1702225 (Refugee)
[2019] AATA 3421
•19 February 2019
1702225 (Refugee) [2019] AATA 3421 (19 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1702225
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Peter Vlahos
DATE:19 February 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 February 2019 at 7:24am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – assisting Liberation Tigers of Tamil Eelam – particular social group – fisherman – failed asylum seeker – illegal departure – religion – Muslim – claims of weapons smuggling – fear of arrest – arbitrary detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 15 October 2015. The delegate refused to grant the visa on the basis that it did not satisfy subsection 36(2) of the Act.
On 9 February 2017 the applicant submitted to the Tribunal an application to review the delegate’s decision to refuse his protection visa.
On 11 December 2018 the applicant’s review application was heard by the Tribunal
At the hearing was held with the assistance of a Tamil-speaking interpreter and the applicant was represented by his registered migration agent.
There were no other persons in attendance at the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.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 ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations towards the [applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Migration History of the applicant
The applicant arrived in Australia by boat [in] August 2012. On 15 October 2015, he applied for a XE-790 Safe Haven Enterprise visa (SHEV).
The applicant claims to be a citizen of Sri Lanka
Country of Nationality and Identity of the applicant
Based on a copy of the applicant’s birth certificate which was provided to the Department, which the Department did not find to be a bogus document, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Sri Lanka and assessed his claims against that country in relation to above-mentioned evidence, the Tribunal further accepts his identity as claimed.
EVIDENCE AT THE HEARING
Department’s file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental records of decision to the Tribunal with the review application.
Background of the applicant
The applicant was born on [date] in [Town 1]. He is a Tamil and of the Sunni Muslim faith. He has family in [Town 1] which consist of his parents and his [sisters]. One sister is married and lives with his parents. The other sister who is also married lives with her husband. The applicant’s education level was ‘…up to and completed year [grade]…’ or ‘…[deleted]-Level’. He told the Tribunal he had no other formal education. While the applicant was living in Sri Lanka, he worked as fisherman with his uncle.
The applicant left Sri Lanka in July 2012 by boat which had as its destination [Australia]. He regularly is in contact with his family in Sri Lanka (speaking to them once, every three days). While in Australia, the applicant has been doing ‘[specified] work’. He has been employed for the last three years.
The applicant’s claims for protection
The applicant’s claims for protection, including those provided at interview, and supporting evidence is to be found in [file number]. The applicant’s claims for protection are summarised as follows:[1]
§The applicant is a Tamil and a Sunni Muslim
§In 2011, the applicant worked with his uncle as a fisherman for a period of three months in [District 1]
§One week after returning to [Town 1], the applicant’s uncle disappeared.
§The applicant’s brother in law had problems with a politician and the politician’s men threatened the applicant.
[1] AAT File see Folio [6]
The above claims were read to the applicant by the Tribunal with the assistance of the interpreter and the applicant was asked whether they were correct and whether he wish to clarify, amend or add any further claims. The applicant in response told the Tribunal that the claims were correct but wished to clarify that the ‘uncle who had disappeared’ was the applicant’s ‘…paternal uncle…’ The uncle in question was (according to the applicant) his ‘mother’s sister’s husband…’ The applicant made it clear to the Tribunal that his ‘…uncle…’ disappeared after he had come to [Town 1].
What were the reason/reasons that caused the applicant to leave Sri Lanka?
The applicant identified to the Tribunal two main reasons that caused him to leave Sri Lanka. One reason was the sudden disappearance of his uncle and the issues his brother in law had with the supporters of a Sri Lankan politician.
What was the issue that caused the applicant’s uncle to disappear?
The applicant stated that his uncle was a fisherman and the family (including the applicant’s father) had a fishing business and the applicant also worked as a fisherman. It was the aim of the uncle and his father, to train the applicant to a certain level and then all him to take over the family business. The business employed about [number range] employees including the applicant.
The applicant stated that his uncle’s problems began in 2012, around April and it involved the CID (the Criminal Intelligence Directorate). According to the applicant a complaint was made to them by someone that his uncle was involved in the transporting of weapons to the LTTE and was using the family’s fishing business as a “cover” in doing this. As the applicant recalled that unidentified persons arrived at his uncle home “at night” and “kidnapped him”. The applicant also said that these ‘persons’ told him (the uncle) they would take him or if not him, the younger boys in the family. This was generally happening at the time and the applicant’s uncle chose to go with them.
Has the uncle returned to his home since his ‘kidnapping’?
The applicant said that his uncle had not returned to his home since he was kidnapped in 2012.
Have any enquiries been made of the authorities by the family since the uncle’s disappearance, to ascertain his whereabouts?
The applicant told the Tribunal that “after a few hours” the uncle’s family members went to the local police station to make enquiries about his uncle’s whereabouts and the police rejected their concerns and refused to accept family’s concerns and no action was taken.
Why was the CID interested in the applicant’s uncle?
The Tribunal was told that “someone” had given the CID “information” that “weapons” had been transported and “sold” to rebels opposed to Sri Lankan government. Indeed, these “weapons” were used by the LTTE in their war against the government.
Was the applicant considered by the CID as an accomplice?
The applicant said that at the time of his uncle’s disappearance, he was not there, at his uncle’s home but at his home in [Town 1].
Did the CID come to find and to question the applicant after his uncle disappearance?
The applicant stated that after ‘two or three days’ the CID came to his home but the applicant was not at home at that time. He was at a “friend’s home…” The applicant went on to say, that he stayed at his friend’s place for “one day and one night” then after that, he kept on moving to other homes of his friends in an attempt to “avoid his capture” by the CID and their local operatives. The applicant also took to hiding at the many fishing huts that are to be found in the area.
How long did the applicant avoid the authorities?
The applicant said that his avoidance of the authorities continued for a total of one and half months before he decided to leave Sri Lanka.
How did the applicant organise his leaving from Sri Lanka?
The applicant told the Tribunal that everything was organised by his ‘mother’. His mother determined how and by what means the applicant would leave Sri Lanka.
Who paid for the applicant’s exit from Sri Lanka?
The applicant said that his mother paid for his exist from Sri Lanka by boat – paying approximately [amount] which was money that had been deposited in the bank. These funds had been money that the business had made.
What happened while the applicant was in hiding?
The applicant stated that in his absence the CID attended his parent’s home on a number of occasions making continued enquiries about the applicant’s whereabouts. They told the applicant’s parents that they want to question him. The applicant said that his parents were told “…if you handover your son there will be no problems…” and added, “…if you do not, it would be better if your son does not come home…” According to the applicant, his parents decided not to hand him over to the authorities and proceeded to arrange his departure from Sri Lanka.
Did the applicant’s family have any relationship with the LTTE?
The applicant told the Tribunal that during the civil war, his family had a ‘relationship’ with the rebel LTTE. The applicant also indicated that his ‘family members’ were involved with the LTTE – in particular, his kidnapped uncle. The applicant also went on to say that his uncle was doing ‘very confidential’ ‘things’ for and on behalf of the LTTE. The applicant admitted that he was not told of his uncle’s activities while he was in Sri Lanka but was later told by his family when he had left Sri Lanka.
Has the applicant’s family suffered any reprisals from the authorities?
The security forces warned the family that it was better for the applicant never to come back to Sri Lanka. The applicant also said that the authorities had received ‘information’ that the applicant had ‘left Sri Lanka’ and that the ‘family’ had organised the payment for his departure.
Was the applicant’s immediate family involved with the LTTE?
The applicant said that only his uncle was involved with the LTTE and no other member of the applicant’s family. He also said that because his family was involved in fishing and owned a fishing hut near the sea, many people suspected them that they were involved with the LTTE. However, the applicant told the Tribunal that his family had never been forced to leave their home for any reason. He also said that his parents were ‘old and sick’ and that ‘no one would make them leave’ their village and home.
What was the applicant’s issue that were caused to him because of his brother in law’s problems with a politician and why did the politician’s men threaten the applicant?
The applicant said that his brother-in-law’s problem was in existence before he got married to his sister and when the applicant was still a young child. However, his brother-in-law never spoke about his problem. Nevertheless, the police would often visit his brother-in-law’s home and threatened to ‘kill him’. Overtime, these threats deeply affected his sister who suffered a “miscarriage…”
What was the issue that caused the applicant’s brother-in-law issues with a politician and his followers?
The applicant stated that his brother-in-law was accused by some as having “links” with the LTTE.
Who was the politician the applicant’s brother-in-law having an issue with?
The applicant said that it was the “supporters” of politicians his brother in law had issues with not with specific politicians.
What happened to the applicant’s brother in law?
The applicant stated that his brother in law was arrested, questioned and released and then went into hiding and now is here in Australia awaiting his own application for Protection visa to be processed. However, the applicant’s sister and her child have remained in Sri Lanka. The applicant told the Tribunal that they had not planned to leave Sri Lanka by boat together only the applicant’s brother in law.
Has the brother-in-law’s family been threatened in his absence?
Once, the Tribunal was told, the authorities went to the brother-in-law’s home and asked his wife (applicant’s sister) his whereabouts. They did not come again.
The applicant also said that when both he and his brother in law had arrived in Australia, the authorities attended the sister’s home twice in 2012 and ‘knew’ that the applicant and his brother in law were both in Australia seeking protection.
How much did the applicant know about the situation in Sri Lanka?
The applicant stated that though Sri Lanka is at peace for now, there are still many problems. In particular, Tamils of the ‘Muslim faith’ are having problems. There is “racism” and a determined move “to get rid of Muslims…”
The Tribunal noted that the issue of religion and religious discrimination and fear of persecution because of the applicant’s Muslim faith was a new claim made by the applicant.
In response, the applicant told the Tribunal that while he was living in Sri Lanka, he “had not experienced this racism…” Racism has “only now surfaced” and after the civil war.
The applicant told the Tribunal that he feared returning to Sri Lanka because of the issue of his disappeared uncle and the problems his brother in law had and the issue of religion.
The Tribunal was told that the applicant’s mother had told him not to return to Sri Lanka because it was not safe for him. The applicant’s mother was happy for the applicant to stay in Australia.
Does the applicant attend Mosque for prayers on a regular basis while in Australia?
The applicant said that he world pray as was required by his religion and also attend mosque for prayers. He has attended a mosque at [location] on Fridays and has also attended the mosques at [other locations].
The applicant requested a break to consult with his legal representative
The Tribunal adjourned and after twenty minutes recess the hearing resumed.
The applicant was asked by the Tribunal did he have anything further to added to the Tribunal concerning his claims.
The applicant stated that sometime in 2015, the authorities in Sri Lanka attended his home and confronted the family with information that until now had been concealed.
This information that had been previously concealed was revealed to the applicant by his mother. The applicant said that both the applicant’s brother in law and his uncle were involved with the LTTE and both were doing work for the LTTE.
The applicant said that his uncle was transporting weapons for LTTE. The transportation of munitions was undertaken by the uncle by hiding it in boxes full of ‘fish’. Once the boxes had cleared any danger of falling into the hands of military, they were provided to the LTTE irregulars.
The applicant could not tell the Tribunal how long his uncle was doing this ‘gun-running’ and ‘munitions supply’ transport for the LTTE but it was occurring in 2012 because on one occasion, the applicant recalled a person called ‘[name]’ who was armed with a gun that accompanied a shipment of ‘fish’ for a certain destination.
The applicant also said that on one other occasion he was told by his uncle to take boxes with ‘fish’ which also included ‘weapons’ into a boat and with the help of others to take them into the sea and to ‘throw them overboard’.
The applicant could not tell the Tribunal why his uncle ordered him to do this but he believed it was an attempt by the uncle to ‘get rid of the weapons’ so the authorities would not find them. His uncle feared that some neighbours might have seen them and informed the local CID authorities.
Thereafter, the uncle disappeared, according to the applicant.
According to the applicant his brother-in-law was a supporter of the LTTE during the civil war. His brother in law also helped conceal LTTE combatants and also use vehicles to transport supplies and munitions for the LTTE at the various fronts.
Request by the Tribunal for further information and submissions
The Tribunal noted the ‘further’ information provided by the applicant after the brief adjournment and provided the applicant and his legal representative with an opportunity to provide further and detailed written submissions by no later than 30 January 2019 on the following:
(A). Details of the applicant’s uncle’s and brother’s activities as members of the LTTE during the civil war and,
(B) Details of the discrimination(s) and persecution the applicant had experienced and would experience because he was a “Sunni Muslim Tamil.
Further submissions by the applicant’s registered migration agent on the applicant’s behalf
On 15 February 2019 the applicant’s registered migration agent provided a further submission on behalf of the applicant.
The submission’s main concern is that the applicant has legitimate fears for persecution and the key points raised are summarised as follows:
§Race and Religion. As a member of the vulnerable Tamil Muslim minority and as a Sri Lankan Muslim and perceived member of the Tamil ethnicity.
§Imputed Political opinion. As a perceived member or supporter of the LTTE because of his departure at a time when authorities including the CID and police were actively pursuing him.
§His involvement in his uncle’s business which concealed weapons in fish huts, many of which the applicant believes could still contain these weapons and remain undiscovered.
§His connections to former or perceived LTTE members including his uncle who was abducted by the CID in April 2012 and his brother-in-law who fled Sri Lanka with him.
§As anti-Singhalese because of the allegations that the applicant was involved in concealing weapons in support of LTTE guerrillas and his disdain for the Singhalese authorities owing to his uncle’s disappearance and his past treatment.
§Membership of a particular social group as a failed asylum seeker who departed Sri Lanka illegally.
COUNTRY INFORMATION
Country Information – Sri Lanka – Tamils – LTTE – Situation after the end of the civil war – returned failed asylum seekers
DFAT recent country information report on Sri Lanka reports on the current situation as follows:
Recent History
2.2 In July 1983, conflict broke out between the Sri Lankan military and the separatist Liberation Tigers of Tamil Eelam (LTTE – formed in the 1970s). In May 2009, the Sri Lankan government announced its military victory over the LTTE and complete territorial control over Sri Lanka. The long civil conflict displaced hundreds of thousands of people and killed tens of thousands of people on both sides.
2.3 The current president, Maithripala Sirisena, was elected in January 2015 on a platform of post-conflict reconciliation, transitional justice, good governance, anti-corruption and economic reform. Progress on these commitments has been slow, and the Sri Lankan public and other observers are increasingly uncertain that the coalition government will manage to deliver reform during the remainder of its political term.Reconciliation
2.24 In September 2015, the report of the UN’s Office of the High Commissioner for Human Rights (OHCHR) investigation on Sri Lanka (OISL) found that both sides of the conflict likely committed grave violations, including possible war crimes and crimes against humanity. In response, the Sri Lankan government co-sponsored resolution 30/1 in the UN Human Rights Council (UNHRC), which, while recognising the progress Sri Lanka had made on reconciliation, committed the government to implementing a range of transitional justice and reconciliation initiatives. The UNHRC granted Sri Lanka an additional two years in March 2017 to implement its commitments under resolution 30/1.
2.25 On 18 December 2015, the Sri Lankan Cabinet approved the formation of the Secretariat for Coordinating Reconciliation Mechanisms within the prime minister’s office to oversee mechanisms for advancing truth, justice and reconciliation in Sri Lanka: an Office of Missing Persons (OMP); an Office for Reparations; a Truth, Justice, Reconciliation and Non-Recurrence Commission; and a Judicial Mechanism with a special counsel. The Secretariat’s mandate runs until March 2019. In January 2016, Prime Minister Wickremesinghe appointed an eleven-member Consultation Task Force on Reconciliation Mechanisms (CTF) to conduct public consultations on the design of the four mechanisms, but at the time of publication neither the government nor parliament had endorsed the report published by the CTF in January 2017. DFAT assesses that, if implemented effectively, these mechanisms can facilitate genuine reconciliation.
2.26 In October 2017, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence reported slow progress on the government’s transitional justice agenda. In 2017, the government implemented the Right to Information Act (2016) in February, approved Sri Lanka’s first National Policy on Reconciliation and Coexistence in May, and formally established the OMP in September.
2.27 The OMP is the first permanent and independent body to address the issue of missing persons in Sri Lanka. It has the power to investigate disappearances and trace missing persons, to search detention centres, to obtain documents and to summon people within Sri Lanka. It does not have prosecutorial powers. Its mandate includes cases that occurred before, during and after the conflict until the end of Rajapaksa’s presidential term, including periods of violent political disturbance in the 1970s and 1980s. The previous Presidential Commission to Investigate into Complaints Regarding Missing Persons collected over 23,000 cases during its term from August 2013 to May 2016; the OMP may be asked to deal with a higher number. The OMP has no time limit on its mandate, and is likely to take years to complete its work. The 2018 budget allocated LKR 1.4 billion (approximately AUD 11.7 million) to establish the OMP, and the president appointed OMP commissioners in February 2018 on the recommendation of the Constitutional Council. The 2018 budget did not include allocations for the Office of Reparations, the truth commission, or the judicial mechanism.
Security situation in the north and east
2.35 The government no longer restricts travel to the north and east. It removed military checkpoints on major roads in 2015. Military involvement in civilian life has diminished, although military involvement in some civilian activities continues in the north.
2.36 In 2017, the government reported it had released 24,336 acres of private land in the north and east since the end of the conflict, while the military continued to occupy 6,051 acres. Slow progress on land return and missing persons is driving continuing protests in the north, over ongoing military occupation of private land, and conflicting claims over private land by displaced people. In October 2017, the UN Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence recommended relieving the security forces of the sole decision-making authority on the location and timing of land releases. The government has committed to pay compensation where security forces retain private land. Most of the remaining modest military presence in the north is confined to the Security Forces Cantonment on Jaffna Peninsula (also known as ‘High Security Zones’) or smaller surrounding military camps. The government has released most land from the High Security Zones in the Northern Province.
RACE/NATIONALITY
3.1 Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.
3.2 Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
3.3 DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils3.4 Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
3.5 Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.3.6 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil- dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.7 DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.Monitoring, harassment, arrest and detention
3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
3.9 Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events. Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
3.10 Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
3.11 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.3.12 During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils. The PTA is currently suspended but remains legally in force.
3.18
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.31 Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.
3.34 DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.
Liberation Tigers of Tamil Eelam (LTTE)
3.35 At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.
3.36 Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government- run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti- government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.
3.37 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
3.38 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
3.39 DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.
3.40 Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
3.41 Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de- radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.
3.47 The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
3.48 In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:
persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;Former LTTE combatants or ‘cadres’;
Former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
3.49 Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.
High profile former LTTE members
3.50 The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict. Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.
3.51 On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.
3.52 DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.Low profile former LTTE members
3.53 ‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
3.54 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.
3.55 Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.
3.56 Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.
3.57 A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.
3.58 The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
Family members of LTTE3.59 The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, Detention and Prosecution
3.60 Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
3.61 Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
3.62 The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.
3.63 DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
TREATMENT OF RETURNEES
Exit and Entry Procedures5.27 Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
5.28 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
5.29 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.30 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
5.31 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the
magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.5.32 Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
5.33 Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
5.34 The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
5.35 DFAT assesses that the Sri Lankan government differentiates between fare- paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
5.36 DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.
FINDINGS AND REASONS
The issue of Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
....care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted…
The Tribunal also accepts that “….if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]) that:
….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts….
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of an applicant has not been made out (see, Randhawa v MILGEA (1994)52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994)34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998)86 FCR 547).
The Tribunal’s reasons and conclusions – Is the applicant a refugee?
Assessment of the applicant’s claims
In his application for Protection the applicant made a number of written claims and oral claims. He claimed that in 2011, the applicant while working with his uncle as ‘fisherman’ for a period of three months, his uncle suddenly disappeared and never returned. He also claimed that his brother-in-law had ‘problems’ with a local politician and the supporters of this local politician ‘threatened’ the applicant. Finally, the applicant claimed that he was also felt threatened, intimidated and discriminated because he was a Tamil but of the Muslim faith. The Tribunal will deal with each claim as follows:
a.The disappearance of the applicant’s uncle and the consequences of this disappearance on the applicant.
The applicant told the Tribunal that before he left Sri Lanka the applicant was working for his uncle as a fisherman. The applicant’s family had a local fishing business which employed [number] employees including the applicant. Sometime in 2012, the CID began investigating the applicant’s uncle after they had received a complaint from an ‘unknown source’ that the applicant’s uncle was involved in the ‘transportation of weapons to the LTTE.’ According to the applicant, his uncle disappeared and has not been located or found by the family since 2012. Although, the uncle’s family had made numerous reports to the local authorities concerning the whereabouts of the uncle, those reports according to the applicant were not taken seriously. Thereafter, the Tribunal was told, the CID (after ‘two’ or ‘three’ days) came to the applicant’s home but the applicant was not there – having chosen (for safety reasons) had chosen to live with at a friend’s home and at various other places in order to avoid coming into contact with CID. This avoidance of the authorities continued for one and half months until the applicant left Sri Lanka bound for Australia after his mother had made the arrangements for him to leave by boat. The applicant claims that because of his uncle’s involvement with the LTTE, he was also suspected of being involved in the transporting of munitions and thus possessed a well-founded fear of persecution if he was to return to Sri Lanka because he would be viewed as sympathiser and former associate of the LTTE. The Tribunal considers and finds that the applicant’s claim of having an imputed political opinion in favour of the LTTE because of his uncle’s past involvement with the LTTE is not credible.
The applicant’s description to the Tribunal of his uncle’s activities as a munitions smuggler for the LTTE was described by the applicant in very minimal terms. The applicant told the Tribunal that he worked with his uncle for a period of three months. In that time, the applicant did not provide any substantial details of his uncle’s activities on behalf of the LTTE when asked by the Tribunal. Indeed, after an adjournment which lasted twenty minutes, the applicant returned with his migration agent to tell the Tribunal that on one occasion (no date was provided) he was told by his late uncle to take boxes with fish and munitions and ‘dump them in the sea’ so that the cargo would not be discovered by the Sri Lankan security forces which were raiding in the area (the location was not provided). When pressed by the Tribunal for further details about this activity, the applicant told the Tribunal, that he could not tell - why his uncle ordered him to do this but the applicant believed that it was an attempt to get rid of the weapons so the authorities would not find them. The Tribunal noted that the applicant’s evidence was confusing and lacking in convincing detail of an event of which he claimed to have been an integral part. Indeed, the Tribunal accepts that past events would with the passage of time be difficult to recall in detail, that being so, the applicant was a nephew – a close family member – of an uncle who he claims was involved with the LTTE – transporting munitions, surely the applicant would have remembered some significant details of his involvement at the hearing. Moreover, in a further submission by the applicant’s migration agent it was claimed that the applicant feared persecution if he was to be returned to Sri Lanka at some future date because of his involvement in his uncle’s business which concealed weapons in fish huts, many of which the applicant believed could still contain these weapons and have not been discovered by the authorities. Obviously, this is a new claim the applicant introduced and had not in the hearing referred to it, except to say that his uncle told him to dump the weapons at sea. The Tribunal considers this claim not to be credible and does not accept it. Indeed, in the opinion of the Tribunal, this claim was introduced at this late stage by the applicant through his migration agent’s submission as mere embellishment of the truth with the sole purpose of enhancing the applicant’s claims of fearing persecution if he was to return to Sri Lanka in the reasonably foreseeable future. Therefore the Tribunal finds that the applicant’s claims that he is and was imputed with a pro-LTTE political opinions because of his uncle’s activities with the LTTE while the applicant worked in his uncle’s fishing business were not credible and he could not claim the protection of s.5J(1)(a) of the Act.
b. The applicant’s brother-in-law’s political problems and their impact on the applicant
The applicant told the Tribunal that his brother-in-law’s problem was in existence prior to his marriage to the applicant’s sister. The stated that his brother-in-law never spoke about his problem but that it was ‘some link to’ the LTTE. The Tribunal was also told that certain links with ‘supporters’ of ‘politicians’ caused issues for the applicant and his family. Indeed, it was claimed that the applicant’s brother-in-law was arrested, questioned and then released by the authorities and thereafter fled to Australia, where he is awaiting his own Protection visa refusal to be reviewed by this Tribunal. Again, the applicant’s claims concerning his brother-in-law lack credibility. First, the applicant provided no details to the Tribunal who was the politician involved in the dispute with his brother-in-law. He provided no detail of what issues surfaced between his brother-in-law and this ‘un-named politician’s supporters’. Second, the applicant told the Tribunal that his brother-in-law had some links to the LTTE but he never spoke about those links to any family member. Then following an adjournment, the applicant told the Tribunal that his brother-in-law was a supporter of the LTTE during the civil war and that he (brother-in-law) helped conceal LTTE combatants and used vehicles to transport munitions for the LTTE at various locations. Again, the applicant’s revelations about his brother-in-law’s activities raise doubts about his credibility given the applicant’s statement to the Tribunal that the applicant’s brother-in-law spoke little about such activities to his family.
Moreover, it stands to reason, that if the applicant actually believed his claims encompassed the truth of his situation as he was representing it to the Tribunal, he would have provided his brother-in-law as a witness in support of his claims in his case before the Tribunal. The Tribunal was told that the applicant’s brother-in-law was in Australia awaiting his own protection claim to be processed. It was open to the applicant and to his migration agent to have made the necessary arrangements and provided the Tribunal with an opportunity to listen to evidence on the applicant’s claims as far as they concerned the applicant’s brother-in-law. That opportunity was missed. Therefore, the conclusion the Tribunal comes to is to consider that the claims of applicant’s brother-in-law’s activities for the LTTE were introduced by the applicant to act as an embellishment of the truth in order to enhance his claim for protection and the Tribunal does not accept the claim that the applicant’s brother-in-law assisted LTTE combatants and transported with vehicles munitions to the LTTE during the Sri Lankan civil war.
In light of the Tribunal’s comments above, the Tribunal also noted the persuasive decision of the country guidance case of CJ & Others (post-civil war: returnees Sri Lanka CG [2013] UKUT 00319 (IAC), where the UK Upper Tribunal identified as one of its four risks categories as “Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.” (Paragraph 356 (7a)).[2] The Tribunal in GJ and Others also found that unlike in the past, returnees (like the applicant in this application) who have a previous connection with the LTTE are able to return to their communities without suffering ill-treatment. Civil society groups on the ground (according to the Tribunal) did not report recent issues of ill-treatment. The police interest, if any, is not in any previous involvement with the LTTE, but on whether the person has committed any criminal act. The Upper Tribunal goes on to state that “…those former LTTE members most at risk are those who are perceived to be a threat because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism….”
[2] UK Home Office Country Policy and Information Note: Sri Lanka: Tamil Separatism, Version 5.0, June 2015, see p.7
Finally, the Tribunal finds that on the evidence provided by the applicant he has not demonstrated in clear and convincing terms that there is anything in his past as far as it relates to the alleged activities of his uncle or brother-in-law that placed him with a well-founded fear of being persecuted if he was return to Sri Lanka in reasonably foreseeable future because of a political opinion in favour of the LTTE or otherwise an imputed as is provided by s. 5J(1) of the Act.
c. The applicant’s fears of persecution because he is a Tamil Sunni Muslim
The applicant claimed that though Sri Lanka was at peace now, there were still many problems faced by Tamils of the Muslim faith. The applicant claimed there was racism and there were moves to ‘get rid of Muslims’. The Tribunal was told that while the applicant was living in Sri Lanka, ‘he had not experienced this racism’ but he feared that ‘racism’ had ‘surfaced’ after the end of the civil war. The Tribunal noted that this claim concerning ‘religion’ and the ‘freedom to worship’ was a new claim the applicant submitted to the Tribunal in his closing statement. It would remiss of the Tribunal not addressing in some detail the applicant’s claims concerning his freedom to worship his Muslim faith if he was to return to Sri Lanka in the reasonably foreseeable future. First, the Tribunal accepts the applicant is a Tamil and a Sunni Muslim.
Second, would a Tamil male and Sunni Muslim be the subject of persecution – official or societal in today’s post-civil war Sri Lanka? Religion (according to the country information) plays a significant role in the day-to-day life of all Sri Lankans and it strongly attaches to ethnicity – for example, most Singhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian. Muslims are considered a separate ethnic group. The government has publicly declared its commitment to religious and ethnic reconciliation.[3]
[3] DFAT Country Information report – Sri Lanka 23 May 2018 at p.15
The Department of Foreign Affairs & Trade (DFAT) country report on Sri Lanka[4] reports as follows concerning Muslims in Sri Lanka:
[4] Ibid at p.16
Muslims
3.18 Muslims are the third largest religious group in Sri Lanka. Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million. Most Muslims speak Tamil as their first language. Muslim communities live throughout Sri Lanka, including in Colombo and Kandy, with larger communities in the east in Ampara, Batticaloa and Trincomalee, and in the west in Mannar and Puttalam. The majority (98 per cent) of Muslims in Sri Lanka are Sunni. A small number of Shi’a, including members of the Bohra community from India, reside mostly in Colombo. The Malay community, largely comprising descendants of Malay members of the Ceylon Police Force, is Muslim and a few of its members hold senior positions in the Sri Lankan military and police. The Urdu-speaking Memon community of Indian or Pakistani descent mostly lives in Colombo. Sri Lanka also hosts a small number of Muslims who follow the Sufi tradition. Muslim property rights fall under state law while sharia (Islamic) law and cultural practice apply to marriages. Although many Muslims work in agriculture and fisheries, many also work in business, industry and the civil service. In November 2017, some Muslim businesses were temporarily boycotted because of tensions between the Tamil and Muslim communities in Batticaloa.
3.19 The Sri Lanka Muslim Congress (SLMC), the largest Muslim political party, has seven members of parliament and is part of the governing coalition. The SLMC’s leader is a Cabinet Minister. In 2015, the All Ceylon Muslim (Makkal) Congress joined other anti-Rajapaksa parties to form the United National Front for Good Governance. The party holds five seats in parliament. The SLFP and the UNP both have Muslim members in parliament, including in ministerial-level positions.
3.20 Although most Muslims sided with the (Sinhalese) government forces during the conflict, religious tensions between Muslims and the Sinhala Buddhist majority have risen since the end of the conflict. Nationalist Buddhist groups such as the BBS, Sinha Le (English: Lion’s Blood), and Sinhala Ravaya (English: Sinhalese Roar) continue to stoke religious and ethnic tensions, including through social media posts. Greater freedom of expression under the current government has enabled an increase of hate speech against Muslims and other religious minorities in Sri Lanka.
3.21 Minority Rights Group International reported 60 incidents of hate speech, discrimination or attempts to desecrate or destroy Muslim religious buildings in the first six months of 2016. The OHCHR reported 30 registered incidents of violence against Muslims across the country around May 2017, mostly against Muslim-owned businesses and mosques, and accompanied by anti-Muslim rhetoric from Sinhala Buddhist groups such as the BBS. In September 2017, a mob led by Buddhist monks reportedly belonging to the organisation Sinhalese Nationalist Front vandalised and attempted to storm a Colombo house where 31 Muslim Rohingya refugees were staying. Buddhist groups burned more than 70 Muslim shops and houses in Gintota, Southern Province, in November 2017. The Muslim Council of Sri Lanka wrote to Prime Minister Wickremesinghe in May and September 2017 urging the government to take action against the hate speech and violence targeting the Muslim community. President Sirisena has committed to investigate anti-Muslim hate crimes and bring perpetrators to justice, although local sources claim that for political reasons authorities are reluctant to address violence perpetrated by religious clerics due to concern of public backlash. According to the US Department of State, local police and local government officials sometimes tacitly support Sinhala Buddhist nationalist groups by failing to respond to complaints of harassment or property damage by Buddhist monks.
3.22 On 6 March 2018, the government declared a nationwide State of Emergency for 12 days in response to incidents of communal unrest between members of the Sinhalese Buddhist and minority Muslim communities in Kandy District, Central Province. Despite the deployment of high numbers of military and police, several arrests and extended curfews, violence continued in several towns around Kandy until 7 March, and four people (two Muslims and two Sinhalese) were killed and dozens injured. Police arrested the leader of the Buddhist extremist group Mahason Balakaya (English: Strong Ghost Regiment), Amith Weerasinghe, in relation to the violence. The events in Kandy represented the largest violent incident between Buddhist and Muslim communities since June 2014 when Galagoda Aththe Gnanasara, General Secretary of BBS, delivered a speech that many blamed for inciting riots in Aluthgama that lasted two days; Police arrested and subsequently released Gnanasara on several occasions. The events in Kandy followed a smaller incident on 27 February 2018 whereby Buddhist nationalist groups perpetrated arson attacks against Muslim-owned residences, shops and a mosque in Ampara, Eastern Province. Rumours that a Muslim restaurant was mixing ‘sterilisation drugs’ in its food to make Sinhalese women infertile triggered the attacks. Social media aggravated both the Kandy and Ampara incidents.
3.23 In 2016 and 2017, local groups reported the construction of Buddhist shrines in the north and east in Hindu and Muslim areas with few, if any, Buddhist residents. In some locations in the north, the military was reportedly involved. In 2016, Sinha Le reportedly orchestrated protests against the construction of a mosque in Kandy.
3.24 A lack of reliable statistics precludes an accurate assessment of whether incidents are increasing, but supporters of Sinhala Buddhist nationalist groups have engaged in a sustained campaign of hate speech against Muslims in recent years. While there have been incidents of property damage and personal violence, overall violence remains sporadic. DFAT assesses that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence.
The Tribunal was told by the applicant that he had not experienced any issues concerning the practice of his religion while in Sri Lanka but he held a ‘fear’ that that may not be the case if he returned to Sri Lanka in the reasonably foreseeable future. The Tribunal does not agree with the applicant’s fear concerning his freedom to practice his religion as a Tamil Sunni Muslim. As the country information reports, Sri Lanka has had sporadic sectarian and religious violence breakout since the end of the civil war. Some of that violence has been directed towards persons like the applicant – Tamil Muslims but the Tribunal must also recognise as the country information makes clear that an effort is being made by the present administration to keep calm the situation in Sri Lanka as far as it concerns religion and the practise of religion. The declaration of a ‘national emergency’ in recent times is one example of legitimate attempts being made by the authorities to maintain the peace, order and good government in Sri Lanka. The applicant’s made only general statements about the state of affairs in Sri Lanka concerning religion and religious worship and provided no examples of any experience of religious bigotry. The Tribunal notes that despite the applicant’s fears about a possible religious inspired violence breaking out at some future time, the country information sourced by the Tribunal makes no mention of any anti-Muslim activities in any major district or city in Sri Lanka. Therefore, the does not find credible the applicant’s claim that if he returns to Sri Lanka and to his home district, he would face a well-founded fear of being of persecution because he is a Tamil and a Sunni Muslim pursuant to s.5J(1)(a)(b) or (c) of the Act.
d. Applicant’s fears concerning the recent political crisis in Sri Lanka
The Tribunal notes that the applicant’s counsel did not advance a claim on his applicant’s behalf that the political situation in Sri Lanka involves the likely return of Mahinda Rajapaksa and/or greater political violence given recent political events.
On 26 October 2018, Sri Lankan President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed former President Mahinda Rajapaksa in his place. However, Wickremesinghe refused to resign as Prime Minister, arguing that Sirisena’s decision was unconstitutional. Amid reports that Rajapaksa lacked majority support in parliament, on 28 October 2018 Sirisena suspended parliament and, on 9 November 2018, abruptly dissolved parliament and declared a snap election on 5 January 2019.
On 13 November 2018, Sri Lanka’s Supreme Court temporarily suspended the dissolution of parliament ahead of a final decision. Following the suspension of the dissolution order, Sri Lanka’s parliament reconvened, where two no confidence motions against Rajapaksa were passed despite the efforts of his supporters to disrupt proceedings. However, the results of these motions were not recognised by either Rajapaksa or Sirisena, both of whom claimed that they took place in violation of parliamentary procedure. In an interim judgement on Monday 3 December 2018, Sri Lanka’s Supreme Court temporarily barred Rajapaksa from acting as prime minister while it hears a petition challenging his refusal to step down. Following an extension of the interim injunction, Sri Lankan’s Supreme Court has subsequently ruled that the President’s decision to dissolve parliament was unconstitutional and illegal on 13 December 2018. Having lost the constitutional argument, the President reinstated Wickremesinghe as prime minister when he and his Cabinet Ministers took their oaths before the President on 20 December 2019.[5]
[5] New Cabinet Ministers sworn-in before President, Official Government website, 20 December 2019, >
According to the situational update prepared by the Department of Home Affairs about Sri Lanka’s political crisis (CR239EC81237), while analysts have expressed pessimism about the impact of a Rajapaksa government on progress towards transitional justice and conflict resolution following Sri Lanka’s three decade long civil war, there is only limited evidence to date to support this. Similarly, there are few reports at present of political violence stemming from the political crisis, or of related violence towards minorities. Conversely, if successful in returning to power, Wickremesinghe has pledged to increase the powers of provincial councils and come up with a lasting political solution that satisfies Sri Lanka’s Sinhalese and Tamil communities. The report further states that there have been few reports to date of threats or political violence stemming from Sri Lanka’s political crisis, or of related violence towards minorities. On 19 November 2018 – in the midst of this political and constitutional crisis, police used tear gas and water cannons on monks from the Sinhalese nationalist Bodu Bala Sena (BBS) organisation protesting in front of the Presidential Secretariat in Colombo. The monks were protesting to demand the release of BBS leader Galagoda Aththe Gnanasara, who is currently servicing a six year prison sentence for contempt of court. Sirisena expressed his regret over the incident.[6]
[6] ‘President Sirisena Expresses Regret Over Tear Gas And Water Cannon Attack On Bodu Bala Sena Monks; Says He Was Unaware of Protest’, Asian Mirror, 19 November 2018, CXBB8A1DA39190
Based on this country information, there is insufficient independent information to indicate that it would proper for this Tribunal to accept that the political situation in Sri Lanka has significantly deteriorated during or immediately after the 2018 constitutional crisis. There remains the foreseeable prospect that a general parliamentary election can be held at any time after 8 January 2019 that would otherwise be called by November 2019 and scheduled before January 2020.[7] At the time of making this decision, no general election has been called. Indeed the President has been careful to continue post-conflict reconciliations, albeit at a pace considered too slow for some international observers and has resisted providing support for Sinhalese and/or Buddhist extremists. Even if there were to be a change of government from one led by Prime Minster Wickremesinghe in favour of former Prime Minister Rajapaksa through electoral means, it is the Tribunal’s assessment that the good deal more country information regarding the sudden deterioration towards widespread political, religious and ethnic violence would be required beyond reported speculation or informed pessimism. For these reasons, the Tribunal finds that the levels of political, religious and ethnic violence between Sri Lanka’s rival parties and different ethnicities and religions will not lead to the applicant facing a real chance of serious harm based on his religion, ethnicity, nationality or any actual or imputed political opinion caused by his uncle’s and brother-in-law’s relationship with the former LTTE or any other related, as the chances of serious harm from such general political violence or violence and other acts of serious harm directed at the applicant as is provided for in s.5J(1) of the Act are remote and far-fetched based on his specific circumstances for the reasonably foreseeable future.
d. Likelihood of torture and ill-treatment for perceived LTTE association
[7] ‘2019 may be Sri Lanka election year, hints president Maithripala Sirisena’s meet with party brass’ by Press Trust of India (Colombo) Hindustan Times, 26 December 2018, >
The Tribunal noted that in the submission provided to the Tribunal by the applicant’s migration agent, it was claimed that the applicant feared to return to Sri Lanka because he would face persecution from the authorities because the applicant would be considered an LTTE sympathiser because two of his friends had been accused ([named]) of being supporters of the LTTE. The Tribunal does not accept the applicant’s claim as credible. The Tribunal noted that this claim does not appear in the applicant’s statutory declaration provided to the Department[8] in support of his application for Protection nor was it raised with the Tribunal at the hearing. The Tribunal considers it as another attempt by the applicant this time through his migration agent (which is disappointing) to embellish the truth with a view of enhancing his claims for protection.
e. Would the applicant face adverse effects upon his return to Sri Lanka because he sought asylum in Australia after having left Sri Lanka illegally?
[8] see Department of Immigration and Border Protection [File number] Folio 29
This matter was not raised either by the applicant in his discussion of his evidence with the Tribunal or by his migration agent but it is a consideration the Tribuanl must turn its mind to and consider in its decision of the applicant’s review claims. As a person who has left Sri Lanka and has sought asylum abroad, the applicant is in a situation common to thousands of Sri Lankan Tamils whether they are Hindu or Muslim. As the Tribunal notes from available information, thousands of asylum seekers have returned to Sri Lanka since 2009 with few reports of torture or mistreatment. It should be pointed out, that the applicant in these circumstances did leave Sri Lanka illegally choosing to leave by boat and not with proper travel documents. However, the Tribunal is not satisfied on the material before it that there is a real chance or risk that the applicant would be regarded in this way or that he would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally. Whilst the Tribunal is prepared to accept that some returning Tamils may be of interest to the Sri Lankan authorities, the Tribunal is not satisfied, having regard to all of the applicant’s circumstances, that there is anything in the applicant’s profile to distinguish him from the thousands of Tamil asylum seekers who have safely returned home.
The Tribunal has given careful consideration to the applicant’s situation upon return to Sri Lanka as a consequence of his illegal departure. The Tribunal accepts as credible the information from DFAT, that upon return to Sri Lanka, returnees are processed by various law enforcement agencies at the airport, which typically takes several hours while they check the person’s identity and the existence of criminal or terrorist backgrounds. Returnees are not subject to mistreatment during this period of processing at the airport. Returnees who have left Sri Lanka illegally are arrested by the police for breach of Sri Lanka’s immigration laws, have their fingerprints taken, are photographed and then transported to the Magistrate’s Court at the first available opportunity. Those arrested can remain in police custody at the CID airport office for up to 24 hours. Should a magistrate not be available because of a weekend or public holiday, those charged are held at a nearby prison.
The Tribunal finds on the country information that the applicant is likely to be questioned at the airport, charged with an offence of having departed illegally under the Immigrants and Emigrants Act and then either fined on the spot and released or granted bail on personal surety immediately by a magistrate or required to have a family member act as guarantor. The applicant has his sisters and his parents in Sri Lanka who would be willing to act as a guarantor if required to secure the applicant’s release on bail, and finds accordingly. The country information indicates that fines may be paid by instalment and, if bailed, there are rarely any conditions. DFAT assesses that, ordinarily, passengers on boats are considered as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the Prevention of Terrorism Act. DFAT have also been advised that no returnee from Australia who has been charged under the Immigrants and Emigrants Act with departing illegally has been given a custodial sentence. Fine amounts were relatively small and were capable of being paid in instalments. As such, the Tribunal is not satisfied that the imposition of the fine would amount to serious or significant harm.
The Tribunal accepts that there is a low, albeit real, chance or risk that the applicant may spend a brief period in remand until a magistrate is available, in prison conditions which may be cramped, uncomfortable and unsanitary. The evidence indicates that this situation applies to all persons who have left Sri Lanka illegally, regardless of their background.
The Tribunal is not satisfied that being subjected to the process described above upon return to Sri Lanka, including any brief period in remand or any penalty imposed upon the applicant as a consequence of his breach of Sri Lanka’s immigration laws would involve systematic and discriminatory conduct as required by s.91R(1)(c) of the Act. Rather, the evidence suggests that such treatment would be the consequence of non-discriminatory enforcement of a law of general application, which is appropriate and adapted to achieving a legitimate state objective. The Tribunal is also not convinced that there is a real chance that any element in the process would involve serious harm. As such, the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to treatment upon return to Sri Lanka amounting to “persecution” for the purposes of s.36(2)(a).
In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the Tribunal is not satisfied on the evidence in this case that during a brief period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life. The Tribunal has carefully considered whether he would experience treatment amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied that any pain or suffering caused by severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant as required by the definition of cruel or inhumane treatment or punishment. Nor does the Tribunal accept that severe overcrowding and poor conditions would be intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribuanl is not satisfied that there is a real risk that any element of the process the applicant is likely to face upon return would involve “significant harm” as defined by the Act.
The Tribunal accepts DFAT’s general advice that there are no official laws or policies that discriminate on the basis of ethnicity or language in Sri Lanka. DFAT have assessed that there is a low level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. This suggests that the trend of monitoring and harassment of Tamils in day-to day life has generally ceased since the end of the civil war.
The Tribunal does not accept that the applicant would be denied any opportunity to return to a normal life where he would be free to pursue his own means of subsistence through work or treated any differently from other Tamils because of his prolonged non-registration while in Sri Lanka and later when he lived in India and in particular the Tribunal does not accept that he would be refused any assistance as he would require on account of his Tamil ethnicity given the information set out in the preceding paragraph.
The Tribunal notes that both the applicant and his migration agent were provided until 30 January 2019 to provide further submissions concerning the applicant’s claims and any information they thought the Tribunal should take into consideration before making its decision. None was provided as at the time of writing this decision.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a) of the Act
The Tribunal further finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36 (2)(a) or (aa) and holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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