1720461 (Refugee)

[2022] AATA 3221

1720461 (Refugee) [2022] AATA 3221 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1720461

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Noonan

DATE:19 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 August 2022 at 4.03pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – involvement with Liberation Tigers of Tamil Eelam (LTTE) – failed asylum seeker – attack on a naval base – detention – torture – physical injuries and scarring – areas formerly under LTTE control – Tamil community involvement in Australia – illegal departure – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2

CASES

AGA16 v MIBP [2018] FCA 628

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 23 August 2017 to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE-790) (‘SHEV’) under the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that the applicant does not have any significant involvement with the Liberation Tigers of Tamil Eelam (‘LTTE’) and does not have a profile that would warrant adverse attention from the Sri Lankan authorities and that the applicant does not meet the criteria for protection from Australia. The delegate was satisfied that the applicant’s country of nationality is Sri Lanka, and the Tribunal is also satisfied, on the basis of the biodata with respect to his birth certificate, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claim with respect to Sri Lanka, as the country of reference for the purposes of this appeal.

3. The applicant appeared before the Tribunal on 24 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant is represented in relation to the review. The representative attended the Tribunal hearing.

   Criteria for a protection visa

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

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

7. 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).

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

9. 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

10. 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.

    Procedural History

11. The applicant arrived at Christmas Island unlawfully [in] March 2011. On 14 April 2011, the applicant lodged a Protection Obligations Determination (‘POD’) whereby a negative assessment was made on 30 June 2011. On 25 May 2012 the applicant was found to be owed protection on a Independent Protection Assessment (‘IPA’). On 29 September 2015, the section 46(a)(1) bar was lifted for the lodgement of a protection visa, with the applicant being invited to apply for a protection visa on 25 November 2015. On 25 January 2016, the applicant lodged a Safe Haven Enterprise Visa (Class XE-790) (‘SHEV’) which was refused on 23 August 2017.

12. The applicant was interviewed by the delegate on 25 July 2017. For the purposes of his application to the Tribunal the applicant provided a copy of the delegate’s decision.

    CONSIDERATION OF Claims and evidence

13. The applicant made the following pertinent disclosures with respect to his background and profile in his written claim for protection. He was born on [date] in [Town 1], Sri Lanka. He speaks, reads and writes the Tamil language. He stated he is of the Tamil ethnicity and an adherent to the Hindu faith.

14. In his written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Sri Lanka as follows:

    ·The applicant fears returning to Sri Lanka on account of his Tamil ethnicity and being from a former LTTE controlled area. He fears that the Sri Lankan authorities will impute an affiliation with the LTTE.

    ·He claims that in [year] the Sri Lankan Army performed an airstrike on a Tamil [location] he attended. The applicant claims he [sustained a severe injury to his Body Part 1] in this airstrike.

    ·In 2002 and 2004 the applicant was detained and beaten by the Sri Lankan Army as he was suspected of being affiliated with the LTTE. He claims that he was a member of the LTTE between the middle of 1999 and 2005, he joined after recruiters of the LTTE came to his school. He claims that due to his injury to his [Body Part 1], the applicant was a family liaison, making contact between family members of the LTTE and notifying relatives of deceased LTTE cadres.

    ·In 2006 a bomb blast occurred within the local Sri Lankan Navy base. As he lived close to the naval base, he claims that his family was brought in for questioning and was released – the applicant feared he would be accused of supplying information to the LTTE and went into hiding and fled for India.

    ·In 2010 he was advised by Indian authorities that they were providing information to the Sri Lankan authorities about LTTE affiliates in camps in India. Following this he left India.

15. The delegate was satisfied that the applicant is a Tamil Hindu. However, the delegate found that the applicant was not a high ranked individual and was not satisfied that his newly introduced claimed involvement and membership of the LTTE was credible. The delegate was not satisfied that the applicant’s profile was of any interest to the Sri Lankan authorities when he departed Sri Lanka and found that the applicant would not face any serious harm or persecution due to a lack of criminal history and any significant involvement with the LTTE should he return to Sri Lanka.

16. In a written submission to the Tribunal the applicant noted that he attends meetings and functions facilitated by [Community Organisation 1]. He meets and speaks about issues faced by the Tamil Community in Australia and Sri Lanka. They discuss the situation in Sri Lanka and ongoing issues faced by our community. They also celebrate cultural and religious traditions.

17. The applicant also submitted in writing to the Tribunal as follows:

    I confirm that the information in my statement of claim dated 8 August 2017 is true and correct. I was genuinely scared to disclose the information for the reasons explained in the statement. I confirm that I was a member of the LTTE from 1999 until 2005. Given my prolonged involvement with the LTTE and the fact that given my work with them I possess knowledge about many members of the LTTE, I have information that would be of benefit to the Sri Lankan authorities.

    The Sri Lankan Authorities did believe I had knowledge about the attack on the naval base in 2006 given I lived close by the Naval base. If I did not go into hiding and subsequently flee to India, I believe I would have faced further issues from the Sri Lankan Authorities with respect to this incident. This is likely to have led the Sri Lankan Authorities becoming aware of my LTTE involvement.

    I have a profile that would definitely result me in being harmed upon return to Sri Lanka. I have not undergone rehabilitation in Sri Lanka. Given my past involvement with the LTTE which included me greatly assisting the LTTE and obtaining knowledge of many members of the LTTE and LTTE Operations, my significant [injury] and scarring on my body, there is no doubt that I would not be treated with suspicion on re-entry to Sri Lanka. I fear I would be detained, interrogated and tortured. I do not think I would survive this mistreatment.

    The situation in Sri Lanka remains very dangerous especially for Tamils and individuals who were affiliated with the LTTE. My family continue to live in fear of the Authorities. The current government consists of many individuals who were instrumental in committing atrocities against Tamils during the Civil War. The Prevention of Terrorism Act is still in force and used against Tamils. Given my personal circumstances, I am very worried it will be used against me.

18. During the hearing the Tribunal discussed the applicant’s interactions with the Tamil community in Australia. The applicant noted that he talks widely with others in the Tamil community and takes part in musical programs and other organised programs. He doesn’t have personal relationships with people in these organisations. He noted he attends functions organised by the [Community Organisation 2] and the [Community Organisation 1]. He last attended events in the Tamil community in 2016 or 2017 when he took part in an event organised to support older people in the Tamil community. He helped with [transportation]. He confirmed that he has not participated in any further Tamil events since then because he has moved [between specified suburbs] so he lives away from the general Tamil community. He confirmed that he has a lot of Tamil friends in Australia. They are mainly Tamils but he has some Sinhalese friends and works with some Sinhalese. He takes an interest about developments in Sri Lanka and informs himself through social media, newspapers and conversations with his parents and relatives who reside in Sri Lanka. He does make some posts on social media about issues such as sharing the news from Sri Lanka media about petrol shortages and the like. Overall the Tribunal is satisfied that the applicant has not engaged in diaspora activities other than for the purpose of strengthening his claim to be a refugee as is required to be contemplated under s. 5J(6).

19. The Tribunal is satisfied that the applicant has not engaged in with Tamil diaspora organisations in any meaningful way for many years. This is because he gave evidence that he has had no such contact since at least 2017. Further that he does not know any people associated with such organisations and has not undertaken any organisational activities for such organisations or expressed pro Tamil sentiments openly at protests or other events organised by such organisations. The Tribunal concludes that he will not have come to the adverse attention of the Sri Lankan authorities for reason of his very limited interactions with Tamil diaspora organisations whilst he has been in Australia.

20. The applicant explained to the Tribunal that he has a prosthetic [Body Part 1] which the Tribunal accepts. The Tribunal accepts that the applicant’s [prosthetic Body Part 1] sets off scanners at airports as he claims. The applicant also submitted that he has scars on his [body] from the bomb explosion in which he [was injured] which the Tribunal accepts.

21. If he is required to return to Sri Lanka the applicant explained to the Tribunal that he fears the authorities will ask him what happened to him due to his prosthetic [Body Part 1]. He fears that he will be suspected of being an LTTE member and make inquiries. He fears that they will then discover his past membership as everyone in his area is aware of his past role in the LTTE.

22. The Tribunal noted that the applicant had originally claimed that he was not a member of the LTTE and that he subsequently disclosed this at later review and that he stated he was advised not to disclose this claim to the Australian authorities by a people smuggler and fellow travellers as the Australian government had banned the LTTE. He agreed that he had told those people that he was in fact a LTTE member after being asked about his [Body Part 1]. When asked if once in Australia he did any investigation about not disclosing his LTTE membership he claimed Tamil people continued to advise him that it was not a good idea. He agreed that he had received professional migration advice at that time but did not tell them he was in the LTTE.

23. The Tribunal noted that the applicant now claims he worked as a liaison officer for the LTTE. The applicant denied this was his role. The Tribunal undertook extensive questioning of the applicant’s role in the LTTE. He somewhat vaguely stated that he wrote notes and submitted them to higher authorities. When asked for more detail he stated that he wrote a person’s details down when they had made inquiries. He also stated that he worked on family problems in the political office and tried to solve those problems.

24. The Tribunal asked the applicant why he omitted an incident of claimed harm from the authorities in 2002 in his written claims but had mentioned an incident in 2004. The applicant was unable to recall specific details of the claimed 2002 incident despite now claiming that he was detained and severely tortured in the past. He stated that he recalls being arrested and questioned a couple of times. He did recall being detained in 2004 and harmed and agreed he was released soon after. The Tribunal noted that he then appeared to resume his life without persecution. He stated that he had an ID card and so was able to go about his business.

25. The Tribunal discussed his involvement in the 2005 election in which he stated he worked for the Tamil United Front Party. He claimed that he was hassled by Sinhalese people while campaigning. He was pushed and hit. The Tribunal accepts the applicant’s evidence as reasonably plausible.

26. The Tribunal accepts that, as a male Tamil from the North of Sri Lanka the applicant has had some past associations and dealings with the LTTE as he was born and grew up in an LTTE controlled area. The Tribunal accepts as reasonably plausible that he may have been reluctant to disclose this past association due to fear of this being viewed adversely by the Australian authorities. The Tribunal is mindful of the extremely long timeframes pertaining to this matter and accepts that there is likely to be discrepancies in evidence due to the passage of time. The Tribunal accepts that the applicant was detained on at least one occasion in 2004 and, given the authorities documented propensity to breach human rights of people detained he likely suffered some ill treatment. The Tribunal notes that such ill treatment in detention remains an ongoing problem in Sri Lanka. The latest DFAT report notes that:

    Although Sri Lankan law prohibits arbitrary arrest and detention, it does not explicitly provide persons under arrest and detention the right to a lawyer or interpreter, or an obligation to inform family of an arrest. Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons. Local and international sources claim that arbitrary arrests have occurred in the last few years.[1]

    Several local and international organisations have alleged torture by Sri Lankan military, intelligence and police forces, mostly from the period immediately following the war and involving people with imputed links to the LTTE. The 2015 OISL report found that ‘victims of war-related torture perpetrated by Government forces… were generally Tamil, often arrested and detained in Government controlled areas… under the PTA and the Emergency Regulations’. The OISL documented ‘particularly brutal use of torture by the Sri Lankan security forces’ in the immediate post-war period, following the LTTE’s surrender.

    In October 2016, the HRCSL submitted a report to the UN Committee against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that police use torture during interrogation and arrest regardless of the nature of the suspected offence. The ITJP cited 76 alleged cases of torture between 2015 and 2017 involving Tamils suspected of LTTE involvement, the majority of which followed ‘white van’ abductions, and were reportedly conducted by Counter-Terrorism Investigations Division (CTID), CID and members of the armed forces. All cases allegedly involved physical and psychological torture, such as beatings, burning, asphyxiation and rape. In its 2020 report on human rights, the US Department of State stated that ‘torture and excessive use of force by police, particularly to extract confessions, remained endemic.’

    Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.

    Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.

    Local sources told DFAT that when the HRCSL was independently investigating and documenting torture cases, while it could not bring about the prosecution of responsible state agents, it could offer some protection by scrutinising places of detention and putting perpetrators on notice. However, those sources maintained that with the passage of the 20th Amendment to the Constitution, the HRCSL had ceased to be truly independent and was thus much less effective in its anti-torture role.

    DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.

    DFAT 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.[2]

    [1] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.41

    [2] Ibid, p.40-41

1. The Tribunal then discussed the applicant’s claim that he was living near a naval base in June 2006 when there was a bomb blast there resulting in the death of a senior naval officer. The Tribunal put to the applicant that the delegate had set out that there is no country information reflecting such an attack occurred in June 2006 or that a senior naval officer was killed. The applicant replied that he did not know about that. The Tribunal noted that it may expect that such an important event would be reported at the time and reflected in country information. The applicant gave vague evidence that a person had told him about the naval officer. The Tribunal noted that he gave evidence that he was questioned but released. The Tribunal noted that his quick release may cause it to doubt that he was a known former member of the LTTE living in the area as he claims. The applicant simply responded that he had told them he didn’t do it. He then claimed they did not believe him and so he decided to leave for India. The Tribunal also noted that the applicant’s family still live in the same spot and that this may also reflect that neither he nor they are of any adverse interest to the authorities. The applicant noted that they had all moved away in 2006 but after the war ended his family had moved back to that spot in 2011. The Tribunal put to the applicant that it may find it implausible that if he was being active sought for reason of a naval base bombing that he would have been able to readily depart Sri Lanka. He claimed he left by boat illegally. When asked how he arranged this the applicant simply stated that his father arranged it all.

2. The Tribunal accepts that the applicant departed Sri Lanka illegally by boat. The Tribunal does not accept that the applicant is of adverse interest to the Sri Lankan authorities or a navy officer’s family for reason of a bomb explosion at a navy base in June 2006. This is because, as put to the applicant, it is implausible that there is no country information reflecting such an event occurred in June 2006 or that a navy officer was killed in any such attack. The Tribunal considers that the applicant has used the later documented explosion at the navy base as set out in the delegate’s decision to strengthen his case. However, this is of no matter as the Tribunal has found that the applicant’s cumulative profile is sufficient, as discussed below, to afford him protection from Australia for reason of his implied political opinion.

3. DFAT asses that former LTTE members face no legal barriers to participating in public life, including politics. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means. ‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted. DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE. [3]

   [3] Ibid, p.25-26

4. Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events. LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned. [4]

   [4] Ibid, p.19

5. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.[5]

   [5] Ibid. p.27

6. With respect to the situation for Tamils in general the Tribunal discussed with the applicant that DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. However, DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[6] The applicant stated that he is not talking about everybody just himself. The Tribunal also put to the applicant that DFAT assesses that most returnees to Sri Lanka are Tamil. Further that although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the Prevention of Terrorism Act. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.[7] The applicant simply responded that he did not know about other returnees he only knows about his own situation. He would not have left Sri Lanka unless he had problems.

   [6] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.20

   [7] Ibid. p. 47-49

7. With respect to the applicant’s claimed illegal departure from Sri Lanka the Tribunal put to the applicant that DFAT assesses that, 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.[8] The applicant responded that he is not really concerned about issues related to his illegal departure rather it is his profile in connection with the explosion and his connection to the LTEE that he is worried about and the implications for him with respect to being adversely profiled by the authorities.

   [8] Ibid, p. 48

8. The Tribunal discussed with the applicant country information, set out in the delegate’s decision, that persons returning with scarring and disfigurement from the conflict were potentially adversely profiled in the past but that this was no longer the case. The applicant responded again with concerns about his profile. The Tribunal put to the applicant that DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities.[9] The applicant again cited his brother’s refugee status in [Country 1] and restated his own personal problems and fears.

   [9] Ibid, p. 49

9. The applicant’s representative submitted that country information cited by the delegate with respect to scarring and disfigurement risks was relevant to conditions under the past government and that conditions have changed since then as those responsible for past atrocities are back in power. As such, given this and when seen within the context of the current regimes past history of involvement in the civil war and the applicant’s overall profile, including his illegal departure, suspicion about his involvement in a past bomb blast, his lack of rehabilitation, and his Tamil and LTTE history the representative submitted there is a cumulative profile that suggests there is a real chance or real risk of serious or significant harm to the applicant from the authorities should he be required to return to Sri Lanka.

10. With respect to the recent relevant history of Sri Lanka the Tribunal notes that Sri Lanka’s long standing civil war ended in May 2009 and the security situation, particularly in the north and east, improved significantly.  When the Sirisena government took power in 2015 there were further improvements with DFAT reporting in its November 2019 country information report that the monitoring and harassment of Tamils in day-to-day life had decreased significantly under the Sirisena government, among other things. In that report DFAT also assessed that the LTTE was a spent force and Tamils with links to the LTTE were generally able to lead their lives without concern for their security as a result of their past association with the LTTE.[10] 

    [10] DFAT Country Information Report, Sri Lanka 4 November 2019 at 3.77.

11. However, there have been notable changes to the power base in Sri Lanka since, with the election of Gotabaya Rajapaksa – the Defence Minister during the last phases of the war when his brother, Mahinda Rajapaksa, was president – as the country’s president in November 2019, and Mahinda as Prime Minister, in late 2020.  Under Gotabaya’s rule several other Rajapaksa relatives became cabinet minister. Shortly after Rajapaksa’s party – the Sri Lanka Podujana Peramuna – won a two thirds majority in Parliament, on 20 October 2020, the 20th amendment to the constitution was endorsed by parliament, which dismantled pro-transparency and accountability reforms in the 19th amendment (measures introduced by the previous, Sirisena government), and enhanced executive control over the legislature and judiciary. DFAT, in its latest report on Sri Lanka, notes that concerns have been raised about the amendment fundamentally eroding the independence of key commissions and institutions in Sri Lanka as a consequence.[11] 

    [11] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.13.

12. The Tribunal notes with concern country information that sets out the current government has strong links with past human rights abuses as follows:

    The Human Rights Litigation and International Advocacy Clinic, Submission for the List of Issues: Sri Lanka, further highlights the concerns international groups have about the election of President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa. The election of President Gotabaya Rajapaksa casts doubts on the future of torture and ill-treatment of detainees, especially with the swearing in of former president, Mahinda Rajapaksa, as Prime Minister. There were widespread reports of torture by State officials during interrogations under President Mahinda Rajapaksa’s administration, to extract information from detainees of alleged ongoing attacks by the LTTE or any anti-government activity.[12]

    [12] Human Rights Litigation and International Advocacy Clinic, Submission for the List of Issues: Sri Lanka, 13 January 2020, Prohibition of Torture and Cruel, Inhuman or Degrading Treatment, Liberty and Security of Person, Fair Trial and Independence of Judiciary (Articles 7, 9, 10 and 14), p. 10

13. It is noted that in correspondence with the Research Directorate, a sessional lecturer at a Canadian university (who has conducted field work in Sri Lanka with a focus on conflict prevention and peacebuilding) opined – drawing on research complied by NGOs and the country guidance of the UK Upper Tribunal decision – that returnees involved in Tamil diaspora activism, such as by being a member of a diaspora organisation or attending a protest, and individuals with any association with the LTTE, are ‘at risk of persecution on return to Sri Lanka.’[13] 

    [13] Ibid.

14. The Tribunal also notes recent country information reflects a significant militarisation and crackdown on free movement especially in the north of the country being the traditional Tamil areas. The Asylum Research Centre sets out that:

    Citing January 2020 interviews with a human rights activist and an interlocutor based in Jaffna, a report by the Swiss State Secretariat for Migration reported [informal translation]: “At the entrances to the Jaffna peninsula as well on the main road from Vavuniya to Kilinochchi army checkpoints have been erected again since the 2019 Easter attacks. All bus travellers heading north are sometimes controlled multiple times. Road checks are taking place through army mobile units operating in the cities of Jaffna and Vavuniya. In early 2020 mobile military units carried out controls in the villages in the Kilinochchi district”. According to a Sri Lankan priest based in northern Sri Lanka and who communicated with the Swiss Refugee Council via an instant messaging app in March 2020 [informal translation]: “the north and east of the country have become militarized under the new government. Checkpoints have been set up again, as they were used in the civil war and people have been controlled by the military in some places. This visibly increased military presence is bringing up strong fears among the population in the north and east”. Tamil Guardian noted in January 2020 that “Sri Lanka’s war crimes accused president Gotabaya Rajapaksa has re-issued an Extraordinary Gazette which calls on the Sri Lankan military to ‘maintain public order’ across the island […] The gazette has been extended every month after initially being issued by former Sri Lankan president Maithrtipala Sirisena ever since Emergency Regulations were lifted on the island. Currently tens of thousands of Sri Lankan soldiers are stationed across the Tamil North-East, where they continue to occupy vast swathes of land”… In May 2020 Tamil Guardian reported that “The Sri Lankan military has set up more checkpoints across Mullaitivu this week, as armed soldiers continue to be stationed and carry out searches across the Tamil homeland. The increase in checkpoints has stepped up since the election of Gotabaya Rajapaksa as Sri Lanka’s president last year, and even more so since the outbreak of the coronavirus pandemic on the island. As military enforced curfews have been put into force by the state, the Sri Lankan military have set up new barriers with armed soldiers stationed at points across the district”. [14]

    [14] ARC – Asylum Research Centre: Sri Lanka: Country Report, July 2020 p. 54

15. Overall, the Tribunal accepts that the applicant will come to the immediate attention of the authorities upon his return as an illegal departee. Country information reflects that he will be interviewed and his background checked. The Tribunal is concerned that the current regime appears to be instituting policies that have resulted in an increasingly hard-line attitude on dissent and by association a heightened authoritarian policy stance. In such a deteriorating atmosphere it is incumbent on the Tribunal to contemplate the fate of the applicant given his accepted cumulative profile as aTamil man from the North of the country who is returning after a long absence and having departed the country illegally, who has readily discernible disfigurements and scarring, which are traits that, in the past, have commonly been associated with LTTE fighting resulting in adverse profiling. In addition and importantly in this case the Tribunal accepts that the applicant [was injured] in traumatic circumstances in the past and that naturally he carries with him post-traumatic stress associated with that significant event. The Tribunal has also accepted that the applicant has in the past experienced harm at the hands of the authorities under questioning. These factors cause the Tribunal to contemplate the applicant’s personal vulnerabilities in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628.

16. The Tribunal has also accepted that the applicant was either a worker for or a member of the LTTE and as such may be associated with the LTTE upon intensive profiling.

17. The Tribunal is concerned that country information reflects that torture was habitually employed by the authorities against those held in custody for any length of time and that these practices unfortunately continue to this day, even if at a reduced rate of incidence.

18. Given the applicant’s personal vulnerabilities including having experienced past harm and having [been severely injured] in associated war actions, and the cumulative profile of the applicant, the Tribunal is concerned that there is a real chance that inquiries by the authorities with respect to the applicant’s re-entry into the country may quickly escalate into adverse risk profiling and associated questioning with respect to the applicants past LTTE involvement which in itself would amount to serious harm due to psychological vulnerabilities arising from the trauma of his past experiences. Further the Tribunal is concerned that the risk of this escalation in inquiries is that the applicant becomes incarcerated for a longer period of time while such inquiries are undertaken. Country information clearly reflects that a Tamil man with physical markers that are associated with past LTTE activities and who is held in incarceration for any length of time is at risk of serious harm in the form of torture by the authorities.

19. Taking all of the above considerations into account, the Tribunal is satisfied any future harm or threats of harm the applicant may experience would amount to serious harm as contemplated in the Act. As such, and with regard to the above considerations, the Tribunal finds that there is a real chance of serious harm to the applicant upon his immediate return should he be required to return to Sri Lanka for reason of his imputed political opinion either now or in the reasonably foreseeable future from the Sri Lankan authorities. The Tribunal finds that this would constitute systematic and discriminatory conduct and would amount to persecution. The Tribunal finds that the applicant’s imputed political opinion would be the essential and significant reason for the persecution.

20. As the accepted risk of harm feared is at the hands of government authorities, the Tribunal finds the applicant cannot access state protection. The Tribunal is satisfied, in light of the country information, that there is no non-state actor that the applicant could access protection from and further that the state does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system given the clear risk of torture for person incarcerated with no means of redress as evidenced by the DFAT report which states that:

    No legal mechanism exists to initiate independent investigations for state violence, including extrajudicial killings. Numerous historical cases of extrajudicial killings remain unsolved.[15]

    DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.[16]

    [15] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.38

    [16] Ibid, p. 41

1. The Tribunal finds that, given the above, effective protection measures are not available to the applicant in Sri Lanka.

2. In the absence of effective internal protection, the Tribunal finds that the applicant faces a real chance of persecution for reason of his imputed political opinion, if he returns to Sri Lanka now or in the reasonably foreseeable future. As the feared persecution is from the government authorities, and the Tribunal has found that there is a real chance the applicant will be subjected to serious harm immediately upon his attempted entry into the country, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka as per s 5J(1)(c). In addition, the Tribunal is satisfied that the applicant could not take reasonable steps to modify so as to avoid a real chance of persecution as his behaviour as per s5J(3) as adverse profiling is based upon his physical disability which is readily [discernible] by scanners.  

3. Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Sri Lanka and as such the exception with respect to third country protection contained at s 36(3) does not apply.

   decision

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

   Paul Noonan
   Member

   
   

   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.

   …