1713162 (Refugee)

[2018] AATA 5669

1713162 (Refugee) [2018] AATA 5669 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713162

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Roslyn Smidt

DATE:17 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 December 2018 at 10:49am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – particular social group – Tamil from the Eastern Province – perceived as a wealthy person – imputed political opinion – suspected association with the Liberation Tigers of Tamil Eelam – fear of arrest and torture – death of relatives involved with LTTE – illegal departure from Sri Lanka – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Sri Lanka, applied for the visa on 1 July 2012 and the delegate refused to grant the visa on 17 August 2012. This decision was affirmed by a differently constituted Tribunal on 11 December 2012. This decision was remitted by consent on 25 June 2015. A differently constituted Tribunal again affirmed the delegate’s decision on 2 November 2015. This decision was remitted by consent on 2 February 2016. A differently constituted Tribunal affirmed the delegate’s decision on 19 May 2016. This decision was remitted by the Federal Circuit Court of Australia on 30 May 2017.

3. The applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   THE RELEVANT LAW

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND AND SUMMARY OF THE APPLICANT’S CLAIMS

10. The applicant is [an age] year old single man of Tamil ethnicity and Hindu religion from Sri Lanka. He was born in [City 1], Eastern Province, Sri Lanka. His father is deceased. His [other family members] remain in [City 1]. He completed his schooling in 2005 after which he operated a rickshaw until November 2006 when he obtained work in [Country 1]. He returned to Sri Lanka for a month in 2007 for health reasons. Following that he lived and worked in [Country 1] until March 2011. After returning to Sri Lanka he purchased another rickshaw and worked as rickshaw driver until April 2012 when he left Sri Lanka illegally by boat. He arrived on Christmas Island by boat [in] April 2012.

11. The applicant claims that he is at risk of serious harm on return to Sri Lanka because is a Tamil from the Eastern Province, because his father and [Relative A] were suspected of involvement in LTTE, because he was required to report regularly to the army or police in 2011 and 2012, which he believes indicates that he is suspected of LTTE involvement, because he departed Sri Lanka illegally in April 2012 in breach of these reporting conditions, because he sought asylum in Australia and because has remained in Australia for six years. In submissions to the Department of Immigration (the Department) and previous Tribunals, it was also claimed that he was a risk of harm because of his illegal departure and his Tamil ethnicity, but he withdrew these claims at the hearing.

    COUNTRY INFORMATION

12. The following brief overview is intended to provide a context for the applicant’s claims. It is based primarily on information provided in DFAT Country Information Report: Sri Lanka DFAT dated 23 May 2018  and DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam  3 October 2014;  Country information contained in UK Upper Tribunal (Immigration and Asylum Chamber) GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and the Report of a Home Office Fact-Finding Mission Sri Lanka conducted in July 2016: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)

13. From 1983 until May 2009 the Liberation Tigers of Tamil Eelam (LTTE) were engaged in a campaign to gain autonomy or independence for the north and east of Sri Lanka where majority of the population were Tamils. For some of this time the LTTE controlled significant parts of these regions and were engaged in a brutal civil war with the central government, which resulted in tens of thousands of deaths and casualties. Many Tamils, particularly those from the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. A frequently broken ceasefire negotiated in 2002 ended in 2006 and was followed by a major campaign by the central government, which resulted in the total defeat of the LTTE in Sri Lanka in May 2009. The final stages of the war were particularly brutal and it is generally agreed that both sides committed human rights abuses against civilians during that time.

14. Following May 2009 tens of thousands of Tamils in affected areas were vetted to identify LTTE members and supporters. Thousands of former LTTE members and supporters were detained in rehabilitation centres. Most if not all of this group have been released and the majority have returned to their place of origin. Rehabilitated LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. However, they do not face travel restrictions and are free to participate in public life. 

15. Some LTTE members or former members have been detained under Sri Lanka’s Prevention of Terrorism Act 1978 (the PTA). Many of these detainees faced torture and ill-treatment. Some have been released. According to DFAT, the PTA is still in force but currently suspended.

16. Following May 2009 the thousands of troops were stationed in areas previously controlled or strongly influenced by the LTTE and the local Tamil population was closely monitored and faced a number of restrictions on movement and activities. The government promised to end emergency measures and to implement of a number of reconciliation and accountability measures, but while security improved significantly, few of these measures were fully or adequately implemented. Nevertheless, the UN High Commissioner for Refugees’ eligibility guidelines released in July 2010 and 2012 advised that while former LTTE members and supporters and others perceived to be involved certain activities remained at risk of detention and many problems still existed, improvements in human rights and the security situation in Sri Lanka meant there was no longer a need for group based protection for Tamils from the north of Sri Lanka. In October 2014 DFAT assessed that, Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.

17. From 2005 to 2015 Mahinda Rajapaksa, was President of Sri Lanka. It is generally agreed that he was an authoritarian rule who favoured maintaining a strong military presence and control in former LTTE area and also engaged in repression and harassment of opposition media, non-government organisations and civil society activists from all ethnic backgrounds. It has also been alleged that he and his family were corrupt.

18. In 2015 Rajapaksa was replaced by Maithripala Sirisena, a member of the same party and former government  Minister, who formed an alliance with the opposition United National Party (UNP) and ran on a reform platform which included promises to institute measures to improve human rights and reconciliation with the Tamil community.  UNP leader Ranil Wickremesinghe, was elected Prime Minister shortly afterwards.  In October 2018 Sirisena sacked Wickremesinghe and attempted to replace him as Prime Minister with Rajapaksa leading to a continuing impasse (see also below).

19. Some of the measures promised by Sirisena in 2015 have been implemented and the government has taken some steps to investigate and punish those responsible for human rights abuses against Tamils during the civil war.  In the north and east military governors have been replaced with civilians. The military presence in the north and east has been reduced. Checkpoints on main roads have been removed. Monitoring of Tamils in day-to-day life has decreased significantly. Military involvement in civilian life has reduced. 

20. Despite these improvements, most observers agree that progress on the government’s transitional justice and reconciliation agenda has been slow and inadequate.  Impunity for crimes committed during and following the armed conflict continues. There continues to be a significant military presence in the north and east of the country and members of the Tamil community in the north and east continue to report that authorities monitor public gatherings and protests and practise targeted surveillance and questioning of individuals and groups.

21. Overall, the DFAT reports cited above indicate that ordinary Tamils from the north and east are not generally at risk of arrest of detention or other forms of serious harm. However, the government is determined to ensure that Tamil separatism does not re-emerge, and the government is engaged in intelligence-led monitoring of Tamil activities, in Sri Lanka and in the diaspora, to identify Tamil activists working for Tamil separatism. Former members of the LTTE who have not completed rehabilitation and those suspected of current involvement in activities perceived to support separatism may be at risk of monitoring or arrest in Sri Lanka. 

    CLAIMS AND EVIDENCE

22. The applicant has consistently stated that his father was killed by the Sri Lankan army in 1991 because he [worked] in an area under control of the LTTE and he was involved or was believed to be involved with the LTTE.  The applicant was about [age] years old at that time.  At the hearing I asked him if he believed he would be at risk of harm on return to Sri Lanka because his father had been suspected him of involvement in the LTTE in 1991. He said that he feared that he might suffer the same fate as his father.

23. The applicant has consistently stated that he lived at an [institution] and attended a school near [City 1] from 1996 when he was about [age] years old until 2005 when he was about [age] years old.  At the hearing he said that the area in which he lived was under the control of the army throughout the time he was living there, but members of the LTTE sometimes entered the area as civilians.  I advised him that it was my understanding that there was a ceasefire between 2002 and 2005 which meant that, apart from military activities, the LTTE was able to operate openly during those years.  The applicant agreed that this was correct but said that nevertheless there were still some problems.

24. I noted that the applicant had previously stated that he was teased or bullied by other students while at school. He confirmed that this was correct and said it occurred because he came from an LTTE area and he did not have a father. I asked if he had experienced any other problems while at school. He said that sometimes people who appeared to be from the LTTE would stop him and other students when they were returning home from school and tell them that if they liked the LTTE they should join the group. He told them he could not join. He confirmed that he had never joined the LTTE or supported them in any way.  He also confirmed that he had not joined any other political or militant group while living in Sri Lanka.

25. I noted that the applicant had previously stated that he and other students were questioned by the army in about 2005 after a bomb exploded near their school. He confirmed that this was correct and said that he and other boys of a similar age were questioned by the army on a number of occasions towards the end of his time at school. He said that they were of concern to the authorities because of their age. They were asked who they were and where they came from and sometimes the soldiers scolded and hit them.  However, he was never detained and faced no other problems during the time he was at school.

26. The applicant has consistently stated that he returned to his home in [Town 1] and worked as a rickshaw driver from the time he left school in 2005 until November 2006 when he went to work in [Country 1]. At the hearing he said that there was an army camp nearby and the army controlled the area during the time he lived there after 2005, but the LTTE also had a presence.  He did not have any contact with the LTTE or the army while he was living in [Town 1]. However, the LTTE announced that one member of every Tamil family should join the group and his mother was fearful that he would be taken and might be killed like his father, so she arranged for him to go and work in [Country 1].

27. The applicant confirmed that he had obtained a genuine passport and travelled to [Country 1] without facing any problems and that he returned to Sri Lanka for a month in 2007 for health reasons without experiencing problems. He returned to Sri Lanka in March 2011 again without problems. I observed that his ability to travel to and from Sri Lanka suggested that he was not of interest to the Sri Lankan authorities at that time. He said that even some members of the LTTE were able to travel abroad without problems.  I advised him that I accepted that LTTE members may have found a way to travel abroad, but advised that it was my understanding that he would have faced problems if the authorities had believed or seriously suspected that he was a member or supporter of the group.  He said that this was not necessarily the case.

28. I noted that the applicant had previously stated that his [Relative A] had disappeared in about 2007 during the civil war and that it was believed that he had been killed because he was suspected of involvement with the LTTE. The applicant said that this was correct and added that his [Relative A] had been operating a rickshaw in an LTTE area at the time.  I asked the applicant if he believed that his [Relative A]’s disappearance would cause him any problems if he returned to Sri Lanka now.  He responded that he would be at risk of harm if he returned to Sri Lanka because he had left the country illegally during the time he was required to sign with the army every morning.  He indicated on several occasions during the hearing that he feared he would face the same fate as his [Relative A] and appeared to suggest that this was because, like his [Relative A], he had owned a rickshaw and had lived in an area under LTTE control.

29. I noted that the civil war in Sri Lanka ended in 2009 while the applicant was in [Country 1]. The applicant said there were still problems in Sri Lanka.  I advised him that I was aware that there continued to be problems in Sri Lanka and that I would consider the current situation when assessing his case.

30. The applicant has consistently stated that he purchased a rickshaw shortly after returning from [Country 1] in March 2011. At the hearing he confirmed that he continued to work as a rickshaw driver until he sold his rickshaw to fund his travel to Australia in 2012.

31. The applicant has consistently claimed that he was interviewed by people he believed were from the Police Criminal Investigation Department (CID) shortly after he returned to Sri Lanka and that he was required to report to the army camp or the CID every morning from shortly from then until he left for Australia in 2012 and needed permission to leave the area. In submissions provided to the Department and earlier Tribunals, he indicated on different occasions that everyone was required to report, that all young Tamils were required to report and that only people under suspicion were required to report. He said that sometimes there were queues of people waiting to sign, but he did not know why they were required to do so.  He also stated that all young Tamils were under suspicion of LTTE involvement at that time and said that he was under suspicion because he had lived in an LTTE area for a long time and these suspicions increased when he purchased a rickshaw because this indicated that he had money, which suggested he was associated with the LTTE, because the authorities believed that he might be involved in funding or financing LTTE activities.

32. In submissions to the Department and earlier Tribunals, the applicant said that he had occasionally failed to report because of his work commitments and on those occasions people from the army or the CID came to his home to check on him. He said that he was verbally abused and occasionally slapped or beaten for failing to report or during times when there were particular security problems in the area.  On one occasion someone pointed a gun at him.  He also said that he had faced problems when he needed to pass checkpoints while working, for example in or near areas that had been under LTTE control or at night when the checkpoints were closed. He said that he sometimes had to pay small bribes in order to pass.  However, he was never arrested or detained.

1. At the hearing I advised the applicant that it was my understanding that he had been required to report regularly to the army or CID after returning from [Country 1].  I observed that it appeared from his earlier evidence that the reporting requirement applied to most Tamils in his local area. He said that this was not correct and added that only those who were suspected of LTTE involvement were required to report.  He claimed that he was suspected of LTTE membership or involvement because he came from an LTTE area and because the authorities suspected that he had obtained money from the LTTE to buy his rickshaw. I noted that he did not appear to have lived in an area under LTTE control since at least 1996 when he was very young. He maintained that he was suspected of LTTE involvement because of his place of origin. I advised him that I had I also had difficulty accepting that the authorities had suspected that the LTTE had given him money to buy a rickshaw and asked why he believed this to be the case.  He failed to provide a coherent answer, but maintained that he was suspected of involvement with the LTTE because of his ability to purchase a rickshaw.

2. I advised the applicant that it was my understanding that he had generally complied with the reporting requirements imposed after he returned from [Country 1], but sometimes failed to do so and as a result he was harassed and sometimes beaten. The applicant said that this was correct and added that they sometimes came to his house to look for him if he did not report as required and that drunk soldiers sometimes harassed him at checkpoints.  He confirmed that he had never been detained or arrested.

3. I advised the applicant that I was aware that the army had an increased presence and maintained tight control of areas such as the Eastern Province in the years immediately after the end of the civil war. I told him that I accepted that security personnel in the Eastern Province may have required that he report to them regularly in 2011 and 2012, that he was occasionally harassed or ill-treated him when he failed to comply with these instructions and that he was also sometimes harassed at checkpoints. However, it was my understanding that he would have been detained and imprisoned or possibly sent to a rehabilitation camp if he had been seriously suspected of involvement in the LTTE and I therefore had difficulty accepting that he was viewed as an LTTE member or supporter during that time.  I observed that his ability to travel to and from Sri Lanka between 2006 and 2011 also indicated that he was not suspected of involvement with the LTTE. The applicant maintained that he was suspected of being a member of the LTTE after returning to Sri Lanka in 2011 and said that not everyone who was under suspicion was detained.

4. I asked the applicant if there was a particular event or problem which had led to his decision to leave Sri Lanka illegally in 2012. He said that he was concerned because of the reporting requirements and problems and was fearful he would suffer the same fate as his father or [Relative A]. His mother encouraged him to take the opportunity to leave so he sold his rickshaw and came to Australia.

5. In his submissions to the Department and previous Tribunals, the applicant said he had been fearful of harm prior to leaving Sri Lanka because a number of people in the local area had been kidnapped by people in white vans.  At the hearing I reminded him of this claim and advised him that while I was aware that there had been a problem with people being kidnapped or disappearing during and following the end of the civil war, it is not my understanding that this continued to be a significant issue and asked if he believed that he would be at risk of such harm for any reason if he returned to Sri Lanka. He observed that his [Relative A] had disappeared and his father had been killed, and said that he was also at risk of similar treatment because he was a Tamil and he had left the country illegally during a time when he was required to report regularly to the authorities.

6. I asked the applicant if he or any member of his family had experienced any other problems prior to his departure from Sri Lanka. He said that they had not, but other people had experienced problems and he did not know all the details.

7. I asked the applicant about the current circumstances of his [other family members] in Sri Lanka. He said that his mother lived alone in [City 1] and his [sibling] was at [university]. He said that he sent money to his mother.  His [sibling]’s education was funded by the government and people from the [institution] where they had both lived.  He said that he spoke to both his mother and [sibling] regularly.

8. I asked the applicant if his mother or [sibling] had experienced any problems since his departure for Australia. He said that they had not experienced any problems but his mother was sometimes visited by people who asked about him.  He said that the most recent visit was a few months before the hearing.  I asked why anyone would be asking about him some six years after he had left Sri Lanka. He said that he believed that it was because he had departed the country while he was still required to report to the army. I advised him that I was unaware of any evidence which suggested that he would be of interest to the Sri Lankan authorities because he was required to report to the army prior to his departure in 2012. He maintained that he would be at risk of harm if he returned to Sri Lanka and said that problems of this nature were not reported because the government did not release this information. I observed that there were other sources of information on the situation in Sri Lanka and advised him that I found it unlikely that none of them would contain information which supported his claims if they were true. He maintained that his claims were true.

9. I asked the applicant if he had been involved in any political or other activities while in Australia which he believed might cause him problems if he returned to Sri Lanka. He said that he had not.

10. I noted that the applicant had claimed at different times that he feared serious or significant harm if he returned to Sri Lanka for because of his Tamil ethnicity, because of his father’s association or suspected association with the LTTE and because he would be suspected of involvement with the LTTE because of his ethnicity, his place of origin, his illegal departure from Sri Lanka at a time when he was required to report to the authorities, his prolonged absence from Sri Lanka, his application for protection in Australia and because he would be perceived as a wealthy person because he had previously owned a rickshaw and he has been living overseas.  

11. When asked if he feared harm for any other reasons, the applicant did not respond, but said that a few days ago a woman who was a Minister in Sri Lanka had said she believed that the LTTE might come back. He said that she had been arrested and later released. He said that because of this he believed that if he returned he would be suspected of membership of the LTTE.

12. I told the applicant that I intended to provide him with information about my understanding of the current situation in Sri Lanka which was relevant to his case.  I told him that this information came largely from DFAT, but I had also read other reports and articles on Sri Lanka. I advised him that I was providing him with this information to give him an opportunity to comment.

13. I advised him that while I was aware that many Tamils had experienced problems in Sri Lanka in the past, it was not my understanding that Tamils were currently at risk of serious or significant harm in Sri Lanka merely because of their ethnicity. I noted that his mother and [sibling] continued to live in Sri Lanka and neither appeared to be experiencing problems because of their ethnicity.  He said that only Tamils who were under suspicion faced problems.

14. I noted that the applicant had claimed that he was at risk of harm because he came from Eastern Province. I advised him that while I was aware that Tamils from areas such as Eastern Province may have been suspected of LTTE involvement for this reason in the past, it was not my understanding that this was still the case. The applicant disagreed. He said that not all of the problems in the area appeared in the news. He said that some people from a village near his home had been arrested because they were suspected of LTTE involvement. When asked for details he was unsure when this had occurred but thought it was before he left Sri Lanka. He said that he feared that he might also be caught and tortured.

15. I advised the applicant that I accepted that his father had been killed in 1991 and his [Relative A] had disappeared in 2007 during the civil war, possibly as a result of suspicion that they were involved with the LTTE. I observed that the authorities did not appear to have suspected him of LTTE involvement for these reasons prior to his departure from Sri Lanka, and advised him that I was unaware of any evidence which suggested that he would be suspected of involvement with the LTTE or face problems because his father and [Relative A] were suspected of LTTE involvement in the past. The applicant maintained that the authorities might suspect him of LTTE involvement because of his association with his father and because his family used to live in an LTTE controlled area.

16. I advised the applicant that I accepted that he would probably be charged with illegal departure if he returned to Sri Lanka, but noted that this was part of the normal operation of the law in Sri Lanka. I advised him that it was my understanding that he would most likely be held briefly at the airport and could also be detained by the court for a short period while his case was decided. I noted May 2018 advice from DFAT[1] which indicated that most people who departed illegally are fined but only organisers or people smugglers are likely be imprisoned or face other serious consequences.  I also noted that DFAT advised that Tamils who departed illegally were not treated differently from others charged with similar offences. I advised him that in these circumstances it appeared that any charges or penalties he might face would be the result of the non-discriminatory enforcement of a law of general application and would not amount to serious or significant harm. The applicant said that he was not fearful of the consequences of leaving Sri Lanka illegally. He said that he was fearful because at the time he left Sri Lanka he was under suspicion and had to report regularly to the authorities.

    [1] DFAT Country Information Report Sri Lanka  23 May 2018 p. 41 to 43

17. I advised the applicant that advice from DFAT also indicated that people who departed Sri Lanka illegally were questioned about their activities at the airport and their names were checked against local or national records to see if they had a criminal record or a record that raised national security questions.  I advised him that based on the evidence he had provided, it did not appear likely that his name would appear on any records for either of these reasons. The applicant’s response was somewhat confused. He said that he believed his name would be recorded, but also said that he did not know if this was the case or what the records would say.

18. I advised the applicant that according to DFAT, while most people who leave illegally are detained for only a brief time, some may be held for longer periods, for example because they are required to pay bail or have someone sign some form of guarantee.  I asked whether there was any reason why his mother or [sibling] would not be able to provide this assistance if it was required.  He said that his mother or [sibling] would help him if this was needed.

19. I advised the applicant that I was unaware of any evidence which suggested that he would be at risk of harm on return to Sri Lanka because he had been absent from the country for about six years. I advised him that it was my understanding that many Tamils travelled to and from Sri Lanka and many returned after lengthy absences, but this did not appear to cause concern to the Sri Lankan authorities. The applicant said that the authorities did not suspect everyone who had been abroad for a long time. Despite being invited to do so, he made no further comment.

20. I advised the applicant that I accepted that it was likely that the Sri Lankan authorities would suspect or assume that he had applied for protection in Australia. However, it was my understanding that they were aware that many people did this because they were seeking a better life and they did not suspect all asylum seekers of involvement in the LTTE or other unacceptable activities merely because they had applied for protection. The applicant said that he had come to Australia because he was afraid, but made no further comment.

21. I advised the applicant that I was unaware of any evidence which suggested that he would be at risk of serious or significant harm if he returned to Sri Lanka because he was perceived to be wealthy because of his past ownership of a rickshaw or because he had lived in Australia. The applicant again said that he had come to Australia because he was afraid, but made no further comment.

22. I asked the applicant if he is wished to provide any additional information or comment in relation to his case. He said that he did not. His representative requested and was granted time to provide further written submissions.

23. On 17 October 2018 the applicant’s representative provided a written submission which repeated the applicant’s claims and submitted that previous Tribunals had refused his application based on out of date information on the situation in Sri Lanka.

24. The submission also notes the UNHCR guidelines issued in 2012 suggested that Tamils with family links to the LTTE are at risk of harm in Sri Lanka, and the submission suggests that they continue to have relevance in deciding the applicant’s case.

25. The submission notes May 2018 DFAT advice that the Tamil community in the north and east continue to be monitored and that particular targets of this monitoring include people associated with politically sensitive issues such as missing people. It submits that the applicant fits the profile of someone associated with missing people as his father’s body was never discovered and his [Relative A] disappeared.

26. The submission notes that the DFAT report cites expert evidence provided to the UK Upper Tribunal which states that the Sri Lankan authorities remain sensitive to the re-emergence of the LTTE and use sophisticated intelligence on LTTE members to compile and maintain stop lists and watch lists which are used when assessing returnees. The report also notes UK Home Office advice which states that watch lists include minor offenders. It submits that the applicant’s name is likely to be on a watch list because he breached reporting conditions by departing Sri Lanka illegally.

27. The submission notes DFAT advice on torture and submits that as a Tamil who is a risk of arrest or detention, the applicant is at risk of torture if he returns to Sri Lanka.

28. The submission refers to a UN Special Rapporteur on Human Rights and Counter Terrorism report of July 2018 (Special Rapporteur’s Report).[2] In essence it submits that the information in the report suggests that the applicant is at risk of being detained under the PTA and tortured while in detention. It also submits that the report indicates that the situation in Sri Lanka has deteriorated since the applicant’s case was last considered by the Tribunal (differently constituted) and that the evidence it contains indicates that the applicant faces a real chance of suffering serious harm or discrimination if he returns to Sri Lanka now. It notes the Special Rapporteur’s observation that there is a pervasive and insidious form of stigmatisation of the Tamil community, noting in particular the fact that Tamils are severely under-represented in all institutions, particularly in the security sector and the judiciary. It also refers to a climate of impunity and the economic weight of the military and its continued involvement in civilian activities, all of which contribute to perpetuating the sense of resentment and disenfranchisement felt by the Tamil community as a whole. It also suggests that the report indicates that anyone suspected of any LTTE link is at risk of detention and torture aimed at obtaining a confession.

    [2] UN Special Rapporteur on Human Rights and counter terrorism Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism on his mission to Sri Lanka <>

    The submission also notes that Tamil MP and former Minister Vijayakala Maheswaran had been arrested for suggesting that an LTTE revival would reduce crime in northern Sri Lanka, and the submission argues that if an MP can be arrested for a single remark, then someone like the applicant would also be at risk of arrest on return to Sri Lanka.

29. The submission states that the applicant was unable to communicate his situation to the media because of censorship and fear. It also appears to suggest that the applicant would be forced to return to work as a rickshaw driver because this is his only skill and that this would place him at risk of harm.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. I accept that the applicant is a Tamil from [Town 1] in Eastern Province.

31. In his submissions to the Department and earlier Tribunals, the applicant indicated that he feared harm on return to Sri Lanka because of his Tamil ethnicity. At the hearing he said that he did not fear harm merely because of his Tamil ethnicity, but he was afraid because he would be under suspicion of involvement in the LTTE. As discussed below, I do not accept that the applicant would be suspected of involvement in the LTTE for any reason if he returned to Sri Lanka.

32. As noted above, following the hearing, the applicant’s representative submitted that information contained in the Special Rapporteur’s Report of July 2018 indicates that the applicant would be at risk of harm on return to Sri Lanka largely because of his ethnicity. I do not accept this claim. As the Special Rapporteur’s Report deals primarily with the situation in areas where there is a Tamil majority including Eastern Province, I have addressed this submission in the following paragraphs.   

33. The applicant claims that he is at risk of harm because he is a Tamil from Eastern Province in Sri Lanka.  While I acknowledge that some Tamils in Eastern Province may be at risk of serious harm due to their past or present involvement in the LTTE or separatist activities, it is clear from the evidence that this is not the case for all or even most Tamils from the region. As noted above, as early as 2012 UNHCR[3] assessed that, despite continuing problems, Tamils from the north and east should no longer be assumed to need protection merely because of their ethnicity and place of origin. The May 2018 DFAT report[4] notes that there continues to be a significant military and police presence in the region, though monitoring has greatly reduced and the authorities currently target specific groups and individuals, not the general Tamil population. On the evidence currently before me, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka merely because he is a Tamil from Eastern Province.

    [3] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012

    [4] DFAT Country Information Report Sri Lanka  23 May 2018  p 14

34. In reaching this conclusion I have considered the applicant’s representative’s submission that information in the Special Rapporteur’s Report of July 2018 indicates that the situation in Sri Lanka had deteriorated since the applicant’s case was last considered in May 2016 and suggested that Tamils in areas such as Eastern Province face serious discrimination and the likelihood of arrest on suspicion of involvement with the LTTE.

1. It is certainly true that the Special Rapporteur’s Report indicates that there continue to be problems in areas such as Eastern Province including a significant military presence and continued monitoring of the Tamil population. It also notes that implementation of promised reforms has been slow and in some cases non-existent. As noted above, DFAT and others provide a similar account of the current situation.

2. I accept that as a result of this situation, many Tamils to feel insecure and resentful. However, I do not accept that the Special Rapporteur’s Report suggests that the situation of Tamils in Eastern Province or elsewhere in Sri Lanka has deteriorated significantly since 2016 or that Tamils in the area generally face a real chance of experiencing serious harm amounting to discrimination or of being arrested because of their ethnicity or political opinions imputed to them or for any other reason.

3. The applicant’s representative has submitted that the Special Rapporteur’s Report suggests that Tamils in areas such Eastern Province where they are the majority of the population are at risk of being arrested and detained under the PTA provisions and tortured if there is any hint or suspicion that they have any association with the LTTE.

4. The Special Rapporteur’s Report discusses at length the past use of the PTA to detain LTTE members and suspects and the continued detention of LTTE members or suspected members, most of whom were arrested during and shortly after the civil war. It reports on arbitrary detention and the frequent use of torture under the PTA during the civil war.  It also notes that the PTA provides immunity from prosecution for many abuses committed in its implementation and the slow progress on government promises to introduce more appropriate anti-terrorism legislation and end abuses against detainees. It states that the PTA remains in force, but notes it used “sporadically”.

5. However, there is nothing in the Special Rapporteur’s report which suggests that someone with the applicant’s background is at risk of being detained under the PTA in Sri Lanka today.  Advice from DFAT in May 2018[5] indicates that that while the PTA is remains legally in force, it is currently suspended. According to a Human Rights Watch report cited by DFAT, nobody was arrested under PTA in 2017. DFAT also note that according to Sri Lankan government no returnee from Australia to Sri Lanka has been charged under the PTA.

   [5] DFAT Country Information Report Sri Lanka  23 May 2018 p. 14, 35 & 42

6. On the evidence before me I do not accept that there is a real chance that the applicant would be arrested or detained under the PTA if he returned to Sri Lanka. It follows that I do not accept that there is a real chance that he would face torture or any other form or serious or significant harm as a result of being detained under the PTA.

7. The Special Rapporteur’s Report notes that Tamils are significantly under-represented in the public sector and security forces. It also notes that according to local officials, government programs are in place to overcome this problem, but Tamils are frequently reluctant to become involved because of language issues or lack of trust in the government. The Special Rapporteur appears to find this explanation inadequate. DFAT’s May 2018[6] report also notes that Tamils are under-represented in the public sector. It suggests that this is not the result of discrimination so much as factors such as disrupted education during the years of conflict and language constraints.

   [6] DFAT Country Information Report Sri Lanka  23 May 2018 p. 13

8. I accept that Tamils may face difficulty obtaining public sector employment or entering the security forces in part as a result of discriminatory attitudes held by some officials. However, in my view the evidence does not suggest that Tamils are generally unable to obtain public sector employment as a result of discrimination their ethnicity or political opinions imputed to them or that the under-representation of Tamils in the area of public employment suggests that Tamils in Eastern Province or elsewhere in Sri Lanka generally face serious discrimination amounting to persecution because of their ethnicity or political opinions which have been imputed to them or for any other reason.

9. I accept that the applicant’s father was killed in 1991 because he was involved or suspected of involvement with the LTTE. However, while I acknowledge that family members of some LTTE members have faced problems as a result of this in the past,[7] and that close relatives of high profile former LTTE members who are currently wanted by Sri Lankan authorities may be still be subject to monitoring,[8] I am unaware of any evidence which suggests the authorities would have any interest in the applicant because his father was suspected of involvement with the LTTE in 1991 when he was [age] years old. I do not accept that the applicant would be suspected of LTTE involvement or that he faces a real chance of experiencing serious or significant harm on return to Sri Lanka because his father was involved or suspected of involvement with the LTTE in 1991, or for any other reason.

   [7] See for example the UNHCR Guidelines  December 2012

   [8] DFAT Country Information Report Sri Lanka  23 May 2018 3 p.22

10. I accept that the applicant’s [Relative A] worked as rickshaw driver in an LTTE controlled area and that he disappeared in 2007 in circumstances which suggest that he may have been killed because he was suspected of involvement the LTTE. It is not entirely clear whether the applicant fears harm because of his association with his [Relative A] or whether this evidence was provided as an example of harm which rickshaw drivers from LTTE areas might face in Sri Lanka. Nevertheless, I have considered whether the applicant would be at risk of harm on return to Sri Lanka because of his association with his [Relative A].

11. As noted above, the evidence indicates that close family members of senior LTTE members may be monitored. There is no suggestion that the applicant’s [Relative A] was a senior LTTE member or that the applicant was closely associated with him. According to the applicant he only lived in an LTTE controlled area prior to 1996 and he was abroad from 2005 until 2011. I am unaware of any evidence which suggests that such a relationship would place the applicant at risk of serious or significant harm if he returned to Sri Lanka now.  I do not accept that the applicant faces a real chance of experiencing serious or significant harm on return to Sri Lankan because of his association with his [Relative A].

12. I have also considered the applicant’s representative’s submission that involvement with missing people is a sensitive political issue which could cause the applicant to be of adverse interest to the authorities on return to Sri Lanka.  However, in my view the DFAT advice referred to by the applicant’s representative does not suggest that the death or disappearance of the applicant’s father some 27 years ago or the disappearance of his [Relative A] 11 years ago would be considered a sensitive political issue in Sri Lanka today. Thousands of LTTE members and supporters were killed or disappeared during the civil war. There is no evidence that the Sri Lankan authorities or anyone else in Sri Lanka have any current interest in the fate of the applicant’s father or [Relative A]. There is nothing in the evidence before me which suggests that the applicant would be seen as having any involvement in a case involving sensitive political issues in Sri Lanka today.

13. I accept that the applicant was questioned, harassed and slapped by soldiers on several occasions when returning from school near [City 1] in about 2005. According to the evidence he provided at the hearing, this occurred not because he was personally suspected of the LTTE involvement for any reason, but because of his age. This accords with information from DFAT and others which indicates that the authorities were often suspicious of young Tamil men from areas such as the Eastern Province prior to the end of the civil war in 2009. I note that he was not arrested or detained and he was able to obtain a passport and leave Sri Lanka legally in 2007, which I find to be a strong indication that he was not suspected of LTTE involvement at that time. There is nothing in the evidence before me which suggests that the fact that the applicant was occasionally questioned by soldiers when he was [age] years old means that he would be suspected of LTTE involvement or that there is a real chance that he would face serious or significant harm for any other reasons if he returned to Sri Lanka now.

14. I accept that the applicant was interviewed by the CID and registered after he returned from [Country 1] in 2011. According to a 2013 UNHCR survey cited by DFAT, some 70% of internally displaced people who had returned to their homes in the north and east had been registered by the military and visited by the military or the CID for interviews.[9]  In these circumstances, it is plausible that the applicant was interviewed and registered by the CID in 2011.

    [9] DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam  3 October 2014 p 9

15. I have some concerns about the applicant’s claim that he was required to report to the army or the CID daily while living in Sri Lanka in 2011 and 2012. He appears to have given somewhat different accounts of the number of people required to report to the authorities, the reasons for this requirement and some other surrounding details to previous Tribunals. However, numerous reports confirm that the government maintained close control of areas in the north and east during the period in question and that this including monitoring local Tamils and for the purposes of this decision, I accept that the applicant was required to report to the local authorities regularly. I also accept that he was occasionally harassed and abused when he failed to comply with these requirements or during times of heightened security.  However, I do not accept that this suggests that he was personally suspected of LTTE membership or involvement at that time.

16. In the first place, the applicant was never an LTTE member or supporter and he did not have a background which suggested that he had belonged to or supported the group. From at least the age of [age] he lived in areas under control of the army and he worked in [Country 1] during the final and most violent years of the civil war.

17. Secondly, the applicant was granted a passport in 2005 and travelled to and from Sri Lanka twice without experiencing problems with the authorities in 2007 and 2011. According to reports cited by DFAT in 2015, numerous Tamils suspected of LTTE involved were arrested at the Bandaranaike International Airport during that time.[10] I find the applicant’s ability to travel to and from Sri Lanka during and after the civil war a strong indication that he was not suspected of involvement in the LTTE.

    [10] DFAT Issues Paper Sri Lanka: Treatment of Failed Asylum Seekers and Returnees December 2015 p 5

18. Thirdly, if the authorities believed or seriously suspected that the applicant belonged to or supported the LTTE or had been involved in separatist activities I believe he would have been arrested or detained or required to undergo rehabilitation. According to a 2010 report by the International Commission of Jurists,[11] any association with the LTTE at that time was grounds for arrest. In 2014 DFAT[12] reported that thousands of LTTE members and supporters had been arrested and detained in rehabilitation centres since the end of the conflict. The August 2014 Country Information and Guidance Report on Tamil separatism by the UK Home Office stated that government forces continued to detain suspected LTTE sympathisers. While I acknowledge that the security personnel probably harboured some degree of suspicion of all Tamils in areas such Eastern Province in 2011 and 2012, I find the fact that the applicant was never arrested or detained or charged with any offence while living in Sri Lanka in 2011 or 2012 a strong indication that he was not personally suspected of any involvement in the LTTE.

    [11] DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam  3 October 2014  p.5

    [12] DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam  3 October 2014 p.5

19. After considering all of the relevant evidence, I find that the applicant was subjected to reporting conditions which were part of the ongoing monitoring of the local Tamil population put in place because the authorities had a general concern about security in the area. I also accept that the applicant feared that he might be viewed as an LTTE member or supporter because of his ethnicity or background. However, I do not accept that the authorities believed or seriously suspected he was or had ever been involved with the LTTE during the time he lived in Sri Lanka in 2011 and 2012.

20. In reaching this conclusion I have considered the applicant’s claim that he was suspected of LTTE involvement during the time he lived in Sri Lanka in 2011 and 2012 because he owned a rickshaw. While his evidence regarding this claim was somewhat confused, in essence he appeared to claim that his [Relative A]’s death or disappearance was related to the fact that he was rickshaw driver, which indicated that rickshaw drivers were generally at risk of harm in Sri Lanka and that his ability to purchase a rickshaw was seen as evidence that he had received funding from the LTTE or provided funding to the LTTE.  

21. I find the claim that the authorities believed that the applicant had received money from the LTTE to buy a rickshaw far-fetched and implausible. The LTTE was defeated in May 2009 and most of its surviving members were detained or imprisoned. I can think of no plausible reason why authorities would believe that the LTTE would have given the applicant money to buy a rickshaw.  I am unaware of any evidence which suggests that Tamils with sufficient money to purchase property such as rickshaws were generally believed to support or fund the LTTE and I do not accept that the applicant’s ability to purchase a rickshaw was seen as evidence that he was funding the LTTE.

22. The claim that the applicant’s [Relative A] was killed because he was a rickshaw driver is mere speculation.  He was killed during the war in an area which was apparently controlled by the LTTE and no doubt subjected to ongoing violence resulting in numerous deaths as the government sought to regain control.

23. Finally, I am unaware of any evidence which suggests that rickshaw drivers were generally suspected of involvement in the LTTE following the end of the civil war merely because they owned and operated a rickshaw. If this had been the case, it is difficult to understand why the applicant was allowed to own and operate a rickshaw for nearly two years without being detained. I do not accept that the applicant was suspected of LTTE involvement in 2011 and 2012 because he owned or operated a rickshaw.

24. I have also noted that the applicant’s evidence regarding the kidnapping of people in his area prior to his departure from Sri Lanka. However, there is no suggestion that anyone threatened or attempted to kidnap the applicant himself at any time. Furthermore, the May 2018 DFAT Report[13] notes that while kidnappings were relatively common in the north and east during the civil war, the prevalence of this crime has significantly reduced since the end of the conflict. On the evidence currently before me, I am not satisfied that the applicant faces a real chance of being kidnapped by anyone for any reason if he returns to his home in Eastern Province or anywhere else in Sri Lanka.

    [13] DFAT Country Information Report Sri Lanka  23 May 2018 p. 32

25. In his submission to the Department and earlier Tribunals, the applicant indicated that he feared he would face serious or significant harm if he returned to Sri Lanka because he had departed Sri Lanka illegally. As noted above, he abandoned this claim at the hearing, stating that he did not fear harm because he departed illegally, but feared that he would face harm because at the time of his departure he was required to report regularly to the army or CID. Following the hearing his representative submitted that advice contained in the 2018 DFAT report suggested that it was likely that the applicant’s name would have been placed on a government watch list because he left Sri Lanka while on reporting conditions and watch lists include minor offenders.

26. The DFAT advice referred to by the applicant’s representative draws on expert evidence presented to the UK Upper Tribunal in 2013.[14] According to this advice, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters both in Sri Lankan and the Tamil diaspora. This evidence is used to maintain ‘stop’ lists which include cases involving court orders or arrest warrants and ‘watch’ lists which include names of individuals of interest because of suspected separatist or criminal activities, including former and minor offenders.

    [14] GJ and Others (post-civil war: returnees) Sri Lanka CG v. Secretary of State for the Home Department, [2013] UKUT 00319 (IAC), United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 3 July 2013.

27. After considering this and other expert evidence, the Upper Tribunal observed that the Sri Lankan authorities know that many Sri Lankan Tamils travel abroad as economic migrants and that everyone in the Northern Province had some level of involvement with the LTTE during the civil war, and found that an individual’s past history would only be of concern to the Sri Lankan authorities if it was perceived as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government.

28. The applicant has never been involved with the LTTE or any separatist groups or activities in Sri Lanka or Australia. He has never been arrested or detained or charged with any offence. As discussed above I find that any reporting conditions imposed on him in 2011 and 2012 were part of monitoring of the general community and not related to suspicion that he was personally involved with the LTTE. In these circumstances, I do not accept that his name has been placed on a watch list.  In reaching this conclusion, I have noted the applicant’s representative’s submission that UK Home Office advice that minor offenders are amongst those included on government watch lists. This appears to be a reference to people involved in criminal activities. In any event, I do not accept that it refers to people such as the applicant. 

29. As discussed at the hearing, in addition to using spot and watch lists, Sri Lankan authorities routinely question returnees who left illegally or who are returning on temporary travel documents and also check with relevant national bodies and local authorities in the returnee’s place of origin to ensure that they are not of interest for any reason.  According to advice from May 2018 DFAT, returnees are not ill-treated during this process. As noted in the preceding paragraph, there is nothing in the evidence which suggests that the applicant would currently be of adverse interest to the national or local authorities in Sri Lanka.

30. After considering all of the relevant evidence, I am not satisfied that there is a real chance that the applicant would face serious or significant harm on return to Sri Lanka because he left Sri Lanka illegally in 2012 at a time when he was required to report regularly to local officials.

31. For the sake of completeness, I have also considered the applicant’s earlier claim that he would be at risk of serious or significant harm on return to Sri Lanka because he left illegally.

32. In pointed out at the hearing, DFAT advise that returnees who departed Sri Lanka illegally are usually arrested and charged at the airport and transferred to the courts after background checks and processing, which usually takes no more than 24 hours. Following this, they are transferred to the courts and may be held briefly at the court or in prison before being released. Ordinary passengers are often viewed as victims. Those who plead guilty are fined and then released. Those who plead not guilty are usually granted bail. There is nothing in the evidence before me which suggests that the applicant would be treated in a discriminatory manner for any reason, that he would face more than a brief period in detention because of his illegal departure or that he would face ill-treatment while being detained (see also below).

100.   Based on the evidence before me I find that the essential and significant reason for penalties under the Immigrants and Emigrants Act 1948 (the I&E Act) is to prevent unregulated departures. I consider that being charged and fined under the I&E Act and being detained on remand will be the result of the non-discriminatory enforcement of a law of general application, and I do not consider this treatment to constitute serious or significant harm.

101.   As noted above, in his submissions to the Department and earlier Tribunals, the applicant claimed that he feared he would be at risk of harm in Sri Lanka because he had applied for protection in Australia and because he has lived in Australia for some six years. When asked to comment on country information relating to the latter claims at the hearing, he failed to provide a coherent response. Nevertheless, I have considered whether he would be at risk of harm for either of these reasons.

102.   According to DFAT, thousands of Tamils, including failed asylum seekers, have returned to Sri Lanka from Australia and other western countries since 2008.[15]  There is nothing in the evidence before me which suggests a pattern of arrests or detentions which suggests that such people are generally of adverse interest to the authorities in Sri Lanka.  As discussed above, Sri Lankan authorities are currently focused on identifying individuals who are currently involved in separatist groups or activities. This involves sophisticated intelligence gathering, including obtaining information on Tamils living abroad. There is nothing in the evidence which suggests that the applicant, who has had no involvement in any groups or activities likely to be of adverse interest to the Sri Lankan authorities in Sri Lanka or Australia, would be identified as such as person.

[15] DFAT Country Information Report Sri Lanka  23 May 2018  42 & 43

103.   On the evidence before me, I am not satisfied that there is a real chance that the applicant would face serious or significant harm on return to Sri Lanka because he would be believed or suspected to be involved in separatist or any other activities because he applied for protection in Australia or because he has spent six years in Australia.

104.   In reaching this conclusion I have noted DFAT advice which states that anecdotal evidence suggests that as recently as 2017, some failed asylum seekers in the north continued to be visited regularly by the CID. The report does not suggest that this has resulted in widespread arrests or detention of returning failed asylum seekers. There is no mention of a similar pattern of monitoring or harassment in the applicant’s home area in the Eastern Province, but it appears that significant numbers of returnees to the east may have been visited by local officials or the police on return to their local area in recent years for reasons other than registration (all Sri Lankans are required to register with local officials to access benefits). The purpose of these visits is not mentioned in DFAT’s report, but there is no suggestion that those visited were arrested or detained or that they faced further visits. I note that despite these issues, only 0.3 per cent of refugee returnees interviewed by UNHCR in 2016 indicated that they had security concerns following their return.

105.   The May 2018 DFAT report also notes that many returnees face resettlement and reintegration issues, including financial problems relating to outstanding debts relating to their travel; difficulty obtaining documents, assistance or employment; social stigma; and resentment, particularly if they are receiving financial support not available to others. It states that bureaucratic inefficiencies, rather than official discrimination, present the biggest challenge to reintegration for returnees.

106.   In the circumstances described above, it is perhaps possible that the applicant may be visited or interviewed by local officials or police on return to his home. However, there is nothing in the evidence before me which suggests that there is a real chance that he would be subjected to ongoing monitoring or harassment or harm or ill-treatment amounting to serious or significant harm from local officials or anyone else because of this or for any reason linked to his status as a failed asylum seeker who had spent an extended period abroad or for any other reason.

107.   The applicant claims that he would be at risk of harm on return to Sri Lanka because he would be perceived as wealthy. While his evidence regarding this issue was somewhat confused, it appears that he is fearful that he will be seen as an LTTE supporter because he had money to buy a rickshaw and would be suspected of funding the group. As discussed above, I do not accept that he was suspected of LTTE involvement in 2011 or 2012 for this reason. I also reject the claim that he would be suspected of LTTE involvement because he had sufficient money to buy a rickshaw in 2012. I am unaware of any evidence which suggests that Tamils returning to Sri Lanka after spending time in Australia are generally at risk of serious or significant harm from anyone in Sri Lanka because they are perceived to be wealthy or for any other reason. On the evidence before me, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Sri Lanka because he would be perceived to be wealthy or for any other reason.

108.   The applicant claims that he is at risk of being tortured on return to Sri Lanka because he is a Tamil and he will be suspected of involvement with the LTTE and detained.  I accept that torture continues to be used in Sri Lanka in cases involving arrests under the PTA or involving national security issues and that police sometimes use torture to order to extract confessions in criminal cases. However, as discussed above, while I accept that the applicant may be briefly detained as a result of his illegal departure from Sri Lanka, I do not accept that there is a real chance that he would be arrested or detained under the PTA or in any other circumstances because he is suspected of involvement in the LTTE or any other separatist group or activity that would be of adverse interest to the Sri Lankan authorities. It follows that I do not accept that there is a real chance that he would be tortured or face any other form of ill-treatment as a result of being detained or arrested for these reasons on return to Sri Lanka.

109.   I have also considered the possibility that the applicant might be tortured or suffer ill-treatment while he is detained at the airport or elsewhere as a result of being charged with illegal departure. In their May 2018 report DFAT[16] advised that returnees who departed Sri Lanka illegally are usually arrested and charged at the airport and transferred to the courts after background checks and processing, which usually takes no more than 24 hours. Following this, those charged with illegal departure are transferred to the courts and may be held briefly at the court or in prison before being released. According to DFAT ordinary passengers are often viewed as victims. Those who plead guilty are fined and then released. Those who plead not guilty are usually granted bail. There is nothing in the evidence before me which suggests that the applicant would face more than a brief period in detention because of his illegal departure.

[16] DFAT Country Information Report Sri Lanka  23 May 2018 p.41-43

110.   According to the May 2018 Report DFAT understands detainees are not subject to mistreatment during processing at the airport. There is no specific information or comment on the treatment of people charged with illegal departure during the time that they are in the custody of the court awaiting a hearing of their case. However, on a general level they assess that the use of torture has declined since the end of the civil war and Sri Lankans face a low risk of mistreatment that can amount to torture.

111.   I also note that UK Home Office reports from 2016 and 2017[17] include reports of interviews conducted with several groups and individuals on the treatment on arrival of Tamils returning to Sri Lanka and the use of torture. Most of those interviewed stated that torture is sometimes used by police during regular criminal investigations or in relation to cases involving PTA or other national security issues, none of them suggests that returnees who did not have links to the LTTE or other activities likely to raise national security concerns would be at risk of torture while being held briefly in relation to charges for illegal departure.

[17] Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)  Conducted 11-23 July 2016 see in particular pp 9-10 an d66-68; Country Policy and Information Note  Sri Lanka: Tamil separatism  pp33 & 58-59

112.   While I acknowledge that torture is used in some situations in Sri Lanka, on the evidence before me I am not satisfied that there is a real chance that the applicant would be tortured during a brief period of detention in relation to charges of illegal departure. 

113. I have also considered whether the circumstances of the applicant’s detention on arrival in Sri Lanka as a result of charges under the I&E Act might constitute significant harm under s.5(1) of the Migration Act. I am aware of evidence which suggests that conditions in Sri Lankan prisons do not meet international standards due to overcrowding and poor sanitation, and I acknowledge that the applicant might face some discomfort if he is detained in these conditions. However, there is nothing in the evidence before me which suggests that those charged under the I&E Act face deliberate mistreatment while in detention or that the applicant would be held in these conditions for more than a few days at most. The definition of ‘cruel or inhuman treatment or punishment’ requires that the pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. I do not consider the being detained in overcrowded and unsanitary conditions for a few days at most amounts to significant harm as set out in s.5(1).

114.   I have noted the submissions by the applicant and his representative that the recent arrest of a Tamil MP for suggesting that an LTTE revival would reduce crime in northern Sri Lanka supports the applicant’s claim that he would be suspected of involvement in the LTTE and therefore at risk of harm if he returns to Sri Lanka. As discussed above, the Sri Lankan authorities continue to be concerned about any suggestion of support for the return of the LTTE and it is perhaps not surprising that they reacted strongly to what appeared to be a call by an MP for the return of the LTTE. There is nothing in the evidence before me which suggests that the applicant would call for or support the return of the LTTE and I do not accept that the arrest of Ms Maheswaran has any relevance to his case.

115.   I have also noted the applicant’s claim that the local authorities continue to visit his mother to inquire about him. I find the claim that local authorities would continue to visit the applicant’s mother some six years after he left Sri Lanka implausible. As discussed above, I do not accept that the applicant would of adverse interest to the Sri Lankan authorities for any reason other than his illegal departure. While I acknowledge that close family members of the LTTE members who are wanted by the authorities may be monitored by the local authorities, I am unaware of any evidence which suggests that they would have a continuing interest in the applicant’s whereabouts or current activities such that they would continue to visit his mother and ask about him. I do not accept this claim.

116.   Finally, I have noted the applicant’s representative’s submission that the applicant was unable to communicate his situation to the media because of censorship and fear. This appears to be in response to my comments that I was unaware of any evidence which supported aspects of the applicant’s case. This was not intended to suggest that I had expected to find specific evidence relating to the applicant in the media. It was an observation that some of his claims appeared to be at odds with the information before me regarding the current situation in Sri Lanka.

Recent developments in Sri Lanka

117.   On 26 October 2018 President Sirisena sacked Wickremesinghe and appointed Rajapaksa to the position of Prime Minister. According to informed observers Wickremesinghe sacking was not entirely unexpected as there had been friction between the President and the Prime Minister on a number of issues including the economy, foreign relations particularly in relation to China and India and how to handle the UN backed transitional justice program.[18]  Wickremesinghe maintained that he remained the legitimate Prime Minister and refused to go, precipitating what many have described as a constitutional or political crisis. Sirsena attempted to dissolve Parliament and announced elections to be held in early 2019. The Supreme Court subsequently suspended the dissolution of Parliament and the proposal to hold elections. Attempts to hold a vote of no confidence in Rajapaksa after Parliament resumed sitting appeared to have majority support and Wickremesinghe later won a majority vote of confidence. On 3 December 2018 the Court of Appeal temporarily barred Rajapaksa from acting as Prime Minister while it heard a petition from the UNP and the Tamil Alliance (the main Tamil party in Parliament) challenging his refusal to step down after the no-confidence votes.[19] On 13 December 2018 the Supreme Court found that Sirisena had acted illegally in November by dissolving parliament and calling snap polls with nearly two years to go until elections were due. On 15 December 2015 resigned as Prime Minister and on 16 December 2018 and Wickremesinghe was reinstated to the position.[20]

[18] Sri Lanka's Ranil Wickremesinghe and Mahinda Rajapaksa both lay claim to prime ministership Sri Lanka crisis: House of Cards in the Indian Ocean 4 November 2018 Sri Lanka MPs pass no-confidence vote against disputed PM Rajapaksa’, The Guardian, 14 November 2018; ‘President rejects NCM brought against PM, Govt.’, Daily Mirror, 15 November 2018,  Sri Lanka temporarily bars Rajapaksa from acting as PM’, Aljazeera, 3 December 2018;l

[20] Rajapaksa: Sri Lanka's disputed PM resigns amid crisis BBC 15 December 2018 Ranil Wickremesinghe: Sri Lanka reinstates ousted prime minister BBC 16 December 2018  On 22 November 2018 applicant was advised in writing that I was aware of developments in Sri Lanka, but it was my preliminary view that they would not impact on his situation on return. I offered the applicant opportunity to provide further written oral submissions if he wished.

119.   On 10 December 2018 the applicant’s adviser provided a written submission which argued that the unconstitutional appointment of Rajapaksa to the position would adversely impact on his treatment if he returned to Sri Lanka as it represents a significant threat to reconciliation and the restoration of democratic institutions in Sri Lanka. It notes that Rajapaksa’s term as President was a time of authoritarian governance, serious allegations of human rights abuses against the Tamil population and state impunity. It submits that Rajapaksa’s appointment to the position of Prime Minister incited violence, corrupt actions and worsening socio-political tensions. It suggests that his appointment has also emboldened his supporters within the police and armed forces to the detriment of Tamils and others and argues that there will be a further deterioration in the situation for Tamils in the likely event that he retains the position of Prime Minister or otherwise regains power in Sri Lanka. In support of this assessment it refers to a number of reports and articles.[21]

[21] Sources referred to include Sri Lanka: Stepping Back from a Constitutional Crisis International Crisis Group Briefing 152 Asia 31 October 2018 How Sri Lankans Are Resisting Rajapaksa's Soft Coup Attempt  The Diplomat, Sri Lanka’s strongman Rajapaksa is back Hindustan Times Freedom from torture  As noted above, since the applicant’s submission was received Rajapaksa has resigned and Wickremesinghe has been reinstated, which appears to return the situation to that which prevailed prior to 26 October 2018. Nevertheless, for the sake of completeness, I have considered the applicant’s submissions regarding the likelihood of violence as a result of the power struggle between Rajapaksa, Sirena and Wickremesinghe and the submission that the Rajapaksa may obtain power in some other way.

121.   While the recent power struggle involved some violence between the allies of the parties involved, including on the floor of Parliament, early predictions of violent clashes between their supporters resulting in bloodshed or a breakdown in law and order have not occurred. Competing rallies of thousands of mostly Singhalese supporters of the two men in Colombo have been mostly peaceful and do not appear to be continuing.[22] I am unaware other evidence which suggests outbreaks of violence or increased general repression in Tamil areas in Sri Lanka after Rajapaksa was appointed Prime Minister.

[22] ‘Sri Lanka crisis: Fears of a ‘bloodbath’ in power struggle’, BBC News, 29 October 2018,

122.   The submissions by the applicant relate mostly to the possibility that Rajapaksa will retain the position of Prime Minister or regain power in some other way. As noted above, Rajapaksa has resigned as Prime Minister and Wickremesinghe has been reinstated.

123.   With regard to the possible outcome of future elections, predictions of this kind are contested and highly speculative. Some observers point to the fact that the Sri Lanka Podujana Peremuna (SLPP), founded by Rajapaksa’s brother and recently joined by Rajapaksa himself, won by far the largest vote (40%) in local elections held in February 2018 as evidence that he is likely to continue to increase his power and influence. On the other hand, the Diplomat article provided by the applicant, suggests that Rajapaksa’s grip on power is tenuous, his support base has dwindled and his claims to legitimacy have become farcical.

124.   In any event, even if Rajapaksa returned to power at some time in the foreseeable future, the most likely outcome would appear to be a return to the situation which prevailed in the final years of his rule. As noted above, DFAT advice in 2014 stated that ordinary Tamils from the north and east of the country who were never involved with the LTTE were not generally at risk of serious harm.  DFAT 2014 advice on the situation for people who departed the country illegally and failed asylum seekers returning to Sri Lanka after living in countries such as Australia was broadly similar to their advice regarding these issues after Rajapaksa lost power in 2015.[23]

[23] DFAT Country Report Sri Lanka 3 October 2014", DFAT, 03 October 2014; DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam DFAT, 03 October 2014

125.   After considering all of the relevant evidence, I am not satisfied there is a real chance that the applicant will be subjected to serious or significant harm on return to Sri Lanka because of increased violence or repression associated with the recent developments in his homeland. With regard to the claim that Rajapaksa may return to power and usher in a period of increased repression of Tamils, this is no more than speculation and in any event in my view would not alter the applicant’s risk profile on return to Sri Lanka. On the evidence before me I am not satisfied that the applicant faces a real chance of suffering serious or significant harm within the reasonably foreseeable future as a result of a return to power of former President Rajapaksa.

IS THE APPLICANT A REFUGEE?

126.   In essence the applicant claims that he would be at risk of serious harm amounting to persecution on return to Sri Lanka for reasons of his Tamil ethnicity and political opinions which might be imputed to him because of his ethnicity, his place of origin, his family background, his illegal departure from Sri Lanka at time when he was required to report to local officials, his status as a failed asylum seeker, his stay in Australia and his perceived wealth. In submissions to previous Tribunals, he also claimed to be at risk of harm for reasons of his membership of a particular social group of Tamil persons who left Sri Lanka illegally and sought asylum in a Western country and who are also perceived to be wealthy businessmen due to their extended time outside of Sri Lanka.

127.   For the reasons set out above, I am not satisfied that the applicant faces a real chance of experiencing serious harm amounting to persecution in Sri Lanka within the reasonably foreseeable future for any of these reasons or any combination of these reasons or because of the cumulative impact of these reasons.

128.   After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Convention. Therefore I am not satisfied that he has a well-founded fear of persecution now or in the reasonably foreseeable future.

DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

129.   The applicant relies on the same claims in relation to his claim for complementary protection.

130.   For the reasons set out above and after considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Sri Lanka. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

CONCLUSIONS

131.   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 the Refugees Convention or the complementary protection criterion. Therefore the applicant does not satisfy the criteria set out in s.36(2)(a) and (aa).

DECISION

132.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Roslyn Smidt
Member