1710842 (Refugee)

1710842 (Refugee) [2021] AATA 512 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710842
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Michael Hawkins
DATE:10 February 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 February 2021 at 8:33am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – fear of accusation of involvement with Tamil Tigers – brothers-in-law’s claimed involvement and deaths – illegal departure and returned failed asylum seeker – department’s data breach – credibility – late claims – no harm to applicant or to family since his departure – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 46A, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 2 February 2017. The delegate refused to grant the visa on 12 May 2017.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence and submissions presented to the delegate:
The applicant was born on [Date] in [Location 1], Northern Province, Sri Lanka.
The applicant is a Tamil and his religion is Hindu.
In 1992, the applicant moved to [Location 2] in Jaffna District, Northern Province, and lived there until he left Sri Lanka [in] July 2012.
The applicant travelled by boat from Sri Lanka to Australia from August 2012.
[In] August 2012, the applicant and other passengers were taken to Christmas Island.
The applicant participated in an Entry Interview with a Departmental Official on 24 January 2013.
On 26 May 2015, the Minister lifted the bar at section 46A to allow the applicant to lodge a valid application for a Visa.
The applicant lodged a valid Safe Haven Enterprise Visa (Sub-Class XE790) on 2 February 2017.
The applicant was interviewed in relation to his protection claims by the Delegate on 24 March 2017.
Claims:
Claims made at Entry Interview
The applicant claims that he and his family were displaced in 1990 from [Location 1]. He claimed they faced persecution from the Sri Lankan Military and left the area.
The applicant claims the family moved to [Location 2] and because they had lived in Vanni, the Military questioned them about their involvement with the LTTE. The applicant claims that he did not have any involvement with the LTTE because he had studies and did not want his children not to have an education.
The applicant claims that as he has lost everything and he was displaced, he wanted to go somewhere where he could educate his children.
Claims made in Statutory Declaration dated 11 August 2015, completed by the Refugee and Immigration Legal Service
The applicant claims he has three sisters. He claims his two eldest sisters married the same person and that their husband, after being displaced along with the rest of the family, went to Columbo in 1992 and has been missing since then.
The applicant claims that his youngest sister’s husband was killed in 2005. He claims that the husband [transported] people from Vanni to other areas. The applicant claims that the husband was reported to authorities by other Sri Lankans who were jealous of his success. The applicant claims that the sisters’ husband’s Death Certificate stated that he was killed by the Army.
The applicant claims that all three of his sisters are now widowed and that he fears the same thing will happen to his family.
The applicant claims to fear that there are many people in Sri Lanka who are jealous of him and who could maliciously report him to the authorities similar to his sisters’ husband.
The applicant claims that in 2004, he was questioned and threatened by the authorities in relation to involvement with the LTTE. He claims that he has not been involved with the LTTE but claims that on that occasion, the questioning escalated and he was threatened with assault by the authorities until his wife intervened.
The applicant claims that although he was not questioned again by the authorities, he was always in fear of being harmed whilst in Sri Lanka as random acts of violence happened quite frequently.
The applicant claims that the frequent violent incidents forced the applicant to leave his wife and children without a source of support.
The applicant claims that if he is forced to return to Sri Lanka, he fears that he will be subjected to harm which may include assault as he has been threatened previously and even death.
The applicant claims that the authorities may harm him because they will accuse him of involvement with the LTTE.
The applicant claims that the authorities may harm him because jealous Sri Lankans will report him that, like his sister-in-law, he was an LTTE supporter.
Claims made in response to Question 89 on the TPV Application completed on 30 January 2017
The applicant claims that his brother-in-law, [Mr A], was a supporter of the LTTE and helped them.
The applicant claims that another brother-in-law, [Mr B], was part of the Sea Tigers. The applicant claims that [Mr B] was involved in the attack at Katunayake Airport and was killed in the attack. The applicant claims that before the attack, he used to live in the applicant’s house. The applicant claims that [Mr B] loved his sister (who was the applicant’s wife), and that he never told the applicant that he was going to participate in the Katunayake Airport attack.
The applicant claims that his brother-in-law, [Mr A], used to take passengers to Vanni. He claims he was shot dead by the authorities.
The applicant claims that on one occasion, the Sri Lankan authorities were searching for [Mr A] but he was not at home and the authorities beat up his wife instead.
Claims that arose during the Delegate Interview on 24 March 2017
The applicant claimed that he feared he will be targeted by the authorities because of his illegal departure from Sri Lanka.
The applicant claims that in February 2014, personal information concerning the numerous individuals held in detention, including the applicant, was inadvertently made available through the Department’s website.
Evidence
The Tribunal has before it a range of material, including, relevantly:
- The applicant’s protection visa application forms signed on 30 January 2017 and lodged on 3 February 2017 (“visa application”).
- The applicant’s identity documents being a copy of a birth certificate and national identity card presented to the Department;
- Copy of Certificate of Marriage;
- Various photos without identification markings;
- A statutory declaration of the applicant dated 11 August 2015;
- A record of entry interview with departmental official dated 24 January 2014;
- A record of interview with the delegate dated 24 March 2017;
- The protection visa decision record (‘delegate’s decision record’) of 12 May 2017;
- The application for review form lodged on 22 May 2017;
- Request for Information from Tribunal dated 11 December 2020;
- Response on behalf of applicant dated 18 December 2020 attaching copy of delegate’s decision record;
- Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Sri Lanka, published on 4 November 2019.
Hearing:
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns in relation to holding a telephone hearing during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The applicant appeared before the Tribunal on 20 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in Tamil and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.
The Tribunal discussed the applicant’s background with him, including that he was [Age] years of age, was married and had children. His wife and children were living in Sri Lanka. The Tribunal confirmed that the applicant was a Tamil and that his religion is Hindu.
The Tribunal confirmed that the applicant left Sri Lanka in August of 2012. The Tribunal confirmed that the applicant lodged a Safe Haven Enterprise Visa in February 2017 but that the Visa Application was refused by the Delegate on 12 May 2017.
The Tribunal noted that it had requested the applicant to forward to the Tribunal a copy of the Decision of the Delegate. The applicant stated that he had. The Tribunal confirmed that it had received it.
The Tribunal asked the applicant whether he had a copy of the Delegate’s Decision in front of him. The applicant confirmed that he had.
The Tribunal directed the applicant to page 2 of the Delegate’s Decision and noted that the source of the applicant’s claims, as summarised by the Delegate, appeared to come from his Entry Interview, a Statutory Declaration dated August 2015, his answers to question 89 of his Temporary Protection Visa Application completed on 30 January 2017 and further claims that arose during his interview with the Delegate.
The Tribunal invited the applicant to review those claims and asked whether he disputed any of them. The applicant confirmed that his claims as so summarised were not in dispute.
The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the 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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal has strong reservations about the credibility of the applicant’s claims.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at >
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal asked the applicant to summarise in his own words what it is that he feared if he had to return to Sri Lanka.
The applicant went on to explain a set of events relating to his wife’s brother. He stated that his wife’s brother grew up with them but then left home and joined the movement and participated in a Black Tiger Unit. The applicant went on to explain that the Black Tiger Unit that his brother-in-law was in, attacked the Katunayake Airport (Sri Lanka’s international airport) and stated that his brother-in-law was one of the 21 people killed.
The Tribunal asked the applicant what date that attack took place. The applicant replied on 22 September 2007.
The Tribunal asked the applicant what happened after the brother-in-law’s death. He replied that he continued to stay in the house with his mother-in-law, that is the same house that the whole family lived in prior to the brother-in-law joining the Black Tiger Unit.
The applicant stated that neither he nor his mother-in-law had any connection with his brother-in-law’s activities.

The applicant stated that people started targeting him and saying that he grew up with the brother-in-law and therefore must have known about him and his activities. The applicant complained that he had no peace. They were “just” ordinary people who made comments.
The applicant stated that when he heard about the possibility of travel to Australia, he decided to go.
The Tribunal queried the applicant as to how he could leave his wife and family in Sir Lanka. The applicant stated that he intended to bring his family with him, but he could not afford to bring the family with him at that stage. He said he thought he would head to Australia himself and then think about the family later.
The Tribunal asked the applicant what it cost for him to travel to Australia. He replied that his travel cost him 10 lachs. He stated that he is still paying interest on a loan he took out to pay for his travel to Australia.
The Tribunal asked the applicant whether he was working in Australia. He replied that he had been and that he was sending money back to Sri Lanka to pay for food and education of his family.
Asked whether he maintains contact with his family, he replied that he talks to his family on the telephone every day (usually about midnight here, which is 8am in Sri Lanka).
The Tribunal noted that a significant period of time had elapsed since the purported death of his brother-in-law and asked the applicant how his brother-in-law’s death could still be of concern to him. The applicant replied that on every 22^nd of September, people in civilian clothes round everyone up and investigate to see whether they are distributing food to the family of the brother-in-law. That is, investigating to see whether community members are celebrating the anniversary of the brother-in-law’s death.
The Tribunal asked whether his family do celebrate the anniversary. The applicant replied they do not.
The Tribunal asked the applicant what it is that he fears now if he had to return now, in 2021. The applicant replied that he is worried about being interrogated and he is also worried about whether he could live with his wife.
The Tribunal asked the applicant why he was worried as it appeared from Country Information (referred to later in this Decision) that he would go through the airport, be asked a few questions and then be released to his family. The applicant replied that he is worried because he grew up with his brother-in-law and the authorities, the Police and the Army, people in civilian clothes know about his brother-in-law’s activities.
The Tribunal noted that his mother-in-law continues to live in the same house and does so without any problems. The applicant agreed that was the case but stated that she was sick.
The Tribunal reminded the applicant that his own wife and children live in the same house as his brother-in-law did and they too had no problems. The Tribunal also noted that his sister comes to sleep at the house at night and, likewise, has no issues.
The Tribunal also noted that he remained in the house from 2007 to 2012, a period of over five years, and that nothing happened to him during that time, he was neither arrested nor detained. The applicant replied that he was just sick of people coming to the house.
The applicant then went on to clarify his evidence, stating that for some time, he didn’t actually live at the house, but stayed at the beach, returning to the house on average one day a week.
The Tribunal asked the applicant whether he worked during this period. He replied that he did by helping out by working on a farm and as [another occupation]. He claimed that he did this for two years. He then said that when he moved to the beach, he helped fishermen.
The Tribunal asked the applicant where he lived at the beach. He replied that he lived in a hut.
The Tribunal asked the applicant whether he was arrested or detained or hurt in any way during the five year period following the death of his brother-in-law. He replied that the authorities never actually managed to meet him and he never got caught in any roundups. Asked to clarify, he replied the roundups on each 22^nd of September.
The Tribunal asked the applicant over the course of that five years from 2007 to 2012, how many times the authorities visited the house. He replied maybe 10 to 15 times.
The Tribunal asked the applicant how many times the authorities had visited the house since he had departed Sir Lanka. He thought maybe three or four times based on what he had been told.
The Tribunal noted that despite those alleged visits and him maintaining employment during that period, he had never been questioned, detained, arrested or harmed in any way.
The Tribunal stated to the applicant that it had a number of concerns about his evidence and, in particular, the claim about his Sea Tiger brother-in-law. It noted that despite having participated in an Entry Interview in January 2013, and preparing a Statutory Declaration with the assistance of the Refugee and Immigration Legal Service in August 2015, he had not mentioned this claim in relation to his brother-in-law being attached to the Sea Tigers or a Black Tigers Unit. In fact, the applicant had not raised such connection until January of 2017. The Tribunal asked the applicant why he had not made this claim earlier. The applicant replied that he was fearful of making things worse.
The Tribunal asked the applicant why that was the case, given that he was seeking protection and had provided fairly comprehensive claims based on other circumstances and events. The Tribunal stated that it could not understand why the applicant would not have raised such a claim that the applicant himself now attaches great significance to, a claim he considers as his “main claim”. The applicant replied that he did not have the details of all of his claims.
The Tribunal stated that it appeared that he had good legal advice in 2015. The applicant replied that he did not realise that he had to provide all of this information at that time.
The Tribunal advised that it had additional concerns with the applicant’s evidence and claims.
The Tribunal discussed incidents that had happened at Katunayake Airport over time and specifically, the absence of any recorded event having taken place on 22 September 2007.
The Tribunal noted, as had the Delegate, that on 24 July 2001, there was an attack on the Katunayake Airbase by 14 members of the LTTE Black Tigers Suicide Squad who infiltrated the Airbase and destroyed eight military aircraft on the tarmac. They then moved to the civilian airport where they destroyed two airbus aircraft and damaged three others. In addition to the 14 members of the Suicide Squad, seven government personnel were killed, a total of 21 people in all.
And again on 25 March 2007, at 12.45am, the Tamil Tigers bombed the Sri Lanka Airforce Base adjoining the international airport. Three Airforce personnel were killed and 16 injured when light aircraft dropped two bombs, although no aircraft were damaged. The airport was temporarily shutdown following the incident but normal flights resumed at 3.30am.
The Tribunal asked the applicant whether he was certain about the date of 22 September 2007. The applicant confirmed that he was and that he has all of the articles relating to it.
The Tribunal also noted that he had told the Delegate that his brother-in-law had died during that attack which took place on 22 September 2008, not 2007. The applicant replied that he was aware of what he had told the Delegate and he was mistaken when he was speaking to the delegate.
The Tribunal noted to the applicant that this claim in relation to his brother-in-law appeared to be his main claim. The applicant agreed.
The Tribunal stated, however, that it would need to consider all of the other claims that he had made and would proceed to do so.
The Tribunal noted a claim that his eldest sister’s husband had had an affair with another of his sisters which led to their marriage breakup. The husband then moved to Columbo in 1992 in order to find a way to go overseas and has not been heard from since.
The Tribunal asked the applicant how these events were relevant to him. He replied that he was fearful that the same could happen to him. Asked to clarify, the applicant stated that he feared that if he went to Columbo, he too could disappear.
The Tribunal suggested to the applicant that it might be likely that the husband had got himself into trouble with his wife or wives, went to Columbo and simply did not want to come back.
The applicant replied that was possible, but they had searched for him and could not find him.
The Tribunal referred to a second claim in relation to the death of his youngest sister’s husband, [who] he claimed was killed by the SLA in 2005.

100. The Tribunal again asked the relevance of that event to the applicant.
101. The applicant replied that anything could happen. If it happened to a sibling, then it could happen to him, even though he does not actually know what happened to that brother-in-law.
102. The Tribunal also noted that he had continued to live in [Location 2] for at least seven years following that event and nothing had ever happened to him.
103. The Tribunal confirmed again that the applicant was not a member of the SLA or the LTTE at any time when he was in Sri Lanka.
104. The Tribunal considered the applicant’s claim in relation to his illegal departure. The applicant stated that he did not want to say anything else about that.
105. Notwithstanding that, the Tribunal notes that during the interview with the Delegate, he stated that he departed Sri Lanka illegally. Given all of the circumstances relating to his passage to Australia, the Tribunal accepts it as highly likely that he departed Sri Lanka illegally.
106. The Tribunal discussed with the applicant the fact of him being a failed asylum seeker. The Tribunal asked the applicant what he feared about being a failed asylum seeker. The applicant replied that he was really worried about the association with his wife’s brother, and that that was the main problem.
Tamil ethnicity and background
107. The Tribunal considered the fact of the applicant being a Tamil. The applicant confirmed that he was a Tamil.
108. The Tribunal notes that Tamils are the largest group in Northern Province; they comprise 93.8 per cent of the population. The Tribunal noted DFAT’s assessment[3] that Tamils face a low risk of official and societal discrimination (as do Sri Lankans of all backgrounds), and that, broadly speaking, this did not appear to amount to a real chance of serious harm.
[3] The DFAT reports from May 2018 and November 2019 are consistent on these points. See DFAT Report, Paragraph 3.15
109. Noting the DFAT Report specifically:
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 TMVP and the EPDP are also active politically. The TNA’s vote share dropped with a noticeable swing towards more hardline Tamil groups in the last local government elections (February 2018). Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamil’s under-representation is largely the result of language constraints and disrupted education because of the war.
DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses. Some Tamil sources claimed Sinhalese had been resettled on desired coastal land and that Sinhalese fishermen in the north were supported by the Navy.
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner.
Members of the Tamil community claim that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues related to the war, including missing persons, land release and memorial events. Local sources told DFAT that the method of monitoring today was more subtle.
Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
The current government has relaxed some restrictions on the public commemoration of events associated with the Tamils’ armed struggle for statehood. While sources told DFAT there is monitoring by the authorities, Tamils have been free to hold public ceremonies marking Maaveerar Naal (Great Heroes’ Day) since 2016. Maaveerar Naal commemorates those who died fighting for the LTTE. A local source told DFAT the atmosphere at war commemorations was ‘constructive’ and Tamils were increasingly comfortable marking such events. A memorial event to mark the 10-year anniversary of the end of the war was held in Mullivaikkal (Northern Province) on 18 May 2019, albeit with a high security presence. Sources told DFAT that heightened security and fear levels under the Emergency Regulations introduced on 22 April 2019 discouraged some people from attending. The Emergency Regulations lapsed on 22 August 2019.
LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), although some Tamils are known to defy this ban. Seven Tamils, including a TNA provincial councillor, were arrested for planning to commemorate Prabhakaran’s birthday in 2018, but later released. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is banned. On 2 May 2019, the president and secretary of the Student Union at the University of Jaffna, along with the university’s canteen manager, were arrested under the Prevention of Terrorism Act (PTA) for displaying a photo of Prabhakaran and being in possession of LTTE literature. They were subsequently released on bail.
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. Physical violence against those being monitored is not common.[4]
[4] DFAT Report, Section 3.5

110. As noted in the 2012 UNHCR Eligibility Guidelines for Sri Lanka[5] recommended individualised merits assessments for Sri Lankan asylum seekers, and identified certain risk profiles, such as persons suspected of having links with the LTTE, as requiring careful assessment. This is consistent with current country information indicating that Tamil males[6] from the north and east do not automatically have a well-founded fear of persecution. The applicant’s advice that his mother-in-law, wife, children and other family members have continued to reside in the same house where he grew up and where his brother-in-law grew up and continue to live there without significant problems, and without reports of persecutory (or similar) harm, tends to support this.
[5] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012
[6] The Home Office Country Policy and Information Note – Sri Lanka: Tamil Separatism, Version 6.0, May 2020 indicates at 2.4.59 that the assessments above of country information apply equally to males and females.
111. The Tribunal considered articles from 2018 through to August 2020. The earlier articles speculated about the projected return of former president Mahinda Rajapaksa, and the potential impact on investigations into past human rights abuses. More recently, the recent election victory of Mahinda’s brother, Gotabaya Rajapaksa, who was sworn in as president on 18 November 2019, reinforces the point made in the submissions. As the BBC recently noted[7]: Mr Rajapaksa, who has positioned himself as a strong figure who can assure Sri Lankans' security, is a highly controversial figure among the country's more than two million Tamils. He and his brother Mahinda Rajapaksa, the former president, spearheaded the defeat of separatist Tamil Tiger rebels in 2009, ending a decades-long war in which at least 100,000 people died.’ The Tribunal appreciates that the Rajapaksas’ stridently pro-Sinhalese campaigns and their track records of dealing harshly with political opponents and journalists, have unsettled Sri Lanka’s minorities, particularly Muslims, but also Tamils and others.
[7] BBC On-line, 17 November 2019, Sri Lanka election: Wartime defence chief Rajapaksa wins presidency:
112. The Tribunal considered the Home Office Country Policy and Information Note – Sri Lanka: Tamil Separatism, Version 6.0, May 2020. The Report noted that only 2 of the President’s 54 ministers are Tamil, that the President has rejected calls for ethnic minorities to have more self-governance and that news agencies had reported that the new government had dropped the singing of the national anthem in Tamil during the Independence Day celebrations.
113. Notwithstanding those observations, the Report could only quote from media that suggested “minority groups were worried about the return of the Rajapaksa brothers” despite the President having stated that he would be a leader for all who voted for him as well as those who did not.
114. Whilst the Defence Minister has been quoted as saying the government would not permit room for separatism or extremism, there is no country information that specifically states that the change of government will lead to persecution of Tamils.
115. Accordingly, the Tribunal is not satisfied on the basis of this general country information that the applicant, as a Tamil, faces a real chance of being subject to serious harm amounting to persecution.
116. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of his Tamil ethnicity and other relevant factors.
117. The Tribunal considered country information in relation to the applicant’s Hindu religion. Like his Tamil ethnicity, most Tamils are Hindu. Hindu’s account for a majority of the population in the Northern Province, and practice their faith freely there and elsewhere in Sir Lanka.

118. Accordingly, the Tribunal is not satisfied on the basis of this general country information that the applicant, as a Hindu, faces a real chance of being subject to serious harm amounting to persecution.
119. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of his Hindu religion.
Political interests
120. The Tribunal confirmed with the applicant during the hearing that he has not been involved in any political activities in Sri Lanka. He has made no claims to have been involved in such activities in Australia. The Tribunal is satisfied that the Sri Lankan authorities do not and would not perceive him to be a political activist; and that the applicant has no political conviction that motivates him to engage in such activities. The Tribunal accepts that the Sri Lankan authorities may presume him to have particular attitudes, shaped by his experiences as a Tamil whose parents may have been beaten and injured and displaced during the war, and who himself was displaced, but it finds there is no real chance of targeting and inflicting serious harm on him for reason of any political opinion, actual or imputed.
121. During the course of the multiple interviews (as recorded in the delegate’s decision), and during this hearing, the applicant has provided no evidence or made any statement of having any political views of any description, whether pro-Tamil or pro-LTTE. Nor has he provided any evidence of his involvement or engagement with any local diaspora which engages in political activism or makes pro-Tamil or pro-LTTE statements.
122. The applicant regularly referred to the claim about his brother-in-law, the Sea Tiger, or Black Tiger being involved in the bombing of the international airport, during which he was killed. The applicant claimed that as a consequence of the involvement of that brother-in-law with the Sea Tigers and with that incident, people, and authorities, will question him about his involvement with his brother-in-law.
123. He claimed that people came to his house and said things about him must knowing about his brother-in-law. He is concerned that these “people” will report him to the authorities.
124. It is important to note that the applicant, in his claims, stated that he had been questioned about involvement with the LTTE when the family first moved to [Location 2], and again in 2004. He was not assaulted or harmed, but claims that he was threatened with assault in the 2004 incident. More importantly, he has not been questioned by the authorities since. However, he claims that is by reason of him hiding out at the beach and avoiding roundups.
125. The Tribunal, as discussed with the applicant in the hearing, has considerable concerns about this part of his claims and the evidence on which he relies to make the claim.
126. Dealing with his earlier questioning (in 2004) about his involvement with the LTTE, the Tribunal accepts that he may have been so questioned. It also accepts that he came to no harm as a consequence of the questioning and has not been questioned since. The fact of such questioning during that era is consistent with country information referenced above, but it is clear from his evidence, and can be imputed from the complete absence of further interest in the applicant by any authorities, that the applicant had no involvement with the LTTE and did not support the LTTE.
127. The Tribunal also accepts that the applicant’s youngest sister’s husband may have been killed by the SLA. He may indeed have had an involvement with the LTTE. But the applicant stated in evidence that he did not know why the brother-in-law was killed and it is clear that such death has had no impact upon the applicant. He was questioned in 2004, but has not been questioned after the brother-in-law’s death in 2005. The applicant continued to live in the same area as the brother-in-law and his sister had lived ([Location 2]) for a further seven years without harm. No connection has sought to be made between the applicant and that brother-in-law.
128. In relation to his brother-in-law who it is claimed was a Sea Tiger or Black Tiger, the Tribunal has the strongest concerns that the applicant had not raised any mention of this relative or incident in either his Entry Interview or in his Statutory Declaration that was prepared with legal assistance. His explanation was less then compelling. It was implausible.
129. The Tribunal asked the applicant to confirm the date of the brother-in-law’s death. He confirmed 22 September 2007. He acknowledged that he had been in error when he advised the delegate that date but in 2008. He offered no explanation for the error other than that he was mistaken.
130. But the graver concern for the Tribunal was the absence of any country information, despite the applicant’s claim to have articles, that there was an incident at Sri Lankas’s international airport on 22 September 2007. Country information referenced above indicates that there was an incident at the airport involving a Black Tiger unit, wherein 21 people were killed, but that took place on 24 July 2001. A second attack on the same airport took place in March 2007. But there is no evidence available to the Tribunal of any incident at the airport on 22 September 2007, or for that matter, in 2008.
131. The Tribunal asked the applicant whether he could reconcile that inconsistency in information about the dates of the incidents involving the airport, but he could only state that he has articles about it.
132. The Tribunal does not accept as genuine the applicant’s evidence and claims in relation to the brother-in-law being a member of the Sea Tigers, and does not accept any evidence or claims that flow from that claim.
133. The Tribunal noted photos submitted to the delegate of military people. But they have no notations on them – they could be a photo of anything. The Tribunal has given them no weight.
134. The Tribunal does not accept that the applicant has been questioned by people in relation to the activities of his brother-in-law, does not accept that there is any chance that those people will report him to the authorities by reason of an association with the brother-in-law and his connection with a Black Tiger Unit and does not accept that the applicant could be targeted by authorities because of any profile of his brother-in-law.
135. The Tribunal does not accept that the applicant had any profile that imputed adverse interest from any authorities in Sri Lanka, and furthermore does not accept that the applicant lived in hiding at a beach, living in a hut, to avoid authorities.
136. The Tribunal accepts that this claim was fabricated to enhance his overall claims.
137. The Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reason of any pro-Tamil, pro-LTTE political opinions, real or imputed.
138. For the sake of completeness, the Tribunal does not accept that the applicant holds any fears in relation to his other brother-in-law, who it is claimed disappeared after relocating to Colombo. The Tribunal is satisfied that that brother-in-law relocated and doesn’t seek to be found as he didn’t seek to want to have future involvement with the applicant’s sisters.
Failed asylum seeker and consequences of illegal departure
139. The Tribunal accepts for the purpose of this decision that the applicant’s return to Sri Lanka would be on an involuntary basis. It accepts that he would travel on a temporary travel document. Although the Australian authorities will not reveal the fact of the applicant’s protection visa application, the Tribunal also accepts - on the basis of the applicant’s profile, the timeline of his travel to Australia and return to Sri Lanka, and common knowledge about Sri Lankan asylum seekers - that the Sri Lankan authorities would assume that he unsuccessfully sought protection in Australia.
140. The applicant claims that the Sri Lankan authorities will jail and possibly kill him if he returns to Sri Lanka, as a Tamil and having suspected LTTE connections or involvement. He claims that his brother-in-law’s LTTE links and other brother’s-in-law disappearances and deaths will heighten the authorities’ perception of him as having LTTE connections or involvement, and it will be difficult for him to convince them otherwise. The Tribunal notes its findings above in relation to those claims. The Tribunal notes however, and as discussed above, that the applicant’s mother-in-law, his wife and children, sister and other relatives have continued to reside in Sri Lanka and live there without issue.
Treatment on return
141. The Tribunal noted the applicant’s claims that he will face serious harm because:
(a) the Sri Lankan authorities will draw adverse inferences from the mere fact that a person is suspected of having sought protection;
(b) Tamil returnees, or those forcibly returned to Sri Lanka, face a real chance of persecutory harm (or significant harm); and
(c) the processing of failed asylum seekers from a western country after having left illegally, exposes them to particular risks.

142. The Tribunal considered information from the DFAT Report.
143. The Tribunal accepts that the applicant would return to Sri Lanka on a temporary travel document and, for the purposes of this decision, that he would do so involuntarily. Country Information states that various Sri Lankan agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the CID and, at times, the Terrorism Investigation Division process returnees at Colombo’s international airport. They check travel documents and identity information against immigration databases, intelligence databases and records of outstanding criminal matters. This process can take several hours, depending on administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot leave until they are all processed.
144. The DFAT Report also states:
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

145. The Tribunal accepts that the authorities will interview the applicant, and that he will be required to remain at the airport during this process. In light of the above findings, the Tribunal does not accept that the applicant has any adverse criminal or security profile with the authorities in Northern or Eastern Province or anywhere; and therefore does not accept that he is at risk of having his clearance delayed for any such reasons. The Tribunal now addresses below whether other factors – his return as a failed asylum seeker, as a Tamil and/or (claimed) LTTE involvement, or returnee from the west after having left illegally – may give risk to adverse treatment on his return.
Failed asylum seeker
146. The applicant claimed that the applicant’s status as a failed asylum seeker – that is, the presumption he applied for protection in Australia – will cause the Sri Lankan authorities to suspect that he is linked with the LTTE. The applicant stated that he has been asked about his LTTE links after moving from [Location 1] and again in 2004. The Tribunal notes that on those occasions he was excused from questioning without arrest, detention or physical harm and has not been questioned again since.
147. The Tribunal noted that many Sri Lankans leave for overseas, for a variety of reasons. The Sri Lankan authorities will be aware of these motivations, and know that a significant proportion of those who go to Australia, the US, Canada, the UK and other European countries do so to seek asylum and permanent residency. The Tribunal also noted the Sri Lankan government’s official position that refugees are welcome to return,[8] while acknowledging that human rights groups view such assurances with some caution.
[8] See DFAT Report 2018, para 5.38; and the November 2019 report, para 5.44.
148. The Tribunal also noted specific country information from the DFAT Report.
Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.[9]
Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment.
DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
Some refugees and failed asylum seekers reported social stigma upon return to their communities, including for being beneficiaries of financial reintegration assistance. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced societal discrimination following their return.
DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[10]
[9] DFAT Report, Paragraphs 5.45 and 5.46
[10] DFAT Report, Paragraphs 5.47 – 5.50

149. The Tribunal notes the applicant would likely return to his wife and children and their home, his family with whom he has maintained daily contact.
150. The Tribunal accepts as likely that the Sri Lankan authorities will presume that the applicant has sought protection in Australia. However, as earlier found, it is not satisfied that the applicant’s status as a failed asylum seeker gives rise to a well-founded fear of persecution.
Tamil returnee and suspected LTTE connection or involvement
151. The applicant’s evidence at hearing focussed very much on the risks to the applicant as a person suspected of having LTTE involvement by association with a brother-in-law claimed to be a member of a bLack Tiger Unit. As earlier noted, the mere fact of being Tamil or of having lived in an area under LTTE control ‘does not of itself result in a need for international refugee protection’[11] In late 2012, the UNHCR identified the kind of previous links with the LTTE, real or perceived, that could put a Tamil returnee from the northern area at risk of persecution on return to Sri Lanka. Although the guidelines are now seven years old, they remain relevant. They refer to, amongst others, ‘former LTTE combatants or cadres’, and ‘persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
[11] UNHCR, 21 December 2012: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka.
152. As found above, the Tribunal is satisfied that the applicant himself had no involvement with the LTTE, did not support it and was not a member of it.
153. The Tribunal also concluded that it did not accept the applicant’s claims and evidence in relation to his brother-in-law and was satisfied that the disappearance and death of two other brothers-in-law had no impact upon him or gave rise for adverse attention by authorities.
154. The Tribunal accepts that the Sri Lankan authorities may again identify the applicant as a person of potential adverse interest and question him again about involvement with the LTTE. The Tribunal appreciates that the applicant is apprehensive about such questioning. However, it finds that he has in the past explained to the authorities that he was not involved with the LTTE, presumably by telling the truth. The Tribunal is satisfied and finds, on the available material, that he will be again able to explain by referring to his past dealings with the authorities, who were evidently satisfied that he was not linked with the LTTE. The Tribunal finds there is no real chance of the Sri Lankan authorities perceiving the applicant to be linked with the LTTE.
155. There was no evidence that his brother-in-law who has disappeared in or from Columbo was connected to the LTTE, or that his disappearance was so linked or linked to him. The Tribunal is not satisfied that this brother-in-law’s disappearance has in the past, or will in the future, cause the Sri Lankan authorities to view the applicant with suspicion.
156. There was no evidence that his brother-in-law who was killed by the SLA was connected to or that his death was so linked or linked to him. The Tribunal is not satisfied that this brother-in-law’s death has in the past, or will in the future, cause the Sri Lankan authorities to view the applicant with suspicion.

157. For the sake of completeness, the Tribunal finds that, even if the applicant’s brother-in-law (Sea Tiger) was connected to the LTTE, the Sri Lankan authorities have not viewed the applicant’s other family members as persons of adverse interest as a result of their affiliation with that brother-in-law. Taking into account their continued residence in Sri Lanka, with no known adverse consequences, the Tribunal finds there is no real chance of the Sri Lankan authorities targeting him due to any connection he may have had with that brother-in-law.
158. Having regard to the applicant’s background, profile and forced return, the Tribunal accepts that the Sri Lankan authorities will undertake routine questioning and investigations on his return, due to his Tamil ethnicity, his status as a failed asylum seeker, his return from the west (Australia) and his illegal departure from Sri Lanka (see below). However, in light of the applicant’s past experiences, in particular his ability to explain his past activities and movements to the police, army and other Sri Lankan authorities, the Tribunal finds there is no real chance that the authorities will subject him to sustained questioning, detention or other treatment that, individually or cumulatively, involves serious harm amounting to persecution.
Illegal departure
159. The offence: Sri Lanka’s Immigrants and Emigrants Act (I&E Act) makes it an offence to depart Sri Lanka other than through an approved point of departure. Penalties for breaches include imprisonment of up to five years and a fine of up to LKR 200,000.[12] The Tribunal accepts that the applicant left Sri Lanka without a passport and that he left from a place other than an approved place of departure.
[12] See Immigration and Emigration Act, s.45(1)(b), s.45(1)(o). 45http:// The December 2015 DFAT report sets out these figures. The May 2018 and November 2019 refer to custodial sentences (without mentioning the maximum period), and fines up to LKR 200,000.
160. The Tribunal asked the applicant about his illegal departure, but the applicant did not wish to say anything about it. Notwithstanding that, the Tribunal drew heavily on the DFAT report. The Tribunal considers the reports to be detailed and reliable, and notes that, where appropriate, they identify information that is anecdotal and/or unverified.
161. Arrest and charging: According to DFAT[13], the Sri Lankan Attorney-General’s Department has directed that all those suspected of involvement in irregular migration – including fare-paying passengers – be charged under the I&E Act. The Police Airport Criminal Investigations Unit at Colombo Airport makes most arrests. The police take photographs, fingerprints and statements from returnees, and make further enquiries about their activities abroad if they are former LTTE members (or suspected members)[14]. The Tribunal accepts that the Sri Lankan authorities will likely identify the applicant as a person suspected of breaching the I&E Act; that the police will arrest and process him; and that they may make further enquiries. For the reasons stated above, the Tribunal accepts the applicant may attract some additional scrutiny; but it does not accept that he has engaged in any activities in Australia or en route that will prolong or complicate his processing.
[13] May 2018 DFAT report, para. 5.30; November 2019 DFAT report, para. 5.34.
[14] Note: The May 2018 DFAT report refers to further enquiries of former LTTE members, whereas the November 2019 report adds the qualifier ‘suspected’. The Tribunal is of the view that, during the course of these enquiries, the police will act on their suspicions (or knowledge, as the case may be) and there is no practical difference between the two
162. Custody at the airport and on remand: DFAT advises[15] that apprehended persons are held in custody in the CID’s Airport Office, for up to 24 hours after arrival. If a magistrate is not available – for instance, due to a weekend or public holiday – the person may be held for up to two days, in an airport holding cell. At the earliest opportunity, the police transport the person to the closest Magistrate’s Court. As noted above, DFAT understands that all returnees, regardless or ethnicity and religion, are subject to the same processing, and not mistreated at the airport. The Tribunal finds, on the basis of these reports and in the absence of any persuasive contrary evidence, that the applicant faces the prospect of being detained at the airport and then in remand for up to several days.
[15] May 2018 DFAT report, para 5.30.; November 2019 DFAT report, para 5.34.
163. Court processing: DFAT advises[16] that all persons charged under the I&E Act, including passengers of people smuggling ventures, are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The most recent reports state, in relation to bail: ‘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.’ The report goes on to state that the fines usually range from LKR 3,000 (approximately AUD 25) to LKR 200,000 (approximately AUD 1,633). The most recent DFAT report quotes sources as saying that a typical fine is between LKR 15,000 and LKR 30,000.
[16] May 2018 DFAT report, para 5.32; November 2019 DFAT report, para 5.37.
164. Remand and bail: The Tribunal notes that the applicant has family in Sri Lanka with the potential to provide bail. He still communicates with his family daily. However, the Tribunal notes country information that detainees may be released on the basis of personal surety, or sometimes bail is required from a family member. It is therefore far from certain that the applicant will have to arrange bail, even if he pleads not guilty. Third, whether the applicant can arrange bail depends on the financial capacity and priorities of family members, and potentially also on whether the court requires them to attend court in person. The applicant may also have cash himself from earnings whilst in Australia. The Tribunal notes that the applicant has his mother-in-law, wife, children, sisters and other relatives in Sri Lanka. It also notes that he has been in Australia and may have some disposable cash. On the evidence as a whole, the Tribunal finds that, even if the applicant pleads not guilty and the court requires more than a personal surety, he will be able to arrange bail and, if required, for a family member, to attend the court in person. Having regard to all these factors, the Tribunal finds there is no real chance of the applicant having to remain on remand for a prolonged period.
165. Conditions in detention: It has been suggested that individuals who are held in prison in Sri Lanka for anything other than a very short period of time ‘face a real chance of suffering cruel or inhuman and degrading treatment’ because of the extremely poor conditions of prisons in Sri Lanka.
166. The Tribunal accepts that the applicant faces a real chance of being detained at the airport for several hours, and then on remand for possibly a few days. The Tribunal finds on the available evidence that there is no real chance of the applicant being held in detention for more than a few days, including the period on remand before he appears before a Magistrate.
167. It is undisputed that ‘prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The Tribunal acknowledges that the applicant’s detention during police investigations and while on remand will involve a loss of liberty, which is one of the examples of serious harm set out in s.36(2A) of the Act. In MIBP v WZAPN, the High Court rejected the Federal Court’s finding that under s.91R(2)(a), any loss of liberty, regardless of its duration, would amount to serious harm.[17] It held that whether the likelihood of detention rises to the level of serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty. In the present case, the Tribunal finds that the applicant’s detention at the airport and on remand, even if he arrived on the weekend and had to wait before he could appear before a magistrate and/or if he had to await for a guarantor to appear in court, would involve only a few days in overcrowded or unsanitary conditions.
[17] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 overturning WZAPN v MIBP [2014] FCA 947 (North J, 3 September 2014).
168. Having regard to his treatment as a whole, including the duration of the applicant’s stay, the Tribunal finds that this does not rise to the level of serious harm, such as a threat to his life or liberty, or significant physical harassment or ill treatment, or any other form of serious harm.
169. Returnee from the west: No reliable evidence to show that the Sri Lankan authorities in fact perceive returnees from Western countries as being anti-government, or alternatively rich, or that they proceed to extort them was presented or gleaned from available country information. For completeness, the Tribunal finds that there is no real chance of the applicant being subject to persecution by the Sri Lankan authorities or others in the community, for such reasons.
170. Pending court case: DFAT advises that those charged are required to appear in court in the place of their offending, and that the frequency of court appearances varies widely. Delays can be protracted, as court cases proceed only when all members of a people smuggling venture have been located. Once again, whether the applicant remains on bail for years pending the conclusion of any court process remains uncertain and will depend on whether or not he opts to plead guilty to charges of illegal departure. However, the Tribunal finds that the expense and inconvenience of court proceedings do not amount to serious harm.
171. Penalties: DFAT has consistently stated that the Sri Lankan authorities distinguish between fare-paying passengers and the facilitators and organisers of irregular migration. DFAT reports advice from the Sri Lankan Attorney-General’s Department that no mere passenger on a people smuggling venture has been imprisoned under the I&E Act. There is no material before the Tribunal to the contrary. The Tribunal finds, on the available material, that if the applicant pleads guilty he will have to pay a fine; and that if he pleads not guilty, he will likely spend years awaiting a final court date, with the eventual outcome also being a fine.
172. Having regard to the totality of the treatment that the applicant will likely face as a person charged under the I&E Act – including possibly in a worst case scenario several days in detention, in overcrowded, unsanitary conditions; a possible requirement to post bail and comply with bail conditions (such as reporting); and the possible uncertainty/expense of a protracted court process - the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution. The Tribunal also finds that the I&E Act applies to all Sri Lankans. It has found no persuasive evidence that it is selectively enforced or applied in a discriminatory manner. The Tribunal concludes that the Sri Lankan authorities’ investigation, prosecution and punishment for illegal departure under the I&E Act is the result of a law of general application and does not constitute persecution.
Data Breach
173. The Tribunal also sought to deal with the applicant’s claim in relation to an alleged data breach where confidential information became available briefly on the internet in February 2014.
174. The Tribunal invited the applicant to comment on the claim. He stated he had nothing to say in relation to it. The Tribunal acknowledged it was a claim likely made by his legal advisers.
175. The data breach involved certain information being accessible for a short period of time. The information included:

Name

Date of birth

Nationality

Irregular Maritime Arrival

Detention Status.

176. The data breach did not disclose whether detainees had made applications for protection visas and did not reveal information about claims made.
177. The applicant had claimed that as a consequence of the breach, he may be at risk of the Sri Lankan government becoming aware of his profile as a failed asylum seeker.
178. There is no information available that can confirm the Sri Lankan government actually accessed the information. Equally, there is nothing to confirm that it was not accessed either. However, in the Tribunal’s estimation, the worst case scenario is that the Sri Lankan government could conclude that the applicant was seeking protection in Australia.
179. As noted earlier, the Tribunal determined that many Sri Lankans leave for overseas, for a variety of reasons. The Sri Lankan authorities will be aware of these motivations, and know that a significant proportion of those who go to Australia, the US, Canada, the UK and other European countries do so to seek asylum and permanent residency.
180. The Tribunal considered the DFAT Report.
DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities.[18]
[18] DFAT Report, Paragraphs 5.47 – 5.50

181. The Tribunal accepts as likely that the Sri Lankan authorities will presume that the applicant has sought protection in Australia. However, as earlier found, it is not satisfied that the applicant’s status as a failed asylum seeker gives rise to a well-founded fear of persecution.
Cumulative claims
182. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his connection to his various brother’s-in-law, imputed pro-Tamil or pro-LTTE political opinion, his Tamil ethnicity, as a failed asylum seeker or returnee who left Sri Lanka illegally, a data breach or any other reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
183. The Tribunal has considered the applicant’s claims under complementary protection.
184. Having regard to the Tribunal’s findings of fact above the Tribunal does not accept that the applicant left Sri Lanka as a consequence of his connection to his various brother’s-in-law, imputed pro-Tamil or pro-LTTE political opinion, his Tamil ethnicity, as a failed asylum seeker or returnee who left Sri Lanka illegally, a data breach or any other reason.
185. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in Sri Lanka if he was required to return as his family still live in Sri Lanka.
186. The Tribunal notes the applicant’s claim that he fears being maliciously reported to the authorities as many people are jealous of him. He also fears the frequency of violence in Sri Lanka.
187. The applicant provided no evidence during the hearing or to the delegate as to the nature of the jealousy others have of him. Nor did he articulate the harm he might suffer as a consequence, other than a vague reference in his claims to his brother-in-law.
188. Random acts of violence and malicious claims based on jealousy are risks faced by the population of Sri Lanka generally. The applicant has not persuaded the Tribunal that the risk faced is one faced by him personally.
189. In view of the above findings, and on the basis of MIAC v SZQRB wherein the Federal Court held that the “real risk” test imposes the same standard as the “real chance” test, it follows that the Tribunal is not satisfied that there is a real chance that the applicant will suffer significant harm for any of the reasons claimed if he returns to Sri Lanka now or in the reasonably foreseeable future.
190. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Sri Lanka now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
191. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
192. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.
Overall conclusion:
193. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
194. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
195. 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 who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
196. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Michael Hawkins
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 512

10 February 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Administrative Law

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Judicial Review

Procedural Fairness

Jurisdiction

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