1720270 (Refugee)

[2021] AATA 632

1720270 (Refugee) [2021] AATA 632 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720270

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Dr Irene O’Connell

DATE:22 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 February 2021 at 1:15pm

CATCHWORDS

REFUGEE – Safe Haven Enterprise Visa– Sri Lanka – familial association with the LTTE –imputed association with the LTTE –  incidents of claimed torture took place at a period of time when he was not in Sri Lanka –  applicant has resided for a significant part of his life in India – failed asylum seeker– credibility concerns –decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are husband (the first named applicant), his wife (second named applicant) and their two children. They arrived in Australia [in] April 2011 as Irregular Maritime Arrivals and were transferred to Christmas Island (IDC). They claimed to be Tamils from Sri Lanka and in fear of harm from Sri Lankan authorities by reason of a familial association with the LTTE.

2. Following an assessment of their claims by a departmental officer through the Protection Obligations Determination (POD) process they were found to be owed Australia’s protection. They were notified of this on 20 July 2011 and that the grant of the visas was subject to health and character checks.

3. In December 2014 legislative amendments were made preventing irregular maritime arrivals, including those whose matters were not finally determined, from the grant of a permanent protection visa. As the applicants’ health and character assessments were still pending, they were informed of the need to lodge an application for a class of temporary protection visas known as Safe Haven Enterprise (Class XE) visas.

4. On 17 February 2016 they lodged an application for Safe Haven Enterprise visas. They did so, on the basis that the first named applicant experienced past harm and fears future harm from the Sri Lankan authorities. The harm he fears is by reason of claimed familial ties with LTTE. The applicants also fear harm because they claimed to have departed Sri Lanka illegally and will be returning as failed asylum seekers.

5. On 31 July 2017 a delegate of the Minister decided to refuse to grant a Safe Haven Enterprise (Class XE) (Subclass 790) visa under s.65 of the Migration Act 1958 (‘the Act’). In doing so two decision records were generated, one in respect to the first named applicant with the other applicants included as secondary applicants and the other decision record in respect to the second named applicant with the other applicants included as secondary applicants. The applicants sought review of the delegate’s decision on 31 August 2017 listing the first named applicant as the applicant seeking review and the other applicants as secondary applicants.

   RELEVANT LAW

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

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

9. Under s.5J(1)(a) of the Act, 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. For a person’s fear of persecution to be ‘well-founded’ there must be a real chance that if the person is returned to the receiving country, they would be persecuted for one or more of the reasons mentioned in paragraph (a) and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA. Notably s.5J(4) qualifies the concept of persecution by requiring that:

   ·one or more of the reasons set out in s.5J(1)(a) are the essential and significant reason or reasons for the persecution;

   ·the persecution involves serious harm to the person; and

   ·the persecution involves systematic and discriminatory conduct.

10. Section 5J(5) sets out examples of what constitutes serious harm. These are non-exhaustive and include the following:

    (a)a threat to the person's life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person's capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person's capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

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

12. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) as follows. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

13. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise 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 the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm or where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

    CLAIMS AND EVIDENCE

    Claims before the Department

14. The Tribunal has before it the Department file ([number deleted]), which contains the applicants’ application for a Protection Obligations Determination (POD) assessment and accompanying Statement of Claims; a written summary of the arrivals interview with the first and second named applicants and the decision record of the POD assessor.

15. The Department file also contains the applicants’ Safe Haven Enterprise visa application; statement of claims in support of this, audio recording of an interview with the first and second named applicants and the decision record of the delegate.

16. The written record of the first named applicant’s arrival interview held [in] May 2011 indicates that the first named applicant provided the following relevant information. He stated that his parents and one brother currently reside in Tamil Nadu in India. A younger brother accompanied him to Australia and his eldest brother is missing assumed to be deceased since 1999. He stated that this brother was a member of the LTTE and that the Sri Lankan authorities questioned and detained the applicant in respect to the whereabouts of his brother. The applicant stated that he was arrested some 15 days before his departure from Sri Lanka and when released he felt that he had to flee Sri Lanka.

17. The written record of the second named applicant’s arrival interview held [in] May 2011 indicates that she provided the following relevant information. She stated that she has lived in Sri Lanka all of her life. She has five siblings; her mother is deceased. She states that her brother-in-law was in the LTTE and that her husband was taken away for questioning by the authorities because of this.

18. The applicants provided the following identity documents; a copy of the birth certificate for the first named applicant and the National Identity Card from Sri Lanka and birth certificate of the second named applicant.

19. In the statutory declaration (dated 14 June 2011) submitted in respect to the POD process the first named applicant listed his birthplace as Colombo, his nationality as Sri Lankan, his ethnicity as Tamil and his religion as Christian. Extracts are detailed below:

    3. My father was born In India but my mum was born in Sri Lanka. I have 3 brothers and 1 sister.

    4. My brother [Mr A] and I were born in the same place but my other siblings were born in [Town 1]. My sister [passed] away when she was [age] years old and my brother [Mr A] has been missing since 2008.

    5. I studied in [Town 1] until 1990 which is when my brother [Mr A] willingly joined the LTTE although my parents didn't agree with this, my brothe'sr name was changed to [Mr A’S alias], this was his LTTE name.

    6. My parents decided to leave Sri Lanka and travelled to India this same year because the war was by now raging in our area. We were in a government refugee camp called [Camp 1]. I continued studying in the camp until 1994 and in July 2000, we returned to Sri Lanka.

    7. Once in Sri Lanka, I began working as a Fisherman with my maternal uncle; I met my wife in Sri Lanka and we were married [in] March 2001; in 2002, I bought my own boat with my uncle's assistance and began working for myself.

    8. I had a relatively good relationship with the LTTE, I used my boat a few times to deliver grocery for them, they were paying for my fuel but I wasn't charging them any fee, I was doing this because they were fighting for us but I would not have carried weapon or ammunition for them.

    9. My area is a government operated area and the EPDP people are all around, they

    often come through the area and know everyone.

    10. Towards the end of 2009, around 4 or 5 people from the EPDP approached me whilst I was on the way to buy fishing nets, they addressed me by name, they were very abusive towards me and asking as to where my brother [Mr A’s alias] was, they slapped me around and manhandled me, I respectfully told them I really didn't know where he was, they warned that they will keep an eye on me and will, one of these days, get me and let me go.

    11. In October of 2010, members of the CID came to my home early in the morning, they introduced themselves and showed me their ID cards, they politely said they wanted to talk to me and I will be returned shortly. They took me into a van with a further 2 people waiting and I noticed in the van were another 4 people like me, they told us to not speak to one another, blindfolded me and took us to a place called [Village 1] which is a military camp in [Town 1] itself, they took the blindfold off and collected everybody's details.

    12. We were kept there all day, they gave us food then later in the afternoon, came a man with his face covered, they put us in a line-up, I wasn't identified and was released.

    13. In December 2010, the same CID people came to my home and took me in the van, blindfolded me again and drove to [Village 1] camp, this time, they undressed me leaving my underwear on and threw me in a cell, they beat punched and kicked me, they beat me with a plastic tube also / accusing me of being an LTTE sympathiser and I had sent my brother to the LTTE, no matter how much I denied the accusations, they kept beating me, this continued every 2 hours throughout the 2 days I was detained; I wasn't alone in the cell, others were there also suffering the same interrogation.

    14. The following morning, they allowed me to clean myself up and was dropped at a bus stop to go home.

    15. On or about the [date] of January 2011, in the morning, 1 EPDP and 2 CID officers came to my place again, these were the same EPDP people whom had warned me previously; I was taken once again to [Village 1], I was again detained 2 days, I was put in a cell, totally undressed, hung upside down and whipped with a thorny stick, I still have the marks on my back from it, they also put me in a septic tank, sealed it and put rats in it, I was bitten all over my legs, they then connected electricity to it and told me to pass water and during the all time were interrogating me about my brother.

    16. They then released me but not before ordering to not leave home and the next time they would come, it will be worse; I still have nightmare from this and scram sometimes during my sleep.

    17. On or about the [date] of March 2011, members of the EPDP or CID, I am not too sure who they were, came to my home and took my ID card from me.

    18. This is when I decided to leave Sri Lanka, I left my home with my family and sometimes we'd sleep at my brother's home whilst over times at my cousin's home. We did this for 15 days and on the [date] of March 2011 we left Sri Lanka to Australia with my brother Simiyon.

20. In the application form for a Safe Haven Enterprise visa the first named applicant states that he resided in [Camp 1] in Tamil Nadu from January 1994 until January 2000. He also states in respect to his previous addresses that he resided in this camp from May 1990 until May 2000 and then returned to [Town 1] in Sri Lanka. He states that from December 2010 until March 2011 he resided in a town in India before departing by boat [from] India for Australia.

21. The first named applicant provided a statutory declaration (dated 17 February 2016). From paragraph 1 to 18 it is the same as the statutory declaration of June 2011 which is set out above at paragraph 19.

22. The second named applicant provided a statutory declaration (dated 17 February 2016). She claims that she is a citizen of Sri Lanka, is of Tamil ethnicity and is a Christian. She has two brothers and three sisters. She states that she left Sri Lanka as her husband was being persecuted by the EPDP and the CID because of an assumed association with the LTTE by way of her husband’s brother. She claims that her husband was arrested and detained several times and that his body is scarred from torture. She believes that her husband will be arrested again by government officials if they were to return to Sri Lanka and that he will eventually be killed, and she will be an unmarried mother.

23. She also claims that she will also be suspected of being an LTTE supporter as her husband is suspected of being an LTTE supporter and that she will be tortured and/or killed as “unfinished business” of the EPDP and/or the CID.

24. The applicants provided a number of documents with their Safe Haven Enterprise visa application. These included as follows:

    ·Letter of support from [a] Counsellor of [a welfare organisation] dated 3 May 2017.

    ·Submission (undated) from [a named person] of [a welfare organisation].

    ·Letters of support from [people from various organisations] testifying to the good character of the applicants.

    ·Information Report: Sri Lanka – October 2016 by N Suriyakumaran, Fr P Jordan OP, A Ratnakanthan, C Slee and M Cooke.

    ·School awards for the third and fourth named applicants.

25. Both the first named applicant and the second named applicant were interviewed by a delegate of the Department of Home Affairs (the Department) by telephone on 17 May 2017. In the interview the applicants claimed not to have documents that might otherwise establish that they were residing in Sri Lanka as they so claimed. They stated that they could not locate their children’s birth certificates and that they did not have a marriage certificate because they in fact were not married but had eloped.

26. The delegate raised concerns with the applicants as to their credibility most particularly in respect to their claim to have fled Sri Lanka in March 2011 when in fact they resided in India before coming to Australia. The delegate also noted the absence of documentation that would indicate that the family resided in Sri Lanka, that is the applicants had no birth certificates relating to the children, no marriage certificate and no National Identity Card for the first named applicant.

    Claims before the Tribunal

27. The applicants provided with their application for review a copy of the delegate’s decision records in respect to the first and second named applicants. Additionally they made several submissions to the Tribunal prior to their hearing at the Tribunal on 3 November 2020.

28. A submission (dated 30 April 2019) included a submission from the applicants’ representative of a medical report from psychiatrist, [Dr B] (dated 3 March 2019) in respect to the first named applicant and a second report (dated 16 April 2019) for the second named applicant. Also included were medical reports from [Dr C] at [the welfare organisation] dated 11 March 2019 and 17 March 2019 in respect to the first and second named applicants.

29. The applicants also submitted an NSW marriage certificate indicating that they were married in Australia [in] December 2018.

30. In the written submission provided the applicants’ representative provides a summary of the applicants’ claims as follows. The first named applicant travelled to India in 1990 because of the war in Sri Lanka. He and his family entered India illegally and lived in [Camp 1]. In 2000 he returned to Sri Lanka alone and worked for his uncle, who was a fisherman and who was a member of the LTTE Sea Tigers. The applicant claims that his uncle is missing and his whereabouts are unknown. In 2010, one EPDP and two CID officers came to his house. He recognised the EPDP officer as one of the members of the EPDP who previously warned him in 2009.

31. The applicant claims he was taken to [Village 1] and was detained for 2 days. He claims he was placed in a cell, stripped naked, sexually assaulted, hung upside down and beaten with a thorny stick. He was placed in a sealed septic tank with rats. The tank was connected to the electricity and he was told to urinate. He was interrogated about his brother, [Mr A’s alias] during these events. Before the applicant was released his Identity Card was confiscated, and he was told not to leave his house and threatened that next time would be worse. The applicant claims it was at this point he decided that he would take his family and leave Sri Lanka.

32. The representative submits that the applicants stayed at a cousin’s house while he arranged for a smuggler to take him and his family out of Sri Lanka to Australia. About two weeks later, the applicants and a brother were smuggled out of Sri Lanka and transited through India where they stayed in an isolated place arranged by the first smuggler while they waited for another smuggler to bring them to Australia. The applicant claims they were instructed not to leave the place as they might be arrested by Indian authorities and be deported to Sri Lanka.

1. The medical report from [Dr C] at [welfare organisation] dated 11 March 2019 states the following regarding the first named applicant:

   During the course of treatment of [the applicant]'s work injuries as well as his other general medical care which has involved examination of his chest for pneumonia, I have had cause to note scars on his body which [the applicant] has said are related to torture which was inflicted on him in 2009/2010, while he was on Sri Lanka before coming to Australia. He said there were separate periods when he was taken into custody by the CID and tortured while being questioned.

   The scarring I have noted were –

   [body part 1] pin prick black marks multiple laterally - reported being hit on [body part 1] by pine sticks also reported plantar aspect of feet being hit with clay in pipes and pine sticks when he was lying on abdomen with feet tied together- no scars.

   On his left [body part 2] I noted an irregular circular 3cmx5cm scar/discoloration of skin, darker brown in color. Inferior to this was a 1 cm similar lesion. Both were in keeping with his stated injury of being dragged along a brick wall with body pushed against wall.

   His right [deleted] joint was more pronounced than left- he said he was hit with a rifle butt here. He said he also had his right hand pulled behind his back , and he was held to ground, and kicked with steel boot in right scapular area.

   [the applicant] reported being slapped on the right side of his face and right cheek , as well as punched on the right side of face '80 times.' There were no current scars in this area.

   I noted that his right toe was tender at mtp 5 and his dip jt 5 was hyperflexed but Leane swollen. He said he was stood on by someone with heavy boots on when he was standing without shoes. The toe on his left foot was similarly deformed but not tender. He said his fifth toes injuries were xrayed in Adelaide detention centre, he was told there was a fracture visible, he would need Surgery but this was not done.

   I noted linear fine white scars of his right mid and distal medial thigh, - longest 7cm, parellel ones proximaI to this were finer, shorter, shortest 3cm, 5 lines -says from being hit with pine sticks when tortured. His right mid back and right scapuar area showed 1 x1/2 cm scars- He said from being hit with pine sticks. He had dark scars right [body part 1] and [body part 2] where he said he been hit by pine sticks as per exam.

   I noted a 1/2 cm dark scar right lower leg lateral - which he said was from a ratbite, which had been infected.

   All of the above injuries were in keeping with the stated causes. It is my concern that these unusual scars will mark him as someone who has previously been tortured in Sri Lanka and put him at great risk should he be returned to Sri Lanka.

2. On 27 February 2020 the applicants were invited to a hearing at the Tribunal to give evidence and present arguments. The interpreter booked for the hearing failed to attend. The Tribunal spoke briefly with all four applicants who were in attendance for the hearing. It was determined that the hearing could not progress without the presence of an interpreter. The hearing was rescheduled for 30 March 2020 however with the onset of COVID-19 this hearing was adjourned until 3 November 2020.

3. On 20 February 2020 the applicant provided a written submission setting out the following:

   My younger brother [Mr D]  was born in Sri Lanka on [date]. He was about [age] years old when we fled Sri Lanka to India with our parents in 1989.

   Towards the end of 2012, [Mr D] left India and went back to our area [Town 1], in Sri Lanka. He entered the country illegally. He was detained by the Sri Lankan authorities under the Prevention of Terrorism (Temporary Provisions) ACT No. 48 of 1979. He was suspected of providing supportive assistance to re-organize the LTTE Organisation, having associations with and assisting the LTTE members, failure to disclose the information to the security forces and aiding and abetting the L TTE Organisation to commit unlawful activity. He was detained for 6 months at the District Crime Detective Bureau- [a] District and a further 3 months at [a] Detention [Centre].

   My brother fled Sri Lanka after his release from detention and is living in India.

   Attached is my brother's detention papers as evidence that I am a credible witness and that my claims of being detained and tortured by the Sri Lankan authorities are genuine. [Mr D]'s detainment was authorised by the then president, Mahinda Rajapaksa. He is now the Prime Minister of Sri Lanka and his brother Gotabaya Rajapaksa is President. They are implicated in human rights violations when they were in power from 2005 to 2015…

4. The following documents accompanied the submission of 20 February 2020:

   ·A First Detention Order (dated [January] 2013) relating to his brother

   ·A first Extension of detention (dated [April] 2013) relating to his brother

   ·Extension of detention and change of place of [detention] (dated [June] 2013) in respect to his brother

   ·A Detention Attestation (dated [November] 2013) from the International Committee of the Red Cross stating that the applicant’s brother was visited in prison by a delegate of the ICRC

5. Further documents were submitted on 25 February 2020:

   ·A certified translation of the arrest certificate relating to the brother of [the applicant].

   ·Letter from the second named applicant’s psychologist, dated 24 February 2020.

6. On 27 October 2020 the migration agent provided a letter from the applicant’s doctor indicating that the applicants are experiencing stress and anxiety. Also included in this submission was a letter about her visit to the Sri Lankan High Commission in Canberra dated 26 October 2020. The letter from the migration agent stated the following:

   [In] October 2020, the Executive Director of [the welfare organisation], [and] I visited the Sri Lankan High Commission in Canberra. We went there to enquire about what steps [the applicant], a Sri Lankan national who arrived by boat to Australia without original ID documents, would need to take in order to obtain his original birth certificate and identification card while outside Sri Lanka.

   [The applicant]'s identity was not disclosed.

   We met with [Mr D], at the Sri Lanka High Commission.

   [Mr D] advises that without original Sri Lank.an documents such as a birth certificate or ID card, [the applicant] would be required to attend an interview at the Sri Lankan High Commission. At the interview he would be questioned about his parents and siblings. The information would be forwarded to the authorities in Sri Lanka for verification.

   [Mr D] then told us that those Sri Lankans who came to Australia by boat were seeking a better life, or were terrorists, or were from India given the short distance between Sri Lanka and India (about 14 kilometres). He added that the war in Sri Lanka was because the country had to defend itself from the terrorists.  [Mr D] further added that Sri Lanka has an agreement with Australia to return Sri Lankans back home.

   [Mr D] confirmed that he is responsible for interviewing people in [the applicant]'s situation as well as those being deported from Australia to Sri Lanka.

7. A hearing was held on 3 November 2020 with the assistance of a Tamil interpreter and the applicants’ representative was present at the hearing. Only the first and second named applicants were invited to the hearing.

8. At the hearing the first named applicant provided the following information in respect to his family. His father has passed away and was living in India in a refugee camp at the time of his death some three years ago. His mother resides in India with one brother who is married and has children. His youngest brother is in Australia and his eldest brother’s whereabouts are unknown. The applicant stated that his oldest brother was involved with the LTTE and has been missing for some time. A younger sister died in childhood.

9. The applicant stated that he was born in Sri Lanka but lived in India from 1990 until 2000. He stated that he met his wife and was married in Sri Lanka in 2000. The second named applicant stated that her mother passed away, but her father and siblings are living in [Town 1] and [another town].

10. The Tribunal discussed with the applicant information set out in the delegate’s decision record that their initial evidence that they came to Australia by boat from Sri Lanka was incorrect and that in fact they arrived in Australia from India. The first named applicant responded that in 2013 when they had their interview with ASIO they did tell them that they came to Australia from India. The applicant stated that the people smuggler on the boat had warned them not to say that the boat was from India and out of fear of repercussions from the smuggler they stated that they came to Australia via Sri Lanka.

11. Asked how long he claimed to be in India prior to coming to Australia the applicant stated 8 months or thereabouts. The Tribunal then put to the applicant that this conflicted with his evidence about events that led them to flee Sri Lanka. That is he claimed throughout 2010 he was pursued by the CID and imprisoned and tortured in Sri Lanka before finally departing in March 2011. The applicant stated that it was an error in his evidence the year was wrong and that it should have been 2009 not 2010.

12. The Tribunal discussed with the applicants, documents that might establish that they are citizens of Sri Lanka. The first named applicant referred to his birth certificate and a letter from his school in Sri Lanka which he attended. He stated that he did not have a National Identity Card as it was taken from him by the CID nor did he have birth certificates for his children, and he claimed that they had stated on the forms that they were married but in fact they did not marry until 2018 in Australia. Rather they had eloped and lived together and therefore did not have a marriage certificate from Sri Lanka. In respect to his children’s birth certificates they did not have them with them.

13. In regard to his birth certificate the Tribunal noted that it stated that his father’s place of birth was unknown, but he was listed as an Indian Tamil. The Tribunal also noted that in his statutory declaration he stated that his father was born in India. The applicant agreed that this was correct.

14. The Tribunal put country information to the applicant which indicates that if his father was born in India his father was an Indian citizen by birth, the applicant is an Indian citizen by descent.

15. The applicant stated that he would not agree. He stated that the reference to Indian Tamils is by Singhalese who issued the birth certificate in a Singhalese dominated area. He stated that his father died in India as a Sri Lankan refugee and was not an Indian citizen and that this was the first time he had heard of such a thing. The applicant stated that they were in hiding for 8 months as he was a refugee in India.

16. In terms of his fear of harm should he return to Sri Lanka the applicant stated that he had assisted the LTTE by providing food and transporting goods on his boat from the period of 2001 to 2006. He stated his uncle had done likewise and he believed that his uncle was involved with the Sea Tigers. In addition his brother was involved with the LTTE and was believed to have been involved in an incident that resulted in a huge loss to the navy and for this reason he feared harm from the Sri Lankan authorities.

17. The Tribunal asked the applicant about his brother’s return to Sri Lanka from India and claim to have been detained in Sri Lanka. The applicant was unable to explain how he was released.

18. The second named applicant was asked if she had any claims to make independent of her husband. She stated that she did not but that if they returned to Sri Lanka her husband would be detained and that she could not survive without him. She stated that she is a Tamil woman and she feared for herself and her children if they were forced to return to Sri Lanka.

    Post hearing submissions

19. On 5 January 2021 the applicants responded in writing to issues raised at the hearing most particularly as to whether the applicant had a right to Indian citizenship by reason of the fact his father was born in India. In his statutory declaration dated 5 January 2021 he states the following:

    My father was born in India in [year]. He went to Sri Lanka in 1973.

    My father met my mother in Sri Lanka

    My mother told me that when they married in 1976 my father also got his Sri Lankan Citizenship

    I was born in [year] in Negambo, a Sinhalese town in Sri Lanka.

    In 1980 we moved from Negambo to [Town 1] in northern Sri Lanka. We lived there until1990 when my father took us to India because of the war in Sri Lanka. We entered India illegally and lived in a refugee camp in Tamil Nadu. My father stayed in the refugee camp until his death in 2017.

    My father's birth certificate and Sri Lankan National ID card are lost. However, I amble to provide the original marriage certificate of my parents and my father's original death certificate sent to me by my mother.

    I believe that I am not eligible to apply for Indian Citizenship by Descent because my father was not an Indian Citizen when I was born.

20. The applicant provided a copy of his parents’ original marriage certificate issued by Sri Lanka and certified translated copy of the original death certificate for his father registered in the state of Tamil Nadu, India.

21. The Tribunal sought verification of the death certificate through the Department of Foreign Affairs and Trade (DFAT). DFAT undertook the following verification process:

    Post has contacted the [government agency] to authenticate the death certificate of [the applicant’s father]. [The official] has confirmed in writing that the death certificate, including the place and date of death, are true and correct.

    We also sought advice from [an] NGO that works closely with Sri Lankan (SL) Tamil camp administrators. [The] Coordinator [shared] [the applicant’s father]'s camp registration details and confirmed the death certificate accorded with their records with one exception - his camp of residence. [The applicant’s father] actually resided in [Camp 2] and died in [another] refugee camp while visiting a relative/friend.

    COUNTRY INFORMATION

22. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

23. The Tribunal has had regard to the DFAT Country Information Report Sri Lanka (4 November 2019) which sets out the following in respect to Sri Lankans residing in Tamil Nadu, India:

    3.98 Approximately 95,000 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- and third-generation). The majority of Sri Lankan Tamil refugees (approximately 60,000) reside in 107 camps administered by the Tamil Nadu Government. The remainder live in host communities outside the camps. Camp refugees are registered with India’s Department of Rehabilitation and Welfare, and are provided education, health care, social security and amenities by the Indian Government. 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 living outside the camps are generally better off than those in the camps, and often run successful businesses. They are unable to move into the camps, with camp registration having closed in 2011. DFAT understands there are 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.

    3.99 Sri Lankan Tamils have limited work and education rights in India. They are not entitled to Indian citizenship, although in June 2019 the Madras High Court instructed the Indian Government to reassess the citizenship applications of 65 Sri Lankan Tamil refugees of Indian origin. The Indian Government was considering their claims at the time of publication. Following the High Court’s judgement, 13,805 Sri Lankan refugee families (representing over 40,000 individuals) submitted a petition to the Indian Government seeking Indian citizenship.

    3.100 Only a small number of Sri Lankan Tamils have returned from Tamil Nadu to Sri Lanka since the end of the war. According to Sri Lankan Government statistics from March 2019, 8,168 Sri Lankan Tamil refugees had returned from Tamil Nadu between 2011 and 2018, mostly with UNHCR 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. UNHCR support includes a free air ticket to returnees (to Colombo’s Bandaranaike International Airport); a one-off reintegration grant of LKR10,000 (approximately AUD82) for persons over the age of 18 and LKR7,500 (approximately AUD61) for those below 18; and a one-off non-food item allowance of LKR10,000 per family or LKR5,000 (approximately AUD41) for singles. UNHCR also provides LKR2,500 (approximately AUD20) per person for transportation assistance from the airport to their destination of choice (with most returning to their place of origin). Colombo’s Bandaranaike International Airport is currently the only entry point for returns, although discussions between India and Sri Lanka over the resumption of a ferry service between Chennai and northern Sri Lanka are ongoing. Those returning informally (i.e. outside of UNHCR processes) are not eligible for UNHCR cash grants or non-food items. The International Organization for Migration (IOM) also provides pre- and post-departure support services to Sri Lankan Tamil refugees from Tamil Nadu, including livelihood assistance.

    3.103 The resumption of a ferry service would likely encourage more returns, including by enabling refugees to return to Sri Lanka with more of their personal and household items accumulated in India (restrictions currently apply — see paragraph 3.104). DFAT sources estimate at least 2,000 refugees would be ready to return immediately if a ferry service were established. Others may consider the voyage if they received positive feedback from those refugees returning via this service, if and when established. India is also considering charter flights from Tamil Nadu to northern Sri Lanka, which, if introduced, could accommodate a larger baggage allowance than currently permitted under the UNHCR program, which relies on commercial flights into Colombo.

    3.105 Despite these challenges, returnees from Tamil Nadu that DFAT has spoken to report 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 that locals were generally welcoming and returnees did not feel they were treated differently. Anecdotal evidence suggests repatriation is not considered an attractive proposition for certain groups of Sri Lankan Tamil refugees, particularly those born in India (refugee youth have not been well-represented among voluntary returnees to date). 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 2015, 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 unaware of any high-profile former LTTE members returning to Sri Lanka from Tamil Nadu in 2019. DFAT is unable to verify if any high-profile former LTTE members have returned to Sri Lanka from Tamil Nadu outside of official processes or attest to their treatment on return. According to a UNHCR survey, over 90 per cent of returnees from Tamil Nadu felt either generally or completely safe in Sri Lanka. Credible sources were not aware of returnees from Tamil Nadu being subjected to monitoring or harassment by the authorities.

1. The DFAT report provides the following assessment of the treatment of Tamils with a past association with the LTTE:

   3.77 DFAT assesses that under the current government, while they may be monitored, Tamils with links to the LTTE are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

2. On the issue of failed asylum seekers returning to Sri Lanka the DFAT report states as follows:

   5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit and entry from Sri Lanka. 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 without a valid passport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.

   5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.

   5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.

   5.34 Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Police Airport Criminal Investigations Unit at Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are suspected to be former LTTE members. At the earliest available opportunity after investigations are completed, police transport individuals charged with departing Sri Lanka illegally to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination on next steps for each individual; facilitators or organisers of people smuggling ventures, including the captain and crew of the boat, are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time (for example, because of a weekend or public holiday), those charged may be detained for up to two days in an airport holding cell. DFAT is not aware of mistreatment of returnees during this process.

   5.35 The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. 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. 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. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. According to local sources, some cases dating from 2015 are still ongoing. The IOM provides legal assistance to individuals charged under the I&E Act who returned to Sri Lanka with the IOM’s assistance. Some returnees charged under the I&E Act report having to travel long distances to attend court hearings, and have found this disruptive to their livelihoods. At the time of publication, about 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies.

   5.36 Bail is normally granted to fare-paying passengers of a people smuggling venture. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. In contrast, facilitators or organisers of people smuggling ventures, including captains and their crew, are usually refused bail and are taken into custody. Facilitators or organisers of people smuggling ventures may be charged under Section 45 (c) of the I&E Act. DFAT understands that facilitators or organisers of people smuggling ventures convicted under Section 45 (c) normally receive prison sentences of between one and three years, depending on the extent of their involvement in the venture, with sentences usually closer to three years. DFAT could not obtain information on the number of facilitators or organisers of people smuggling ventures convicted.

   5.37 The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no fare-paying passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally (as distinct from facilitators or organisers). However, fines are issued to fare-paying passengers as a way of deterring future illegal departures. Fine amounts vary from LKR3,000 (approximately AUD25) to LKR200,000 (approximately AUD1,633). Well-placed sources told DFAT this fine is usually between LKR15,000 and LKR20,000 (approximately AUD122 and AUD163). A guilty plea will attract a fine, which can be paid in instalments, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court.

   5.38 The severity of the fine for fare-paying passengers 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.

   5.39 DFAT assesses that the Sri Lankan authorities differentiate between fare-paying passengers and the facilitators or organisers of irregular migration. The authorities are more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures (generally those individuals who arranged the finances for a people smuggling venture and recruited the crew, and the crew themselves) than fare-paying passengers. Unlike facilitators or organisers, fare-paying passengers are usually released on bail and generally receive only a fine for breaking the I&E Act.

   5.40 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.

   5.41 The Sri Lankan Government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.

   5.42 The Sri Lankan Government is working to replace the I&E Act, including to introduce people smuggling offences. Under the proposed new legislation, the fine for departing Sri Lanka illegally would be paid upon return at Colombo’s Bandaranaike International Airport, sparing returnees from going through often protracted and disruptive court processes. The proposed new legislation had yet to be considered by parliament at the time of publication.

   5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.

3. In respect to National Identity Cards (NICs) the DFAT report sets out the following:

   5.58 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 over the age of 16 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.

4. On the issue of torture and scarring as the result of torture the DFAT report states as follows:

   3.92 DFAT is aware of reports that people with war-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. An NGO, Freedom From Torture, reported in 2011 that an unidentified number of people were detained by the Sri Lankan authorities in April or May 2009 because their scarring was deemed evidence of LTTE membership. The cases raised by Freedom From Torture date from the immediate end of the war and DFAT is unaware of more recent evidence of individuals being detained because of scarring.

   4.24 Local sources told DFAT that the police routinely mistreat suspects during criminal investigations, including as a way of extracting confessions. Sources also told DFAT that mistreatment was common in prisons. Mistreatment could range from a slap to the face to severe beatings, and, in some cases, may amount to torture. Sources told DFAT that mistreatment, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities. DFAT is unable to verify these allegations. In recent years, the HRCSL has received about 400 complaints of mistreatment and torture annually. According to local sources, some of these alleged violations were perpetrated by the Police Special Task Force. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to mistreatment. Tamils, including those with imputed links to the LTTE, are no longer considered vulnerable to mistreatment and torture by virtue of their ethnicity or LTTE links.

   4.28 DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war and is no longer state-sponsored. Because few reports of torture are verified, it is difficult to determine the exact prevalence of torture.

   4.29 Sri Lankans face a low risk of mistreatment on a day-to-day basis. In the case of individuals detained by the authorities, DFAT assesses the risk of mistreatment to be moderate. Where it occurs, some mistreatment may amount to torture. DFAT assesses that Sri Lankans face a low risk of torture overall.

5. In respect to the reliability of documentation provided from Sri Lanka the DFAT report states:

   5.69 Genuine identity documents can be obtained by submitting fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported. Sri Lanka has a mature people smuggling industry. In recent years, the Criminal Investigation Department disrupted an organised crime group that produced high quality European identity documents and visa labels on an industrial scale.

   5.70 Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.

   5.71 DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents.

6. The Tribunal has also had regard to the following relevant information extracted below from a report of a UK Home Office fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019, Published 20 January 2020:

   2. Treatment of Tamils

   2.1.1 Most sources noted that Tamils are not specifically targeted and do not suffer persecution just for being a Tamil but they do suffer discrimination along with other minorities. According to one source there is more freedom and opportunities in the north compared to the situation pre-2015. Whilst there are increased opportunities in the north, job opportunities remain limited with the war having destroyed factories and other livelihoods and the promised economic development not happening. Housing and land for returnees remains a problem and there were a number of reintegration issues such as access to water and sanitation.

   2.1.2 After the Easter bombings the return of checkpoints (ostensibly to check for Islamist terrorists) brought back fears amongst the Tamil community who have a subjective fear and mistrust of the authorities. Tamils in the north also viewed the addition of checkpoints when entering the north as a form of harassment as there are few Muslims based there.

   2.1.3 Certain Tamils may be subject to closer scrutiny: for example, political activists and journalists and those returning from abroad may be monitored, although this was not the case for all Tamils. One source noted that they had heard stories of returning Tamils who had faced harassment and intimidation for various reasons, including being wealthy. Tamils do have more freedom of speech but fear the return of former president Rajapaksa.

   2.1.4 There have been some recent tensions between Sinhalese Buddhists and other minorities including Tamils, with several sources telling the FFT of a recent case where a Buddhist monk had laid claim to land belonging to a Hindu temple. After his death his body was cremated on land belonging to the temple, which was in violation of a court order preventing the land from being used as such. There were protests in the Tamil community, but the police were accused of doing nothing to prevent the cremation taking place.

   2.1.5 Sources also stated that they believed that there was some Buddhist colonisation of Tamil areas, possibly to attempt to change the demography of the north, although this was not to the same extent as occurred with the previous government.

   3.2 Liberation Tigers of Tamil Eelam (LTTE)

   3.2.3 Representatives from the Human Rights Commission noted that prominent LTTE sympathisers who actively support the LTTE or raised funds for them in the past may be monitored or questioned although interest in them may depend of their past involvement and any current involvement with diaspora groups.

   3.2.4 A human rights activist told the FFT that there is still interest from the security forces to look for former members of the LTTE. He stated that some activists have been summoned to the Terrorism Investigation Department (TID) and this includes former cadres who do not have an activist profile.

   3.2.5 The representative from the northern province community told the FFT that after 2015 there continued to be some surveillance and house visits by the intelligence service on former LTTE cadres, although the style of enquiry was different to pre-2015 with the authorities being more polite and nonthreatening. Some rehabilitees are targeted by the State Intelligence Service (SIS) who visit their homes, enquire about their activities and restrict their movements. Prominent people remain under scrutiny and can be called into the Terrorist Investigation Department (TID). Whilst the style of enquiry improved post-2015 the same source noted that after the local elections in February 2018 when the Sri Lanka Podujana Peramuna (SLPP) party won there has been increasing intimidation.

   3.2.6 The Secretary to the Ministry of National Policies, Economic Affairs Resettlement and Rehabilitation (MNPEA) noted that he was not aware of any complaints from former cadres that they were being monitored and stated that there is little vigilance on the average ex-cadre.

1. The  same report states as follows in respect to treatment of returnees in general:

   4.1.1 Returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the Criminal Investigation Department (CID) based at the airport. CID would make additional checks with the local police in the area where the person claimed to be from. These checks can take a long time to conduct as there is no central police database. Once released it is not unusual to experience a further check at home although the period of monitoring can vary.

   4.1.2 The representative from the northern province community stated that when failed asylum seekers are deported there may be some sensitivity with some of them being arrested and released on bail to attend court.

   4.1.3 Representatives from the International Organization for Migration (IOM) told the FFT that when people return on an emergency travel document the Sri Lankan authorities are provided the details of the person, by the relevant issuing authority, prior to their arrival. Once they return and have passed through immigration control, they would be referred to the police based at the airport to check criminal records, and if there are no criminal warrants then they would be released. Where there are outstanding criminal warrants then criminal procedures will apply. Those who travel on their own passports are not recognised as readmission migrants.

   4.1.4 IOM also noted that claiming asylum aboard is not an offence and as such when someone returns to Sri Lanka who has been absent for a number of years or has an expired visa, they would not be questioned on this and there were no media reports of returnees being interrogated on such grounds. IOM have some presence at the airport and are based before immigration control to receive passengers returning on IOM programmes and they stated that in the last couple of years they have not witnessed the intense questioning of the past where returnees may have been asked what they had been doing in the UK. The police would only be interested in an individual if there were outstanding criminal offences.

   4.1.5 When asked what would happen to returning Tamils an NGO told the FFT that they were aware of 5 cases where individuals were questioned on return about forged passports but then subsequently released. IOM stated that they did not believe there was a distinction between Tamil and Sinhalese returnees and whilst there may be isolated cases there was no systematic policy of discrimination. Two other sources stated that they were not aware of ordinary Tamils being targeted on return, with several stating they were aware of family members or members of the Tamil diaspora who have returned to Sri Lanka and not encountered any difficulty. A human rights activist told the FFT that he was unable to recall any cases of ordinary Tamils being stopped at the airport and was not aware of anyone on a watchlist being stopped although he had heard anecdotally that this happens.

   4.2 Treatment of returnees with links/perceived links to the LTTE

   4.2.1 If returning failed asylum seekers were found to have links to the LTTE they would likely face further questioning although it would depend on the case. Representative from UNHCR stated that the level of security screening at the airport has decreased since 2015 and that if you are a high profile LTTE cadre you would be subjected to additional questioning, but this would not necessarily mean you would be detained .

   4.2.2 The Attorney General’s Department and the Criminal Investigation Department told the FFT that former LTTE cadres would only be of interest if there was a pending criminal case against them and that mere membership of the LTTE would not make someone of interest, this was also confirmed by an NGO .

   4.2.3 Two sources told the FFT that former LTTE cadres returning to Sri Lanka would be able to undergo rehabilitation if they requested it, although this would not apply if they had crimes outstanding.

2. Section 3(1)(a) of India’s Citizenship Act (‘Citizenship Act, 1955’, Government of India, 30 December 1955, CIS21528) states:

   1) Except as provided in sub-section (2), every person born in India―

   (a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

   (b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004) and either of whose parents is a citizen of India at the time of his birth;

   (c) on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004), where―

   (i) both of his parents are citizens of India; or

   (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,

   shall be a citizen of India by birth.

   Under Section 4(1)( a) of the Citizenship Act, 1955’

   A person born outside India shall be a citizen of India by descent,

   (a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth

   FINDINGS AND REASONS

3. The applicants’ claims may be summarised as follows. The applicants claim to be Sri Lankan citizens. The first named applicant claims that prior to fleeing to Australia he had been arrested and tortured by the Sri Lankan authorities by reason of an imputed association with the LTTE. He claims that the imputation arises primarily by reason of his eldest brother’s involvement in the LTTE but also by reason of an uncle and the transporting of goods on his fishing boat. He claims that in addition to the past harm he has experienced one of his brothers was also arrested and detained for a period of 9 months in 2013. He fears that he will face the same fate if he returns to Sri Lanka. He also claims to fear harm if he returns to Sri Lanka because he has departed Sri Lanka illegally and sought asylum in Australia.

4. The second named applicant fears that she will be imputed to be associated with the LTTE by reason of her brother-in-law’s association with the LTTE and her husband’s past experiences with the Sri Lankan authorities. She also fears that should her husband be detained and/or die she will face harm and discrimination as a single Tamil female. The third and fourth named applicants have not made independent claims and the Tribunal notes that they are both minors.

5. The Tribunal makes the following findings. The Tribunal has strong reservations as to the applicants’ citizenship. The Tribunal notes and accepts that the second named applicant holds an NIC that was issued [in] January 1981 some 40 years ago, and that her family have always resided in Sri Lanka.

6. The first named applicant has provided a birth certificate issued from Sri Lanka but says that he does not have a Sri Lankan National Identity Card because it was taken from him by the Sri Lankan authorities. In his statutory declarations of 14 June 2011 and 17 February 2016 the applicant states that his father was born in India. The applicant confirmed this at the hearing. Based on the Citizenship Act of India (see paragraph 63 above) if the applicant’s father was born in India in [year] then by Indian citizenship law the applicant’s father is an Indian citizen and the applicant is an Indian citizen by descent.

7. Additionally the first named applicant has strong ties to India. His parents have lived in India since 1990 as has one brother. The applicant himself states that he resided in India for a period of some 10 years. Further the applicants arrived in Australia by boat from India not Sri Lanka as he initially claimed. As the delegate noted the applicants have no documentation such as their children’s birth certificates or a marriage certificate that might provide evidence of their living in Sri Lanka.

8. In response to concerns raised by the Tribunal as to the first named applicant’s citizenship the applicant has stated that, although his father was born in India, when his father married he took Sri Lankan citizenship as this was the citizenship of his wife and when the applicant was born his father did not hold Indian citizenship (see paragraph 51 above).

9. The first named applicant also claims that when he resided in India he did so as either a refugee in a refugee camp or illegally. He provided to the Tribunal a death certificate for his father indicating that his father died in a refugee camp in Tamil Nadu, India in 2017. Although the veracity of this certificate has been confirmed through DFAT (see paragraph 53 above) the Tribunal notes a discrepancy in that the DFAT response indicates that the applicant’s father was a resident in [Camp 2] camp not [Camp 1] as submitted by the applicant.

10. No evidence of nationality has been submitted in respect to the third and fourth named applicants. The first named applicant stated that he did not have birth certificates for them nor any evidence of nationality.

11. The Tribunal notes and accepts the country information set out above at paragraph 55 from DFAT as to the numbers of Sri Lankan Tamils who resided in refugee camps in India and regular movements of people between Sri Lanka and Tamil Nadu, India. In light of this country information and the death certificate of the first named applicant’s father the Tribunal gives the applicants the benefit of the doubt and finds the first named applicant to be a citizen of Sri Lanka. The Tribunal accepts that the second named applicant and the third and fourth named applicants are Sri Lankan citizens.

12. The Tribunal accepts that the applicants are of Tamil ethnicity. The Tribunal makes this finding on the basis of the first named and second named applicants’ birth certificates which indicate they are of Tamil ethnicity. The Tribunal does not accept that the applicants’ ethnicity alone gives rise to a well-founded fear of persecution. The Tribunal makes this finding on the basis of the country information sourced from a fact-finding mission conducted by the UK Home Office and set out above at paragraph 61 which indicates that Tamils are not specifically targeted and do not suffer persecution just for being Tamil.

13. The Tribunal does not accept that the first named applicant has been imputed to be an associate of the LTTE through familial ties either with his brother or an uncle. The Tribunal makes this finding on the basis that it finds the applicant’s evidence as to his brother’s activities and claimed association with the LTTE to be lacking detail and substance. He claims that the family have not had contact with the brother after they left for India in 1990 and that he was thought to have disappeared or died in 1999 or 2008.

14. The first named applicant claims that an uncle may have had involvement in the LTTE, perhaps with the Sea Tigers and that the applicant himself delivered goods for the LTTE using his boat. The Tribunal does not accept these claims as the Tribunal considers them to be presented in a generic and unspecified manner. The applicant claims that he did not experience any adverse attention from the authorities until 2008 even though he had returned to Sri Lanka in 2000 and that the adverse attention was precipitated by interest in his eldest brother.

15. The Tribunal does not accept that the first named applicant has suffered harm at the hands of the Sri Lankan authorities by reason of a claimed association with the LTTE. In the view of the Tribunal it seems unlikely that the authorities would pursue the first named applicant with the intensity he so claims given that the eldest brother had disappeared and is presumed to be dead some time ago.

16. As discussed with the first named applicant at the hearing the applicant provided very specific dates as to his claimed detentions in his statutory declaration of 14 June 2011 (see paragraph 19). He repeated these dates in his statutory declaration of 17 February 2016. Subsequently it came to light through an ASIO interview that the applicants were in India at the time that he claimed to have been arrested, detained and tortured by the Sri Lankan authorities. This significant misinformation in the view of the Tribunal undermines the applicant’s claims to have had the experiences he so claims at the hands of the Sri Lankan authorities. The Tribunal does not accept that the first named applicant’s claimed fear of the people smuggler led to the provision of the false information. The applicant proved very specific dates and a timeframe which the Tribunal does not accept was required to disguise a departure from India.

17. The Tribunal notes and accepts the report of [Dr B] and Dr [C] (extracts above at paragraph 33) that the first and second named applicants are experiencing trauma and that the first named applicant has scarring.

18. The Tribunal acknowledges that the first and second named applicants would be experiencing trauma, stress and anxiety. The Tribunal is also mindful of this in terms of the capacity of the applicants to provide their evidence. The Tribunal notes that the applicants have undertaken a risky boat trip to Australia and that they have undergone a long period of uncertainty in the determination of their application for protection, which would of itself create a level of stress and trauma.

19. In respect to the report of Dr [C] the Tribunal notes that the report itemises instances of torture as described by the applicant and then states no current scarring and no scars. When scars are noted they are said to be in keeping with events such as a rat bite, being pushed against a wall, stood on and hit with pine sticks. The Tribunal does not accept that the evidence of such scarring establishes that the first named applicant was tortured by the Sri Lankan authorities as he claims. The  evidence of a rat bite, damaged toes or marks from pine sticks is not in the view of the Tribunal determinative of torture by the Sri Lankan authorities. As set out above the applicant has claimed that these incidents of claimed torture took place at a period of time when subsequently it came to light that he was not in Sri Lanka.

20. The Tribunal does not accept that the applicant’s brother residing in India returned to Sri Lanka in 2013 and was arrested and detained for a period of 9 months. The Tribunal does not accept this claim because it does not accept the prior claim that the applicant’s eldest brother was involved in the LTTE and that the family thereby came to the adverse attention of the Sri Lankan authorities. Combined with this the Tribunal considers it unlikely that a person who has lived most of their life in India and has no adverse profile in their own right would be subjected to a 9-month detention and then simply released. The country information from DFAT quoted at paragraph 55 indicates that there is no evidence that returnees from Tamil Nadu to Sri Lanka were being subjected to monitoring or harassment by the authorities.

21. The Tribunal notes that the first named applicant has provided to the Tribunal several documents in respect to the claimed detention of the brother which are set out in his statements. At the primary level the applicant said he did not have any official documents in respect to the detention of the brother although he provided a Red Cross report. The Tribunal has given careful consideration to these documents but does not place weight on these documents in light of the DFAT assessment that document fraud is common in Sri Lanka in respect to asylum claims (see paragraph 60 above).

22. The Tribunal does not accept that the first named applicant would face harm on his return to Sri Lanka from the Sri Lankan authorities by reason of an imputation of LTTE association. As the Tribunal does not accept that the applicant’s eldest brother or an uncle were involved with the LTTE or that the applicant himself had any involvement. And as the applicant has resided for a significant part of his life in India the Tribunal does not accept that he would be imputed to be associated with the LTTE.

23. Nor does the Tribunal accept that the second named applicant will be imputed to be affiliated with the LTTE by reason of her husband’s activities or the claimed activities of her brother-in-law as the Tribunal does not accept that such an imputation has arisen. Further the Tribunal does not accept that the second named applicant would be a single Tamil woman and vulnerable to serious harm for this reason. The Tribunal makes this finding on the basis that it does not accept that the first named applicant will be imprisoned or killed on return to Sri Lanka.

24. All of the applicants departed by boat to Australia from India but claim that their departure from Sri Lanka to India was illegal. The Tribunal notes that the country information indicates that there is regular illegal movement between Sri Lanka and Tamil Nadu (see paragraph 55 above).

25. The Tribunal notes that the DFAT report (set out above at paragraph 55) indicates that illegal departure is an offence under the Immigrants and Emigrants Act and therefore the first and second named applicants could face charges and be subjected to questioning and checks on whether they have criminal records. The Report indicates that the authorities’ particular interest is in the smugglers not the passengers. The applicants are in the latter category. The Report also indicates that as passengers and not smugglers the first and second named applicants may face a court appearance, bail and a fine. The Tribunal does not accept that these events should they occur constitute serious harm as required under s.5J(5) of the Act (see paragraph 10 above).

26. The Tribunal notes that the contention of Dr [C] that scarring may heighten an adverse interest of the authorities in the first named applicant when he is questioned on his return to Sri Lanka. The Tribunal is not satisfied that the scarring identified is specific to war events or torture and would therefore result in the authorities perceiving the first named applicant to be associated with the LTTE country information.

27. The Tribunal notes that the third and fourth named applicants were under the age of 12 years when they illegally departed Sri Lanka. The Tribunal accepts the DFAT report point 5.40, at paragraph 57, that 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.

28. On the basis of the country information, at paragraph 62, from the UK Home Office fact-finding mission point 4.1.4 the Tribunal does not accept that the applicants face serious harm on their return to Sri Lanka because they applied for protection in Australia and/or because they are Tamil and/or because they departed Sri Lanka illegally.

29. Having concluded that the applicants do not meet the ‘refugee criterion’ in s.36(2)(a) of the Act, the Tribunal has considered the ‘complementary protection criterion’ in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

30. In addition, the Tribunal has carefully considered whether what has been accepted of the applicants’ claims; that they are Tamils who departed Sri Lanka illegally and applied for asylum in Australia, leads to a cumulative or residual risk of harm that reaches the threshold of significant harm. The Tribunal finds that it does not. The Tribunal is not satisfied that, taking account of what is accepted of the applicants’ claims, there is a real risk they will suffer significant harm.

31. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants protection visas.

    Irene O’Connell
    Senior Member