept as genuine his expression of concern about what will happen again if he is returned to Sri Lanka.

122.   The persecution which he suffered between 2009 and 2011 and which he fears will happen again if he is returned to Sri Lanka, was based on a perception held by the Sri Lankan army and the EPDP, that he is a Tamil who actively supported the LTTE during the civil war and remains unreformed despite a lengthy period of detention. This is persecution because of membership of a particular social group – in this case, a Tamil with an imputed political opinion arising from a close family association with the LTTE.

123.   The perception that he was an active supporter of the LTTE is in my assessment incorrect, but it still affects how he is treated in Sri Lanka.

Well-founded fear of persecution

124.   The next question is whether the fear is well founded. If the basis of the applicant’s claim was only that he was a Tamil I would not regard the fear of persecution as well-founded. The DFAT country information describes adverse treatment of Tamils which stems from a desire on the part of the Sri Lankan government to ensure that the LTTE does not re-emerge as an organised movement. The treatment of Tamils of interest takes the form of surveillance and scrutiny rather than persecution involving serious harm.

125.   However, the applicant has the added quality of having a family member who is identified as an LTTE martyr. The materials from Freedom from Torture relevantly report the following in relation to 16 detainees:

Who was detained and tortured and why?

-    Twelve men and four women.

-    All are of Tamil ethnicity.

-    …

-All 16 were detained between 2015 and 2017.

-Nine had been detained on a previous occasion, all for reasons related to previous or alleged involvement with the LTTE.

In all cases, the authorities linked detention to an alleged or actual past association with the LTTE, or some form of anti-government activity. Ten of the 16 described having previous links to the LTTE during the conflict, half of whom had been forcibly recruited, although none were active in the LTTE post-2009. Previous LTTE involvement included…digging bunkers…During the interrogation the authorities commonly claimed that either the person had not surrendered, rehabilitated, or been processed as required at the end of the conflict;
A historical family link precipitated arrest or was raised by the authorities during detention in three cases.

126.   The applicant has a historical family link with the LTTE. The circumstances in which the applicant was released and his failure to admit to LTTE involvement has meant that he may still be perceived as not rehabilitated. He has been detained previously and he is of Tamil origin. People matching this description are exposed to the prospect of detention and torture.

127.   In these circumstances I am satisfied that the applicant has a well-founded fear of persecution. The fear is well-founded because he is a member of the social group which can be described as Tamils with a historical family link to the LTTE. Given his past treatment and the circumstances in which the applicant left Sri Lanka, there is a real chance that the applicant, like the three cases identified in the Freedom from Torture report involving Tamils with historical family links to the LTTE, will become the subject of adverse attention from Sri Lankan authorities. I am satisfied that the real chance relates to all areas of the country given that the Freedom from Torture report discusses Tamils who were targeted in both the north of the country and Colombo.

128.   While the political situation in Sri Lanka has changed significantly in the last few years, I am not satisfied that those changes have ameliorated the risks identified in the Freedom from Torture report.

129.   It is clear from all of the country information that effective protection measures are not available to the applicant from the receiving country. In its September 2021 report, Sri Lanka: Torture & Sexual Violence by Security Forces 2020-21, the International Truth and Justice Project (a non-government organisation committed to documenting torture and sexual violence in Sri Lanka) reported on 15 cases of abduction, torture and rape of Tamils in the north and east by security forces since the change of government in 2019. This indicates that effective protection is not always provided to Tamils who become targets of interest to authorities.

130.   The persecution which the applicant fears involves serious harm in the form of physical ill-treatment.

131.   I am satisfied that the applicant is owed protection obligations because he is a refugee.

132.   It is unnecessary to consider whether the applicant has a well-founded fear of persecution by reason of him being a failed asylum seeker.  

Mandatory considerations

133. In accordance with Ministerial Direction No.84, made under section 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

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

decision

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

Damien O'Donovan
Senior Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

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

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

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

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

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

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

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

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

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

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

…