1720458 (Refugee)

[2022] AATA 2494

1720458 (Refugee) [2022] AATA 2494 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms KATHLEEN CLARE COFFEY (MARN: 1067518)

CASE NUMBER:  1720458

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Lilly Mojsin

DATE:16 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 June 2022 at 11.00 am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – ethnicity, imputed political opinion and membership of particular social group – Tamil – refugee in third country for long period from young age – returned failed asylum seeker – inconsistent claims – claim of return to home country and beating by army there conceded as untrue – issued with home country passport in third country – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), (aa), 46A(1), 65

Migration Regulations 1994 (Cth), Schedule 2

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

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 on 17 August 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, was born in Jaffna North Western Province and is a [Age] year old Roman Catholic Tamil.

3. [In] April 2011, the applicant, travelling by boat as an undocumented maritime arrival (UMA), arrived in Australia on Christmas Island.  His brother[1] also travelled with him.

   [1] AAT 1723233

4. On 18 June 2012 the applicant was found to be owed protection by an Independent Protection Assessment Outcome and on 29 September 2015 the Minister lifted s.46a(1) bar.

5. The applicant applied for a Safe Haven Enterprise Visa (SHEV XE-790) visa on 15 March 2016.

6. The delegate, on 17 August 2017, refused to grant the visa as the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to Sri Lanka and therefore did not meet the requirements for that visa. The applicant sought review of the delegate's decision, attaching a copy of the Department decision to his application for review, attaching a copy of the Department decision to his application for review.

7. The applicant appeared before the Tribunal on 25 November 2021 to give evidence and present arguments, by Teams Video. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent.

8. The Tribunal determined it was reasonable to hold a hearing by Teams video, during COVID. The Tribunal had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

9. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant, his representative and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing.

10. I am satisfied that the hearing provided a real opportunity to be heard.

    CRITERIA FOR A PROTECTION VISA

11. See Annexure A  

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In an entry interview held on 8 May 2011, the applicant stated that he lived in a camp in Tamil Nadu, India from 1990 to September 2010. He claimed that he travelled to India illegally. He had a Sri Lankan passport which he left in India. He provided a birth certificate to the Department. 

13. His father was a fisherman who lived in Jaffna. His mother stayed at home and resided in Tamil Nadu in India. He has two sisters in Tamil Nadu and a brother who came with him to Australia.

14. His family left Sri Lanka because of fighting in 1990. The whole family left but on the way his father was hit by shrapnel and lost half his arm and leg, so had to remain behind. His uncle looked after his father.

15. The applicant said that he attended school until 2006 in Chennai, attended [College] in Chennai where he completed a Bachelor of [Subject] in 2010 after 4 years study.

16. It was claimed that he and his brother returned to Sri Lanka in 2010 to see their father, who they were told was seriously ill. They did not have the correct registration cards so their father did not allow them to go out of the house. A month after their arrival their father was out, so they went outside and were chased by the army on a bike and jeep. The army captured his brother, the applicant escaped. Later his brother was returned and he had been beaten up. His father arranged for his brother and the applicant to come to Australia as his father was fearful that he and his brother would be killed. At night the army raided houses, his house was raided and they beat him and his brother. His father begged them not to take his boys and so they beat them there. His father thought they were trying to take him away. He said the army would kill him as he was a Tamil and they fear the rejuvenation of the LTTE.

17. The applicant lodged an application for Protection Obligations Determination on 13 June 2011. He additionally claimed:

    • He is a Tamil by race and a Roman Catholic by religion. He has never been married and has no children.
    • The applicant has been staying in India as a refugee with his family since 1990. They fled from Sri Lankan because it was extremely dangerous for them and they feared for their lives. The father did not make it to India as he suffered life­ threatening injuries on their way to India.
    • The applicant and his brother returned to Sri Lankan in September 2010 to visit their father who was extremely ill. They stayed in Sri Lankan for approximately 5 to 6 months. Their father tried to obtain national identity card for the applicant and his brother but his father was not successful. The authorities refused to issue ID cards because of their Tamil ethnicity. 
    • The army came to the house and beat up the applicant and his brother. The army believed that the applicant and his brother came to Sri Lanka to help reform the LTTE and fight the government. The army wanted to have the applicant and his brother killed.
    • The applicant and his brother were chased by the Sri Lankan Army shortly after their arrival in Sri Lankan. The applicant was able to escape but his brother was separated from him. They eventually found his brother bloodied and beaten up.
    • The applicant became fearful for his life and stayed indoors. The father made arrangements for the applicant and his brother to leave Sri Lanka. The applicant arrived in Australia without any travel document and was placed in detention.

18. The Protection Obligations Evaluation delegate did not accept that the applicant had a well-founded fear of persecution and found that the applicant would be able to return to his place of origin.

19. The applicant's case was referred for Independent Protection Assessment [IPA] on 27 July 2011 and he was interviewed by the IPA assessor on 9 February 2012.

20. The applicant submitted a statutory declaration and claimed that he last left Sri Lanka as a child in 1990 and he sailed by boat directly from India to Australia. He said that his claims regarding going to Sri Lanka from India and then coming from Sri Lanka to Australia was concocted by the people smuggler. He claims that he never left Sri Lanka on the way to Australia.

21. The applicant claims that he studied to be [an Occupation 1] in India and his family supported him in his studies. Because he was educated in India, there might be questions about his being involved with the LTTE. Having advanced [technical] skills, he is concerned that the Sri Lankan authorities would suspect that he was affiliated with the LTTE and that he intended to assist the group to reform.   Having read about the abductions in Sri Lanka, the applicant said that he fears that he would be detained and killed by the army or by the paramilitary in Sri Lanka because they would suspect him of being an LTTE member or supporter on account of his Tamil ethnicity and his educational achievements.

22. The IPA officer found that the applicant faces a real chance of being persecuted on return to Sri Lanka. The applicant was found to meet the criterion for a protection visa. 

23. The applicant lodged an application for SHEV on 15 March 2016 after the Minister lifted s.46(a)(1) bar, thereby allowing the applicant to lodge an application for a PV.

24. In this application, now before the Tribunal, the applicant claimed:

    • his previous statements regarding his identity and his birth in Sri Lanka were correct.  
    • his personal circumstances, as well as the situation in Sri Lanka, have not changed since the determination of his refugee status was made. He believes that the finding on his being a refugee should remain. 
    • he is a Tamil and a Roman Catholic. He left Sri Lanka as a young child in 1990 together with his family. They went to India and he did not return to Sri Lanka. He travelled directly from India to Australia.
    • he is a citizen of Sri Lanka and he does not have legal right to reside in another country.
    • he fears returning to Sri Lanka as he will be detained or killed by the Sri Lankan authorities. He could not return to India as he fears being either jailed or deported back to Sri Lanka as he did not have legal status in India.
    • he left Sri Lanka in 1990 as a [child]. There was a lot of conflict and problems in Sri Lanka such as killings and kidnappings. The applicant left with his mother, two sisters and a brother. He has not seen his father since then. They settled in a refugee camp in India.
    • he trained to be [an Occupation 1] in India.   His family supported his studies. His life was difficult in India as he did not have a legal right to live there and he did not have citizenship rights.
    • he could not now return to India as he left India illegally and because he is a Sri Lankan. He fears being imprisoned in India if he returned to that country.
    • fears that he will be detained on return to Sri Lanka as he will be suspected of having been involved with the LTTE because he is a Tamil from the north and he has very advanced [technical] skills. He also graduated from a college where a former student was sponsored by the LTTE to complete his studies. After graduation this student returned to Sri Lanka to work for the LTTE.   This is the reason why the Sri Lankan authorities treat Tamil students who studied in this college with suspicion.
    • he fears that the authorities will treat him with a high level of suspicion. The authorities would assume that the applicant was sponsored by the LTTE to study in India. 
    • he fears that he will be harmed because of his race, the fact that he was abroad for many years and for the studies he undertook in India. He would be at risk of harm on return to Sri Lanka no matter where he resided in that country.

25. In a pre-hearing submission, dated 19 November 2021, the applicant’s adviser repeated the applicant’s claims made in his SHEV application to the Department additionally stating that

    • His mother and sisters remain residing in India, and has had no contact with his father since he was a young child. His brother resides in Australia.

    ·He married [in] May 2020. His wife is an Indian Citizen. She is currently on a student visa in Australia. The couple have no children.

    ·He fears that he would be subject to serious harm upon return to Sri Lanka. He is fearful that he would either be killed or subjected to torture and serious harm. The applicant fears harm based on the following reasons:

    §Tamil Race

    §Imputed Political Opinion

    §Membership of a particular social group, a returnee from the West/failed asylum seeker.

    ·Applicant’s mother and siblings fled Sri Lanka due to fears for their safety due to their Tamil race. Despite their life in India being very difficult, as they were not afforded many rights, they always felt it was not safe to return to Sri Lanka given the ongoing and systematic persecution of the Tamil community in Sri Lanka.

    ·Despite the Civil War in Sri Lanka ending, the Sinhalese community continue to hold a great hatred towards the Tamil Community. The Sinhalese authorities are attempting to take over Tamil areas and continue to harass and intimidate Tamils, especially Tamils from the North who they deem to be affiliated with the LTTE. The applicant would be easily identified as a Tamil given his appearance, language, area of origin and name. Sinhalisation is occurring in Sri Lanka and that Tamils continue to face serious issues. Ethnic tensions in Sri Lanka are deeply entrenched and the Tamil community continue to be subject to persecution, harassment and serious harm.

    ·Applicant’s fear of harm due to his imputed political opinion is multifaceted, the fact he fled the country illegally at a young age and has remained abroad for a prolonged period, his race and area of origin and his study in India, [Subject specialisation 1] while living in Tamil Nadu. He obtained a high-level knowledge through his studies and coupled with his race, he believes the Sri Lankan Authorities may believe he was assisting the LTTE, particularly given the LTTE had a strong presence in Tamil Nadu during the Civil War.

    ·Another student at the same institute where he studied was sponsored by the LTTE. When the student completed his studies, he then assisted the LTTE. The applicant and his family resided in India illegally. They had to work very hard to cover his tuition fees. He is concerned that the Sri Lankan Authorities may assume the LTTE covered his tuition costs and therefore believe he is an LTTE affiliate. In general, the Sri Lankan Authorities treat students who attended the Institute with a high level of suspicion. The applicant would be imputed with pro-LTTE sentiments and be at risk of being imprisoned, interrogated, and harmed upon return to Sri Lanka.

    ·Sri Lankan authorities have a particular interest in individuals within the Tamil Diaspora who they deem to be involved in separatist activities. It is conceivable that the applicant’s study in India, coupled with his race would provide the Sri Lankan Authorities with sufficient reason to suspect the applicant is supporting the LTTE.

    ·Sri Lankan authorities are concerned about a resurgence of the LTTE, it is likely the applicant would be treated with a high level of suspicion and  be at risk of serious harm upon return to Sri Lanka. Sri Lankan Authorities continue to rely on torture as a means to punish and coerce individuals.

    ·He has lived outside his country for a prolonged period including in Australia where he has claimed asylum along with his brother. The prolonged period he has spent abroad, especially as he fled at a young age, the applicant may be further treated with suspicion upon return to Sri Lanka, particularly given his study in India and time abroad in a Western Country where he claimed asylum.

    • He fears persecution based on his membership of a particular social group, as a failed asylum seeker. Failed asylum seekers can be considered a particular social group given that all members share the characteristic that they have fled their country and claimed asylum.
    • As he has fled to Australia seeking asylum, this will increase his chances of being detained by the Sri Lankan authorities upon his return. He will be interrogated by the authorities upon his arrival and either killed or imprisoned indefinitely.
    • He is likely to be easily identifiable upon return to Sri Lanka as a failed asylum seeker especially given the prolonged period he has spent in a western country and he would return on a travel document. The authorities will accuse him of being a spy and punish him accordingly. As he is a Tamil male who fled the country there is no doubt he would be subjected to harm upon return.
    • Authorities will treat him with a high level of suspicion given the amount of time he has spent outside Sri Lanka, his race and time abroad in the west. The Sri Lankan authorities are notoriously known for subjecting Tamils and those who they deem to oppose them to serious harm.
    • Sri Lankan authorities do not abide by the rule of law and rely on serious and significant harm to prevent a resurgence of the LTTE. The Prevention of Terrorism Act [PTA] has yet to be removed despite indications from the government that it would be. Further, proposed terror laws can be viewed as more restrictive and oppressive than the PTA. It cannot be concluded that significant change has occurred in Sri Lanka.  It would be premature to conclude that the situation for Tamils in Sri Lanka is now prosperous or even stable. Country information suggests that many Tamils are continuously targeted by the Sri Lankan authorities and enforced disappearances and torture of Tamils continues to occur in Sri Lanka. The international community is placing increased pressure on the Sri Lankan authorities to address the issues of the past and therefore it is plausible that they are attempting to portray an image of peace in Sri Lanka that is different from reality.
    • There has been an increasing trend towards repressing minority groups, including the applicant’s ethnic community in Sri Lanka
    • Restrictions placed on human rights groups and activists are likely to result in minority groups facing further issues from the authorities.  It is claimed that the current leader in Sri Lanka, Gotababya was involved in war crimes. This suggests that it is likely under his control the situation for Tamils is not likely to improve.
    • There are trends towards militarisation. Given the history of ethnic divides in Sri Lanka, it is likely this will negatively affect the Tamil community.
    • Given the applicant’s personal circumstances, it is likely he would face issues at checkpoints if returned to Sri Lanka
    • The PTA still allows arbitrary and prolonged detention and torture to occur in Sri Lanka. If the applicant was detained, he would be at risk of such mistreatment.
    • International Crisis Group stated in January 2020 that they have concerns specifically with respect to ethnic tensions in Sri Lanka
    • It is highly likely that the applicant would be   treated with a high level of suspicion and be at risk of serious harm upon return to Sri Lanka.
    • Many of the authorities in Sri Lanka remain the same and therefore problems still exist for Tamils. Authorities still have a high level of control. Many military bases still exist, and Tamils are therefore not able to live freely.
    • Many Sinhalese people have been settled in the north and east  and therefore Tamils are not afforded many resources and are subjected to harassment and harm. Gotabaya Rajapaksa was elected as President in November                  2019, given his brother Mahinda Rajapaksa was the defence minister between 2005 - 2015, a period of great conflict in Sri Lanka, there is serious concerns that the new President will further curtails the rights of minority groups, particular Tamils.
    • Given the applicant’s personal circumstances, there is a real risk that the applicant would be detained upon entry to the country and at risk of torture from the Sri Lankan Authorities who would want to obtain information from the applicant with respect to his travel abroad and perceived affiliation with the LTTE
    • There is a strong likelihood he will be detained  upon re-entry to Sri Lanka

1. At the Tribunal hearing, the applicant confirmed that he did not wish to change any claims he had made to the Department. The applicant was [Age] years of age when he arrived in Australia. He is now [Age] years of age.  He is a Roman Catholic Tamil. He married 2 years ago in Australia.

2. The applicant works as [an Occupation] for the past 7 years.  He obtained a Bachelor of [Subject specialisation 1] in India.  He is renting and owns his own motor vehicle.

3. His mother lives in India. His sisters are married, one married an Indian and the other a Sri Lankan. His mother has refugee card and they live in a refugee camp. His brother is in Australia.

4. He was told, by his mother, that his father lives in [Country 1]. He last saw his father in 1990.  His father did not go to India in 1990. His father never contacted him or his mother. 

5. I put to the applicant that his claims made originally were that he and his brother returned to Sri Lanka in September 2010 to visit their father who was expected to die, stayed there for 5 to 6 months, were harmed and then fled to Australia. I put that the claims were created in order to obtain the visa and were completely untrue. He agreed. He said that when he arrived in Australia, he was told by agent what to say. I also put to the applicant that the documents provided to the Department, being a letter from a company in India stating that he had done project work with them as part of his course, was untrue. He said that in the final year of study, he had to do project work with a company.

6. I asked why he left India to come to Australia. He left India because when he was studying, he had to go to college from the refugee camp and seek permission. Wherever he goes he has to seek permission and he was unable to obtain employment.  I put that he came to Australia in order to work and support his family.  He said no in his college there was a senior who studied [Subject specialisation 2] and helped LTTE and that is reason why his mother did not take them back to Sri Lanka.  He lived there as a refugee and he did not have any entitlements there.

7. Discussing the family’s departure to India, the applicant confirmed that he did not suffer any harm in Sri Lanka.

8. I put to the applicant that he commenced studying when the quota for places at university for Sri Lankans was increased up by the Indian government and he had obtained a position in [Subject].  He said he was good at education and had to see many people to get admission in college.

9. Asked if he obtained assistance from Organization for Eelam Refugees Rehabilitation (OfERR). He said they tried to help him and took him to many colleges for admission as there were only a few seats. According to an article in Forced Migration no. 20, dated May 2004[2] OfERR activities are funded by the European Union, the Jesuit Refugee Service, other Christian organisations and individual Sri Lankan expatriates, including students in the USA.  Refugees received an assistance package provided by the central and the Tamil Nadu governments which includes a monthly cash grant, rice. Due to the support of the Tamil Nadu education authorities almost all refugee children attend school. There are currently 621 students from the refugee camps in universities in the state. In return for OfERR assistance with education expenses, the university students are obliged to provide tuition to other refugee students.

   [2]

10. Asked how he paid tuition fees, he said that his brother worked from a young age as a daily labourer and saved.  The family were given some assistance by the Indian government. As far as he knows OfERR only helps to gain admission.

11. There was a senior who studied [Subject specialisation 2] and helped LTTE, he belonged to a senior batch and made [Specialised products] for LTTE. He was unable to live in Sri Lanka and now lives in [Country 2]. This was reported in the news. When he joined the college, he was in his final year. His name starts with letter P. He does not know him personally. He read this when he was in college. The students of [this college] helped the LTTE in 2007. He has met the staff and students when this was reported and he was shown the news.  This student went to Sri Lanka and made some sort of [specialised product] and was unable to live in Sri Lanka.

12. Asked what this has to do with him, he said that a student of [College] helped LTTE. He studied a different field to that person and he thinks the Sri Lankan government might associate him with LTTE because of what this man did.  At that time Sri Lanka government was aware the LTTE was sponsoring students and when they went back to Sri Lanka they helped the LTTE.

13. That is reason why his mother did not take them back to Sri Lanka. Asked why the authorities would know he studied at [College], he said if he has to go back, he has to register his details.  Asked if anyone else went back, he said not from this college. He said students from other colleges went and helped the LTTE.

14. I put to the applicant that no information was found about students going back being perceived to be LTTE supporters. He said that he does not know if information can be found.  Nobody told him and there were no official newspaper reports.  He said no student would talk openly.

15. I put to the applicant that no information was found about LTTE supporting tertiary refugee students. He said that when LTTE funds someone’s studies it is not known to other people.

16. I put that the quota for Sri Lankan refugees to study especially [Subject] was restored in 2006 and that neither their admission nor financial assistance is reported to have had anything to do with the LTTE.  

17. I also put to the applicant that there was no information before me to suggest that the Sri Lankan authorities in 2006 or in 2010 or now considered graduates of any university, including [College] to be LTTE supporters.  He did not agree, he said that any student getting help from LTTE is highly confidential it is a risk to their life.

18. I put to the applicant that the Sri Lankan Civil War formally ended in 2009 with the Sri Lankan Army defeating the separatist Liberation Tigers of Tamil Eelam (LTTE).  I put to the applicant that after the war the government was searching for LTTE members and those perceived to be members. As his passport was issued in India, he was of no concern to the Sri Lankan authorities at that time, despite him attending a university that he claims is associated with the LTTE.   He responded that he just applied for a passport to get an identity document, the Sri Lankan government may have tried to make him come to Sri Lanka and so they issued him a passport. At the time he does not know the government was aware of his studies.  He does not know the reason behind the issue of his passport if he returns, they will question him and he will have to tell them about his studies.

19. I put to the applicant that there is no evidence before me to suggest that refugees to India that left in 1990 had an adverse profile especially because his passport was issued after that time.  He responded that they will question him, beat him and mistreat him and he has no one there and his mother did not return for that reasons.

20. I put that the UK Home office fact finding mission indicated that most returnees continue to be Tamil.  Returnees are subject to standard procedures on return, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters and additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on the stop or watch electronic databases.

21. I put to the applicant that he is not an LTTE member/supporter.  In regard to the stop or watch electronic database he said that when he goes back, they will question him and decide if his name goes on the stop and watch list. They beat Tamils whilst questioning them and will also question him if there is a network. Some people disappear and he is very concerned.

22. I put to the applicant that he does not meet the profile of a member of a diaspora organisation or that he attended demonstrations or had a social media presence or any involvement in political lobbying.  He said that he has been to protests and attended martyrs day and he lighted a lamp but did not have any photos.

23. He said that on his return they may question him and detain him and question him, he does not have anyone there. In 2011 he was accepted as a refugee, then 7 years later they rejected him. Many who arrived in the same boat now have a visa. He does not know why he does not have a visa. Many relatives arrived with him, his fraternal uncle, maternal uncle, his sister’s husband. He does not know what claims they made, and he wonders why he was treated differently. His mother and sister fear returning.

24. I discussed with the applicant in DFAT reports about returnees from Tamil Nadu. DFAT reported they are glad to have returned to Sri Lanka and while there is some social stigma attached to returnees from Tamil Nadu, locals were generally welcoming and returnees did not feel they were treated differently. Refugee youth have not been well-represented among voluntary returnees to date and 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. 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 and 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.

25. I asked the applicant why the Sri Lankan government would treat him, a refugee from India via a stay in Australia, differently to a returning Tamil from Tamil Nadu. He said that it is a general view that refugees from Tamil Nadu can return, his mother cannot return as he is a risk, it is on a case by case basis. If there was no risk, his mother would have returned, she does not want to go back because of the risk for him.

26. He fears returning to Sri Lanka because he will be questioned, detained, mistreated and there will be no one to check on him. He came 10 years ago, he married in Australia but he cannot sponsor anyone as he is not a permanent resident. When he has a visa, he could invite his family to the wedding.  His mother advised him to get married.

27. I explained to the applicant that it was my view that the chance of him being charged was remote as a former refugee to India who has been granted a Sri Lanka passport in 2010.  He was a minor in 1990 and Tamil refugees from Tamil Nadu are able to return on various programmes. He said that it is his personal circumstances, there is a risk.

28. I asked the applicant why he believed that the Sri Lankan government would be aware he applied for asylum in Australia.  He said that he made attempts to seek asylum in Australia. I explained that applications made are confidential. He said if he were to go back, they would find out, they may treat him in a different way.

29. Put that if he were to be fined, he would be able to pay a fine as he has worked in Australia and he has money. He said that his concern is not about paying the fine but his safety on his return.

30. He said that he has spent most of his life as a refugee. His mother was sick in India, but he has not seen her for 10 years but many people who came with him were able to travel. He was waiting for this hearing to explain the situation. He wonders why he was first accepted as a refugee and then it was cancelled. He has been given police clearance many times.  He does not have anyone there. If he has to go back, they will question him and mistreat him.

31. A post hearing submission, dated 2 December 2021, repeated the applicant’s claims and discussed country information.

    The Civil War ended in Sri Lanka, but country information indicates that the Sri Lankan Authorities continue to subject individuals who they suspect of having LTTE links to serious harm, particularly since the election of the current regime. United States Department of State indicated that “torture is very deeply ingrained in the security sector in Sri Lanka and evidently the use of torture has been and remains presently, endemic and routine for those arrested and detained on national security grounds. Since the authorities use this legislation disproportionately against members of the Tamil Community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus. it is apparent that the Sri Lankan Authorities are able to act lawlessly and continue to subject Tamils to serious harm.

    Weight should not be given to the information contained in the DFAT report given it was published prior to the most recent election in Sri Lanka. International human rights groups hold grave concern that the election of Mr Rajapaska will cause further issues for Tamils. International Crisis Group stated in January 2020 that they have concerns specifically with respect to ethnic tensions in Sri Lanka:

    The shift in policy, rooted in part in the ethno-nationalism of many among Sri Lanka’s Sinhala and Buddhist majority, threatens to increase ethnic and religious tensions and dangerously weaken checks on executive and state power”

    In June 2021, the UK Refugee Tribunal called for the DFAT Sri Lanka Country Information Report published in June 2019 to be retracted. They noted that the consequences for many Sri Lankan applicants, particularly Tamil people seeking asylum in Australia had been the refusal of protection, based on what the UK court said is unreliable information. The court also confirmed that if returned to Sri Lanka, Tamils are at risk of being subjected to torture, which the Tribunal says is endemic in the country. The Upper Tribunal noted that in the DFAT report none of the sources are identified, there is no explanation as to how the information from these sources was obtained and there is no annex containing, for example, records of any interviews…Indeed, it is unclear whether any formal interviews took place. The report does not provide direct quotes from any source. In light of these matters, it is difficult to gauge the reliability of the sources which have informed the judgment and assessment applied to them by the authors of the report. The Upper Tribunal also found that “it is abundantly clear that there is a reasonable likelihood that those detained by the Sri Lankan Authorities will be subjected to persecution”.

    Given the above country information, we submit that it is highly apparent that the Sri Lankan Authorities continue to harass, persecute and harm Sri Lankans. Further, they do not adhere to rule of law rather act recklessly and lawlessly. Given the deeply engrained hatred towards Tamils and the fact the rights of the Tamil community are being suppressed and Tamils are being treated with a high level of suspicion, the applicant would be at a real risk of serious harm if returned to Sri Lanka. The applicant’s profile is enhanced by his age, race, area of origin, time abroad and previous studies.

32. The post hearing submission stated that country information serves merely as an overview of the situation in Sri Lanka, and suggests that it is highly likely that the applicant would be treated with a high level of suspicion and be at risk of serious harm upon return to Sri Lanka.

33. At a 2^nd Tribunal hearing held on 10 March 2022 the Tribunal put to the applicant that independent information indicates that in 2016, Sri Lanka amended its Penal Code, to change the age of criminal responsibility. DFAT has advised in its December 2021 report that the minimum age of criminal responsibility in Sri Lanka is 12 years. 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.  I put that on that basis the applicant would not be charged under the I&E Act for illegal departure.

34. The applicant responded that when he left Sri Lanka, he was a small child and now after he returns after 30 years the situation is different. He does not have anyone there and he lived in India as a refugee and further he is really scared to go back there. He has not been living there for 30 years and he does not have anyone to go to. His mother and older sister are all in India. If there is no problem, his mother and sisters would have gone back to their country. They are in India as refugees.

35. I raised with the applicant’s advisor DFAT report 2021 that was not available at the previous hearing. I noted that in her submission the advisor opined that UK Refugee Tribunal called for the DFAT Sri Lanka Country Information Report published in June 2019 to be retracted and for the Tribunal not to rely on DFAT reports. I drew to her attention that DFAT stated that its report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, and lists a number of sources. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

36. I put to the applicant’s adviser that the relevant decision of the Upper Tribunal in KK RS and Secretary of State for the Home Department[3] provided country guidance on the following issue: “The extent of the risk in Sri Lanka to individuals on the basis of sur place political activities in the United Kingdom which are (or are perceived to be) in opposition to the government in Sri Lanka.”  I put to the applicant that this case is limited to the specific facts.

    [3]

37. I also drew to the applicant’s attention that in this particular decision it was stated, referring to the DFAT report, that:

    On a broader point, the report is focused primarily on the situation within Sri Lanka and there is little on the question of sur place activities and the attitude of the authorities to these. Notwithstanding these matters, the report does provide some useful background on issues such as monitoring within the country, the relevance of past LTTE links, and, to a more limited extent, the basis upon which the authorities may take an interest in particular returnees. We are also cognisant of the fact that two of the experts refer to the report in their own evidence and that the DFAT relies on evidence provided by Dr Smith in GJ.

38. The adviser responded it is important to take into consideration some of the conditions and the Tribunal should take into account other reports indicating there are on going issues for Tamils in Sri Lanka.

39. The applicant stated that the real problem is if he goes back to his country, he does not know what will happen to him and he has a fear. It is a fear he has that he will have to answer questions about his family.

40. A further post hearing submission was received from the applicant, indicating that it was by way of update of the situation in Sri Lanka.

    COUNTRY INFORMATION

41. In accordance with the Ministerial Direction No.84 made under s.499 of the Act, I have also had regard to the country information assessments prepared by DFAT. I have considered the DFAT report on Sri Lanka dated 4 November 2019 (the DFAT Report) and the most recent report of DFAT 23 December 2021. The information in this recent report is consistent with that contained in the 4 November 2019 report in respect of matters relevant to this application.

1. Tamils are the second largest ethnic group in Sri Lanka. Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. The US Country Reports 2015 indicates that in November 2015, 'the government removed the ban on eight Tamil diaspora organizations and 267 individuals on the previous government's watch list.' According to Freedom House, members of various Tamil political parties (in the north and east), who have faced frequent threats in the past faced less intimidation in the lead-up to the January 2015 election. Tamil civilians faced fewer hindrances in voting during both the April 2015 presidential and the August 2015 parliamentary polls, in contrast to the 2010 elections. President Sirisena, in early 2015, appointed a civilian governor in Northern Province, replacing a retired army commander, where Tamils comprise a majority.

2. On 17 November 2019, Gotabaya Rajapaksa was elected as President in the Sri Lankan presidential election. Rajapaksa served as defence secretary during his brother Mahinda's 2005-15 presidency and led a brutal crackdown on Tamil Tiger separatists. Rajapaksa orchestrated the Tamil genocide, which culminated in several tens of thousands of Tamil deaths. Speaking at the elections commissions' office soon after the results were officially released, Mr Rajapaksa assured fair treatment for all. Nevertheless, his election has raised fears among the country's religious and ethnic minorities, including the Tamil population.

3. DFAT[4] states that on 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution. The amendment reversed some measures introduced by the previous government, largely dismantling pro-transparency and accountability reforms in the 19th Amendment, as well as enhanced executive control over the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concern that ‘the amendment has fundamentally eroded the independence of key commissions and institutions, including the Human Rights Commission of Sri Lanka (HRCSL), the Election Commission, the National Police Commission and the judiciary in terms of procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials.’ The amendment also allowed dual citizens to enter Parliament.

   [4] DFAT Country Report Sri Lanka 23 December 2021,

4. In July 2021, Basil Rajapaksa, a dual-Sri Lankan-US citizen, was sworn in as Sri Lanka’s Minister of Finance, becoming the fourth Rajapaksa brother and fifth member of the first family to enter the Cabinet. The move further consolidated the family’s control over the machinery of government. The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability

5. According to UK Home Office Report on Sri Lanka[5], published 20 January 2020, after a fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019

   When the war finished those connected to the LTTE were arrested, sent to court and ordered to go through a rehabilitation process. Some younger former cadres were given the opportunity to complete their education at school and university, some have been employed by the security forces or civil defence force with some given government employment as bus drivers and conductors. One source noted that some former cadres have gone into politics.

   Several sources stated that ex-cadres fear they are being monitoring by the military and intelligence. One source noted that some individuals are more likely to be monitored such as those with criminal connections.

   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 on their past involvement and any current involvement with diaspora groups.

   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.

   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. 

   [5]

6. According to DFAT Country Report Sri Lanka 23 December 2021, regarding returnees from Tamil Nadu,

   3.65 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.

   3.66 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.

   3.67 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.

   3.68 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).

   3.69 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.

   3.70 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.

   3.71 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.

7. The Sri Lankan Guardian[6] reported that Second Eelam War between Colombo and the Tigers commenced in June 1990 and resulted in the second wave of the refugees to Tamil Nadu. After 25 August 1989, 122,000 Sri Lankan Tamils came to Tamil Nadu. Of these, 115,680 were destitute and were accommodated in refugee camps. Following Rajiv Gandhi’s assassination, the repatriation of the refugees commenced on 20 January 1992. According to UNHCR sources, 54,188 refugees were voluntarily repatriated to Sri Lanka by chartered ships and flights from 20 January 1992 to March 1995. The Third Eelam War commenced in April 1995 and once again the refugees started coming to Tamil Nadu. By 12 April 2002 23,356 refugees had come to Tamil Nadu. They comprised 7,715 families, consisting of 9,720 adult males, 8,110 adult females, 2,283 male children and 2,236 female children. Gradually the flow of refugees became a trickle and after the cease fire agreement in 2002 completely stopped. The flow of refugees was a consequence of the Sri Lankan army’s operations in the LTTE-controlled areas. During the cease fire period, 2002-2006, 9,793 refugees, living in the camps and outside, returned to the island with UNHCR assistance. Many also returned through illegal means. The returned refugees, informed that there was undue delay in the issue of exit permits. They also found it cumbersome to come to Chennai to get the legal documents from the Sri Lankan Deputy High Commission and the air tickets and other documents from the UNHCR. For them availing of the illegal boat service from Rameshwaram to Mannar was far more convenient and less expensive.

   The Sri Lankan Tamils in Tamil Nadu can be divided into four categories. 1) Refugees in the camps; 2) Recognised refugees outside the camps, 3) Sri Lankan nationals and 4) Tamil militants detained in Special Camps. It is essential to keep in mind the differences among the four categories and also their legal status.

   1) Refugees in the camps. According to Tamil Nadu Government, there are 73,241 persons belonging to 19,340 families, who live in 115 camps in 26 districts.

   2) Refugees outside camps. This category of people informed the rehabilitation department that they have the means to look after themselves. The government officials advised them to register themselves with the nearest police station, where they live and also get a refugee certificate from the Collector’s office. There are 31,802 refugees who live outside the camps.

   3) Sri Lankan nationals who live in Tamil Nadu. They come to Tamil Nadu with valid travel documents and live in the State with their own means. They are required to register themselves with the nearest police station. Some of them continue to live in Tamil Nadu even after the expiry of the visas. Some of them use Tamil Nadu as a transit point to go abroad. Some, through improper means, have acquired ration cards and also own property. According to informed sources, under this category there will be nearly 80,000 people living in various parts of the State.

   4) Militants in Special Camps. Those Sri Lankans, who have alleged links with the militant groups, are kept in Special camp in Chengalpet. According to informed sources, there are nearly 50 Sri Lankans who are detained in the Special Camp. Living conditions in the Special camp are abominable and the National Human Rights Commission has drawn the attention of the State Government to improve the living conditions.

   [6]

8. DFAT  2021 country report Sri Lanka further states:

   5.21 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.

   5.22 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.

   5.23 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.

   5.24 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.

   5.25 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.  

   5.26 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.

   5.28 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.

   5.29 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.

   5.31 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.

   5.32 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.

   REASONS AND FINDINGS

9. The applicant has provided the Department with a copy of his birth certificate, the birth certificates of his father, mother, eldest sister, younger sister, his Sri Lankan passport issued in [2010] and expiring [in] 2020, copy of ID card from Tamil Nadu government and copy of his family Refugee ID card issued in 2010 in Tamil Nadu India.

1. A copy of the applicant’s passport was provided to the Department, therefore, as the Department has accepted this copy passport as evidence of the applicant’s identity, I accept that the applicant is a national of Sri Lanka and is not a national or citizen of any other country or has a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Sri Lanka is the applicant's “receiving country” for the purposes of s.36(2)(aa).

2. I accept that the applicant is a national of Sri Lanka. Whilst the applicant may fear harm returning to India and it may be considered he has relinquished his refugee rights in India, I have no evidence before me to suggest that the applicant has a legal right to enter and reside in India. Therefore, I am required to consider if the applicant will suffer serious or significant harm on his return to Sri Lanka only, within a reasonably foreseeable future.

3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

4. There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.

5. The applicant’s adviser has submitted, that in June 2021, the UK Refugee Upper Tribunal called for the DFAT Sri Lanka Country Information Report published in June 2019 to be retracted. The Upper Tribunal noted that the consequences for many Sri Lankan applicants, particularly Tamil people seeking asylum in Australia had been the refusal of protection, based on what the UK court said is unreliable information. The court also confirmed that if returned to Sri Lanka, Tamils are at risk of being subjected to torture, which the Upper Tribunal says is endemic in the country. The Upper Tribunal noted that in the DFAT report, none of the sources are identified, there is no explanation as to how the information from these sources was obtained and there is no annex containing, for example, records of any interview. Indeed, it is unclear whether any formal interviews took place. The report does not provide direct quotes from any source. In light of these matters, it was submitted, it is difficult to gauge the reliability of the sources which have informed the judgment and assessment applied to them by the authors of the report. The Upper Tribunal also found that “it is abundantly clear that there is a reasonable likelihood that those detained by the Sri Lankan Authorities will be subjected to persecution”.

6. DFAT in its 2021 report states:

   This report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, including those produced by: the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration(IOM); leading human rights organisations such as Human Rights Watch, Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

7. The applicant has submitted that the Tribunal should not rely on DFAT Report 2019 based on a critique of that report and a critique of the UK Home Office Report by the Upper Tribunal in KK and RS and Secretary of State for the Home Department[7] .  I note that in the introduction to Decisions and Reasons of  that case, Justices Blum, Remington and Norton-Taylors advised that the appeal before them provided the vehicle for country guidance on the following issue:

   “The extent of the risk in Sri Lanka to individuals on the basis of sur place political activities in the United Kingdom which are (or are perceived to be) in opposition to the government in Sri Lanka.” 

   [7]

8. I put to the applicant that this decision and the comments are limited to the specific facts.  As the applicant has not raised any sur place political activities in Australia which are (or are perceived to be) in opposition to the government in Sri Lanka, as discussed herein, I place no weight on this decision. Additionally I note, commenting on DFAT’s report in the case, it was stated:

   On a broader point, the report is focused primarily on the situation within Sri Lanka and there is little on the question of sur place activities and the attitude of the authorities to these. Notwithstanding these matters, the report does provide some useful background on issues such as monitoring within the country, the relevance of past LTTE links, and, to a more limited extent, the basis upon which the authorities may take an interest in particular returnees. We are also cognisant of the fact that two of the experts refer to the report in their own evidence and that the DFAT relies on evidence provided by Dr Smith in GJ.

9. I do not concur with the applicant adviser’s view of the decision of the UK Upper Tribunal, and I note no sur place claims have been made by the applicant. As I do not concur with the adviser’s view of the UK Home Office Report by the Upper Tribunal in KK and RS and Secretary of State for the Home Department[8],  I have taken into consideration the DFAT 2021 report Sri Lanka, which is an updated version of its 2019 report. 

   [8]

10. I have considered the independent evidence referred to by the applicant’s adviser. I do not accept that weight should not be given to DFAT report published prior to the elections.  It is relevant to the issues before the Tribunal and has been updated by the 2021 report and I place weight on it.

11. The Sri Lankan Civil War started in 1983 and formally ended in 2009 with the Sri Lankan Army defeating the separatist Liberation Tigers of Tamil Eelam (LTTE). I accept that the applicant and his family fled Sri Lanka in 1990 for Tamil Nadu. I accept that his mother and 2 sisters remain living in India. His father is in [Country 1] whilst his brother is living in Sydney. I accept that for the duration of the war in Sri Lanka the applicant lived in India from when he was [Age] years of age, where he attended school and obtained a tertiary qualification, Bachelor of [Subject specialisation 1] from [College].

12. The applicant was a [Age] year old child at the time he and his family fled from Sri Lanka. The independent evidence before me[9] indicates that the Second Eelam War between the government and the LTTE commenced in June 1990 and resulted in a 2^nd wave of the refugees to Tamil Nadu. After 25 August 1989, 122,000 Sri Lankan Tamils fled to Tamil Nadu. Of these, 115,680 were destitute and were accommodated in refugee camps. Following Rajiv Gandhi’s assassination, the repatriation of the refugees commenced on 20 January 1992. According to UNHCR sources, 54,188 refugees were voluntarily repatriated to Sri Lanka by chartered ships and flights in the period from 20 January 1992 to March 1995. The flow of refugees was a consequence of the Sri Lankan army’s operations in LTTE controlled areas. During the cease fire period, 2002-2006, 9,793 refugees, living in the camps and outside, returned to Sri Lanka with UNHCR assistance. Many also returned through illegal means.

    [9]

13. I accept that the applicant’s family believed it was extremely dangerous for them and they feared for their lives in 1990 so they fled to [Tamil] Nadu, India.  The independent evidence, cited above, indicates that the flow of refugees to India from Sri Lanka was a consequence of the Sri Lankan army’s operations in the LTTE-controlled areas. The applicant makes no claims that his family had suffered serious harm for a refugee reason in 1990 in Sri Lanka. He confirmed, at the Tribunal hearing, that he did not suffer any harm in Sri Lanka, when the family fled to Tamil Nadu in 1990.  I find therefore that the applicant, a [Age] year old child, did not have an adverse or perceived adverse profile, for a refugee reason, ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion, in Sri Lanka when he left Sri Lanka.

14. The applicant lived in Tamil Nadu with his family from 1990 until he departed for Australia in 2011. He does not claim to have suffered serious harm in India. I accept that he had a difficult life there, living in a refugee camp as a registered refugee. The applicant was able to attend school and university in India but he did not have any entitlements in India and he could not find a job. I am satisfied that he left India and arrived in Australia as an undocumented arrival because his life as a refugee in India was difficult.

15. The applicant initially advised the Department that after he completed his education in India he returned to Sri Lanka where he and his brother were harmed by the Sri Lankan authorities and fled Sri Lanka to Australia. The applicant provided documents to support his claims. Those claims were in fact not true and he subsequently retracted them, stating that he has not returned to Sri Lanka since he was [Age] years of age and that he left India as a passenger on a boat that arrived at Christmas Island. Whilst his explanation for these untruths was that he was told to do so by the people smugglers, he proactively provided documents to support his claims.

16. I find that the applicant, a [Age] year old minor in 1990, had no adverse profile in Sri Lanka prior to departing that country in 1990 for any of the reasons enumerated in s.5J(1)(a).

17. I am required to consider the situation if there is a real chance or a real risk that the applicant would suffer serious or suffer significant harm within a reasonably foreseeable future, if he were to return to Sri Lanka.

18. The applicant is a Tamil Catholic. He does not suggest that he suffered any harm in Sri Lanka for his religion and he does not claim he will suffer any harm, in the future, in Sri Lanka for his religion. I find that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future, if he returns to Sri Lanka, for reasons of his religion.

19. The applicant claims that he will have an adverse profile in Sri Lanka, on his return, because he illegally fled Sri Lanka at [Age] years of age, he has remained abroad for a prolonged period, his Tamil race and area of origin and his study in India whilst living in Tamil Nadu as a refugee, has imputed an adverse political profile. He claims he obtained high-level knowledge through his studies, he has advanced [technical] skills and coupled with his race, he believes the Sri Lankan Authorities may believe he was affiliated with the LTTE or is involved with the LTTE or was assisting the LTTE, particularly given the LTTE had a strong presence in Tamil Nadu during the Civil War. He would also be imputed with pro-LTTE sentiments due to his studies, Bachelor of [Subject] at [University] and the LTTE funding student studies in Tamil Nadu. The applicant further claims that because he studied at [University] he will be perceived as being pro-LTTE because a student at the university, not in his year nor in the same faculty, returned to Sri Lanka and assisted the LTTE. He will be treated with a high level of suspicion. 

20. I have considered whether the applicant would be perceived to have an adverse profile when the family fled to Tamil Nadu. The applicant and family fled to Tamil Nadu in 2009 and lived in [a] refugee camp.  The independent evidence, cited above, indicates that those who fled to Tamil Nadu around 2009 who had alleged links with militant groups were place in Chengalpet camp. DFAT states that 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.  Therefore, I do not accept that the applicant would be perceived to have an adverse profile in 2009 or during his period of residence in India.

21. I have considered if I am wrong and the family, when they fled to Tamil Nadu, had an adverse profile.  The applicant was able to obtain a passport from the Sri Lankan authorities in India. When put to him he was able to obtain a passport, he said that he just applied for a passport to get an identity document, the Sri Lankan government may have tried to make him come to Sri Lanka and so they issued him a passport. Whilst he may have wanted an identity document at the time, I reject his explanation regarding the government’s issue of the passport that they may have tried to make him come to Sri Lanka. The independent evidence, cited above, indicates that Tamils that fled to Tamil Nadu were voluntarily, not forcibly, repatriated to Sri Lanka. I do not accept as plausible that the applicant would have been granted a passport were his family to have been considered to have an adverse profile at the time they fled Sri Lanka in 1990 or subsequently when he lived in India.

22. I am not satisfied that there is a real chance that the applicant will be perceived to have an adverse profile because the family fled to Tamil Nadu or that there is real chance he will be perceived to have an adverse profile because he and his family lived in Tamil Nadu since 1990 as refugees or because he has remained abroad for a prolonged period of time.

23. The applicant claims that he has a heightened risk if he returned and it is likely he would face issues at checkpoints if returned to Sri Lanka given his personal circumstances. His heightened risk is due to his claim of being perceived adversely because he attended [university]. The applicant claims that his mother did not take them back to Sri Lanka because he would be perceived to have an adverse profile. There was a senior who studied [Subject specialisation 2] at his college who helped the LTTE. This former student of [Subject specialisation 2] at [University] made some sort of [specialised product] and was unable to live in Sri Lanka. I do not accept this claim. The applicant’s evidence about this person was vague. He could not remember the name of this student who he claimed assisted the LTTE after completing his studies. He has not met this person, he has only met the staff and students when this was reported. They showed him the news. He had no independent information about this incident and I am of the view that were such an incident to have occurred and the applicant was shown ‘the news’, some mention would have been made in independent sources including UK Home Office, DFAT and Amnesty International.

24. Even were I to accept that a person from [University] went back to Sri Lanka and assisted the LTTE, and I do not, I am of the view that it is mere speculation by the applicant that the Sri Lankan government would impute an adverse profile to the applicant treating him with a high level of suspicion merely because this unnamed person, who assisted the LTTE, and the applicant had attended the same university, not even the same faculty. I reject his claim. I do not accept that the applicant had any adverse personal circumstances.

100.   As for the applicant’s advisors submission that the applicant obtained high-level knowledge through his studies. He did not make this claim at hearing. I am of the view that had the applicant obtained ‘high-level knowledge’ as a graduate from the [College] Faculty of [Subject], he would have provided this information to the Tribunal. Further, I have no information before me to suggest that students of [College] Faculty of [Subject] obtain high-level knowledge and I of the view that were it the situation some mention would have been made in independent sources.

101.   Additionally, I have no information before me to suggest that students returning back to Sri Lanka with advanced [technical] skills from Tamil Nadu universities are perceived to be LTTE supporters, as claimed. When put to the applicant, he said that he does not know if this information can be found.  Nobody told him and there were no official newspaper reports.  He said no student would talk openly. No evidence was provided to support his claim. I am of the view it is mere speculation by the applicant that tertiary students, with advanced [technical] skills, returning to Sri Lanka from Tamil Nadu were perceived to be LTTE supporters or that they intended to assist the LTTE to reform. I reject his claim.

102.   As for his claim that the Sri Lankan government became aware of the LTTE sponsoring students for their studies in Tamil Nadu and when they returned to Sri Lanka those students helped the LTTE, I put to the applicant that there was no information before me to suggest that the Sri Lankan authorities either in 2006 or in 2010, or now, considered graduates of any university, including [College] to be LTTE supporters.  He did not agree. He said it would be highly confidential information about any student getting help from LTTE. No evidence was provided to support this claim. I reject his explanation. It is mere speculation by the applicant. I am of the view that were it the situation it would be known to independent sources such as DFAT, UK Home Office and US State Department who report extensively on Sri Lankan issues.

103.   The applicant further claims that former students were sponsored for their studies by the LTTE. No evidence was provided to support this claim. The Sri Lankan government would assume that the LTTE paid for his tuition fees at university.  I do not accept that the Sri Lankan government was aware the LTTE was sponsoring students and when they went back to Sri Lanka, they helped the LTTE. I have no independent evidence before me to suggest that this occurred. I am of the view were it to be the situation it would be known to independent sources.

104.   The applicant was assisted financially by his brother to complete his education. When I put to the applicant that no information was found about LTTE supporting tertiary refugee students, he said that when the LTTE funds someone’s studies it is not known to other people. I put to the applicant that Organization for Eelam Refugees Rehabilitation (OfERR) is an organisation whose activities are funded by the European Union, the Jesuit Refugee Service, other Christian organisations and individual Sri Lankan expatriates, including students in the USA. This organisation[10] 

163.   Accordingly, I find the applicant does not meet the requirements of s.36(2)(a).

164.   I am required to assess if the applicant, on his return to Sri Lanka, will suffer significant harm, as a Tamil Catholic, who left Sri Lanka illegally in 1990 as a [Age] year old child, and who has spent a prolonged period of time abroad and who will return alone. The applicant’s adviser claims that the applicant will be detained and subjected to cruel and inhuman punishment, interrogated, and tortured upon arrival to Sri Lanka due to his race, area of origin ie Jaffna, his profile, ie his study in India, his time abroad in Tamil Nadu and in Australia and his claim for asylum and his perceived links to the LTTE.

165.   I do not accept that the applicant had an adverse profile in Sri Lanka. I do not accept that the applicant has acquired an adverse profile since living in India or in Australia or as a failed asylum seeker. 

166.   Reports referred to by the applicant’s adviser state that torture is very deeply ingrained in the security sector in Sri Lanka and evidently the use of torture has been and remains presently, endemic and routine for those arrested and detained on national security grounds. The applicant does not claim to have committed any offences whereby he would be arrested on national security grounds. Therefore I do not accept that the applicant will be tortured, arrested or detained on national security grounds. 

167.   I have considered country information outlined above and country information provided by the applicant. I accept that many authorities in Sri Lanka remain the same as throughout the Civil War and still have a high level of control. I accept that military bases still exist. I also accept that many Sinhalese people have been settled in the North and East and that Tamils believe they are not able to live freely. I accept that problems still exist for Tamils.

168.   The applicant’s adviser opines that due to the applicant’s personal circumstances, there is a real risk he would be detained upon entry to Sri Lanka and at risk of torture from the Sri Lankan Authorities who would want to obtain information from the applicant with respect to his travel abroad and perceived affiliation with the LTTE, his study of [Subject specialisation 1] at a University known for being attended by LTTE affiliates greatly heightens the chances the applicant would be tortured upon re-entry to the country and he would be subjected to mental and physical harm from the Sri Lankan Authorities to obtain a confession from him through intimidation and coercion. As stated above, I do not accept that the applicant’s personal circumstances ie an ethnic Roman Catholic Tamil who has lived in Tamil Nadu since his was [Age] years old and who obtained a tertiary education in India who has only attended protests in Australia, has not been involved in any LTTE activism in the diaspora would be imputed to have an adverse profile on his return to Sri Lanka.

169.   According to DFAT, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation. Following their release, a low-profile former LTTE member may be monitored but would not generally be prosecuted. The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities. I am satisfied the applicant does not have an adverse profile as an LTTE member or a supporter or of a person having a combat role during the war and I do not accept he will be imputed with an adverse profile or that and he will be subject to interrogation, mental or physical harm amounting to significant harm on his return to Sri Lanka within a reasonably foreseeable future. 

170.   Further, the applicant’s adviser claims that DFAT assesses, at 4.18, that Sri Lankans detained by the Authorities face a moderate risk of torture. DFAT states:

4.18DFAT assesses that Sri Lankans face a low risk of torture overall. DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government.

171.   The applicant does not claim to be poor, a criminal or a person who challenges or would be perceived to challenge the government. In light of the applicant leaving Sri Lanka as a child under 12 years of age, and my findings above that he will not be prosecuted for leaving Sri Lanka illegally, and my findings that he has not acquired an adverse profile because he studied at university in India or because of any actions living in the diaspora, as discussed above, I am not satisfied that he will be detained on his return and subject to mental and physical harm to obtain a confession. I consider, the risk of his being tortured is remote. According to DFAT most recent country information report, DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). I reject the applicant’s claims.

172.   In light of the applicant leaving Sri Lanka as a child under 12 years of age, and my findings that he will not be prosecuted for leaving Sri Lanka illegally, I am not satisfied that he will detained on his return. According to DFAT report 2021

173.   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.

174.   In the event that the applicant enters Sri Lanka as an undocumented arrival, I do not accept that questioning at the airport amounts to significant harm. There is no material before me to suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources. The applicant was a fare paying passenger on a people smuggling venture that left from India, he did not leave from Sri Lanka and did not breach the I & E Act. He has been issued with a valid Sri Lankan passport. I do not accept that the applicant will be detained, imprisoned, tortured or killed on return.

175.   The country information indicates that there is no evidence of mistreatment either at the airport or at the court, for those so charged, for the very short period in which those charged might be detained. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. Furthermore, there is no evidence to suggest that the authorities would intend to cause suffering by virtue of conditions in detention. Therefore, whilst I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.

176.   The UK Home Office report conducted a fact-finding mission in late 2019 in which its officers specifically focused on this issue. The evidence indicates that the applicant was a fare paying passenger on a people smuggling venture from India and as a child fled Sri Lanka with his family. I have no independent evidence before me to suggest that he would be taken into custody for that reason. I reject the applicant’s claim he will be beaten, harmed, tortured, or killed on return.

177.   The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence before me that there are widespread conditions of violence in Sri Lanka, and as I do not accept that the applicant will be perceived as an LTTE supporter, member, or activist, I do not accept that there is a real risk of the applicant suffering significant harm, from non-state actors or the Sri Lankan government, within a reasonably foreseeable future.

178.   I do not accept that the applicant’s race, area of origin, study in India and prolonged period of time abroad and claiming asylum in Australia suggests that there would be a real risk of being killed upon his return to Sri Lanka.  

179.   DFAT states that torture, where it occurs, is not confined to a particular geographic region or ethnic group, but is a nationwide problem which affects all communities; however, it is more likely to affect poor and marginalised groups, such as members of criminal groups and LGBTI individuals. DFAT assesses that, while Sri Lankans face a low risk of torture overall, those detained face a moderate risk of torture, particularly if they are poor, associated with criminal elements, or are perceived to challenge the government. I have found that the applicant does not have an adverse profile in Sri Lanka and the applicant does not suggest that he has committed any crimes in Sri Lanka or that he is LGBTI. I find remote the risk that he would be subjected to torture, within a reasonably foreseeable future, on his return.

180.   While I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that there is a real risk that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.

181.   The applicant does not claim that he has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him.

182.   I accept that many authorities in Sri Lanka remain the same as throughout the Civil War and   still have a high  level of control, that military bases still exist. I also accept that many Sinhalese people have been settled in the North and East and that Tamils believe they are not able to live              freely. I accept that problems still exist for Tamils.

183.   I accept that the applicant genuinely fears returning to Sri Lanka, he is uncertain about his living situation and source of employment, after living abroad since he was [age] years of age, he will be alone and he may suffer reintegration issues. 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. The applicant has university education from India, and he has experience in working in Australia, albeit not as an [Occupation 1]. 'Degrading treatment or punishment' is exhaustively defined to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable and the pain or suffering must be intentionally inflicted. I am not satisfied that difficulty in obtaining employment and accommodation or being alone amounts to cruel or inhuman or degrading punishment or treatment.

184.   Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

185.   According the find the applicant does not meet the requirements of s.36(2)(aa)

CONCLUSIONS

186.   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).

187.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

188.   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).

DECISION

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

Lilly Mojsin
Member
ANNEXURE A

190. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

191.   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.

192.   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality 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)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

193.   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. 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-LA, which are extracted in the attachment to this decision.

194.   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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

195.   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.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(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;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…