1716823 (Refugee)

1716823 (Refugee) [2019] AATA 5842 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716823
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:David McCulloch
DATE:13 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 13 May 2019 at 4:26pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – political opinion – perceived support for the political aims of the Liberation Tigers of Tamil Eelam (LTTE) – Sea Tigers training – former LTTE member – Sri Lankan intelligence systems in relation to LTTE involvement – credibility issues – compromised mental health condition – decision under review remitted
LEGISLATION

Migration Act 1958, ss 36, 65
Migration Regulations 1994 Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

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 20 November 2012 and the delegate refused to grant the visa on 17 December 2013.
The matter has already been considered by the Tribunal in a decision dated 4 May 2015. Judicial review was sought of that decision. On 1 June 2017 the Federal Court of Australia quashed the Tribunal’s decision and remitted the matter for reconsideration and determination by the Tribunal.
The court determined that the Tribunal’s decision was affected by jurisdictional error. It was determined that the submission made by the migration agent was sufficient to have raised the claim that as a consequence of his illegal departure, the appellant, if remanded, may face the risk of significant harm as a consequence of prison conditions in Sri Lanka. The Tribunal’s reasons acknowledged that the conditions of detention were claimed by the appellant to constitute significant harm. The claim was not considered in a manner consistent with the Tribunal’s statutory task. Not only did the reasons fail to demonstrate that the claim was grappled with intellectually, the reasons also failed to recount either the evidence or the contentions made in support of the claim.
The applicant appeared before the Tribunal on the remitted application on 14 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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. The Tribunal has before it DFAT Country Report – Sri Lanka, 23 May 2018, a copy of which was provided to the applicant in the hearing.
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
Background and claims
The decision of the delegate indicates that the applicant arrived unlawfully in Australia, on Christmas Island, by boat [in] July 2012. The protection visa application was lodged on 20 November 2012.
The applicant’s claims have varied over time. The history of the applicant’s claims and relevant supporting documentation are outlined as follows in the Tribunal decision dated 4 May 2015. The Tribunal considering the remitted application considers that this is an accurate assessment of the claims and documentation:
Background
The applicant was born on [date] in [Town 1] in the [District 1] of the Northern Province of Sri Lanka while his parents were displaced from [District 2]. He is a citizen and national of Sri Lanka. He has never held a passport. His ethnic group is Tamil and his religion is Christianity.
The applicant’s family members, as of the date of the application, included his parents and [a number of siblings]. They were all living in [City 1] in [District 2]. Sri Lanka.
The applicant’s father is a fisherman. He continued fishing wherever they lived. He had a boat with [a] motor.
The applicant lived in [District 1] from his birth until 2001 when he and his family returned to [City 1] in [District 2] when the LTTE recaptured the area. His family was again displaced from [City 1] in the middle of 2008 because the Sri Lankan Army was recapturing areas controlled by the Liberation Tigers of Tamil Eelam (LTTE). Until the end of 2008 or beginning of 2009, the applicant and his family had always lived in areas controlled by the LTTE. His family then moved to an area controlled by the Sri Lankan Army (SLA).
From around August 2009 until [February] 2010 the applicant and his family lived in [Town 2] camp in [District 2]. The applicant and his family then moved to [City 2] camp, which was also in [District 2], where they remained until [February] 2011. They then moved back to [City 1] which had been cleared of land mines.
The applicant speaks, reads, and writes Tamil and reads and writes basic English.
In 2011 until 2012 the applicant was studying at a [school] towards his A levels but did not complete them.
The applicant left Sri Lanka illegally by boat [in] June 2012 and arrived in Australia [in] July 2012.
The entry interview took place on 25 August 2012 by telephone with two separate interviewers.
The applicant attended a departmental interview on 25 February 2013. A recording of the interview was before the Tribunal.
At the time of the hearing, the applicant’s [brother] was helping his father fish, [another] brother was studying for the [a qualification], his [other] brother was working in a [organisation] and part-time [in another position], and his brother-in-law was also [in an occupation].
The applicant’s claims for protection
The following claims were set out in the statutory declaration accompanying the applicant’s visa application.
The applicant fears being persecuted for reasons of his imputed political opinion and ethnicity.
Before the war ended, his parents sent him and his brothers away. They were hiding in [location] for several months in order to avoid LTTE conscription.
During the last months of the war, his family and he were displaced and used to live in two different [camps] in the [District 2].
The first time the applicant was taken away for questioning was in 2010. The SLA took him away because they suspected that he was an LTTE member. He was suspicious because he was not married. The questioning was difficult because he did not speak Sinhalese and often did not understand. They questioned him aggressively for about one and a half hours.
After that incident, they frequently came back to question him again. They took him once every week for five weeks, until he produced his school certificate to show that he was still under age. After that they left him alone.
When his family and he moved to the second camp, it started all over again. The army would take him away for questioning, and when he could show them evidence of his age they left him alone.
About a year later, his family and the applicant left the camp and were relocated to [City 1]. Each army camp was given the suspects’ names. They must have been given his name because within one week both the SLA and the CID came to his house and told him to reports questioning.
The first time he was told to go he did not because he was scared. The army came back and took him and questioned him for about two hours.
They wanted to know whether he was in the LTTE. Even though he kept telling them that he had nothing to do with the LTTE, they did not believe him. They pinched him and asked him the same questions over and over again. They threatened to take him to another camp for questioning if he did not tell the truth. He knew that people disappeared from the other camp, so he took this very seriously. After two hours they said he could go but he had to stay in the area and would have to come back for questioning if required.
Initially they did not come back. However, when a new commander came to the camp they came back to his house. About 10 or 12 days before he left for Australia the army came back to his house and took him for a second time to questioning.
Three men from the army came to his house to speak with him. He knew they were from the SLA because they were in uniform. They had a Tamil person with them and confirmed the applicant’s name and his address. The applicant’s father spoke with them on his behalf. He explained to them that he was still under-age and had been questioned before. Even though the army left, the applicant feared that they would come back for him. He may have been able to convince the particular officer again, but as soon as the camp got a new commander, they would be back. He would not get away with it every time. At some time they would take him away and he feared that they would make him disappear.
After he arrived in Australia the applicant’s parents told him that the army had come back to his house to ask for him. His parents told them that he had gone to Australia, and to his knowledge, nobody has come back.
If the applicant was forced to return to Sri Lanka he fears he would be abducted or even killed. The SLA was already looking for him and now they know that he has left the country and gone to Australia. He fears that he will be suspected of being an LTTE member. Having left the country illegally this will raise an additional suspicion because the army will take it as a confession of guilt.
The applicant cannot relocate to another area in Sri Lanka. He would have to register his address in Sri Lanka and wherever he goes the army will follow him.
Nobody in Sri Lanka can protect him. If the SLA or the CID suspect you are an LTTE member, nobody will help you because everyone fears the army and the CID. The government will not protect him.
After the departmental interview on 25 February 2013, the applicant provided a further statutory declaration dated 12 March 2013. He said that during the departmental interview, he disclosed information he had not previously disclosed about his forced recruitment by the LTTE. He did not disclose it because he was frightened of being refused protection in Australia and being sent back to Sri Lanka if it were known. He now understands that it would not be the case because he was a minor and forcibly recruited. He was sorry for not disclosing that information earlier.
He fears serious harm from the Sri Lankan authorities because of his Tamil ethnicity and his imputed political opinion in favour of the LTTE as a result of his forced recruitment and training and also his status as a Tamil asylum seeker who has returned from the West.
In the first month of 2008 the applicant was recruited by force by the LTTE. He was [age] years old. His family was living in [City 1] which was under the control of the LTTE. His two [brothers] had gone into hiding in [location] to avoid recruitment. He had been studying at school and living at [a home in a hostel] in [a town] in [District 3]. He came home for the holidays in December 2007.
Members of the LTTE came to his home and took him away forcibly. He was taken to the LTTE [camp] in [a location] which was [a few] hours’ drive away from his village. There were other young conscripts there, including some people from his village. He was kept there three months for training. The training included basic physical training, rifle training and political classes. Physical classes included climbing on ropes, running with weights and other training. After lunch they held political classes in which they told the recruits that the LTTE was fighting for them and their families and if they wanted their parents to live peacefully and their generation to be free, they would have to fight with the LTTE. In the afternoons they had rifle training. They learned how to handle and shoot the AK-47s. Those classes were held in English.
After the three months of training, the LTTE held a meeting with their parents. They were taken to the school and their parents were allowed to see them. They were then returned to the camp and sent to the war fronts to fight. He was sent to [Town 3] which is in a forest area. They were stationed there every few days. There was to be a battle with the SLA. On the final night before the battle, the applicant ran away. The LTTE had a line from the sea shore into the forest where they stationed conscripts and soldiers every kilometre. The SLA had established a line about 300 metres away from the LTTE line. There was forest between them. He was not sure how many Tigers there were. Every day there was shelling in the forest from the SLA.
The applicant was stationed with two other recruits at a point on the sea shore. They were sleeping in a tree. The main camp was about [distance] behind the LTTE line. The other recruits had walkie-talkies to communicate with the commander. On the night before he ran away, one of the conscripts from another point was taken by the SLA and decapitated.
The applicant understood that there was to be a fight with the army the following day. He was very frightened and did not want a fight. The night he escaped he was on watch and the other two conscripts were asleep. They also wanted to escape but were scared for their lives if they deserted. If you deserted, the LTTE will punish you. They informed the CID or the police who would come for you at your home. Some forced recruits were keen to fight and believed in the LTTE’s cause but the applicant did not. The applicant had equipment including [specified]. He left those behind at his post when he escaped. He ran along the beach. There were no LTTE soldiers stationed there because they had a shortage of soldiers. He ran away to his home village and arrived at [time] in the morning. It was about [distance] in distance. Two days after he arrived, his father took him [to a location] to hide with his [brothers]. Their area was LTTE controlled and he was afraid of being recaptured and punished if he stayed at home.
The applicant was in hiding for a month. Because he had deserted, about three or four days after he went into hiding his family were taken into custody by the LTTE. They were mistreated and not provided with enough food and water. They were kept in an area where the war was going on and were made to work. His sister would go into the forest secretly to bring his brothers and the applicant food. She told him that their parents were suffering. He came out of hiding and re-joined the LTTE so that his family would be released.
As a punishment for deserting, the applicant was made to work in the LTTE [camp]. He worked there for about three months and then was injured in about August 2008. The LTTE [was] hit during an aircraft attack. The applicant was hit by shrapnel on his [arm] and taken to the LTTE hospital. His arm bone was broken and the skin was torn. The wound was stitched and his arm was put into plaster. He stayed in hospital for one month. His mother was allowed to visit him there. He told her the location of the LTTE camp [where] he knew he would be sent when he recovered. He was taken back and made to work again for about one and a half months more.
[In] 2009, the applicant’s father came to the camp secretly in the night and helped him escaped. He rode to the camp on a motorbike and wrapped the applicant in a sheet and took him back through the checkpoint. At that time there was a war going on and a lot of injured LTTE fighters were being transported in that manner along the roads and were not stopped at check points.
They rode back to their home [village], which was [a number of] kilometres away. Then his whole family got into his father’s large fishing boat and went into an SLA controlled area to escape from the LTTE. They were on the boat [a number of] hours and landed at [another town].
When they arrived at the shore, the SLA met them. They were checked for bombs and taken into custody. They were questioned individually on their connections with the LTTE and what they been doing. They denied any involvement with the LTTE. Different people from the SLA and CID questioned each member of his family.
Eventually they were released and taken to [a] Centre. A Catholic priest helped them to find accommodation in [the] Camp in [Town 2]. They moved later to the [City 2] camp.
In 2010 the applicant was taken away for questioning by the SLA which suspected him of being an LTTE member. The questioning was difficult because he did not speak Sinhalese and often did not understand. He was questioned for about one and a half hours in an aggressive manner, and was eventually released.
After that incident, they frequently came back to question him. They took him every week for five weeks until he produced his school certificate showing that he was under-age. After that, they left him alone for some time.
When his family and the applicant moved to [City 2] camp, the harassment by the army started again. They took the applicant regularly for questioning but when he showed evidence of his age they released him.
After about a year the applicant and his family left the [City 2] camp and relocated to [City 1]. Each army camp is provided with the names of suspected LTTE members. The SLA camp nearby must have been given his name. Within one week the SLA and the CID came to his house and told him to report for questioning.
The applicant did not go the first time he was told to because he was scared. When he did not turn up, the army came back to his house and took him by force. They questioned him for about two hours about whether he had been in the LTTE. He kept telling them he had had nothing to do with the LTTE but they did not accept that.
They pinched him hard and asked the same questions over and over again. They threatened to take him to another place for questioning if he did not tell the truth. The applicant knew that people had disappeared from the other camp and so took that very seriously. After about two hours they let him go but said that he had to stay in the area and had to come back for further questioning if required.
Initially the SLA did not come back to question him. However, when the army camp got a new commander, three army officers in uniform came to his house again to take him for questioning. They had a Tamil person with them. They confirmed his name and whether his house was his address. His father spoke to them and explained that he was still underage and that he had been questioned before.
Although the army left, the applicant feared that they would come back for him. Even if he was able to convince one or two particular SLA officers, if the camp came under a new commander, they would be back. He was also worried that, as he got older, they would be less likely to leave him alone. He feared that they will take him away and make him disappear.
He suspected that someone in their community had informed the army that he was recruited and trained by the LTTE. Many people who were forcibly recruited had registered themselves and were made to undergo re-education at an SLA facility. In the re-education centres bad things happened. For example, some people were killed, some disappeared, and some were given injections to make them stop functioning. He was very afraid of that and so had never registered as a former LTTE conscript.
In their village were many family members of young people like him who were forcibly recruited. Many of them registered and were made to go to re-education camps. The family members of those people may have been jealous of him because so far he had escaped punishment. They were angry that their children had disappeared and some had been killed, and therefore informed against him.
The army kept returning for him which made him think that he had been informed against. Although he had managed to convince the SLA not to take him, there were many different branches of CID who operated in different ways. Some kidnapped and abducted people, some just shoot to kill. He was afraid of all of them.
Two or three months before he came to Australia, the CID came and harassed him at his house. His father tried to pacify them. They pushed him aside, showed him their rifles, and said that whenever he was called to the SLA camp he would have to go. The applicant was scared that they might come back and try to shoot or abduct him. His parents suggested that he should go to hide in Negombo with his mother’s relatives and should try to escape Sri Lanka. The applicant travelled by motorbike and then bus to Negombo. He took his national ID card with him but it was not checked. He has only had that card since 2011 when they received a letter from the village council that explained that all their documents were missing when they were displaced during the war. That was why when he was captured by the LTTE they could not take his national ID card.
The applicant hid in a relative’s house in the Colombo area for about a month. His father heard that there was someone in Negombo who could arrange for him to escape from Sri Lanka. He came to Negombo, made the arrangements, and paid the money.
After he arrived in Australia, the applicant’s parents told him that the SLA had again come to his house asking for him. His parents told them that he had gone to Australia. They arrested his father and kept him in custody for a week. He was interrogated about the applicant and his activities with the LTTE, why he had sent him to Australia, and why the applicant did not report to the camp. They made him sign a letter in Sinhalese before he was released. He does not know what it said. About two weeks ago, his father had been asked by the SLA to go to the camp one evening but he did not go. He did not know if anything else has happened since.
If he was forced to return to Sri Lanka, the applicant fears that he will be abducted or killed by the SLA or the CID. They were already looking for him and now they will know that he has left Sri Lanka illegally and escaped to Australia seeking asylum. That will raise an additional suspicion because it will look like a confession of guilt about his association with the LTTE. He thinks they have already received information that he was recruited and trained by the LTTE which is increasing the risk to his life.
The applicant cannot relocate to another area in Sri Lanka. He will have to register his address on arriving in Sri Lanka and cannot move to another area without registering. Consequently wherever he goes, the army and CID will be able to track him down.
There is nobody in Sri Lanka who can protect him from the serious harm he fears from the Sri Lankan authorities. The SLA and the CID suspect him of having been an LTTE member. Everyone fears the SLA and the CID who are working closely with the Sri Lankan government. The government opposes those were involved in the LTTE, if even if forcibly recruited when underage.
Pre-hearing claims for protection and information
The applicant provided a further statement dated 23 April 2015. He raised some new information not mentioned previously. After he completed his basic LTTE training for three months he elected to join the Sea Tigers. He was taken to [a village] for three months. Then they were taken to different divisions. They were asked what they wanted to do and he said he wanted to join the Sea Tigers. He knew how to swim because he was [near] the sea. He was trained in [specified skills]. They were taught to [complete various related tasks]. There were also given swimming training including swimming while handling weapons.
He learned how to handle many weapons including [specified]. He learnt how to use a grenade called [specified].
Some parts of the engine repair classes were in English which he struggled to understand, so they took him to [Town 3] to the front lines of the war after that.
He did not include the Sea Tigers information previously because he was scared. He thought he would harm his case even more and make his time in the LTTE seem even more serious. He did not want to be seen to be a bad person. After he moved to Sydney he heard of many people who had LTTE involvement had been detained in [immigration] detention centre and some have been there for more than five years. This added to his fear of revealing his Sea Tigers training.
The applicant confirmed that the remainder of his statutory declaration made on 12 March 2013 was true and correct. His three months at the Sea Tigers training would come after paragraph 12 of that statement. There are a couple small errors in the statement.
It says that he was recruited in 2008 which should be that he started in 2007.
Not all the classes about [weapon use] were in English. Those that were, were about parts of the guns.
Paragraph 27 should be [location].
It was very hard to prove that he was in the LTTE movement. His family burned the photos of him in his LTTE uniform in case of discovery by the Sri Lankan authorities. The two photos he submitted show him holding a trophy from a Sea Tigers swimming competition and the other shows him with a person who was a Sea Tiger who was responsible for him. He was a section leader of about 10 people. His name in the LTTE was [Mr A]. He died in battle in 2009.
The authorities in Sri Lanka are still looking for the applicant. Last month the CID and the army visited the family home and said that he has served the LTTE and asked why he had not gone to rehabilitation. His family said he had gone to Australia. He believes that others had informed the authorities that he is in the LTTE
The 41-page submission dated 24 April 2015 enclosed two photographs referred to, a copy of the applicant statement, and other documents that had previously been provided to the Department. The submission argued that it was reasonable for him not to disclose his Sea Tigers training because it may exclude him from refugee status and subject him to indefinite immigration detention because it is well known that recognised refugees with admitted LTTE involvement have been given adverse security assessments by ASIO (the Australian Security and Intelligence Organisation). Such indefinite detention is been criticised by the United Nations Human Rights Committee and amounted to cruel, inhuman, or degrading treatment under the International Covenant on Civil and Political rights.
This new information supplements the information he previously disclosed in a spontaneous admission during the departmental interview about his time with the LTTE and explains many of the delegate’s concerns which led him to make a negative finding against the applicant. The submission stated that the applicant’s previous experiences with government authorities, particularly in situations of questioning, had been intimidating and life-threatening and therefore it was understandable that he felt afraid and frightened by the Australian process and was worried that full disclosure will may lead to exclusion, detention, or even removal from Australia.
The submission to set out relevant country information in support of those submissions. It summarised the applicant’s claims for refugee protection:
·His Tamil ethnicity;
·His political opinion in support of the LTTE on account of his time spent as a forced recruit, specifically in the Sea Tigers while he was a minor;
·His membership of the particular social group of Tamil males from the northern province;
·His membership of a particular social group of Tamil returned failed asylum seekers;
·If the tribunal finds that the applicant did not spend time as a forced recruit it still maintains that he will be imputed with pro-LTTE political opinion on account of his Tamil ethnicity and his origins in [a] district in the northern province; and
·his illegal departure from Sri Lanka and his extended presence in Australia as an asylum seeker.
The applicant’s claimed complementary protection because of:
·Torture;
·Cruel and inhuman treatment or punishment; and
·Degrading treatment or punishment
Documents
The applicant provided the following with his visa application:
·     a copy of his national ID card;
·     a copy of his birth certificate;
·     a food ration card.
Later the applicant provided to the Department copies of:
·     A document on letterhead in various scripts including in English, which stated “Grama Niladhari’s Office”. The document appears to be a copy of a letterhead but then there is original handwriting in blue ink in English including a date of 19 November 2009. It states that the applicant and his family were displaced from Wanni to [District 2 in] January 2009 and stayed in [Town 2] Welfare Centre since October 2009. [In] October 2009 they transferred to [another] Welfare Centre where they remained until released on “-------“, that is, no date is written. It lists his parents and [brother] aged [age], the applicant aged [age], a person aged [age] and another person aged [age].
·     A document that is entirely in a script the Tribunal does not understand which is dated 29 May 2012.
·     A copy of a letter dated 5 March 2013 from the applicant’s father confirming that the applicant was taken by force by the LTTE and was in that organisation for a short period. For that reason he was subjected to many investigations by the civil officers. There has been a threat to his life and because of the potential threats he sent the applicant to Australia by boat. He was subjected to secret investigations and is being investigated even now. His father made a fervent appeal not to send the applicant back to Sri Lanka.
·     A document entirely in a script the Tribunal does not understand which was dated 15 November 2008, which appears to be some sort of household registration. Some parts of it were obscured by whiteout.
·     The applicant provided a family resettlement and ration card dated 2010 in original blue handwriting and with various stamps on it.
·     A document, mostly in English, which was apparently related to the UNHCR, with various stamps and handwriting referring to a payment made on 13 January 2012 for what appears to be a boat engine.
·     A document printed in mostly Tamil with hand writing in English and Tamil in relation to the applicant’s father and which appears to be a family registration.
·     A coloured copy of some kind of identification document.
·     A register of births document which appears to be different from the earlier document with a birth date of [year], but with no other identifiable information, and a translation of that document.
·     A letter apparently from the parish priest of [a] Church in [District 2] dated 11 July 2012 “to whom it may concern” about the applicant which states that the applicant is well known to the priest and suffered immensely during the military operations in this part of the country. They were displaced in the Vanni area, affected by the tsunami, and due to fear and tension, he left the country to save his life.
·     His father wrote to the assistant government agent in [a town] on 7 July 2012 advising that the applicant is now in a camp in Australia. The father says that his family was badly affected by the tsunami attack and by severe war and were living under the poverty line. A Grama officer certified those facts were true and correct, and signed and dated it 10 July 2012.
·     A copy of a document in a script the Tribunal does not understand, which appears to list six people giving their ages and sex. In handwriting the description “ration card [City 2] camp is written”.
·     A document on letterhead of [an official organisation in] [District 2] dated 18 March 2010. It states that the applicant is in [a division in a town]. His relations are leaving the country to go abroad and therefore he wanted to join with his father as in the past. He was released from the welfare Centre [in] December 2009. The date of 18 March 2010 also appears towards the top of the letterhead.
·     A copy of a register of marriages which Tribunal does not understand because it is mostly in a foreign script.
·     A letter dated 9 July 2012 from [an official] certifying that the applicant studied at that school until “[grade]”.
·     A copy of part of what may be an envelope with stamps of the post office [in a suburb] and [an official in] [District 2]”.
·     Details of the applicant’s certificate of Baptism, [in a church in Village 1], [in] 1992, in English, certified on 26 July 2010.
At the Tribunal hearing, the applicant provided copies of the two photographs submitted with the pre-hearing submission, copies of a further eight photographs, references from a priest in Australia and from the [an official of an organisation]. He also provided copies of letters claimed to be from [an official in District 2] and [another official].
Submissions and independent information put forward by applicant
Submission as part of original application

The applicant’s migration agent provided a submission to the Tribunal as part of its original consideration of the review dated 24 April 2015. It made submissions as to the basis on which the applicant is owed protection and put forward detailed independent information.
It is submitted that the applicant faces serious harm on the following Refugees Convention grounds, individually or cumulatively:
·his Tamil ethnicity;
·his political opinion in support of the LTTE on account of his time spent in the LTTE (specifically the Sea Tigers);
·his membership of the particular social group of ‘Tamil males from Northern Province’;
·his membership of the particular social group of ‘Tamil failed returned asylum seekers’.
If the applicant is found not to have spent time as a forced recruit in the LTTE it is submitted that he will be imputed with having a pro-LTTE political opinion on account of:
·his Tamil ethnicity;
·his origins from the Northern Province;
·his illegal departure from Sri Lanka;
·his extended presence in Australia as an asylum seeker.
It is further submitted that the applicant faces a real risk of significant harm, being:
·torture; and
·cruel and inhuman treatment or punishment; and
·degrading treatment or punishment.
It is submitted that regard must be had to additional independent information in addition to DFAT reports. It is submitted that the DFAT reports are part of a diplomatic process which entails delicate political sensitivities and their contents must be verified from other varied and ‘independent’ sources.
Independent information is cited under the heading ‘General human rights situation and the culture of impunity’. Independent sources are cited as indicting an appalling human rights record in Sri Lanka. A 2013 report of the US Department of State on Human Rights in Sri Lanka is cited. The report refers to significant difficulties suffered by those suspected of LTTE connections. A 2014 report by Human Rights Watch refers to little progress in addressing accountability for serious human rights abuses committed during the civil war. There are reports of documented systematic sexual violence perpetrated by Sri Lankan security services. Reference is made to the reluctance to investigate or prosecute offences committed by members of security services against Tamils.
Independent information and Refugee Review Tribunal decisions are cited under the heading ‘Tamils and the Imputation of a Pro-LTTE Political Opinion’. Submissions are made that if it is found that the applicant did not spend time as a recruit of the LTTE there is a real chance, given his profile, that he will be imputed with having such involvement. Reference is made to 2012 eligibility guidelines of the United Nation’s High Commissioner for Refugees which continue to highlight the protection needs of those who have perceived links to the LTTE. It is submitted that there is a pall of suspicion and assumptions of guilt over Tamils residing in areas formerly under the control of the LTTE. 2014 Freedom from Torture information is cited as referring to evidence of torture in the post conflict of Tamils based on having a real or perceived connection to the LTTE. A 2012 speech by the former Sri Lankan Defence Secretary makes reference to the potential for resumption of the LTTE struggle. Submissions are made of ongoing paranoia of LTTE resurgence which manifest in dragnet-style arrests connected with unsubstantiated plots. Reference is made to widespread targeting of Tamils and activists and journalists discussing issues relating to Tamils.
Independent information is cited under the heading ‘Militarism of the North of Sri Lanka’. It is submitted that individuals such as the applicant have a profile of long being the target of the military. Independent information is cited concerning the heavy militarisation in the Northern and Eastern areas of Sri Lanka.
Independent information and Refugee Review Tribunal decisions are cited under the heading ‘Failed Asylum Seekers’. Submissions are made including citing independent information that being an asylum seeker imputes one as having LTTE associations/sympathies. Reference is made to a 2014 DFAT report which assesses that Sri Lankan authorities may monitor any member of the Tamil diaspora, depending on their profile. Evidence is provided of statements by the Sri Lankan government that up to half of the Tamils seeking asylum in Australia have links to the LTTE and that 30 percent of the funding of the LTTE comes from Tamils in Australia. It is submitted that the Australian government does not monitor returnees.
References are made to sources which refer to instances of harm faced by Tamils returning to Sri Lanka as failed asylum seekers. In relation to Australian returnees, reference is made to a June 2013 report on the ABC’s Lateline program of a returnee from Australia. The brother of the returnee says that his brother whose asylum claim was rejected has been in prison in Sri Lanka ever since his return and has been beaten and been denied food for many days.
Reference is made to harm based on illegal departure. Reference is made to a 2015 DFAT report indicating fines of between Rs.5000 and Rs.50,000 for leaving Sri Lanka unlawfully. Reference is made to the potential for custodial sentences of up to five years. Submissions are made that a custodial sentence for illegal departure is possible and does occur. (The Tribunal notes that there is no independent evidence provided or before the Tribunal that establishes this, other than for those alleged to have engaged in people-smuggling activities.)
It is submitted that it ought to be accepted that the applicant will be punished on return to Sri Lanka on account of his illegal departure. It is acknowledged that as a general rule enforcement of a generally applicable law does not constitute persecution. However, it is well accepted that policies which target or impact adversely on a particular class may constitute persecution and that a law of general application can be enforced in a discriminatory way. It is submitted that such a law may be enforced in a discriminatory way against the applicant. It is submitted that there is a real chance that the period of remand in detention would be arbitrarily long and that the applicant would be subject to interrogation and mistreatment, including torture, while in detention and that the sentence imposed by the court would be disproportionately severe on account of the fact of his previous LTTE involvement.
In relation to whether the applicant may suffer punishment which constitutes significant harm it is conceded that prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an element of intention. However, it is submitted that imprisonment may lead to a risk of the applicant being tortured. That the remand period is short does not mitigate this risk. Reference is made to evidence indicating that torture and mistreatment of detainees remain widespread in Sri Lanka, particularly in relation to Tamil detainees. Independent evidence is referred to as supporting this.
Psychologist’s report following Tribunal hearing with respect to current application
Following the Tribunal hearing with respect to the current application, provided to the Tribunal was a report from a [medical professional], [Ms B] who practises in [a suburb], New South Wales. The report was provided in response to explanations as to a number of credibility issues put to the applicant during the course of the Tribunal hearing. The report seeks to provide explanations for the credibility concerns and inconsistencies as a consequence of the applicant’s compromised mental condition.
The report is based on an interview between [Ms B] and the applicant lasting two and a half hours in the presence of an interpreter. The report is based on a semi-structured clinical interview, psychometric assessment and of accompanying documentation. The report outlines the family and developmental history as provided by the applicant. The report outlines a trauma history in relation to the applicant. The report outlines educational and employment history.
Broadly speaking, the details of the applicant’s history in Sri Lanka were consistent with the applicant’s claims as part of the protection visa application.
The report outlines a psychological history of the applicant and indicates that the applicant vaguely recalled seeking counselling for post-traumatic stress upon arrival in Christmas Island and Darwin. The applicant described an extensive history [of various medical afflictions].
A Personality Assessment Inventory was administered to the applicant to assess his current psychological state. Although it is indicated that the results need to be read with caution, the results reflect a person with significant problems with [various medical conditions] all of which are consistent with collateral information.
The applicant completed the Symptom Checklist 90 – Revised which provides an assessment of symptom intensity on nine subscales. The applicant’s profile was consistent with distress, disturbances and clinical significance on all of the nine subscales: Somatisation, Obsessive – Compulsive, Interpersonal Sensitivity, Depression, Anxiety, Hostility, Phobic Anxiety, Paranoid Ideation and Psychoticism suggesting a constellation of distressing symptoms were present at the time of the assessment.
The report provides an opinion that the applicant’s complex trauma history and untreated [Medical Condition 1] has affected and significantly impacted upon his ability to understand questions, participate in interviews/hearings or situations which remind him of the period of interrogation in Sri Lanka. The opinion is provided that the applicant’s mental health conditions would affect the applicant’s ability to recall certain highly distressing or anxiety-provoking events from his past.
The report provides an opinion that returning to Sri Lanka would significantly negatively impact upon the applicant’s mental health noting that the applicant would be questioned by authorities on return to Sri Lanka. The opinion is offered that, based on DFAT information, the applicant would not receive adequate mental health treatment if he returns to Sri Lanka.
The applicant’s general practitioner, [Dr C] provided a Medical Certificate dated [in] March 2019 indicating that incidents back in Sri Lanka seem to have affected the applicant psychologically as per the psychologist’s report. [Dr C] indicates that he agrees with the psychologist’s report and that the applicant needs ongoing medical and psychological care.
Applicant’s Statutory Declaration post Tribunal hearing
The applicant provided a Statutory Declaration dated 3 April 2019 following the Tribunal hearing in relation to the current application.
The applicant refers to inconsistencies in evidence as raised by the Tribunal. The applicant indicated that on the day of the hearing he was very scared and nervous and stumbling over his answers. He indicated that he was reminded of questioning in Sri Lanka.
The applicant indicates that his medical conditions mean that he was unable to properly take part in the hearing, provide adequate evidence and answer the Member’s questions properly. The applicant refers to a head injury of which he advised the Tribunal Member as affecting his memory.
The applicant indicates that his medical conditions explain his not being able to provide consistent evidence during the protection visa process. The applicant does not believe he would be able to receive proper treatment for his medical conditions on return to Sri Lanka. The applicant believes that his mental health and [Medical Condition 1] will become worse if he was interrogated by authorities in Sri Lanka.
Submission post hearing
The applicant’s migration agent provided a submission dated 5 April 2019 to the Tribunal following the hearing.
It is submitted that the applicant’s inconsistencies in evidence and inability to recall events and claims at particular times throughout the protection visa process are as a result of the applicant’s deteriorating mental health and cognitive and executive functioning difficulties. This, in fact, substantiates the applicant’s claims that he was harmed by the LTTE in Sri Lanka.
The applicant meets the definition of a vulnerable person as defined in Tribunal guidelines. As such, inconsistencies, contradictions or apparent vagueness should not automatically be considered a credibility concern.
It is submitted that regard should be had to various steps taken by the applicant over time to rectify errors in his evidence. It is submitted that the applicant’s testimony did not have a quality of purposeful falsity or have an element of fraud and deception. The applicant has acted in good faith.
Further reference is made to the diagnosis of [Ms B] as underscoring deficiencies in the applicant’s evidence as a product of mental health problems rather than untruthfulness.
Submissions are made in support of the applicant’s complementary protection claims in respect of his mental health. It is submitted that even being held in detention for a short period of time may expose the applicant to a consequential risk of torture and that conditions in detention are likely to amount to serious or significant harm. This submission does not depend on acceptance that the applicant had an LTTE profile. The applicant’s severe mental health issues would result in his being subject to significant harm in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment. The applicant’s mental health conditions would deteriorate on return to Sri Lanka and he would be unable to access medical treatment. Submissions are made that the significant harm would be occasioned in multitudinous ways:
·The Australian government removing the applicant to Sri Lanka;
·Sri Lankan authorities questioning the applicant;
·Sri Lankan authorities detaining the applicant for any amount of time in manifestly inadequate prison facilities;
·The Sri Lankan medical system failing to provide any or adequate care for the applicant;
·Members of Sri Lankan society refusing the applicant access to services including employment and accommodation;
·Members of Sri Lankan society insulting, humiliating and degrading the applicant;
·The applicant himself self-harming or committing suicide.
Reference is made to [Ms B’s] report which indicates that the applicant will not be able to afford any fine imposed for leaving Sri Lanka unlawfully. Independent evidence as to the questioning and investigations that the applicant is likely to encounter from authorities on return are referred to. The applicant will suffer severe physical and psychological stress during this process. The applicant’s health may deteriorate to the extent that he will engage in self-harm. The process will exacerbate the applicant’s mental health issues and there is a real risk the applicant will suffer significant harm from authorities. This harm would include severe physical or mental pain or suffering or both, which would be intentionally inflicted on the applicant.
The applicant would be confronted by significant impediments in accessing adequate medical treatment for his recently diagnosed conditions.
It is submitted that the applicant’s mental health is so severe that any questioning or investigation into his activities in Australia and his past will cause the applicant to enter a heightened state which will result in the applicant experiencing severe mental trauma resulting in significant harm. Authorities will be suspicious of the applicant’s past based on his appearance and may detain him and question him longer than usual. Suspicions will be increased because of the applicant’s change of name. Authorities will likely become aware of the applicant’s connection to the LTTE.
Submissions are made as to poor mental health treatment options available in Sri Lanka as indicated in a variety of independent sources. Severe stigma and discrimination affects those suffering from mental illness.
It is submitted, in the alternative, that it would be appropriate to refer the applicant to the Minister for consideration pursuant to s.417 of the Act. This would be on the basis that there are compassionate circumstances regarding the age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship of the applicant. The applicant’s mental health conditions which would be exacerbated on return to Sri Lanka result in the applicant meeting this criterion.
Independent information sourced by the Tribunal
DFAT Country Report – Sri Lanka, 23 May 2018 provides variously as follows (portions particularly relevant to this matter are underlined by the Tribunal):
RACE/NATIONALITY
Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.
Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils
Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.
Monitoring, harassment, arrest and detention
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
Communities in both the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
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.
During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[1]
[1] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.1–3.12
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.
Political representation of minorities, including ethnic and religious minorities
No constitutional, legal or other restrictions bar minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious or ideological interests. Political representation in parliament is broadly proportional to the overall population. The current parliament includes 29 Tamils and 21 Muslims among its 225 members. President Sirisena presides over a diverse coalition of more than a dozen political parties, which are comprised predominantly of Sinhalese Buddhists but also include Muslim and Tamil members.
Sri Lanka has no banned political parties and all parties operate freely within the same legal framework. DFAT is not aware of any evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment. The PTA restricts certain actions by political parties or groups. Specifically, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can face a maximum of five years’ imprisonment.
DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.
Liberation Tigers of Tamil Eelam (LTTE)
At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.
Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.
Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.
Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.
Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, language, computer skills and vegetable cultivation. Women receive training in cookery, beauty therapy, tailoring, language and computer skills. Former child soldiers are able to complete their education. While many of those who have completed rehabilitation have reported difficulty finding regular employment following their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, conflict-related disabilities, and a reluctance to hire known former LTTE members. The 2018 budget allocated LKR 25 million (approximately AUD 209,000) for rehabilitated ex-combatants in the north and east to attain National Vocational Qualifications.
According to the Bureau of the Commissioner General of Rehabilitation, by November 2017, 12,882 people, primarily former LTTE, had completed rehabilitation. Only one centre with eight inmates remained open in Vavuniya in December 2017. In 2016, Vavuniya inmates reported conditions were significantly better than in prison. Other centres have redeployed for drug rehabilitation.
The rehabilitation program is expected to conclude once the last intake has completed the one-year program. The government estimates 5,000 undisclosed ex-combatants remain in the community. Ex-combatants are reluctant to identify as such for fear of rehabilitation or prosecution. A Sri Lankan official told DFAT that former LTTE members who are not already rehabilitated are unlikely to be rehabilitated now. Extension of the program would create an obligation for the government to support the families of new inmates while they undergo rehabilitation. DFAT is not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia.
Although no formal parole arrangements apply, former 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. Most individuals released from rehabilitation centres have returned to their places of origin upon release and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Some may limit their own travel to avoid telling authorities of their movements.
DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation camps. Some Tamil political leaders, including Northern Province Chief Minister Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations and concluded there was no evidence of injections.
The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:
·     persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;
·     former LTTE combatants or ‘cadres’;
·     former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
·     former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
·     LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
·     persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.
High profile former LTTE members
The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see Former LTTE members living outside Sri Lanka). Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.
On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.
DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.
Low profile former LTTE members
‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.
Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.
Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.
A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.
The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
Family members of LTTE
The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, Detention and Prosecution
Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.
DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
Societal discrimination
Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. Tamil populations in these areas understand that many people were forced to participate in LTTE activities, and DFAT assesses that societal discrimination against low profile LTTE members is low, although some have faced difficulty finding employment, as some potential employers are concerned about increased police and military attention (see Rehabilitation). Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste.
Local NGOs report that female former LTTE members face additional difficulties, including the risk of sexual harassment and stigmatisation within the community, and difficulties finding a marriage partner or securing employment. DFAT has been unable to verify these claims. Women who were forcibly recruited are more likely to be accepted back into their communities than LTTE volunteers.
DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
Scarring
DFAT is aware of reports that people with conflict-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. Freedom from Torture’s 2011 report ‘Out of the Silence’ documents an unidentified number of people detained by Sri Lankan authorities in April or May 2009, because their scarring was deemed evidence of LTTE membership. The cases raised in the report date from the immediate end of the conflict and DFAT is unaware of more recent evidence of people being detained because of scarring. DFAT is aware of the conclusions of the UK Court of Appeal in 2017 of self-inflicted scarring in the case of an asylum claimant who alleged torture because of his previous links to the LTTE.[2]
[2] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.31–3.67
…
TREATMENT OF RETURNEES
Exit and Entry Procedures
Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.
Conditions for Returnees
Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.
The government has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Sri Lankan Prime Minister Ranil Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with scepticism.
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 organisations and international 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 promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.
While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.
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 their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) 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 they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.
DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.[3]
[3] DFAT Country Report – Sri Lanka, 23 May 2018, paras 5.27–5.42

UNHCR’s December 2012 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’ states, in part:
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[4]
[4] UNHCR, ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 21 December 2012, p. 25 <>
The 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision-makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today:
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant.^[5]
…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[6]
[5] GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), para 325
[6] Ibid, para 356(3)
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[7]
[7] GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), para 356(7)(a)
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence,
both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities
know that many Sri Lankan Tamils travelled abroad as economic migrants and also
that everyone in the Northern Province had some level of involvement with the
LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history
[8] Ibid, para 356(8)
will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[8]
Independent information indicates that those known to have supported the LTTE were rounded up into rehabilitation camps shortly after the end of the civil conflict. Most have now been released.[9]
[9] International Crisis Group, ‘Sri Lanka’s North I: The Denial of Minority Rights’, Asia Report No.219, 1 March 2012, p. 10, footnote 73 CIS22742
Credibility, findings and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
Adverse information put to the applicant pre-hearing
Prior to the Tribunal hearing on the remitted application, on 10 December 2018 the Tribunal wrote to the applicant putting adverse information to him based on evidence before the Tribunal provided prior to that date. This adverse information was put to the applicant in accordance with the procedural requirements of s.424A of the Act. The applicant’s response was provided in a Statutory Declaration dated 24 December 2018.
The Tribunal has the following credibility issues concerning the applicant’s claims arising from this adverse information put to the applicant and taking into account the applicant’s responses.
Firstly, the applicant has provided inconsistent evidence as to when he was forcibly recruited into the LTTE. In his detailed written statement of 12 March 2013 the applicant said that he joined the LTTE forcibly in the first month of 2008. His subsequent written statement of 23 April 2015 says that this is a mistake and it should be the start of 2007. His response to the adverse information indicates that he was forcibly recruited in March 2007. In his interview with the delegate the applicant initially said that he joined the LTTE in early 2007 but later said that he was forcibly recruited during his third term leave from school in December 2007.
The Tribunal acknowledges that this is a minor discrepancy. It remains plausible that it could have been an error. It is not considered as a significant credibility issue.
Secondly, the applicant has provided inconsistent evidence as to where he was when he was forcibly recruited by the LTTE. In the interview with the delegate the applicant said that he was at home in [Village 1] when the LTTE came to his home and took him. In contrast, in the first Tribunal hearing the applicant said that he was taken from a place called [Village 2] where he was fishing with his father, which was a place near his home village.
In the applicant’s written response to the adverse information he indicated that the family had houses at both places and that it is from [Village 2] where he was taken by the LTTE. The Tribunal notes that the applicant repeated this in the Tribunal hearing on remittal.
Thirdly, the applicant has not been consistent as to certain time periods following his desertion from the LTTE. In the interview with the delegate, the applicant said that he re-joined the LTTE after one month of desertion. In his written statement dated 12 March 2013 he indicated that after running home he stayed at home for two days before he was taken [to a location] to hide with his [brothers] and that he was in hiding for one month. In contrast, in the first Tribunal hearing on the original review the applicant indicated, on multiple occasions, that he stayed with his mother at home for two months before going into hiding.
In his written response to the adverse information, the applicant indicated that he was not home for two months, he was only home for two days and that there must have been a misunderstanding during the hearing.
Fourthly, the applicant provided inconsistent evidence as to how long he worked in the LTTE [before] the bombing attack. In the written statement of 23 April 2015 the applicant stated that he was made to work [for] three months before the bombing attack. In contrast, in the first Tribunal hearing the applicant said he worked [for] about a month before he was injured.
Whilst the Tribunal does not expect perfect recollection in relation to timeframes there is a not insignificant difference between working for one month and three months. However, this is not a major inconsistency.
Fifthly, the applicant provided inconsistent evidence in relation to the boat used by his family to escape from his home village to Army-controlled areas after his father rescued the applicant from the [LTTE].
In the interview with the delegate the applicant referred to escaping by boat from his home village with members of his family after being rescued by his father from the [LTTE]. The delegate queried how the boat, which the applicant had previously indicated in the interview only carried one or two people, could carry his whole family. The applicant then indicated that wooden structures were attached and tied to the boat to effectively turn it into a catamaran. In contrast, in the written statement of 12 March 2013 the applicant indicated that the whole family got into his father’s large fishing boat, not his small boat.
In his written response to the adverse information the applicant said that he was referring to the same boat in both his written statement and the interview. He indicates that the one boat could be expanded into a larger boat. The Tribunal acknowledges that this is an inconsistency on a minor and tangential issue.
Tribunal hearing on remittal
The Tribunal has the following additional credibility concerns arising either from evidence that the applicant gave at the Tribunal hearing on remittal or that were discussed with the applicant in the hearing.
Sixthly, the applicant has been inconsistent as to whether the training regimes for the LTTE and then the Sea Tigers were combined or separate.
The applicant said that his basic training progressed for three to four months and that it was all conducted in [another town]. The applicant said that after this he was sent for sea training which went for another three months, approximately. The Tribunal asked the applicant whether they were separate training regimes and in different locations. The applicant said that they were separate and in different locations.
However, in contrast later in the hearing the applicant indicated that he was in the Sea Tigers from the beginning. In his written response to the adverse information the applicant also indicated that the total training was all part of his deployment to the Sea Tigers from the start and was not separate from his basic training.
The Tribunal acknowledges that this is not a discrepancy on a major issue; the applicant nevertheless has been inconsistent as to whether the respective training regimes for the LTTE and the Sea Tigers were combined or separate.
Seventhly, on the recently revised version of the applicant’s evidence that he was engaged in fighting with the LTTE for a period before he managed to escape, the applicant has been inconsistent as to the length of time he was engaged with fighting before he escaped.
In the hearing, the applicant said that immediately after he finished his Sea Tigers training he was deployed to the front line at [Town 3] where he was stationed with two other individuals at a post. He said that they were engaged in actual fighting. The Tribunal explored with the applicant the timeframe of this fighting. The applicant gave evidence that the fighting was for several weeks and possibly a month. The applicant indicated that at the end of the fighting period he managed his escape. The applicant indicated that units of up to [number of] soldiers of the Army would approach as close as [distance] metres almost every day to his post and the applicant and his colleagues would fire shots at them. The applicant indicated that he was aware of hitting Army soldiers with his bullets. The applicant indicated that they managed to secure that position and that the fighting continued for a period of up to a month before he escaped.
The Tribunal asked the applicant whether he was certain that the period of fighting before he escaped was not more than a month. The applicant said that he was certain in this respect. The Tribunal notes that this is inconsistent with the response to the adverse information put by the Tribunal in which the applicant said that his pattern of fighting in [Town 3] had continued for around two months before he managed to escape.
When this inconsistency was put to the applicant in the hearing, he changed his evidence to say that the period could have been less or more than a month.
Eighthly, the applicant has not been consistent as to when he was first substantively questioned by the CID and Army as to his alleged involvement in the LTTE.
In the hearing the applicant said that he arrived at the [Town 2 camp] within days of being rescued by his father from the LTTE [in] January 2009. The applicant indicated that for a period from this point he was questioned on a daily basis by either the CID or Army concerning suspicions that he had been a member of the LTTE.
The Tribunal noted to the applicant that his detailed Statutory Declaration dated 12 March 2013 refers to the applicant being at the [Town 2 camp] and then indicates that it was in 2010 that he was taken away for questioning by the Army. The Tribunal put to the applicant that this seemed unusual because he had told the Tribunal in the hearing that from January 2009 he was questioned by the Army and the CID on a daily basis. The Tribunal indicated to the applicant that it did not understand why this earlier questioning would not have been referred to in his detailed declaration. Instead the statement refers to questioning first taking place in 2010. In response, the applicant indicated that he mentioned that he was questioned when he was in the camp.
The detailed Statutory Declaration indicates that the questioning first occurred in 2010. The Tribunal considers that if there had been daily questioning from early 2009 by the Army and CID that this would have been referred to in the detailed Statutory Declaration.
Explanations for credibility concerns, other evidence and findings
There has been an acknowledgement by the applicant of many inconsistencies and problems with his evidence. He has explained these as a product of his youth at the time. He has referred to his head injury as affecting his evidence. He has referred to difficulties as a result of the different interpreters he has utilised whilst providing different statements. Interpreters are said not to have fully understood the applicant and the applicant may not have understood them such as to create difficulties in his statements and testimony.
The Tribunal notes the detail of the psychologist’s report detailed above provided following the Tribunal hearing on remittal as explaining inconsistencies based on mental health conditions suffered by the applicant due to the trauma surrounding his circumstances in Sri Lanka.
The Tribunal notes the observations of the delegate in relation to aspects of the applicant’s evidence as to LTTE involvement in his interview. It is observed that the applicant was consistent, confident and detailed. There was almost no sign of hesitation when he answered questions to clarify matters. He described his forcible recruitment into the LTTE with considerable detail, he explained the equipment issued to him, the training schedule and activities and lessons he undertook during the political training and daily routine. He was also able to draw a sketch of the LTTE position and Army position in one encounter through which he was able to escape.
The Tribunal has listened to the interview with the delegate and agrees with the observations of the delegate in relation to the applicant’s evidence concerning his involvement in the LTTE. The Tribunal also observes that there was a spontaneity and underlying sense of truthfulness in the applicant, at a certain point in the interview with the delegate, suddenly indicating to the delegate that he had not provided the whole truth in relation to his claims and omitted the fact that he himself was forcibly recruited into the LTTE. The applicant was then able to spontaneously back up such claims with quite significant detail as to his LTTE involvement. For example, when asked, the applicant was able to provide detail to the delegate, including a sketch, as to the circumstances and details of the applicant being required to fight with the LTTE on front lines.
The Tribunal has considered cumulatively the impact of the negative credibility issues identified. Whilst a number of the credibility concerns relate to matters of detail or tangential matters the cumulative negative impact of the credibility concerns are not insignificant. However, the Tribunal accepts the psychologist’s report as to the applicant’s compromised medical condition as a significant ameliorating factor explaining the various inconsistencies. The Tribunal also would accept that the youth of the applicant and the stressful and tumultuous nature of the events in question could well create confusion and lack of detail in relation to those events and the specific timing and timeframe of events.
The combination of the applicant’s diagnosed mental health conditions together with the very considerable extent to which the applicant has provided spontaneous, confident and detailed evidence as to his involvement in the LTTE persuades the Tribunal that the applicant was forcibly recruited into the LTTE and that he did serve with the LTTE for a not insignificant period, including being required to engage in front-line activity.
Assessment of protection criteria
The central issue for the Tribunal is whether the applicant faces a real chance of serious or significant harm based on having been a forced recruit into the LTTE and having served for a not insignificant period with the LTTE. The fact that, despite multiple claimed interrogations by authorities from 2009 until 2012, without authorities ever making a final determination as to whether the applicant was of adverse interest or not could cause the Tribunal to determine that authorities would not now have an adverse interest in the applicant.
In the applicant’s written statement and in the first Tribunal hearing reference is made to multiple occasions on which the applicant was questioned by various divisions of both the Army and the CID in both the [camps] in which he and his family were present from 2009 and in [Village 1] where the applicant and his family returned at the beginning of 2011. In the first Tribunal hearing the applicant said that there had been informers in both of the [camps] who had informed that the applicant had been a member of the LTTE. The applicant indicated that he was never sent to a rehabilitation camp because, on various occasions, he would provide evidence of his being a minor at relevant times and that this would at least temporarily satisfy his inquisitors. The applicant said that he never voluntarily registered as an LTTE member who would then be sent to rehabilitation camps.

The applicant has given evidence that there were many, many interrogations of him by various divisions of both the Army and CID over at least substantial parts of 2009 and 2012 and during all of 2010 and 2011. The Tribunal has credibility concerns with the claims of multiple interrogations over a number of years without authorities ever finally determining if the applicant was of adverse interest or not.
The Tribunal also considers that if the Army had had at least two informants that the applicant was a member of the LTTE that they would have acted on this information to send the applicant to a rehabilitation camp. The Tribunal also does not consider it plausible that authorities would accept the applicant’s non-involvement in LTTE activities based on his being a minor at the time when, on the applicant’s own claims, the LTTE took him and others as minors into training and thereafter battle. The Tribunal also does not consider that authorities would waste considerable resources questioning the applicant over many years in relation to suspected LTTE involvement without taking definitive action more quickly to either send him to a rehabilitation camp or to accept that he had not been involved in the LTTE and to leave him alone.
The Tribunal therefore does not accept the applicant’s claims as to multiple interrogations over a number of years as to whether he was a member of the LTTE. The Tribunal is inclined to consider that authorities must have, at a fairly early stage of interrogations, erroneously determined that the applicant was not involved in the LTTE. The Tribunal is not satisfied with the truth of claims of enquiries or mistreatment towards the applicant’s family following the applicant’s departure for Australia based on the applicant’s claimed past LTTE involvement.
However, the applicant was a member of the LTTE and fought for the LTTE, as found by the Tribunal. The Tribunal also considers the sophisticated nature of Sri Lankan intelligence systems in relation to LTTE involvement. The Tribunal considers that, at the very least, government systems would flag a potential link between the applicant and the LTTE and that this would be accessible to officials when the applicant’s record is examined and he is questioned when he arrives from Australia at Colombo airport.
The Tribunal considers that the current concern of authorities in Sri Lanka is to guard against a re-emergence of the Tamil separatist cause, based on key independent information. The Tribunal does not consider that the applicant has any desire to prosecute a separatist cause. However, that would not be known to authorities on the applicant’s return to Sri Lanka.

100. Given that the Tribunal considers that there will be a flagging on government systems as to suspicions of the applicant’s having LTTE involvement the Tribunal considers that this will be a key focus of authorities in interrogations of the applicant on his return to Sri Lanka. The Tribunal also considers that the flagging of the applicant’s suspected involvement with the LTTE may cause additional negative focus by authorities on the applicant’s activities in Australia in terms of his involvement with the Tamil diaspora in Australia and involvement with the Tamil separatist cause.
101. The Tribunal does acknowledge that a significant period has passed since the end of the civil conflict in 2009 and the winding up of punitive action and rehabilitation being undertaken with respect to those who had LTTE involvement in Sri Lanka. Nevertheless, the independent information makes clear the potential for torture and mistreatment of individuals who become targeted by the Sri Lankan police and security apparatus. The fact is that the applicant did, as found by the Tribunal, have involvement with the LTTE and that this suspicion would be flagged on government systems. The Tribunal considers that there is a chance, which is not remote, that these facts could cause the applicant to be targeted in an adverse way by the Sri Lankan security apparatus on return to Sri Lanka resulting in his suffering serious harm. The Tribunal considers that the serious harm would be physical mistreatment during the process of investigation and interrogation of the applicant in relation to his past history in Sri Lanka.
102. Given those findings, the Tribunal is satisfied that the applicant faces a real chance of serious harm on return to Sri Lanka. The Tribunal would find that the essential and significant reason for the harm is the applicant’s political opinion, namely perceived support for the political aims of the LTTE. The Tribunal would find that the persecution that the applicant is at risk of involves systematic and discriminatory conduct.
103. As the risk of harm is from the apparatus of the state and exists during the process of the applicant’s return to Sri Lanka at the airport, the Tribunal does not consider that the applicant can relocate to avoid the harm. The harm effectively applies to wherever the applicant would choose to ultimately reside in Sri Lanka. As the risk of harm is from apparatuses of the state, the Tribunal is not satisfied that the applicant would be in a position to avail himself of the effective protection of the Sri Lankan government.
104. The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
105. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
106. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David McCulloch
Member

[2019] AATA 5842

13 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction