1719818 (Refugee)

[2019] AATA 2763

1719818 (Refugee) [2019] AATA 2763 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719818

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Frances Simmons

DATE:27 February 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 27 February 2019 at 4:58pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Applicant and family harassed by Sri Lankan Army – LTTE supporter – political opinion – Tamil ethnicity – child soldier – applicant at elevated risk of harm if returned to Sri Lanka – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 438, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant is a Sri Lankan citizen of Tamil ethnicity and the Hindu faith. He was born on [date] in Trincomalee in the eastern province of Sri Lanka.

2. The applicant applied for the visa on 12 December 2012 and the delegate refused to grant the visa on 16 August 2013. The Administrative Appeals Tribunal, differently constituted, affirmed that decision on 17 December 2014. The applicant sought judicial review of this decision and the Federal Circuit Court remitted the application to the Tribunal for reconsideration by consent. On 12 November 2015, the Tribunal (different constituted) affirmed the decision of the delegate to refuse to grant the applicant a protection visa. Upholding an application for judicial review, the Federal Court quashed the Tribunal’s decision by judgment and remitted the matter to the Tribunal for redetermination. The Federal Court found that the Tribunal did not consider a submission central to the appellant’s case, namely, whether the appellant might fall within the UNHCR Guidelines by reason of his past involvement with the Liberation Tigers of Tamil Eelam (LTTE).[1]

   [1] SZVZN v Minister for Immigration and Border Protection [2016] FCCA 2694.

3. The applicant appeared before the Tribunal on 14 and 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr A] ([initials]), who was recognised as a refugee by the [Country 1] [immigration authority] [in] March 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented by his registered migration agent.

4. The issue in this case is whether the applicant is owed protection obligations by Australia because he is a refugee or, if not, whether he is owed complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   LEGAL CRITERIA

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

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

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account the PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and the assessment on Sri Lanka prepared by the Department of Foreign Affairs and Trade (DFAT), to the extent that this material is relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has carefully considered the evidence on the Departmental file and the Tribunal files.

11. A certificate purportedly issued pursuant to s.438(1)(a) of the Act has been placed on folios 108–115, 132 and 133–139 of the Departmental file restricting the disclosure of the information contained therein.[2] If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. For s.438 certificates, this is any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.[3] The certificate in question states that the disclosure of the information would be contrary to the public interest because it would reveal ‘information relating to internal working documents and business affairs’.

    [2] Department file, f.142

    [3] Section 438(1)(a)(i) of the Act.

12. In MZAFZ v MIBP[4] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were that the relevant folios contained information ‘relating to an internal working document and business affairs’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.[5] Following this reasoning, the Tribunal finds that the s.438 certificate on the Departmental file is invalid. The Tribunal has had regard to the information on the folios purportedly covered by the certificate.

    [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [5] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]–[48].

    Summary of claims

    Claims made to the Department

13. The applicant arrived in Australia as an ‘irregular maritime arrival’ in July 2012 and he took part in an entry interview on 18 September 2012. On 12 December 2012, the applicant applied for a protection visa. The applicant claimed to the Department that he would be persecuted by the Sri Lankan Government, the army or associated paramilitary groups by reason of his Tamil ethnicity and perceived association with the LTTE. He claimed he had been targeted and harassed by the Sri Lankan Army (SLA) because he had witnessed army officers taking his uncle in December 2011, and he was warned not to tell anyone. He claimed he told his aunt what happened and, after his aunt went to the police station and the police did not investigate, his aunt asked him to go to the police station to testify about the incident. He claims he told the police what he witnessed and the police later advised his aunt that the SLA had taken her husband as they believed that he had links with the LTTE. His uncle has not been taken before the courts. The applicant claims the SLA began to harass him because they knew that he had witnessed the abduction and told his aunt and the police, despite being ordered not to. He claims that soldiers from the SLA came to his family home [in] 2012 looking for him, and spoke to his mother in a threatening manner.

14. After his mother informed him that the SLA had visited his home looking for him, the applicant fled Sri Lanka by boat [in] July 2012. He does not trust the SLA, and fears for his safety in Sri Lanka. His family had already suffered the loss of his [brother], [Mr B], who disappeared in 2006. At that time his father was also an active member of the Tamil National Alliance (TNA). Following the killing of five students in Trincomalee, the applicant’s father spoke out about who was responsible and it was during that time that his brother was kidnapped. The family believes that [Mr B] was kidnapped by the SLA or Karuna group. To this day his family does not know what happened to his brother. Prior to that kidnapping, the applicant’s father was also beaten by one of the paramilitary groups associated with the Government, resulting in [an injury].

    Claims made before the previous Tribunals in 2014 and 2015

15. When the applicant first appeared before the Tribunal in 2014 he claimed, in addition to the problems he faced after his uncle was abducted, that he would face harm upon his return to Sri Lanka because he was recruited and trained by the LTTE in 2004. He then spent almost eight months with the LTTE. He claimed he was given preliminary physical training, education classes and the nom de guerre “Kalaipuyal”. He said he was released after eight or nine months at the training camp because he was suffering from [an illness]. After he recovered from [the illness] at home, he was placed in an orphanage [details deleted]. Until today, the security forces are unaware of the applicant’s history as a child soldier. The applicant fears that if the security forces come to know this fact, it would threaten his life.

16. The applicant gave evidence that he had been advised by other asylum seekers that disclosing his involvement with the LTTE would affect whether he obtained clearance from the Australian Security Intelligence Organisation. He claimed that his involvement with the LTTE was not known to the Sri Lankan authorities but that it may become known and he will be subject to increased scrutiny upon his return. He also claimed that he will be subject to increased scrutiny because his father worked for the LTTE in [a certain] division in the 1990s. He claimed that his LTTE connections will be discovered by the Sri Lankan authorities upon his return which will result in him suffering serious harm.

17. In evidence to the Tribunal in 2014 and 2015 the applicant said that his brother, [Mr B], had been a supporter of the LTTE and assisted with LTTE political work. He suggested that [Mr B]’s disappearance in 2006 was a result of both his involvement with the LTTE and his father’s political activities and that [Mr B] could have been kidnapped by the Sri Lankan Army or the Karuna group, a paramilitary group operating in the area at the time. [Mr B] was involved in [Pongu] Thamil events and he did some political work for the LTTE. He was a supporter but not a member of the LTTE.

18. The applicant provided various documents to support his claim that his brother disappeared in 2006[6] and his claim he was in an orphanage between [certain years].[7] He has also provided a death certificate for his father which indicates that his father died [in] 2007 as a result of [an incident] . No documentation has been provided in support of his claim that his uncle was abducted. The applicant has stated that his aunt did make complaints to the Tamil National Alliance and the Sri Lankan Human Rights Commission and also that she was given a copy of a police report but he was not given copies of this documentation and is not able to obtain such documentation now as he is no longer in contact with his aunt. The applicant also provided evidence relating to his mental health.

    [6] Departmental file, f.86 (mental health report in relation to the applicant referring to disappearance of his brother), 83 (letter from the applicant’s mother), Tribunal fie1312595, f.53 (letter from a former member of parliament for the Trincomalee district dated [day] August 2013 referring to the disappearance of the applicant’s brother). In relation to minor variations in spellings of names of the applicant and his brothers the Tribunal adopts the reasoning in Tribunal decision 1504784 at [47]-[48]

    [7] Tribunal file, f.75-76 1312595 (a handwritten letter from [a named person] stated that she was working in the orphanage, and the applicant was there from [certain years] “after returning from Liberation Tigers of Tamil Eelam, as he was unable to get protection from his mother”. A photo ID from the author stating she was [in a certain role in] the orphanage was also enclosed.)

    Claims made to the Tribunal in 2019

19. Before the current Tribunal the applicant maintained the claims that he had previously made and he made new claims arising from the experiences of his brother, [Mr A], who has recently been recognised as a refugee by the [Country 1] authorities, and the applicant’s own engagement with activities promoting Tamil separatism in Australia. The applicant claimed that his brother had travelled to Australia in 2013 and was returned to Sri Lanka by the Australian authorities. The applicant claims his brother was subsequently detained and tortured by the Sri Lankan authorities and fled to [Country 1]. His claim for refugee status was heard by the [Country 1] [immigration authority] in February 2018 and [in] March 2018 he was found to be a refugee.

20. The Tribunal sought and obtained a copy of the decision of the [Country 1] [immigration authority]. [Mr A] told the [Country 1] [immigration authority] that his [brother] was arrested, detained and beaten on suspicion of being an LTTE supporter in February 2006 and then in June 2006 he disappeared, having never returned from work. [Mr A] told the [Country 1] authorities that his family was harassed about his brother’s whereabouts and, after he was beaten by the Sri Lankan authorities in 2012, he sought asylum in Australia but was returned to Sri Lanka. The applicant claims that upon his return to Sri Lanka from Australia [Mr A] was visited by the authorities in Trincomalee and questioned about whether the boat he travelled to Australia on had links to the LTTE. The decision of the [Country 1] [immigration authority] records:

    In [month] 2013, the claimant participated in in demonstrations in Colombo. In [month] 2014, the claimant was stopped by authorities who accused him of transporting people to anti-government activities in the context of his [job]. In [month] 2014, the army came to the claimant’s home and questioned him. They said the demonstration he had attended in Colombo was organised by the LTTE. Three days later, they returned and detained him for [a number of] days at [a facility]. They accused him of being an LTTE supporter and his missing brother of being an LTTE member and beat him.[8]

    [8] Decision of the [Country 1] [immigration authority], [March] 2018 ([number]).

21. The [Country 1] [immigration authority] found [Mr A] to be a credible witness and accepted his claims that he had faced multiple arrests, detentions and harassment by authorities ‘amid the accusation that he and his brother, who has disappeared, are connected to the LTTE’. The [Country 1 immigration authority] found there was a serious possibility he would face persecution if returned to Sri Lanka and that he was a refugee.

22. The applicant also claimed that his sister married a former LTTE cadre in 2016 and her husband fled to [Country 2] to seek asylum after he was mistreated and his claim is yet to be assessed. The applicant provided documentation belonging to an asylum seeker in [Country 2] as well as photographs said to be of his sister and her husband and the injuries her husband sustained at the hands of the Sri Lankan authorities. He told the Tribunal his sister experienced problems in Trincomalee because of her husband’s involvement with the LTTE and, as a result, his sister and his mother had relocated to [City 1]. His mother had a [medical incident] and is now [incapacitated]. He is still in contact with his sister in [City 1] but he does not have contact with his [other] [siblings].

23. The review applicant’s brother, [Mr A], who is now resident in [Country 1], gave evidence to the Tribunal via telephone. What follows is a summary of this evidence. [Mr A] provided biographical details about himself and his family that were highly consistent with those provided by the applicant. He has [a] brother, [Mr B], who went missing in 2006, [and a number of other siblings]. His mother is living in [City 1] with [one] sister. His father, who died in 2007, was against the Sri Lankan Government and they all suffered for this reason. His father worked for the LTTE when they lived in the LTTE controlled area in the Vanni and participated in protests against the Government.

24. [Mr A] told the Tribunal he travelled to [Country 1] in January 2016 with the assistance of a smuggler. He gave evidence that he had previously travelled to Australia in 2013 because the authorities came to his home and gave trouble to him. He claimed he was asked about his [brother] and viewed as a Tamil Tiger sympathiser. He told the Tribunal that when he was questioned by Australian officials on Christmas Island he told them that the Sri Lankan authorities suspected his family were supporters of the Tamil Tigers and that they had come to his home looking for his missing brother. He said the Australian officials told him there were no problems in Sri Lanka now and he could go back. He refused to go but he was forcibly returned. He said he was questioned at the airport by the army, police and navy and then handed over to the courts. He said he was asked at the airport about how he left the country and whether there were Tamil Tigers with them on the boat. After he was released by the courts on bail the authorities came to his home [again] and questioned him. He denied being connected to the Tamil Tigers.

25. [Mr A] told the Tribunal that in 2013 he participated in a protest [at a location] in Colombo. He did so because he wanted to find out where his missing brother was and they handed over a letter about his brother. When the Tribunal asked whether [Mr B] had involvement with the LTTE, [Mr A] said not directly, but he participated in the Pongu Thamil and these kinds of events as did [Mr A]. Asked why his brother disappeared he said because his father participated in a protest against the Government. Also, in 2006 his brother [Mr B] was detained and interrogated, accused of being a supporter of the Tamil Tigers, and later released. After he was released he disappeared. After he disappeared, the SLA questioned him about [Mr B] and suggested that he was a supporter of the LTTE and that they may have taken him or he was hiding with the Tamil Tigers.

1. [Mr A] gave evidence to the Tribunal that the applicant was forcibly taken by the Tamil Tigers and then he was released because he was sick. He corroborated the applicant’s claims that his uncle was taken by the SLA when he was travelling with the applicant to town. He said then his brother was threatened and told not to disclose this to anyone. His brother informed his aunty and then they informed the police. His uncle’s wife was still in Sri Lanka but he was not in contact with her. He didn’t speak to his mother because she had a [medical incident] but he does speak to his [sister] in [City 1].

2. [Mr A] stated he was a supporter of a separate Tamil state. In [Country 1] he attends protests against the actions of the Government of Sri Lanka and he participates in Martyrs’ Day ceremonies. He denies membership of the LTTE or support for the Tamil Tigers. After he was sent back to Sri Lanka, the SLA went to his [home]. He was asked about whether he had been detained by the Sri Lankan authorities. He stated he was detained in an army camp in [a location] in 2014 by the Sri Lankan authorities for [a number of] days. They suspected he might participate in a Martyrs’ Day ceremony and feared he might be organising events against the Government. He worked as [an occupation] and the authorities were concerned he was transporting Tamils to protests. He was questioned twice about this. He said that he went with other people to the protests – he did not transport them – and he gave the UN a letter about his missing brother. He gave evidence he was detained and severely beaten and told his brother was a Tamil Tiger. With the assistance of an uncle, he made arrangements to flee Sri Lanka.

   ASSESSMENT OF CLAIMS AND EVIDENCE

   Country of nationality

3. It is not in dispute that the applicant is a Sri Lankan national. He has produced copies of his birth certificate and various documents relating to other family members. He declares that he has never had a Sri Lankan passport. He has provided consistent information about his identity throughout the protection visa application process and he speaks fluent Tamil. His evidence to this Tribunal about his family composition was highly consistent with that of [Mr A].[9] The Tribunal accepts that the applicant is a Sri Lankan citizen of Tamil ethnicity from Trincomalee in the Eastern province of Sri Lanka and his identity is as claimed. Accordingly, the Tribunal has assessed his claims against Sri Lanka.

   [9] Tribunal file, f. 171-175 (copies of the birth certificates of the applicant and Mr [A])

   Credibility assessment

4. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[10] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]

   [10] The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

   [11] MIMA v Rajalingam (1999) 93 FCR 220.

   [12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

5. Having had the opportunity to explore the applicant’s claims with him at a hearing and having taken evidence from his brother in [Country 1], the Tribunal has formed a favourable view of the applicant’s credibility. In assessing the evidence the Tribunal has taken into consideration the applicant’s young age when many of the relevant events – such as the disappearance of his brother – occurred and that, like many Tamils, he has experienced hardship, displacement and distress as a result of the loss of family members during the long-running conflict between the LTTE and the Government of Sri Lanka. The applicant told the Tribunal he had taken medication in the detention centre but he ceased doing so after he was released into the community. In response to questions, he did not identify any medical condition that would impact on his capacity to give evidence.

6. The Tribunal observes that the applicant generally only expanded upon his responses when encouraged to do so. However, when pressed for further information his responses were spontaneous, detailed and persuasive. While the applicant’s claims have evolved over time, the Tribunal accepts his explanation as to why he did not initially disclose his involvement with the LTTE. The Tribunal did have concerns that the applicant did not disclose [Mr A]’s difficulties in Sri Lanka to the previous Tribunals and that [Mr A] claimed that [Mr B] was detained and tortured by the SLA before his disappearance, a claim not made by the applicant. However, the Tribunal acknowledges that the applicant was a teenager when his [brother] disappeared and resident in an orphanage. Having regard to the high degree of consistency between the evidence of the applicant and [Mr A], the Tribunal is prepared to accept that the family did not always disclose to each other the particular difficulties that they were each facing. Having spoken to [Mr A] and having considered the decision of the [Country 1] [immigration authority], the Tribunal finds [Mr A] to be a credible witness. Having considered all the evidence before it, the Tribunal accepts that the applicant is a generally reliable witness.

   Family background and circumstances

7. The Tribunal accepts that when the applicant’s family lived in the Vanni in the 1990s his father worked for [a certain] division of the LTTE. The applicant told the Tribunal his father did not have any direct involvement in the Tamil Tigers when the family lived in Trincomalee and while he may have had an indirect involvement he did not disclose it to his family. He told the Tribunal that his father was a strong supporter of the Tamil National Alliance and participated in protests against the Government of Sri Lanka. He reiterated his earlier claims that five boys and girls were shot on Trincomalee beach, and his father raised his voice against the army. The country information supports the applicant’s claim that five Tamil students were killed on Trincomalee beach on 2 January 2006. The killings are generally attributed to Sri Lankan security forces. The journalist who documented the murders was killed and witnesses as well as family members of the slain students later fled Sri Lanka. [13] The Tribunal accepts that in 2006 the applicant’s father [was injured] when he was assaulted by Sri Lankan Army officials.

   [13] “Sri Lanka’s Special Task Force”, International Truth and Justice Project, 23 April 2018, CIS7B83941895, p.32.

8. The Tribunal accepts that the applicant has [a number of] siblings [specified]. The Tribunal accepts that the applicant’s [brother], [Mr B], disappeared in 2006. The Tribunal accepts that his [another] brother, [Mr A], was recognised as a refugee by [Country 1] in March 2018. His [brother] is around [age] or [age] and although he no longer lives in the applicant’s home village he is still resident in Trincomalee where he works in a [location]. [One] sister is still [studying]. The Tribunal accepts that the applicant’s mother and his [sister] relocated to [City 1] in 2016. The Tribunal accepts that his sister is married to a former LTTE cadre who is now seeking asylum in [Country 2]. The move to [City 1] occurred after his brother-in-law had trouble with the Sri Lankan authorities. After his mother and sister relocated his mother had a [medical incident] and now she is [incapacitated]. The Tribunal’s evidence about these matters was consistent with that of his brother, [Mr A].

   The applicant is recruited by the LTTE in 2004

9. The Tribunal accepts that in 2004 when he was [age] the applicant was taken by the LTTE. He explained that both the LTTE and the SLA were in control of his village: the SLA by day and the LTTE by night. The country information indicates that the LTTE engaged in the forced recruitment of children during the ceasefire period,[14] school children were exposed to LTTE propaganda activities at schools, and Pongu Thamil events were used to promote the LTTE.[15] The applicant told the Tribunal that when he was picked up and taken to the LTTE camp he was aware that this event was going to occur. He told the Tribunal there were [a number of] people in the training camps and while he was there he saw news on Tamil TV about Karuna. He provided details about a fight between Karuna and the LTTE at [a location], which he said occurred while he was at training camp [details deleted]. The applicant gave evidence about his recruitment in a detailed and spontaneous manner and the Tribunal accepts that when he was [age] he was recruited by the LTTE as claimed.

   [14] Human Rights Watch, ‘Living in Fear: LTTE Recruitment of Children During the Ceasefire’, November 2004.

   [15] BW (Sri Lanka) [2014] NZIPT 800544 (9 December 2014) at [85]–[93] and the country information concerning Pongu Thamil cited therein.

10. The Tribunal accepts that the applicant was taken by the LTTE for about eight months in 2004 but was taken home because he caught [an illness] and subsequently placed in an orphanage. He gave evidence that in the LTTE camp he helped with the provision of food and water to people being trained. He also assisted them when they were dismantling weapons by giving them solutions for the maintenance of their weapons. He was not trained to fight. After he was treated at home for [the illness], his mother put him into the orphanage after he was released but he attended the same school as he had before being taken by the LTTE. When his brother, [Mr B], disappeared in 2006, the applicant was in the orphanage. He was still in the orphanage when his father died in 2007. When he came out of the orphanage the ceasefire had ended and the LTTE had lost control in the east.

11. Having considered all the evidence, the Tribunal accepts that he did not disclose his involvement with the LTTE until he appeared before the first Tribunal because he was afraid of the consequences of doing so. The applicant has claimed that the authorities were not aware of his involvement in the LTTE but may now be aware that he was involved with the LTTE. However, as the Tribunal put to the applicant, even if it is accepted his past involvement in the LTTE will be known to the authorities on return, DFAT assesses it is high-profile leaders of the LTTE who are at highest risk of detention and monitoring and, on one view, his past involvement with the LTTE, which occurred over a decade ago when he was a child, would be of any interest to the Sri Lankan authorities now, particularly as his evidence was he was not an LTTE cadre or involved in fighting. The applicant has claimed that his family members are viewed as LTTE sympathisers and that his past involvement with the LTTE will place him at risk. While this factor alone may not attract the interest of the authorities, the Tribunal accepts that the applicant’s past involvement with the LTTE is relevant to its assessment of whether, when his claims are considered cumulatively, there is a real chance that he will face serious harm upon return to Sri Lanka.

    The applicant’s brother disappears in 2006

12. The applicant claims that [Mr B’s disappearance in 2006 was a result of his involvement with Pongu Thamil events and the political work of the LTTE and his father’s political profile. The applicant has said that [Mr B] was a supporter of the LTTE, assisting the Tamil Tigers with political work and organising the Pongu Thamil events, a series of uprisings that occurred in 1999 and during the peace process era. Asked whether his brother was a member of the LTTE, he stated he did not think this was the case.

13. The Tribunal notes that Pongu Thamil campaigners and student activists were historically viewed by authorities as LTTE sympathisers and that there are multiple reports concerning the close link between Pongu Thamil and the LTTE.[16] According to expert testimony to the UK Upper Immigration Tribunal:

    Pongu Thamil had been a broad social movement, similar to the intifada, in support of Tamil separatism. The GOSL regarded all the Pongu Thamil activists, particularly student activists, as Tamil Tigers and a significant number of them, especially students, had been liquidated in “white van” killings during the shadow war from 2005–2007. The GOSL remained sensitive to the activities of Jaffna University students; Jaffna University was the source of junior LTTE cadres during the civil war and a bellwether for the social situation and the level of Tamil unrest generally.[17]

    [16] BW (Sri Lanka) [2014] NZIPT 800544 (9 December 2014) at [85]–[93] and the country information concerning Pongu Thamil cited therein.

    [17] GJ and Others (Post-civil War Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 156.

14. When the applicant appeared before the previous Tribunal he did not claim that [Mr B] was detained, tortured and released by the SLA in 2006 prior to his disappearance or that family members had been questioned by the SLA about [Mr B] and his links to the LTTE. While the Tribunal had concerns about the fact that this information was not disclosed to the previous Tribunal, having spoken to the applicant and [Mr A] the Tribunal is prepared to accept that [Mr A]’s evidence about these matters is credible and that the applicant, who was [age] when his brother disappeared, was not told everything about the circumstances of his brother’s disappearance.

15. The Tribunal accepts that the applicant’s brother [Mr B] disappeared in 2006. Thousands of Tamils disappeared during the long-running conflict between the LTTE and the Government of Sri Lanka and although the war ended in 2009 there has been little progress in tracing the missing. DFAT reports that many of the missing persons are from the north and east and are likely to have been members or supporters of the LTTE. In July 2017, the UN Working Group on Enforced or Involuntary Disappearances stated that 5,859 of the 12,000 cases of involuntary disappearances that it has reported to the Sri Lankan Government remained outstanding. [Mr A] gave evidence that while his family suspected the SLA had taken [Mr B], the SLA denied this and accused [Mr B] of involvement with the LTTE. He clarified that he believes that the SLA are responsible for [Mr B]’s disappearance.

16. In the Tribunal’s view, given [Mr B] has never been located, it is unremarkable that the applicant’s evidence about what may have happened to his brother has a speculative quality. The applicant said in his view if the LTTE had taken [Mr B] somehow they would have informed his family. He also said he was in the hostel (orphanage) when [Mr B] disappeared and he did not know all the details about this. His family did not tell him everything. The Tribunal acknowledges that the applicant has never claimed to have full knowledge of the circumstances in which [Mr B] disappeared. Having considered the evidence of [Mr A], who the Tribunal found to be a credible witness, the Tribunal accepts that [Mr B] was detained and mistreated as a suspected LTTE supporter by the SLA in the months prior to his disappearance and that this was not previously known to the applicant.

17. Having regard to the country information and the evidence about the experiences of the applicant’s family, the Tribunal accepts that the applicant believes that the Sri Lankan authorities or the Karuna faction are responsible for the disappearance of his brother and that he disbelieves the accusation (made to [Mr A] by SLA officers) that his brother was taken by the LTTE. The Tribunal accepts that in the aftermath of the conflict when [Mr A] sought to protest about [Mr B]’s disappearance [Mr A] was harassed, detained and mistreated by the Sri Lankan authorities and the Sri Lankan authorities accused [Mr B] and [Mr A] of supporting the LTTE.

    The applicant’s uncle is abducted by the SLA in 2011

18. The applicant has consistently claimed that his uncle was abducted by the SLA in 2011. He claimed that this occurred in late 2011 about two and a half years after the civil war ended. In his protection visa application he claimed he was targeted and harassed by the SLA because he witnessed them taking his uncle away by force. Before the first Tribunal he gave evidence that he did not believe that his uncle had links with the LTTE as his uncle worked for [a number of] years for a government [authority]. He suggested his uncle may have been taken because he [undertook a certain activity]. He claimed that his aunt sought assistance from the police but the police did not investigate the matter and later told his aunt that the SLA had taken her husband because they believed he had links with the LTTE. The applicant received text messages on his mobile in Sinhalese after reporting this matter to the police. He tried calling the number but the call did not go through. The telephone company told him it was a ‘security related message’. In [month] 2012 soldiers from his area came to his house looking for him and his mother called him and told him not to come home. He went to stay with a relative in [in another location]. His mother helped him make arrangements to travel to Australia.

19. As discussed with the applicant, the Tribunal who reviewed the delegate’s decision in 2015 recorded that the applicant stated [Mr A] lives with their mother in Sri Lanka and made no claim that his family members had suffered harm because his uncle was abducted. The applicant told the Tribunal that in 2013 he heard that his brother had travelled to Australia but he was not released into the community. He did not know his brother had travelled to [Country 1] until after his brother called him and told him he was recognised as a refugee. The Tribunal asked the applicant to explain why he did not disclose that his brother attempted to travel to Australia at his earlier Tribunal appearances. He said he was asked what his brother was doing now and he said he was in Sri Lanka; he was not asked more than that so he did not provide information about his brother travelling to Australia.

20. In 2018 the applicant’s brother, [Mr A], was recognised as a refugee by [Country 1]. As noted above, the [Country 1] [immigration authority] found that [Mr A] was a credible witness who had been persecuted in the past and faced a ‘serious possibility’ of persecution on return to Sri Lanka for reasons of his race or imputed political opinion. The [Country 1 immigration authority] accepted as credible his claims that he had faced multiple arrests, detentions and harassment by authorities ‘amid the accusation that he and his brother, who has disappeared, are connected to the LTTE’. In evidence to this Tribunal, [Mr A] corroborated central elements of the applicant’s claims. While the [Country 1] decision does not refer to the disappearance of his uncle or the applicant’s recruitment by the LTTE in 2004, neither of these matters was central to [Mr A]’s claims and when he was asked whether, other than his brother, any other members of his family had disappeared, he gave evidence corroborating the applicant’s claims that his uncle was taken by the SLA and this was witnessed by the applicant.

1. The Tribunal accepts that [Mr A] corroborated the applicant’s account of his uncle’s abduction. In 2018 DFAT reported that while disappearances are no longer common, that enforced disappearances occurred in the conflict and post-conflict periods. Accordingly, while the applicant is not able to say with any certainty what motivated the SLA to abduct his uncle and does not believe his uncle was involved in the LTTE, the Tribunal does not consider the claim that his uncle was abducted by the SLA to be implausible. The audio record of the entry interview in which the applicant first claimed that his uncle had been abducted by the Sri Lankan authorities has never been in evidence before the Tribunal. Some of the typed information in the entry interview record is garbled and makes little sense. The Tribunal places no adverse weight on the fact that the entry interview does not record that the applicant was present when his uncle disappeared.

2. The Tribunal does have concerns that, despite referring to efforts made by his aunt to complain about his uncle’s disappearance and a police letter concerning this incident, the applicant has not produced any documentation corroborating his claims that his uncle was abducted by the SLA. However, having regard to all the evidence, the Tribunal is not confident that the applicant’s claims about his uncle’s abduction are not true. To the extent that the Tribunal has doubt, the Tribunal must proceed to assess the applicant’s claims as true and so the Tribunal has accepted the applicant’s claims that he witnessed his uncle being abducted by the SLA in 2011. While the Tribunal is not persuaded that the applicant would now be at risk of harm on this basis alone, it is another factor that the Tribunal has considered in assessing whether, when the applicant’s claims are considered cumulatively, there is a real chance he would face serious harm if he returned to Sri Lanka now.

   The applicant’s brother is found to be a refugee by [Country 1] in 2018

3. The Tribunal accepts that the [Country 1] authorities found [Mr A] to be a refugee in March 2018. The applicant told the Tribunal that when he travelled to Australia in 2013 he told Australian officials that he had been mistreated and his brother disappeared but he was informed that there was no problem in his country and he was forcibly returned. The Tribunal caused searches of ICSE to be undertaken by Tribunal officers to confirm [Mr A] travelled to Australia and so that it might compare the claims made by [Mr A] in 2013 with the claims that were made to [Country 1] authorities. The only records that were located were departmental movement records confirming that [Mr A] arrived in Australia in April 2013 and departed Australia in May 2013. There are no records of any protection visa application lodged by [Mr A] and it appears that he may have been subject to what is labelled “enhanced processing”. There is no information before the Tribunal that contradicts the evidence that [Mr A] gave to the [Country 1] authorities or to this Tribunal.

4. [Mr A]’s evidence to the Tribunal was consistent with the evidence recorded in the decision of the [Country 1] [immigration authority]. [Mr A] gave evidence to the Tribunal that when he returned to Sri Lanka he was questioned at the airport, detained overnight and then brought before a court before being released on bail ([amount]). Then, after he returned to Trincomalee he was visited on multiple occasions by the Sri Lankan authorities who questioned him about whether the boat he travelled to Australia on had links to the LTTE and harassed him about his missing brother, who the SLA accused of involvement with the LTTE. [Mr A] gave evidence he participated in protests about missing persons in 2013 and 2014 and that in 2014 he was detained, severely beaten and accused of supporting the LTTE. [Mr A] denied supporting the LTTE but stated he was involved in Pongu Thamil events during the conflict and in protests against the Government of Sri Lanka in the post-conflict period.

5. The Tribunal accepts that the applicant’s two [brothers] have attracted the adverse interest of the Sri Lankan authorities. The Tribunal accepts that the Sri Lankan authorities tortured the applicant’s [brother] in 2006 and that later the same year he disappeared. The Tribunal accepts [Mr A] was also detained and tortured by the Sri Lankan authorities in the post-conflict period as claimed to the [Country 1] authorities. Although this evidence is not referred to in the decision of the [immigration authority], the Tribunal accepts that [Mr A] supports a separate state for the Tamil people and that he attends protests and demonstrations against the Government of Sri Lanka in [Country 1] as he did in Sri Lanka.

   The applicant’s diaspora activities and support for Tamil separatism

6. The applicant gave evidence that he supports a separate state for the Tamil people. The applicant provided evidence that between 2016 and 2018 he was involved in [Martyrs’ Day] (also known as Heroes’ Day or Maaveerar Naal) commemorations in Australia as well as commemorations to mark the birthday of former LTTE leader Velupillai Prabhakaran. He has produced various photographs and videos of himself at these events and a letter from [a community centre] stating that he is involved in [Martyrs’ Day] and commemorations to mark the birthday of the former LTTE leader. The applicant gave evidence that he began attending such events in [2013]. At the hearing the Tribunal discussed with the applicant its concerns that he may have engaged in this conduct to strengthen his claims for a protection visa. However, having considered the evidence of the applicant and his account of his family’s experiences during the long-running civil war, the Tribunal is prepared to accept that his involvement in these activities in Australia is most likely reflective of his political views and sympathies.

   Whether there is a real chance that the applicant will face serious harm or significant harm upon return to Sri Lanka

7. The Tribunal considers that the applicant’s account of his experiences and the experiences of his family members in Sri Lanka is generally consistent with independent country information. The applicant has not claimed to have a high-profile role with the LTTE or to be the subject of an arrest warrant. However, the picture that has emerged before the Tribunal is of a family that is viewed as LTTE sympathisers by the Sri Lankan authorities. The Tribunal accepts that the applicant’s two [brothers] have been detained and tortured by the Sri Lankan authorities in the past because of their suspected links to the LTTE. The Tribunal accepts that his [brother] disappeared in 2006 after having earlier been detained and tortured by the SLA as a suspected LTTE supporter. The Tribunal accepts that the SLA have subsequently claimed that [Mr B] was taken by the LTTE but that the family believe the SLA or pro-government military groups are responsible for his disappearance. The Tribunal accepts that [Mr A] was harassed by the authorities and travelled to Australia by boat. The Tribunal accepts that he was subject to surveillance and monitoring upon his return and the authorities questioned him at his home in Trincomalee. The Tribunal accepts [Mr A] was detained and tortured by the Sri Lankan authorities after he engaged in public protests and sought to draw attention to the disappearance of his brother.

8. The Tribunal considers that failed asylum seekers who travelled to Australia from Sri Lanka in breach of the Immigration & Emigration Act and who are returned on temporary travel documents are subjected to a high level of official scrutiny that may, in the event that additional risk factors exist, expose them to an elevated risk of mistreatment. DFAT reports that Sri Lankan returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service, the Terrorism Investigation Department and the Criminal Investigation Department (CID). These agencies check travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters. The applicant is not in possession of a passport and he would require a temporary travel document to return to Sri Lanka. If he were returned to Sri Lanka, the authorities would undertake an investigative process to confirm his identity including interviewing him, contacting his home area and town police and contacting neighbours and family and checking criminal and court records.[18]

   [18] DFAT, Country Information Report Sri Lanka, 23 May 2018.

9. DFAT reports that during 2008–2017, over 2,400 failed asylum seekers were returned from Australia to Sri Lanka, in addition to the many Sri Lankan asylum seekers who have been returned from other countries, including the USA, Canada, the UK and other European countries. According to DFAT, 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’.[19] A 2015 UNHCR survey 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 being from the police. In this regard the UK Upper Tribunal found in GJ and Others that:

   Any risk for those in whom the authorities are or become interested in exists not at the airport but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.’[20]

   [19] DFAT, Country Information Report Sri Lanka, 23 May 2018, CIS7B839411064, p.14. Previously DFAT

   [20] GJ and Others (Post-civil War Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(6).

10. Recent country information indicates that the security forces continue to detain individuals they suspect of having LTTE connections or active involvement in Tamil separatism. The UK Upper Tribunal has found that in post-conflict Sri Lanka, an individual’s past history will only be relevant to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state.[21] That decision, which was cited in a June 2017 UK Home Office report on Tamil separatism, said that the Sri Lankan Government was focused 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. If detained by security forces, ‘there remains a real risk of ill treatment or harm requiring international protection’.[22]

    [21] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, March 2017, 2.4.9–2.4.13.

    [22] GJ and Others (Post-civil War Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4); UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, Version 5.0, June 2017 at 2.3.39 and 2.3.40 (the available country information does not provide grounds for departing from this finding).

11. In the Tribunal’s judgment there are a constellation of factors that, when considered cumulatively, lead to the conclusion that the applicant is at elevated risk of harm if he is returned to Sri Lanka. Firstly, the applicant was taken by the LTTE and trained with the LTTE and it is possible this is known to the Sri Lankan authorities. Secondly, two members of his family – his brother [Mr B] and his uncle – have disappeared and when family members sought information about what happened to their relatives they experienced harassment and mistreatment. Thirdly, his two [brothers] have been detained and tortured because of their suspected links to the LTTE. Fourthly, after [Mr A] engaged in protests in Sri Lanka about missing persons in 2013 and 2014 he was detained, accused of being an LTTE supporter and tortured by the Sri Lankan authorities and, as a result, successfully sought asylum in [Country 1] in 2018. Fifthly, both [Mr A] and the applicant have been involved in Martyrs’ Day ceremonies in the diaspora and publicly expressed their support for the establishment of a separate State of Tamil Eelam. Finally, as a Tamil failed asylum seeker who departed Sri Lanka illegally the applicant will be subject to a high level of official scrutiny upon his return to Sri Lanka, including from the local authorities in his home area.

12. DFAT reports that Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout Sri Lanka. According to expert testimony provided to 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.[23]

    [23] DFAT, Country Information Report Sri Lanka, 23 May 2018 (noting modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system.)

13. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile. Until recently it was reported that former LTTE members and supporters who had not previously been detained and released from Sri Lanka’s rehabilitation centres following the end of the conflict, including those returning from overseas, may be sent to the remaining rehabilitation centres.[24] However, as at December 2017, DFAT reported that only one centre with eight inmates remained open in Vavuniya and DFAT has been advised that any former LTTE members who have not already been rehabilitated are unlikely to be rehabilitated now.[25] According to DFAT, it is the LTTE’s former leadership that faces the highest risk of monitoring, arrest, detention or prosecution. High-profile leaders of pro-LTTE diaspora groups may also be of interest to Sri Lankan authorities because of their continued participation in demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka.

    [24] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, March 2017 at 2.4.15; DFAT, Country Information Report Sri Lanka, 23 May 2018.

    [25] DFAT, Country Information Report Sri Lanka, 23 May 2018.

14. There is nothing before the Tribunal that suggests that the applicant or any of his family members could be characterised as high-profile LTTE members or high-profile leaders of pro-LTTE diaspora groups. However, the Tribunal accepts that the authorities perceived the applicant’s two [brothers] and his father to be LTTE sympathisers, that his [brothers] have both been detained and tortured by the Sri Lankan authorities, that one of these brothers disappeared during the conflict and the other brother was detained, harassed and mistreated in the post-conflict period and that the applicant himself was involved with the LTTE in the past, albeit when he was [still a child]. The Tribunal is also prepared to accept that the applicant’s uncle was abducted by the SLA. The Tribunal accepts that [Mr A] attracted the adverse attention of the authorities after he returned to Sri Lanka as a failed asylum seeker and engaged in protest activity about his missing brother and that [Mr A] was detained and tortured. The Tribunal accepts that the applicant and [Mr A] have engaged in activities outside of Sri Lanka promoting Tamil separatism and accusing the Government of Sri Lanka of war crimes.

15. In 2018 DFAT reported that 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. 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 and the Tribunal accepts that the Sri Lankan authorities may be aware of the applicant’s activities in organising Martyrs’ Day commemorations and that, since they left Sri Lanka, the applicant and [Mr A] have been involved in activities promoting Tamil separatism.

16. As the Tribunal discussed with the applicant, Martyrs’ Day (also known as Heroes’ Day or Maaveerar Naal) commemorations, which are intended to remember those killed during the civil war, and commemorations to mark the birthday of former LTTE leader Velupillai Prabhakaran, were able to take place in the north and east of Sri Lanka on 27 November 2018 for the third year in a row.[26] However, there is also some evidence – from 2016 and 2017 – of monitoring and harassment on the part of the security services, while a 27 November 2018 Colombo Telegraph article said that magistrates in Jaffna, Kayts and Batticaloa had prohibited the display of LTTE symbols but had stopped short of banning commemorations.[27] The Tribunal also notes that DFAT reports that:

    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. [28]

    [26] ‘Defying Confusing Magisterial Orders: Prabhakaran’s Birthday Celebrated Widely’, Colombo Telegraph, 27 November 2018, CXBB8A1DA39486; ‘Mahaveer Naal celebrated without any major incidents in the North’, Asian Tribune, 28 November 2017, CXC9046618423; ‘Sri Lankan regime backing away from conflict resolution vows’, Asia Times, 5 December 2017, CXC90406618789.

    [27] ‘Defying Confusing Magisterial Orders: Prabhakaran’s Birthday Celebrated Widely’, Colombo Telegraph, 27 November 2018, CXBB8A1DA39486.

    [28] DFAT, Country Information Report Sri Lanka, 23 May 2018.

17. DFAT assesses that there have been credible reports of torture carried out by the Sri Lankan security forces during the civil conflict and in its aftermath. While the Sri Lankan constitution specifically prohibits torture, several local and international organisations have alleged torture by the Sri Lankan military and intelligence forces, mostly perpetrated by the police against members of the Tamil community and involving people with imputed links to the LTTE.[29] DFAT states that the verification of these claims of torture is complex as many allegations are made anonymously, often to third parties. Exactly what efforts DFAT makes to verify claims of torture are not detailed but DFAT reports that by November 2017 ‘human rights organisations’ in Sri Lanka had not been able to verify claims of torture. Because few reports of torture are verified, DFAT states it is difficult to assess the prevalence of torture but assesses that the risk of torture by the military, police or intelligence forces has decreased since the conflict ended. DFAT also assesses that Sri Lanka lacks effective mechanisms to address complaints of torture and that, irrespective of religion, ethnicity, geographic location or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture.

    [29] DFAT, Country Information Report Sri Lanka, 23 May 2018.

18. The Tribunal considers that country information indicates that even after the defeat of the LTTE in 2009, the police and security forces continued to routinely engage in torture and other forms of coercion as a shortcut to obtaining confessions and facilitating convictions, including for very minor alleged offences.[30] The UN Special Rapporteur on the Committee Against Torture visited Sri Lanka in April/May 2016, reporting that while the practice of torture was less prevalent than during the conflict and the methods used at times less severe, a culture of torture persists, with physical and mental coercion used against suspects being interviewed by the CID and the Terrorism Protection Division.[31] The UK Home Office reported in May 2016 that security personnel in Sri Lanka continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015.[32] In January 2019, the International Truth and Justice Project criticised the appointment of Major General Shavendra Silva, who has been accused of committing war crimes during the civil war, to the position of Chief of Staff of the Sri Lankan Army.[33]

    [30] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 8.5.

    [31] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 8.5.5.

    [32] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism, June 2017, 2.3.3.

    [33] ‘Alleged war criminal named second-in-command of Sri Lanka army’, Al Jazeera, 11 January 2019, < type="1">

19. In July 2018 the United Nations Working Group on Arbitrary Detention reported that it ‘received accounts of Tamils who were arrested and detained in 2015, 2016 and 2017 when returning to Sri Lanka after seeking asylum in another country or working abroad’.[34] The Working Group reported that it ‘received testimony that, in some cases, the returnees were beaten and kept under surveillance once released, and charged with offences relating to illegal departure from Sri Lanka’. The Working Group also reported that ‘numerous alarming allegations were received concerning the use of torture and cruel, inhuman and degrading treatment by the police, including the Criminal Investigation Department and the Terrorist Investigation Division, in order to obtain confessions from detainees either to facilitate the investigation, or in certain instances, to be used as evidence in court’.[35]

    [34] UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, 23 July 2018, CIS7B839419490, p.14.

    [35] UN Human Rights Council, Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, 23 July 2018, CIS7B839419490, p.6.

20. The Tribunal considers that upon the applicant’s return to Sri Lanka he will be subject to a high level of official scrutiny that, when taken together with the additional risk factors that exist in this case including the detention and torture of [Mr A] in the post-conflict period, the disappearance of his brother and uncle and the applicant’s promotion of Tamil separatism in Australia, gives rise to a small but real chance that he will face serious harm if he returns to Sri Lanka now or in the reasonably foreseeable future. As noted above, recent country information indicates that the security forces continue to detain individuals they suspect of having LTTE connections or active involvement in Tamil separatism.

21. Having regard to the applicant’s experiences in Sri Lanka and his engagement with activities promoting Tamil separatism in Australia as well as the circumstances that led to his brother fleeing Sri Lanka and being recognised as a refugee by [Country 1] in 2018, the Tribunal finds that there is a real chance that the applicant would suffer serious harm at the hands of the Sri Lankan authorities if he returns to Sri Lanka now or in the reasonably foreseeable future. Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of his Tamil ethnicity and his actual/perceived political opinion (support for Tamil separatism and imputed support for the LTTE). Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.

22. As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities who retain effective territorial control throughout Sri Lanka, the Tribunal is satisfied that the real chance the applicant will face serious harm relates to all areas of Sri Lanka and that effective protection measures would not be available to him.

23. The Tribunal finds that if the applicant returns to Sri Lanka now or in the reasonably foreseeable future he has a well-founded fear of persecution for reasons of his political opinion and his membership of a particular social group of young Tamil men who departed Sri Lanka illegally and sought asylum abroad.

    CONCLUSION

24. 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) of the Act.

    DECISION

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

    Frances Simmons

    
    

    Member

    
    

reported that while there have been credible reports of torture carried out by the Sri Lankan military and
intelligence forces during the civil conflict and in its immediate aftermath, the incidence of torture has reduced in
recent years and of the thousands of asylum seekers who have returned to Sri Lanka since 2009, there have
been ‘relatively few allegations of torture and mistreatment’. DFAT, Country Information Report Sri Lanka, 24 January 2017, pp.28–29.