1719920 (Refugee)

[2023] AATA 310

1719920 (Refugee) [2023] AATA 310 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719920

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Genevieve Hamilton

DATE:3 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 03 January 2023 at 4:21pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – family involvement with the Liberation Tigers of Tamil Eelam (LTTE) – protests in India – particular social group – failed asylum seeker – young Tamil male from the North – deaths of relatives – fear of kidnapping – fear of torture – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 46, 65
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 (Cth) (the Act).

2. The applicant applied for the visa on 18 November 2015.  The delegate refused to grant the visa on 10 August 2017.

3. The applicant appeared before the Tribunal on 28 November 2022 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.  During the hearing the applicant confirmed that the correct spelling of his first name is as spelled on the cover sheet of this statement. 

   Criteria for a protection visa

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Claims and evidence

16. The applicant was an unauthorised maritime arrival.  His biodata was recorded on 6 March 2011 through a Tamil interpreter.  He stated that he lived in Sri Lanka from [year] until 1990, then in India until 2009, in Sri Lanka in 2010 and then back to India in 2011. 

17. The applicant was interviewed by an officer of then DIAC on 9 April 2011, with a Tamil Interpreter.  He was cautioned to provide true and correct answers and that his claims would be made confidential.  He said he was born in Jaffna in [year] and lived in [Village 1] until 1990, and then lived in various places in Tamil Nadu (India) until he came to Australia.  He was [an Occupation 1] before he went to India.  He provided copies of various identity documents of himself and his family.  He stated he was a Catholic Tamil.  He married in September 1993, his wife and children are still in Tamil Nadu.  His father was [an Occupation 1], he died in 2002.  His mother is in India, one brother is in Jaffna, [and other family members are] in India. 

18. The applicant said that during the war they could not stay in Sri Lanka; they were starving and had no food.  He went to India without his father and became responsible for his family.  In India the poverty was even worse.  He sent his siblings to school and went to work.  He got married, after that he still looked after his siblings.  When the war was coming to an end the Indian government was going to sent refugees back to Sri Lanka.  His father had been involved in assisting the movement.  If he goes back to Sri Lanka he does not know when any problem may arise, and his children’s future would be jeopardised.  He could face problems, he could be detained which would jeopardise his family’s life and his children’s education.  His brother had called and said the white van incidents were on the rise and people were being kidnapped.  He advised the applicant to stay in India. 

19. The applicant said his parents separated when he was [age] and his [uncle] took care of them.  His father ignored them, but he was told his father was helping the movement in a small way.  He was unable to specify which movement it was because he was not there, and had no personal knowledge of it.  Because of this he feared he may be persecuted if he goes back to Sri Lanka.   

20. In a statutory declaration dated 16 April 2011 in support of his application for a protection obligations determination, the applicant said his brother was not able to leave Sri Lanka despite the dangers he faces, because he looks after his wife’s parents.

21. The applicant said he left Sri Lanka because he feared for his life.  Many close relatives and friends were killed and he feared the same would happen to him.  Many cousins lost their limbs in bomb blasts and his aunt was blown to pieces.  This was because they lived in a Tamil area.  The situation for Tamils has not improved.  Tamils continue to be targeted and killed by the SLA and paramilitary groups such as Karuna and the EPDP.  His father was allegedly involved with the LTTE.  His mother told him that she suspected this and so she took them to India for protection.  There is little doubt the applicant will be targeted if he returns.  His brother has been very lucky to date and continues to live in fear.  The applicant will be detained and eventually killed by the SLA and paramilitary groups, because of his ethnicity and his father’s alleged involvement with the LTTE, and because he has informed the Indian authorities of the atrocities committed by the SLG.  The SLG and the paramilitaries are working together to rid Sri Lanka of Tamils, especially those suspected of being involved with the LTTE.  There was continued ill treatment and mass slaughter of Tamils to date. 

22. The applicant’s representatives made a written submission arguing that the applicant had a well founded fear of persecution for reasons of his race and imputed political opinion, and cited country information about the treatment of Tamils in the aftermath of the war. 

23. The applicant was interviewed in connection with his POD request on 18 April 2011.  He described his life as a refugee in India in harsh conditions with limited rights.  He stated that he and his brother were in danger because of his father’s involvement with the LTTE.  He could not explain what difficulties his brother was facing, but his brother had said don’t think of coming to Sri Lanka, its too dangerous.  He said his father joined the LTTE in 1988 on non-combatant duties, and left the family.  The applicant therefore left school and worked as [an Occupation 1].  Tamil people still face atrocities in Sri Lanka such as he had witnessed during the war.  As a failed asylum seeker he would be suspected of having been rejected for security reasons and that he has spoken against the Sri Lankan government.  He would have to admit having gone to Australia illegally and would have difficulty establishing his identity.  He would be suspected of having been an LTTE supporter due to his age and build.  He would be sent to army camps and tortured.  He was also at risk from the EPDP and Karuna group.  He did not agree that only high profile Tamils were still at risk of persecution.  His brother still regrets going back.  Sinhalese are colonising Tamil villages. 

24. On 2 June 2011 the POD was negative based on the war being over and information about the processing of returnees.  This decision was affirmed internally on 26 October 2011.  The decision was referred to the IPA and the outcome was positive on 15 December 2011 based on the assessor’s view of the applicant’s profile and the prevailing country information at the time.   

25. [A health] report dated [in] November 2011 states that the applicant is experiencing acute stress with persistent memories of past horrific events, and other symptoms of PTSD.

26. In due course the Minister lifted the s46A bar preventing the applicant as a UMA from lodging a visa application.  The applicant was invited to make a protection visa application and lodged the application the subject of the current review.  He reiterated his previous claims and was interviewed by the Delegate. 

27. The applicant’s representatives made a post interview submission dated 18 May 2017.  It states that the applicant participated in protests in India against the Sri Lankan Government, which would have put him on a watch list, and that he also has profile due to his father’s association with the LTTE.  He also faced a real chance of persecution as a failed asylum seeker and a failed asylum seeker who left Sri Lanka illegally, a young Tamil male from the North.  He cannot obtain a NID without approaching the Sri Lankan authorities.  Without one he cannot obtain work.  The military was on the look out for Tamils returning from abroad in order to interrogate and torture them.  The representatives cite reports of ongoing torture and white van abductions in Sri Lanka. 

28. It is stated in the Decision that the applicant claimed to have protested at the refugee camp on one occasion in India in 2009, and was among protesters photographed.  He supplied a copy of an untranslated news report, it is unclear what the protest was about and it is noted in the Delegate’s decision that the applicant is not named or even clearly visible in the report.  The applicant had difficulty in interview the detailing his father’s role with the LTTE.  It is also stated in the Decision that the applicant said his brother had not been questioned on his return to Sri Lanka. 

29. The Tribunal received a submission from the applicant’s representative stating that the applicant continued to merit protection as found by the independent assessor in 2011.  He would be identified as linked to the LTTE.  That his brother had not been harmed was not relevant.  His friends in Sri Lanka tell him not to return because they are being persecuted and tortured.  News reports of the recent protests refer to abduction and torture and returned refugees were subject to the same.  Tamil men are persecuted regardless of their age.  The representative submitted a news report about the ongoing struggle for justice by Tamils in the North regarding people who disappeared during the war, and continuing human rights abuses, including under the Prevention of Terrorism Act. 

30. At the Tribunal hearing on 28 November 2022 the applicant confirmed he stopped his education in [year] and went to work with his [uncle] as [an Occupation 1].  In 1990 three families i.e. he with his mother and siblings, his [uncle] and his family, and his [aunt] and her family, went to India.  The applicant claimed he never went back to Sri Lanka.  In 1993 he married, his wife is also Sri Lankan.  One brother went back to Sri Lanka in 2004 or so, and got married.  He lives in [Town 1] and is doing [Occupation 1] and farming.  The [uncle] also went back in 2006 with his family and is [working] in [Village 1].  The rest stayed in India. 

31. The applicant described the conditions in and regulation of the refugee camps.  He said his [specified siblings] in India had married.  One brother was still single.  His [specified family members] in India were all working at [Occupation 2] as he had. 

32. The applicant said he and his mother and siblings lived with their aunt and her family in Sri Lanka.  His father had stopped contact after joining the movement.  The authorities came to the house to question them about him.  That was the reason they left.  The applicant said his father did not tell them what his role was, they only found out he was with the movement when they were questioned.  He came to India in 2000, the applicant did not know why.  He stayed with his own relatives first then came to live with them when he got sick, and he died two years later.  No other family members were involved with the LTTE. 

33. The Tribunal asked the applicant what happened to the family home in Sri Lanka.  He said it was damaged during the war in 1988 and he thought some cousins were now occupying it.  The Tribunal put to the applicant that it was likely the reason three families left Sri Lanka was because of the fighting, and not because of his father’s role, the information about which was quite vague.  The applicant said the EPRLF and the military came to the house and said, “your father is not here, has he joined the movement?”.

34. The Tribunal put to the applicant that the war was now over, Tamils had been rehabilitated and returned to their homes, and both his brother and uncle had returned and appeared to be living an undisturbed life.  The applicant said that there were still problems and the search for his father may still be going on.  The Tribunal thought this unlikely, after so many years.  The Tribunal asked the applicant what serious or significant harm he faced now?  The Tribunal put to the applicant that the processing of returned asylum seekers in essence involved interviewing them to establish their identity and then sending them home, with judicial processes for illegal departure.  The applicant said it was not like that in reality.  People who have been returned faced a lot of problems but it was not reported in the media.  They were under monitoring and surveillance.  The Tribunal observed that this may not amount to serious harm. 

35. The applicant’s representative referred to reports that indicate that Tamils still fear torture even after the war has ended, and that his friends tell him that they are still afraid. 

36. The applicant confirmed that he had never been involved in Tamil separatism but said that simply being Tamil was a risk.

37. The applicant said he did not want to go back and live in Sri Lanka again after what he witnessed during the war.  His family is happy in India.  He is sad to be separated from them.  His daughter is to be married and he will not be able to attend.  He left Sri Lanka 30 years ago.  His family never thought about going back, they are settled in India.  He is the [son] of an LTTE member and the military will be after him.  His brother had been questioned (about how he went to India as a refugee) and released but was still under surveillance.  He would not be able to help the applicant because he is preoccupied by taking care of his own family and keeping them safe. 

    Country information

38. DFAT’’s country report on Sri Lanka contains the following information.

    Tamils

    According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

    Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

    DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

    DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

    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 war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner.

    Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.

    Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.

    LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

    Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war. In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.

    DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

    …

    Liberation Tigers of Tamil Eelam (LTTE)

    At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.

    Towards the end of the war, in 2009, 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. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.

    While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘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.

    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 party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.

    The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.

    The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour. In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

    Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA.

    Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province).

    ‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. 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 war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war. Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.

    DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had completed their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted. High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process.

    ‘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 war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.

    Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.

    Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP.

    DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

    Former LTTE members living outside Sri Lanka

    At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. 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 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 war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.

    In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.

    DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.

    The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. 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. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.

    …

    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 be pressured to act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.

    Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort, particularly the women, is high. Many, even those who received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if any at all.

    Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.

    DFAT assesses that members of the LTTE suspected of serious human rights violations against other 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.

    Returnees from Tamil Nadu

    Approximately 92,900 Sri Lankan Tamil refugees live in the southern Indian state of Tamil Nadu, most of whom fled the war in the mid‑1980s, or are the descendants of those who fled (almost 60 per cent are second- or third-generation). The majority of Sri Lankan Tamil refugees (approximately 58,900) reside in 106 camps administered by the Tamil Nadu Government. Camp refugees are registered with Tamil Nadu’s Commissionerate of Rehabilitation and Welfare (CoRW) who provide education, health care, social security and amenities. The state government in Tamil Nadu provides camp-based Sri Lankan Tamils with an allowance and allows them to send their children to school.

    The remainder live in host communities outside the camps. Refugees living outside the camps are required to register at their local police station and to re-register if they move between police precincts. In addition to this cohort, there is a smaller undocumented group of refugees residing outside the camps who have not registered for fear of police harassment. Refugees, whether camp or non-camp, cannot obtain employment in the formal sector – options are limited to daily-wage labouring or self-employment. Pre-COVID-19, refugees living outside the camps were generally better off than those in the camps, and often ran successful businesses – however they were seriously impacted by COVID-19, exhausting most of their savings. A one-off COVID-19 welfare payment was offered to 13,553 non-camp refugee families. They are unable to move into the camps, with camp registration having closed in 2011.

    According to a recent survey by the CoRW, 90 per cent of camp-based Sri Lankan Tamil refugees continue to show interest in Indian citizenship and are prepared to stay in camps while this remains a possibility. The current Tamil Nadu Government is also a strong and vocal public advocate for citizenship options. But there is currently no provision under the Citizenship Act (1955) nor Citizenship Amendment Act (2020) providing a pathway to Indian citizenship.

    DFAT understands there have been regular illegal boat movements carrying Sri Lankan Tamil refugees from Tamil Nadu to Sri Lanka and back, in order to visit relatives, usually with the assistance of local fishermen. After the end of the Sri Lankan civil war in 2009, India encouraged Sri Lankan Tamil refugees to return through voluntary repatriation – but only a small number have returned so far. For example, UNHCR has supported 5,266 returnees since 2015. Significant administrative barriers hinder large-scale repatriation, including delays in obtaining Sri Lankan citizenship and National Identity Cards (NICs) and Indian exit permits. In January 2021, the Tamil National Alliance requested that India facilitate the return of Sri Lankan Tamils from Tamil Nadu. However, media reports suggest that Tamils are reluctant to return due to fears of harassment by the Sri Lankan Government and limited economic opportunities. In October 2021, after an 18-month hiatus due to COVID-19 lockdowns, official voluntary repatriation recommenced for small numbers of people. DFAT understands that a few hundred refugees are interested in returning in the coming months (early 2022).

    Tamils may return to Sri Lanka with UNHCR or International Organization for Migration (IOM) assistance. UNHCR provides reintegration, transport and non-food item support to returnees, as well as legal advice in relation to housing, land and property issues. Those returning informally (i.e. outside of UNHCR processes) are not eligible for UNHCR cash grants or non-food items. The IOM also provides pre- and post-departure support services to Sri Lankan Tamil refugees from Tamil Nadu, including livelihood assistance. The Sri Lankan Government provides returning families from Tamil Nadu with cash assistance.

    A sample of returnees from Tamil Nadu told DFAT that they are glad to have returned to Sri Lanka and would recommend return to other refugees. While there is some social stigma attached to returnees from Tamil Nadu, sources told DFAT locals were generally welcoming and returnees did not feel they were treated differently. However a small number, around 100, had secretly returned to India over the past few years, after they had found their land had been reclaimed by the state, their properties were occupied by other families, and/or the resettlement support was not sufficient to build a new life in Sri Lanka.

    Local sources said they were not aware of returnees from Tamil Nadu being subjected to rehabilitation for real or perceived links to the LTTE since the end of the war, although few former LTTE members are thought to have returned to Sri Lanka from Tamil Nadu. DFAT understands that a small number of low-profile former LTTE members, who performed low-level, non-combat functions for the group, returned to Sri Lanka from Tamil Nadu with UNHCR assistance in 2019. DFAT is not aware of returnees from Tamil Nadu being subjected to monitoring or harassment by the authorities.

    Children born to Sri Lankan Tamil refugees in Tamil Nadu are eligible for Sri Lankan citizenship. For a child born to refugee parents in Tamil Nadu to obtain Sri Lankan citizenship, their birth must be registered with the Sri Lankan Deputy High Commission in Chennai and a citizenship application form submitted.

    …

    Exit and Entry Procedures

    Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

    DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.

    The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

    Offences under the Immigrants and Emigrants Act

    The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.

    Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.

    While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.

    The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. 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. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.

    The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.

    DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

    Conditions for Returnees

    Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. 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 and they have existing family links, or because of the relatively lower cost of living compared to the south.

    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 voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

    Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

    Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

    Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

    DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

    …

    National Identity Cards (NICs)

    Sri Lankans generally use the National Identity Card (NIC) as their primary identification document, although birth certificates, driver’s licences and passports are also frequently used. Sri Lankan citizens are required by law to register their identity under the Registration of Persons Act (1968). Following registration, persons aged 16 or over are eligible to apply for a NIC regardless of their ethnicity, religion, language or geographic location. A NIC is obtained through one’s grama niladhari or the Department for Registration of Persons, and is required to access government services, including public health and education services. The NIC can be used to acquire all other identity documents. A NIC can be obtained only within Sri Lanka.

    People who reside in rural locations report that the requirement to travel to major townships to obtain identity documentation is prohibitive. In the north and east, documentation processes can be delayed due to the lack of Tamil-speaking officials. The NIC does not specify ethnicity or religion, and is issued in Sinhalese or, in some instances – such as for Tamils, or for those living in the north and east – in Tamil. There is no renewal period for NICs.

    …

    Sri Lankans without passports can re-enter the country on temporary travel documents, also known as an Emergency Passport or a Non-Machine Readable Passport, issued by diplomatic and consular missions. Temporary travel documents are valid only for re-entry to Sri Lanka.

    Christians

    About 7 per cent of Sri Lankans are Christian. Around 80 per cent of those are Roman Catholic. Other Christian denominations include Anglican, Assembly of God, Baptist, The Church of Jesus Christ of Latter-day Saints (Mormon), the Dutch Reformed Church, Jehovah’s Witnesses, Methodist and Pentecostal. Membership of evangelical Christian groups is small but growing. The Christian community encompasses both Sinhalese and Tamil ethnic groups.

    In recent years, documented incidents of violence and intimidation against Christians have primarily involved intimidation (including physical and verbal threats against pastors and their congregations), disruption of worship services, demands for closure of churches and legal challenges. In some cases, local officials requested evangelical Christian churches to register as places of worship, although no law or regulation requires registration. Buddhists were the perpetrators of most of the reported incidents, followed by Hindus and, to a lesser extent, Catholics against other Christian denominations. DFAT is not aware of reported incidents of violence or visible hostility against Christians perpetrated by Muslims.

    According to sources from the local Christian community, Christians who file complaints on the basis of perceived breaches of their right to religious freedom are often victimised and blamed by law enforcement officials, and some complaints are not investigated further. In September 2020, Christians in a village were told they could not worship; their complaint was initially rejected by local police but later accepted. Of the incidents of violence and intimidation against Christians documented by a local NGO since 2015, nearly half involved state agents, either implicitly or explicitly, including police, village officers (grama niladhari) and Divisional Secretariats (a form of local government). Sources told DFAT that restrictions on Christians’ religious liberties were particularly pronounced in rural areas and that, as a result, Christians in these areas were increasingly apprehensive about being open about their faith.

    DFAT assesses that Christians in Sri Lanka face a low risk of official discrimination. DFAT also assesses that evangelical Christians in Sri Lanka face a moderate risk of societal discrimination, and that Roman Catholics and other mainstream Christian denominations face a low risk of societal discrimination. The number of incidents targeting evangelical Christians has remained largely static over recent years and is highest in Buddhist-majority regions in the North Central, South and Western provinces. Aside from the 2019 Easter Sunday terrorist attacks, DFAT assesses that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if such groups were to expand in membership and strengthen their international links.

    …

    FINDINGS AND REASONS

1. Based on the information in his application the Tribunal finds that the applicant is Sri Lankan national.  It finds that his ethnicity is Tamil and his religion is Catholic.  It finds that he was displaced to India with his extended family in 1990.  The information is inconsistent as to whether he made a return trip to Sri Lanka in 2010 before coming to Australia, but it is unnecessary to make a finding on this as it is of no weight in determining whether he has a well founded fear of persecution in Sri Lanka at the present time. 

2. The applicant claimed to fear harm on the basis of his ethnicity (Tamil) and imputed political opinion (pro-LTTE).  These claims could also be iterated as various forms of particular social group.  The factual basis of these claims is examined below.  As explained to the applicant in the hearing, the Tribunal as presently constituted is independent from previous decision makers and makes its own findings of fact to reach its own decision in his case. 

3. The Tribunal is not satisfied that the applicant’s father was involved in the LTTE.  The information about the duration and nature of his involvement is vague and unsubstantiated.  It therefore does not accept that the family was ever questioned about whether his father was a connected to the LTTE, or that the authorities believed he was so connected. 

4. Based on his own early claims the Tribunal finds that the applicant left Sri Lanka with his family due to the insecurity and economic hardships caused by the war.  It accepts that the applicant has an ongoing fear in relation to Sri Lanka, based on his childhood memories of wartime. 

5. The applicant claimed to have protested to the Indian authorities about Sri Lankan Government atrocities.  The Tribunal is not satisfied that he did so.  The only item of evidence produced was an article about a single protest (the applicant confirmed it was the only one he attended) which was not translated and did not identify the nature of the protest, nor did it identify the applicant except by an unclear image in a group photograph.  The Tribunal is not satisfied that the Sri Lankan authorities have any adverse interest in the applicant due to this protest. 

6. The Tribunal is not satisfied that the applicant has an actual or imputed pro-LTTE opinion. 

7. Reports of white van abductions and associated abuses of Tamils and returned asylum seekers continue to be published by NGOs, but the incidents they document are not forensically verified.  The Tribunal gives weight to the DFAT report.  It indicates that Tamils in general, and especially those in the North and East, face some discrimination and difficulties dealing with the authorities because of language barriers and disrupted education due to the war.  Sinhalese have moved into those provinces in numbers significant enough to enhance the sense of discrimination among Tamils, and there is a strong military presence.  Tamils in the North and East are subject to a degree of monitoring and surveillance focusing mainly on those involved in commemoration events and protests about sensitive issues such as land release or war crimes.  The Sri Lankan Government keeps extensive intelligence on former LTTE members as it is determined to prevent a resurgence of separatism.  Tamils returning to Sri Lanka who have a separatist profile will be monitored, others have no security concerns.  Tamils who were formerly displaced to Tamil Nadu are not subject to monitoring or harassment, apparently because few LTTE members are known to have returned from there.  They may face some social stigma.  In general the treatment of failed asylum seekers, including Tamils from the North and East, is that they are interviewed by various government agencies to check their identity and where they come from, and any criminal background or security concerns.  If they left Sri Lanka illegally they are most likely to be bailed and released, and after a cumbersome court case issued with a fine.  They may have bureaucratic difficulties obtaining a new ID card if needed.  Some returnees to the North and East are actively monitored (e.g. visited by CID) on their return but not on an ongoing basis.  There is minimal social discrimination against returnees

8. None of the above phenomena constitute serious harm directed at Tamils, including returned asylum seekers from the North and East, within the meaning of the Act.  They face practical challenges including expenses, obtaining employment and housing notwithstanding that they may obtain some resettlement assistance, but this does not amount to a denial of the capacity to subsist.  The applicant contended that his age and build would attract suspicion, but the country information does not support such an argument.  The Tribunal does not accept that the applicant’s friends in Sri Lanka are being persecuted. 

9. The applicant did not raise a claim that he risked persecution as a Catholic, but for completeness, based on the country information, the Tribunal notes that despite the Easter Sunday terrorism in 2019, Catholics face only a low risk of official and social discrimination. 

10. The applicant was assessed some years ago as suffering from PTSD, but he did not claim and on the limited evidence before it the Tribunal is not satisfied, that this creates a present factual basis (on its own or cumulatively) for the applicant facing serious harm. 

11. It follows from the foregoing, that the Tribunal is not satisfied that the applicant faces a real chance of serious harm for the reasons specified in s 5J(1).  He therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that he is not a refugee as defined in s.5H(1). 

12. Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions.  As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims. 

13. The applicant claimed that his brother would be unable to help him resettle due to his own family obligations.  The Tribunal is not satisfied that this amounts to significant harm within the meaning of the complementary protection provisions. 

    CONCUSION

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). 

15. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

16. The applicant’s case is somewhat exceptional in that if he returns to Sri Lanka, his family will still be in India.  He has indicated they have no intention of going to Sri Lanka.  This may be a factor the Minister may wish to consider in deciding whether to exercise the Minister’s public interest discretion to make a more favourable decision. 

    decision

17. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Genevieve Hamilton
    Member