1720513 (Refugee)

1720513 (Refugee) [2022] AATA 2360 (2 June 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Valarmathie Murukaverl (MARN: 1572923)
CASE NUMBER:  1720513
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Vlahos
DATE OF DECISION:  2 June 2022
DATE CORRIGENDUM
SIGNED:7 June 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

At paragraph 42, the first sentence in the paragraph is to be deleted and the following text inserted:

“The applicant told the Tribunal that ‘after about 6 weeks’ the group of paramilitaries known as the ‘Karuna group’ came to the family home and ‘interrogated’ the applicant ‘about his father’.

At paragraph 45, the phrase ‘unidentified Tamil armed me’ should be deleted and replaced with ‘unidentified Tamil armed men’.

At paragraph 47, the phrase ‘though his own efforts’ should be deleted and replaced with ‘through his own efforts’.

At paragraph 109, the existing text is to be deleted and the following text inserted:

“It may be considered that individually this matter may not clearly indicate that the applicant will be of adverse interest to the Sri Lankan authorities if he is returned to Sri Lanka, but given the significant changes to the political and security situation in Sri Lanka in recent times and what has developed since he left that country considered cumulatively, the Tribunal cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE.”

At paragraph 111, the existing text is to be deleted and the following text inserted:
“The Tribunal considers that during detention and questioning there is a real chance the applicant will be subjected to serious harm. In making this assessment the Tribunal noted DFAT’s advice that in October 2016, the Human Rights Commission of Sri Lanka advised the UN Committee against Torture that the use of torture has been and remains endemic and routine for those arrested and detained on national security grounds’, which it notes are disproportionately Tamils. The UK Home Office reported a reduction in torture complaints in 2017, while highlighting new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions.”

Peter Vlahos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Valarmathie Murukaverl (MARN: 1572923)
CASE NUMBER:  1720513
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Vlahos
DATE:2 June 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.

This Statement was made on 2^nd June 2022 at 7.00AM.
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – Tamil ethnicity resulting in real or imputed political association with the LTTE – Tamil from a former LTTE-controlled area – previously detained, interrogated, and assaulted by the SLA and Karuna group – imputed political opinion of LTTE involvement/support and his family links to a former LTTE supporter – father’s involvement with the LTTE – applicant’s fears of the Karuna group – failed (Tamil) asylum seeker who departed illegally – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Morato v MILGEA (1992) 39 FCR 401
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 August 2017 to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old male from [Village 1], Batticaloa district in Sri Lanka’s Eastern Province. He seeks to invoke Australia’s obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis of his Tamil ethnicity, his Hindu religion, his actual political or imputed opinion (arising out of his Tamil ethnicity and residence in an area formerly controlled by Liberation Tigers of Tamil Eelam (LTTE)), his father’s links with the LTTE and his membership of the particular social groups, persons with family members having links to the LTTE, ‘wealthy Tamils in Sri Lanka’ and ‘failed Tamil asylum seekers who departed illegally.’
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Sri Lanka, there is a real risk that he will suffer significant harm.
An explanation of the relevant law is contained within this decision.
History of Proceedings
The applicant arrived in Australia by boat [in] March 2010. On 2 April 2010 he participated in a protection obligation assessment interview and on 30 May 2010 the applicant made a request for Refugee Status Assessment (RSA) . On 2 June 2010 the applicant attended an RSA interview which was held at Christmas Island. On 31 December 2010 the applicant was found not to meet the definition of a refugee by the RSA process. On 21 January 2011 the applicant requested for an independent Merits review of his refugee claims. On 2 March 2012 the IMR reviewer recommended that the applicant be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
On 28 June 2012 he was granted a subclass 449 humanitarian stay visa which was in effect until 5 July 2012.
On 29 September 2012 the Minister lifted the bar under s. 46A of the Act, with the consequence that the applicant was able to make a valid application for a protection visa. On 15 October 2015 the applicant was invited to apply for the SHEV
The applicant applied for the SHEV on 22 January 2016. He was interviewed in respect of his visa application on 25 May 2017.
On 11 August 2017, a delegate of the Minister refused to grant the applicant the SHEV on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.
The applicant appeared before the Tribunal on 12 May 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.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality and the applicant’s identity
The Tribunal noted that at the Protection visa (PV) interview the applicant presented the following documents as evidence of his identity:[1]
§Photocopy of Identity Card in the name of [the applicant], date of birth ’[date]’, admission no. [number], written in English.
§Photocopy of identity Student Identity Card, issued on [in June] 1997, document no. [number], particulars most written in a language other than English.
§Photocopy of Temporary ID Card (Internally Displaced Persons (IDP) Registration Card) in the name of [the applicant], document no. [number], issued by the Sri Lankan Police, written in English.
[1] see, Department of Home Affairs File no. [number]
At a post PV interview the applicant provided scan copies of the following documents:
- Non-NAATI English translation5 of Register ~f Births no, [number] in the name of [the applicant], born to [Mr A] (father) and [Ms B] (mother, in Batticaloa on [date].
- Register of Births, document no. [number], written in a language other than English, certified as a true copy by a District Registrar in Batticaloa, Sri Lanka.
- Document no. [number] written in a language_ other than English
The delegate commented that the applicant had provided documents which were either photocopies or scan copies and was unable to verify their authenticity. However, the delegate conceded that where the date of birth and name were displayed, he found that the information was consistent ‘across all documents’ and ‘corroborated the names of the applicant’s parents and his place of birth as was claimed by the applicant. Further, the delegate determined that the applicant’s birth certificate corroborated the names of his parents and his place of birth as he claimed.
The delegate also determined that the applicant’s student identity card which had been issued in 1997 corroborates his claim at the entry interview that he attended school from [year] to [year]. The delegate concluded that the documents submitted provided ‘adequate proof’ of the applicant’s identity and found for the purposes of assessment of the applicant’s Convention claims, the applicant was as noted on the documents as [the applicant], born on [date] and was a national of Sri Lanka.
Based on the above information which the Tribunal has also considered and in th absence of any evidence to the contrary, the Tribunal accepts the applicant is a national of Sri Lanka and has had his claims (as submitted) assessed against that country in relation to his claims made pursuant to s. 36(2)(a) and s. 36(2)(aa) of the Act and on the basis of this evidence currently before the Tribunal, the Tribunal further concludes and finds the applicant’s identity as claimed.
Department file before the Tribunal
The Tribunal has before it the Department’s file relating to the applicant’s application for Protection visa. The Tribunal has also had regard to the material and information referred to in the delegate’s decision record.
Background, the Applicant’s migration history
In January 2010 [date unknown] the applicant departed Sri Lanka and travelled to [Country 1] with [specified airline] using a Sri Lankan passport.[2] In March 2010 [approximately] the applicant travelled from [Country 1] to [Country 2] by boat[3]. [In] March 2010 the applicant arrived on Christmas Island. On 2 April 2010 the applicant attended an arrival interview on Christmas Island with the assistance of a Tamil interpreter. On 30 May 2010 the applicant’s request for Refugee Status Assessment (RSA) was received.[4] On 2 June 2010 the applicant attended an RSA interview on Christmas Island.[5] On 31 December 2010 the applicant was found not to meet the definition of a refugee through the RSA.[6] On 21 January 2011 the applicant requested for an Independent Merits Review.[7] On 2 March 2012 the IMR reviewer recommended that the applicant be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to Refugees and its 1967 Protocol[8]. On 28 June 2012 the applicant was granted a Temporary Safe Haven (subclass 449) visa and a Bridging E (Class 050) with effect until 5 July 2012.[9] The applicant holds a Bridging Class E visa at present. On 29 September 2015 the applicant was invited to apply for a Temporary Protection (Subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (or ‘SHEV’ hereinafter referred to). On 22 January the applicant lodged an application for a SHEV.[10] On 25 May the applicant was interviewed in relation to his SHEV application.
The civil war in Sri Lanka
[2] [Document number], at pp. 16-17
[3] Ibid at p. 18
[4] [Document number]
[5] [Document number]
[6] [File number], [File number] at pp. 47-59
[7] [File number]
[8] [Document number]
[9] [File number]
[10] [File number]
Sri Lanka’s Eastern and Northern Provinces experienced serious and long running military conflict during the period of Sri Lanka’s civil war between 1983 and 2009. DFAT reports that growing Sinhalese nationalism created a sense of marginalisation in the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil populated north and east of the country. A number of militant groups emerged to advance the cause of Tamil statehood, with the most prominent being the LTTE which was formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983[11].
[11] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 4 November 2019 at 2.1-2.2
During the 26-year conflict, the LTTE established and maintained de facto control of Tamil populated areas in the north and east and was prescribed as a terrorist organisation by countries including Australia, [Country 5], [Country 6] and the EU. Government forces regained control of the eastern part of the country from the LTTE in July 2007 and in January 2008 launched a major offensive to capture remaining LTTE controlled areas in the north leading to the LTTE’s surrender in May 2009. Serious violations of human rights were documented during the final stages of the war, in which up to 40,000 civilians are believed killed. DFAT reports that in total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people[12].
The Applicant’s claims of past harm in Sri Lanka[13]
[12] Ibid at 2.2
[13] see, Department of Home Affairs File no. [number]
The applicant’s claims for protection, are summarised in the delegate’s decision as follows:
§He was born in [Village 1], Batticaloa, Eastern Province, Sri Lanka on [date].
- He is a Tamil and a Hindu.
- In the year 2000, his father was operating a [shop] in [Town 1]. Demanded by members of the Liberation Tigers of Tamil Eelam (L TTE), his father . helped the L TTE from 2000 to 2007 by buying [specified goods] and providing information about the Sri Lankan Army's (SLA) movement. Civilians had no choice but to help the L TTE if approached. The shop was 2 miles away from their home and the entire area was under and the entire area was under LTTE control.
- He was never involved with, or asked to help, the L TTE.
- In 2004 he worked for his father in the [business] until May 2007 when the war br9ke out. Displaced, they lived in [an IDP] camp for 2 months. Out of fear of the army, his father fled before going to the camp.
- Shortly after returning home from the IDP camp on or about July 2007, the army came to his house and questioned him about his father. They detained him for one day, interrogated and assaulted him by 6 or 7 soldiers. He admitted his father helped the LTTE, but they wanted more information from him and kept assaulting him. He was released after one day and returned home.
- After about 6 weeks, the Karuna group came to his home and interrogated him about his father. They did not assault him. Thereafter, they came to his house on at least 9 occasions asking for his father prior until he left home in January 2009[14] for-Batticaloa capital of Batticaloa district), [distance] away from his home.
- He left his home because the Karuna group started kidnapping young Tamil males in . the area. He continued working in Batticaloa (the district's capital) as a [Occupation 1]. He was hiding in a house and doing a job. He would travel to [City 1] to sell his [products] when he felt it was safe to travel. He travelled at night catching a night-time bus as, if he travelled during· daytime, it would be dangerous for his life.
- In November 2009, he decided to go to his house in his village in [Village 1], thinking the security situation was better. On the way, he was arrested by unidentified group of Tamil armed men. When questioned about going to [City 1], he told them he went there to sell his [products]. They did not believe him. They thought he was going to [City 1] to provide information about their group and their activities. They showed him 3 photos of men and asked him to identify them. He told them he did not recognise them. They began to assault him, punched him in the face and kicked him, then they let him go.
- After about 1 hour, the army who witnessed the incident came to his house. They ordered him to present himself to their superior in the camp, but he did not go. Instead, he went to hide in a nearby village called [Village 2] for a month.
- On 26 December 2009, while hiding, a group of men came to the house he was hiding in. He was taken to their camp, detained for 4 days, assaulted, tortured, and was interrogated about his father and his activities in [City 1]. On 1.January 2010, he escaped. The next day, he went to [Town 2] and stayed with a person he Knew, and then caught a train to Colombo where he stayed for 2 to 3 days.
- His cousin organised his ticket and using his Sri Lankan passport, he left Sri Lanka for [Country 1] in approximately [date] or [date] January 2010. After 2 months, he boarded a boat to [Country 2] where he stayed for 10 days. In March 2010, he boarded a boat from [Country 2] to Australia. He did not experience issues going through Immigration in Sri Lanka as his agent who organised his trip instructed him to go to certain Immigration counters to get through.
- In 2012, .the house his siblings were living in was burned by unidentified people.
- He fears he will be killed by .the army or the Karuna group because of his father's involvement in the LTTE and because they think that the applicant assisted the LTTE
- The Sri Lankan authorities cannot protect him because it is the authorities that he is fleeing from.
- There is no place safe in Sri Lanka because the authorities will identify him wherever he goes.
- Monitoring is still happening in his area as he was told by his relatives, friends, and the media. People are being abducted and killed. He has not heard of abductions in his village, but these activities are secretly happening.
- In the applicant's post-PV interview submissions[15], his migration agent provided documents including news articles and country information in support of the applicant's claims. I have had consideration of those materials as relevant.

Relying in part on the documentary evidence provided by the applicant, the SHEV officer made the following findings:
§The applicant is an ethnic Tamil and Hindu;
§The applicant originates from [Village 1], in the Batticaloa District, Eastern Province, Sri Lanka;
§The applicant’s father who remains missing supported the LTTE from 2007 to 2007 by providing [specified goods] and information about the movement of the SLA;
§The applicant was admitted into a IDP for two months from May 2007;
§The applicant in July 2007, was visited by the SLA who assaulted him in his house. They also questioned him about his father.
§The applicant was visited by members of the Karuna group and asked him questions about his father’s past and whereabouts;
§The applicant fears the Karuna group (has a subjective fear);
§The applicant was a Tamil [Occupation 1], and manufactured and sold his own [products];
§The applicant left illegally Sri Lanka and if the applicant was removed from Australia to Sri Lanka, he would be returning to Sri Lanka as a ‘failed asylum seeker’;
Ultimately the delegate formed the view that while the applicant had been subjected to significant harm by the Sri Lankan authorities and the paramilitary group Karuna Group in the past, he was not of adverse interest to the Sri Lankan authorities at the time he left Sri Lanka and his risk of harm from the Karuna related to his father’s involvement with the SLA during the civil was. The delegate concluded there was not a real chance the applicant would be seriously harmed by those groups or any other groups if he returned to Sri Lanka, now or in the foreseeable future.
EVIDENCE AT THE HEARING
The applicant told the Tribunal that he is an ethnic Tamil and a Hindu by faith and while in Australia, he has married[16] an Australian citizen and he has a baby daughter who was born on [date].[17]
[16] Applicant’s spouse is [Ms C] (DOB [date]) who is an Australian citizen
[17] see, copy of birth certificate on AAT File which records the applicant as the father of the Australian-born child.
The applicant also confirmed for the Tribunal that he was born on [date] in [Village 1], in the Batticaloa District in the Eastern Province, Sri Lanka. The applicant has no immediate family members living currently in Sri Lanka. The applicant told the Tribunal that his father went missing (presumed deceased) in 2007 and his mother had died in 2000. The applicant has four young in age, sisters who all reside in Europe ([Country 3] and [Country 4]) and others (in [Country 5] and [Country 6]). All of the applicant’s sisters are married with their own families.
The applicant told the Tribunal that he completed his education only to primary school level in Sri Lanka and has no formal qualifications. Also, while in Sri Lanka, the applicant worked as a [Occupation 1] and since arriving in Australia, he has several different jobs and is currently employed as [Occupation 2].
The applicant’s concerns about returning to Sri Lanka
The applicant told the Tribunal that he fears to return to Sri Lanka because he ‘will be persecuted by the Karuna group and SLA (Sri Lankan Army) who suspect the applicant and his family as having supported and assisted the Tamil Tigers (of Eelam) during the civil war.
The applicant told the Tribunal that the ‘trouble’ for him began in 2000. According to the applicant in that year (the applicant could not be definite concerning the actual date) his late father was operating a [shop] in [Town 1]. The LTTE, the applicant told the Tribunal approached his late father and ‘demanded’ that the applicant’s father provide them with assistance. The applicant recalled, that at ‘that time’ the entire area, that is, where his father’s shop was situated and the family’s home (only a distance of [distance] from the shop) was under the ‘control of the LTTE.’
The applicant told the Tribunal that the civilians in this area had ‘no choice but to help the LTTE’ and their allies in the field if [they] ‘demanded it.’
The Tribunal was told that the applicant’s father (at that time) had no choice except to provide assistance as was demanded from him by the LTTE. The applicant explained to the Tribunal that his father’s assistance of the LTTE continued between 2000-2007. The applicant was asked to explain, what specifically did his father do for the LTTE? In particular, what was the assistance provided by him to the LTTE? The applicant told the Tribunal that his father would purchase [specified goods] when requested to do so and other goods and would provide, when requested information on the SLA’s movements in the area.
The applicant told the Tribunal that because of his father’s involvement with the LTTE this caused his later mother to stress and to worry about the family’s safety which eventual caused her to die from a severe asthma attack.
The applicant also recalled that because of his father’s involvement with the LTTE, during the time he was working in his father’s shop, the authorities also suspected the applicant and his other family members of being the providers of assistance and information to the LTTE by the SLA and its security services. Indeed, this cause the applicant and his other family members to be relocated to [an IDP Camp] (due to the civil war) where they remained for two months. The Tribunal was told that the applicant’s father did not follow the family to the IDP camp, the applicant recalled the fact that he fled ‘fearing being caught by the SLA’ or its security forces.
The applicant told the Tribunal that he has never again seen or heard of his father, who he believes has become one of the thousands of casualties of the civil war.
Interrogation by the SLA
After, the family and the applicant returned to the family home, the applicant told the Tribunal, in July 2007, the SLA came to the family home and questioned him about his father. The applicant also recalled that he was detained for a day by the SLA and during that detention he was assaulted by SLA soldiers. The applicant also said that he ‘told the SLA that his father had been approached by the LTTE’ for assistance but that was all that he knew but the (according to the applicant) the ‘SLA wanted more information and kept assaulting me’. Then, the applicant said he was released from detention.
Visit by the Karuna group
The Tribunal the applicant told that ‘after about 6 weeks’ the group of paramilitaries known as the ‘Karuna group’ came to the family home and ‘interrogated’ the applicant ‘about his father’. The applicant explained to the Tribunal that the Karuna group visited the applicant’s ‘about nine times’. The applicant noted that this recollection of what actually happened was ‘not accepted by the delegate’ (the Department). The applicant explained that during his protection visa interview he was ‘under stress’ which caused him to respond to questions in a slow manner. The applicant emphasised to the Tribunal ‘that he was telling the truth’ about his encounter with the Karuna paramilitary.
The applicant also told the Tribunal, that during ‘this time’, the Karuna group was kidnapping ‘young Tamil males in the area’ and to avoid ‘kidnap’ the applicant recalled that he was ‘staying and working in Batticaloa town’ without many knowing and ‘only travelled to [City 1] when it was safe.’
Applicant’s return to his village
The applicant said that as time passed and it became ‘safe’, he would visit his family home. The applicant explained that he did these visits in order to ensure that his family members (then there) – his grandmother and sisters were well.
The applicant said that he returned to his village, [Village 1] in November 2009. The war had ended and ‘believed the security situation had gotten better.’ However, attempting to return to his village, the applicant said he encountered a group of ‘unidentified Tamil armed me.’ These men, the Tribunal was told, questioned the applicant ‘about his travel to [City 1]’. According to the applicant these men, ‘refused to believe [me] when [I] told them [the travel to [City 1]] was related to [my] work.’ When these men did not get the answers, they wanted from the applicant, according to the applicant, they assaulted him and then allowed him to continue to his village. The applicant recalled that the delegate (at the interview) did not believe him, but the applicant said this incident did happen and was not a ‘false statement.’
The Tribunal was told that after returning to his home, the SLA came to the applicant’s home and requested him ‘to come to their camp.’ The applicant recalled, he ‘feared for his life’ and decided to go ‘into hiding’ in the village [he identified as] ‘[Village 2]’.
Then, the applicant told the Tribunal that on 26.12.2009, he was ‘arrested’ by a ‘group of men’ at the place ‘he was hiding’ and was taken to ‘their camp’ where he ‘was detained’ for ‘four days’ and ‘assaulted’ and ‘interrogated about his father’s and [my] association with the LTTE.’ The applicant then told the Tribunal, that though his own efforts he managed ‘to escape’ and on 1.01.2010 he ‘went to [Town 2]’ and ‘after two days’ he then went to ‘Columbo’ where he made ‘arrangements’ (with his cousin) to ‘leave for [Country 1].’
The applicant told the Tribunal that despite the civil war having ended, his family has continuously been ‘harassed by the Sri Lankan authorities.’ When asked to describe the ‘harassment’, the applicant told the Tribunal that the ‘family’s house was ‘burnt down by unknown people’ in 2012. The applicant told the Tribunal that the house’s burning was due ‘to his father’s issues’ (his involvement with the LTTE).
Family continued to be harassed by the authorities
The applicant told the Tribunal that ‘even after he left (Sri Lanka)’ his ‘grandmother continued to take care of my sisters’. The applicant also recalled, that one of his sisters ‘faced harassment by the Sri Lankan authorities’ and because of this harassment ‘she fled to [Country 3] in 2015’ where, she was ‘accepted as a refugee and settled there.’
The applicant said that his other sisters – all of them, are now living overseas, having abandoned Sri Lanka because of the fear they had caused by the ‘harassment’ they experienced from the authorities, visiting the family home and asking questions.
Fears returning to Sri Lanka
The applicant said that he fears that if he returns to Sri Lanka, he will face persecution from the Sri Lankan authorities because of his past dealings with the authorities and due primarily to his father’s pas dealings with the LTTE.
Life in Australia
The applicant told the Tribunal that he has a settled life in Australia and was happy with his wife and young child. The applicant told the Tribunal that he has ‘nothing waiting for him in Sri Lanka.’ The applicant works in Australia and feels secure and happy in Australia. The applicant expressed concerns about the deterioration of the civil and political situation in Sri Lanka and does not wish to go there. The applicant said that there was no future for him – now a family man (with child) returning to Sri Lanka. If he did return, the applicant said, he will be persecuted for his own past and because of his father’s involvement with the LTTE.
SUBMISSONS MADE TO THE TRIBUNAL CONCERNING APPLICANT’S CLAIMS FOR PROTECTION
On 1 May 2022, the Tribunal received a written submission from the applicant’s registered migration agent representing the applicant in this matter, Valarmatherl Murukaverl, VM Migration Australia which in summary submitted the following argument’s concerning the applicant’s claims:[18]
[18] see, AAT File, Applicant’s written submission, dated 1 May 2022, submitted by VM Migration Australia, in particular, p. 16
If the applicant returns to Sri Lanka, he would against come to the adverse attention of the Sri Lankan authorities. He would face persecution due to his imputed political opinion and particular social group (LTTE controlled village):
a) Tamil ethnicity;
b) Young male;
c) He was born and brought up in a former LTTE controlled area;
d) Father’s association with the LTTE (family link);
e) His imputed political opinion;
f) The applicant’s younger sister also fled Sri Lanka to avoid persecution;
g) He was harassed by the authorities in the past (due to his above profile);
h) The applicant’s father is still missing; and
i) Failed asylum seeker
If the applicant returns to Sri Lanka, there is a real chance that he will suffer significant harm amounting to persecution for reason of his imputed political opinion. He has a well-founded fear of persecution for his imputed political opinion.
The registered migration agent submitted further that,
the applicant fears, if he is forced to return to Sri Lanka, he will be detained under the Prevention of terrorism Act (PTA) for his father’s LTTE association and being a young Tamil Male from LTTE controlled area. Due to this profile, he will face real risk of being cruel punishment. The Human Rights Watch (HRW) annual report 2016, Sri Lanka observed that ‘The PTA has long been used to hold suspected LTTE members and others without charge or trial for years…. The law has been used since the end of the war, including under the present government, to detain and torture people suspected of links to the LTTE, including forcibly returned asylum seekers.’ Recent arrest of Mayor of the Jaffna Municipal Council Manivannan Visvalingam under (PTA) by the Terrorism Investigation Division (TID).5 The recent DFAT report also states ‘ Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by the police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late duly for holding a socially distanced candle-lit vigil on a beach in Batticaloa, Eastern Province.’
And due to this profile, the applicant feared:
He will be harassed by the authorities and will not be able to work; and therefore, he will suffer significant economic hardship that threatens his capability to subsist, and he will be denied access to basic services where the denial threatens the person’s capacity to subsist and the denial of capacity to earn a livelihood will threatens the applicant’s capacity to subsist. The applicant has no family support in Sri Lanka. There are no male members in the family. None of his female family members make an earning. The applicant’s grandmother and younger sisters are keeping a low profile in Sri Lanka.
The applicant’s claims were according to the submission:
The applicant’s claims are consistent with available country information indicates that as the person’s fear is of ill treatment/persecution at the hands of the state, they will not be able to avail themselves of the protection of the authorities and will not be able to relocate to escape the risk. Furthermore, A July 2015 International Truth & Justice Project (ITJP) Sri Lanka report on Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015 stated that: ‘A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them.’9 This is relevant and concerning for the applicant as he is at real risk of punishment or reprisal from the authorities regarding his father’s LTTE association and his imputed political opinion.
Then, the submission made references as to how the changed political situation in Sri Lanka in recent times increases the applicant’s fears of harm and persecution if he is returned to Sri Lanka:
Currently, the Sri Lankan government is under global scrutiny on human rights issues. Sri Lankan’s newly elected President Gotabaya Rajapaksa is known as the unforgiving, ruthless man. His own family addresses him as the ‘terminator’. Sri Lankan Tamils are in fear since he was elected as the new President of the country. He is accused of overseeing torturing and indiscriminate killings of both civilians and combatants, and later of political assassinations.
COUNTRY INFORMATION – THE CURRENT SITUATION IN SRI LANKA –THE RULE OF LAW AND THE PLIGHT OF TAMILS
The Tribunal having considered the applicant’s evidence and submissions has also considered the DFAT Report on Sri Lanka:
Race/Nationality
3.4 DFAT assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official or societal discrimination based on ethnicity or caste, including in their ability to access education, employment or housing.
Tamils
3.5 Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka but are concentrated in the Northern and Eastern provinces; according to the 2012 census, Tamils comprise 93.8 per cent of the population in the Northern Province and 39.2 per cent of the population in the Eastern Province. Tamils account for 6.8 per cent of the population in the Western Province. Tamils of Indian origin have a large presence in the Central, Sabaragamuwa and Uva provinces.
3.6 Tamils have a substantial level of political influence, and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The TMVP and the EPDP are also active politically. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the last local government elections (February 2018). Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
3.7 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
3.8 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamil’s under-representation is largely the result of language constraints and disrupted education because of the war.
3.9 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses. Some Tamil sources claimed Sinhalese had been resettled on desired coastal land and that Sinhalese fishermen in the north were supported by the Navy.
Monitoring, harassment, arrest and detention
3.10 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
3.11 Members of the Tamil community claim 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 related to the war, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Local sources told DFAT that the method of monitoring today was more subtle (see Monitoring of former LTTE members).
3.12 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
3.15 DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. Physical violence against those being monitored is not common.
3.16 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified “unlawful activities”, permits detention for up to 18 months without charge and provides that confessions are legally admissible. The PTA was used mainly to target those suspected of involvement with the LTTE. During the war, authorities detained more Tamils under the PTA than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention).
3.17 The PTA remains legally in force. It was effectively suspended between 2016 and April 2019, following the government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). However, the PTA has been used – along with the now-lapsed Emergency Regulations – to detain persons allegedly involved in the 2019 Easter Sunday terrorist attacks. DFAT is unable to verify how many individuals have been detained under the PTA since 21 April 2019.
Liberation Tigers of Tamil Eelam (LTTE)
3.57 While the LTTE was comprehensively defeated, Sri Lankan authorities remain sensitive to its potential re-emergence. According to expert testimony provided to a 2013 hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported in June 2017 that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
3.58 Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
3.59 The LTTE has not carried out any attacks since 2009. 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, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it de-listed eight Tamil diaspora organisations and 269 individuals banned in March 2014 under domestic implementation of UNSC Resolution 1373 (2001) for purported links to a terrorist organisation (the LTTE). Eight organisations and more than 170 individuals (26 of them proscribed on 23 May 2019) remain on the list (see Former LTTE members living outside Sri Lanka). Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.60 Some members of the LTTE (as well as government forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the war. Such crimes include abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Low-profile former LTTE members
3.74 ‘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, particularly if suspected of having a combat function during the war, would likely be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.
Monitoring of former LTTE members
3.75 Some Tamils with imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence, although monitoring today is less extensive and takes a more subtle form. A source that DFAT considers credible claimed the extent of monitoring depends on one’s former seniority within the LTTE; ongoing involvement with politically sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements of the diaspora considered radical by the Sri Lankan Government. Former LTTE members that fit this profile are more likely to be monitored by the authorities. In contrast, those who maintain a low-profile are considered less vulnerable to monitoring.
3.76 Where monitoring did occur, local sources claimed the authorities – usually undercover police officers or intelligence agents – used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. The questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect and involved questioning the neighbours of suspected former LTTE members. DFAT is unable to verify these claims. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the government as part of the Karuna Group/TMVP (see Security situation in the north and east). Formal complaints of harassment and monitoring by former LTTE members to the HRCSL have decreased significantly; few such complaints were received in 2018.
3.77 DFAT assesses that under the current government, while they may be monitored, Tamils with links to the LTTE are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.
Former LTTE members living outside Sri Lanka
3.78 At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
3.79 Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. The decision by some countries to designate the LTTE as a terrorist organisation after September 2001 made it more difficult for Tamil diaspora communities to raise funds on its behalf.
3.80 Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state.
3.81 Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India, which, at its closest point, is situated 35 kilometres from Jaffna. Of these, about 60,000 live in camps run by the Tamil Nadu Government (see Returnees from Tamil Nadu). DFAT understands that 44 Sri Lankan Tamil refugees reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT understands camp inhabitants include former LTTE members, refugees with formal criminal convictions and those awaiting court hearings. DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, work or receive benefits entitled to other Sri Lankan Tamil refugees (including a monthly allowance). Similar ‘special camps’ in Chengalpattu and Cheyyar were closed in 2014 and 2016, respectively.
3.82 The Sri Lankan Government has encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile. 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 would likely be of particular interest to the authorities. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
Family members of LTTE
3.83 The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, detention and prosecution
3.84 Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, police can detain suspects without charge for extendable three-month periods, not exceeding a total of 18 months. In practice, some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
3.85 Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. According to local sources, more than 100 former LTTE members are currently being held in detention, including one who is undergoing rehabilitation (see Rehabilitation). DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
3.86 The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low-profile detainees. Some high-profile detainees have received prison sentences following their release from rehabilitation.
3.87 DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
Societal discrimination
3.88 Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Many have encountered difficulty finding employment, including because some employers are reluctant to hire former LTTE members out of fear it would invite increased police and military attention. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.
3.89 Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort is high. Many, including those that received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if at all.
3.90 Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.
3.91 DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
Enforced or Involuntary Disappearances
4.5 In May 2016, Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearance. Parliament passed domestic legislation (the Enforced Disappearances Act) to implement the Convention and criminalise enforced disappearances in March 2018. In September 2017, the government issued a gazette to establish the OMP and appointed commissioners in February 2018 (see Reconciliation).
4.6 While there is no agreed figure, the number of missing or disappeared persons in Sri Lanka is thought to rank among the highest in the world. In June 2016, the ONUR said 65,000 people were missing from the war with the LTTE and separate Marxist insurrections (including members of the armed forces and police identified as missing in action). The OMP estimates at least 20,000 people disappeared without explanation since 1983 and remain missing today. The majority of the missing or disappeared are from the north and east and are likely to have been members or supporters of the LTTE. In July 2017, the UN Working Group on Enforced or Involuntary Disappearances attributed a number of child disappearances to the LTTE’s recruitment of child soldiers during the war. A small number of disappearances relate to people who have emigrated. For example, Kathiravel Thayapararaja, a former LTTE member who was reported to have been tortured and killed by Sri Lankan security forces in 2009, emerged alive in Tamil Nadu in 2014. Most of those considered missing or disappeared are highly likely dead.
4.7 Protests led by Tamil families demanding information on the disappeared began in the north and east in January 2017 and are ongoing. President Sirisena met protest leaders in Kilinochchi in June 2017 and reportedly agreed to release a list of individuals who disappeared during the war but, at the time of publication, a list had not been provided. The military has resisted previous requests for such information.
4.8 Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 likely referred to incidents where police did not follow protocol during arrest. DFAT understands that such disappearances are no longer common.
4.9 Extortion and kidnapping for ransom was common during the war, particularly in the north and east. While they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related. DFAT assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom.
Arbitrary Arrest and Detention
4.30 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. The PTA allows authorities to detain suspects without charge for up to 72 hours. After this period has elapsed, a suspect either can appear before a magistrate, or can be held without charge under detention orders for three-month periods not exceeding 18 months, although, in practice, some have been detained without charge for considerably longer than the PTA allows (see Arrest, Detention and Prosecution). Suspects can be held in irregular places of detention, as well as at police stations, detention centres or prisons. The ICRC and the HRCSL have access to PTA detainees and can meet detainees without police escort. Lawyers and families cannot meet detainees unaccompanied. According to media reporting, draft new counter-terrorism legislation (the CTA) would reduce the number of acts considered as terrorism and increase the power of the HRCSL to act as a check on abuses by security forces. The CTA would reportedly allow terrorism suspects to be detained for up to one year without charge. The CTA remained in draft form at the time of publication and may be subject to amendments.
4.31 The 2016 UN Committee against Torture fifth periodic report on Sri Lanka claimed that police powers to arrest suspects without a court warrant and the subsequent practice of detaining persons while conducting investigations were used to obtain information under duress. The report referenced allegations of police investigators failing to register detainees, or to bring them before a magistrate within the time limit prescribed by law. The HRCSL received 101 complaints of arbitrary arrest and detention from January to June 2018.
4.32 Individuals continue to be held under the PTA, although the precise number is contested. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. DFAT is unable to verify how many individuals, including Muslims, are currently detained for suspected PTA offences.
4.33 Prior to the Easter Sunday attacks, authorities had made progress in processing persons detained under the PTA. In August 2017, the Sri Lankan Government released a list of 84 people in custody under the PTA and facing trial, and 12 others who had not been charged. According to the Sri Lankan Government, as at 25 January 2019, 58 individuals detained under the PTA were facing trial and three suspects were awaiting indictment. DFAT is unable to confirm whether those arrested under the PTA in 2018 and 2019 have been charged. Prior to the Easter Sunday attacks, the majority of individuals detained under the PTA were Tamil. The maximum penalty under the PTA is 20 years’ imprisonment. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism cited government statistics from July 2017 showing that 70 of more than 80 persons charged under the PTA had been detained for more than five years without trial, and 12 for more than 10 years. According to the US Department of State, individuals detained under the PTA have reported torture and mistreatment, forced confessions and denial of basic rights, including access to lawyers and family members.
4.34 In June 2016, President Sirisena instructed the security forces to adhere to HRCSL directives to protect those arrested under the PTA. These include guarantees of medical and legal assistance, registration of arrest, right to language of the detainee’s choice, protection from torture and other mistreatment, and special protection for women and children. The directives reassert the requirement for security forces to inform HRCSL of all PTA arrests, and HRCSL’s right to access any person arrested or detained under the PTA, and to access any place of detention at any time.
4.35 In 2017, protests took place in the north to demand the release of PTA detainees held for protracted periods. In September 2018, some Tamils held under the PTA without charge undertook a hunger strike against their protracted detention.
4.36 The current government has taken limited action to deal with individuals detained without charge under the PTA by its predecessor. In August 2016, the Minister of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs reported that the government had released 39 detainees on bail and had committed to streamlining judicial processes for PTA cases, including consideration of rehabilitation as an alternative to custody.
Treatment of Returnees
Exit and entry procedures
5.31 The constitution entitles any Sri Lankan citizen ‘the freedom to return to Sri Lanka’… If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
5.32 Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and, at times, the Terrorism Investigation Division process returnees at Colombo’s Bandaranaike International Airport, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. The IOM meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths and staffing constraints. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed, although returnees are free to go to the bathroom and to talk to one another during this time.
5.33 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Conditions for returnees
5.43 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country or origin or a third country. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.44 The Sri Lankan Government has consistently stated that refugees are welcome to return and, in August 2016, released a ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Prime Minister Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with caution.
5.45 Despite positive government sentiment, 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 refugee returnees receive reintegration assistance in the form of transport assistance 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. In 2016, the Sri Lankan Government undertook to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka. This involves obtaining an equivalence certificate; however, returnees continue to report delays in gaining recognition for foreign qualifications. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.46 DFAT understands that some returnees, including returnees in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the Criminal Investigation Department. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. DFAT is not aware of returnees, including failed asylum seekers, being treated in such a way that endangers their safety and security. Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits.
5.47 Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment.
5.48 DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
5.49 Some refugees and failed asylum seekers reported social stigma upon return to their communities, including for being beneficiaries of financial reintegration assistance. 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 societal discrimination following their return.
5.50 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.

The Tribunal considered country information that it had obtained from the Report of the UN Special Rapporteur on Sri Lanka. Relevantly, the Special Rapporteur noted the following:
§There were credible reports of white van abductions by CID up to April 2016 although it was acknowledged that these were more numerous during the war and in the post-war period;
§There are also credible reports that suspects were detained under the PTA for days and sometimes weeks to extract confessions. The physical abuse of detainees was transitory, such as blows with batons and bats, which heal without medical treatment. Most torture survivors reported that the torture ceased after they confessed, after which they were placed in detention to a remand prison;
§People suspected of being involved in terrorism or national security issues are more likely to be detained and tortured;
§The conditions of detention were inhumane because of overcrowding in the prisons and the lack of adequate medical care; and
§While there was a constitutional right not to be arbitrarily detained, safeguards such as custody hearings, the right of legal counsel and the role of the judiciary and prosecutors were identified as being deficient.
The Tribunal considered country information that it had obtained from the UK Home Office Report on Sri Lanka:
Executive Summary
Following the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 nearly 10,000 LTTE cadres are believed to have surrendered with many undergoing a period of rehabilitation in dedicated rehabilitation centres. The government described the rehabilitation process has having been successful with rehabilitees being given educational and vocational training, but some sources were critical of the government’s efforts. Whilst some cadres have been able to secure employment with the government or the security forces others have found difficulty in securing jobs even though provisions are in place where the government are able to cover 50% of wages for those employed in the private sector. Some former cadres remain under monitoring and some face ostracism from their own community.
Since the end of the civil war the focus of the Sri Lankan government has changed and between 2015 and late 2019 under the new government, led by President Sirisena, there were improvements in the general feeling of personal freedom within the country.
Most Tamils do not suffer persecution simply for being a Tamil but there remains some discrimination towards them and other minority groups.
Tamil Diaspora groups are important within Sri Lanka in so much as they often send remittances home, but they do not have a specific political platform or representatives within the country. It is likely that some monitoring of political diaspora groups occurs outside of Sri Lanka although this was likely to be of the more prominent members. Several sources stated that they were aware of members of such diaspora groups returning to Sri Lanka and facing no issues on return.
The Transnational Government of Tamil Eelam (TGTE) are a proscribed group in Sri Lanka due to their links with the LTTE and because they are seen as pursuing an independent Tamil homeland. The TGTE advocate for a separate Tamil state but do not have widespread support within Sri Lanka, as most Tamils have more pressing concerns such as housing, employment, return of land and accessing information about relatives who disappeared during the war. It’s possible that high profile members of the Tamil diaspora may face risk on return although the Attorney General’s Department stated that they would only be at risk if they had committed a crime within Sri Lanka and members of the Criminal Investigation Department (CID) stated that mere membership of a proscribed group would not be enough to make a person of interest.
Returnees are likely to be questioned by immigration officials especially where they arrive on an emergency travel document. They are not arrested but may face questioning about how they left Sri Lanka and whether they were aided by smugglers. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the persons local police and there is no central police database.
So-called ‘White Van’ abductions have not occurred in recent years, and whilst beatings and mistreatment is alleged to occur in police detention contacts felt that this is not to the same brutality as the past. Where someone is arrested under the Prevention of Terrorism Act (PTA) the authorities are required to notify the Human Rights Commission. The families of those arrested should be issued with an arrest receipt stating the reason for arrest and the details of the officer and police station.
Medical treatment for PTSD is freely available within the country.
It is also reported at [4.1.1] – [4.1.4] as follows:
4.1.1 Returning failed asylum seekers would likely be questioned at the airport by immigration officials and may be passed to the Criminal Investigation Department (CID) based at the airport. CID would make additional checks with the local police in the area where the person claimed to be from. These checks can take a long time to conduct as there is no central police database. Once released it is not unusual to experience a further check at home although the period of monitoring can vary.
4.1.2 The representative from the northern province community stated that when failed asylum seekers are deported there may be some sensitivity with some of them being arrested and released on bail to attend court.
4.1.3 Representatives from the International Organization for Migration (IOM) told the FFT that when people return on an emergency travel document the Sri Lankan authorities are provided the details of the person, by the relevant issuing authority, prior to their arrival. Once they return and have passed through immigration control, they would be referred to the police based at the airport to check criminal records, and if there are no criminal warrants then they would be released. Where there are outstanding criminal warrants then criminal procedures will apply. Those who travel on their own passports are not recognised as readmission migrants.
4.1.4 IOM also noted that claiming asylum aboard is not an offence and as such when someone returns to Sri Lanka who has been absent for a number of years or has an expired visa, they would not be questioned on this and there were no media reports of returnees being interrogated on such grounds. IOM have some presence at the airport and are based before immigration control to receive passengers returning on IOM programmes and they stated that in the last couple of years they have not witnessed the intense questioning of the past where returnees may have been asked what they had been doing in the UK. The police would only be interested in an individual if there were outstanding criminal offences.
According to the UK Home Office Report on Sri Lanka at [4.2.1], "if returning failed asylum seekers were found to have links to the LTTE they would likely face further questioning although it would depend on the case". It was also reported that a representative from the UNHCR stated that "the level of security screening at the airport has decreased since 2015" and that if returning citizen was "a high profile LTTE cadre" they would be subjected to additional questioning, but this would not necessarily mean they would be detained.
It was further reported at [4.2.2] that:
“The Attorney Generals Department and the Criminal Investigation Department told the FFT that former LTTE cadres would only be of interest if there was a pending criminal case against them and that mere membership of the LTTE would not make someone of interest, this was also confirmed by an NGO.”
The Report made detailed observations about the arrivals process at [8.1.13] as follows:
- People returning on an enforced removal are taken directly to the Chief Immigration Officer, then interviewed;
- If the person has left Sri Lanka illegally a statement will be taken by immigration officials. Persons arriving on an emergency travel document would not necessarily be questioned; only if they had departed the country illegally;
- Following secondary questioning by immigration officers, if the person remains of interest, they are interviewed further. The team observed that the door was open with officers inside and this was the case when members of the team returned anonymously on a different day;
- The CID recorded a statement regarding the person's departure from Sri Lanka and their facilitator (in the case of trafficking). The criminal records division checks for previous offences and if none are found, the person is released. This takes approximately three hours but if the flight arrives at night the person may be required to wait overnight; and
- Approximately 35 people per month are seen by the CID, returning from Korea and Australia. Most are seen due to their illegal departure or forged documents.
This Report is more recent than the 2019 DFAT Report but it is broadly consistent. Interestingly, the UK Home Office suggests the monitoring of returning asylum seekers is more relaxed than the assessment made by DFAT, with returnees being released if they have no criminal record.
The Tribunal also considered the UK 2021 Home Office Report.[19]
[19] UK Home Office Report, Country Policy and Information Note, Sri Lanka: Tamil Separation, Version 7.0, June 2021.
CONSIDERATIONS OF CLAIMS AND THE EVIDENCE
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from a lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a 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, the fact that an 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[20] Nor, is the Tribunal required to accept uncritically all the allegations made by an applicant.[21]
[20] see, section 5AAA of the Migration Act 1958.
[21] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[22] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted. Then, if the applicant’s account appears credible, he or she, should unless there are good reasons to the contrary, be given the benefit of the doubt.[23] However, such a benefit of the doubt should be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
Accepted facts
[22] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J at p. 482.
[23] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992) at paragraph [196].
Based on the oral evidence provided at the hearing, the Tribunal accepts and finds that:
(a)The applicant was born in [Village 1], Batticaloa district, Eastern Province, Sri Lanka on [date].
(b)the applicant is a Tamil by ethnicity and a Hindu in faith.
(c)the applicant’s education level is at primary school level.
(d)the applicant has worked as [Occupation 1] while in Sri Lanka
(e)the applicant has a grandmother living in Sri Lanka and his sisters who reside with their own families in [Country 3], [Country 6], and [Country 5]
(f)the applicant’s mother died in 2000 and his father has been ‘missing’ feared dead, since 2007.
(g)the applicant is married to an Australian citizen and has a newborn child.
(h)the applicant is currently employed as a [Occupation 2]
Applicant’s Refugee Claim
The relevant grounds
The applicant claims to have a well-founded fear of persecution within the scope of Article 1A(2) of the Convention as a member of a particular social group (PSG) as a result of being a Tamil male from the Eastern Province with family ties (in the past) to the LTTE and is a failed asylum seeker who departed Sri Lanka illegally.
It has been held that the phrase ‘particular social group’ should be given a broad interpretation. Nevertheless, the category was not intended to provide a general safety net or ‘catch all’ to cover any form of persecution.[24] In Morato v MILGEA, Lockhart J said:[25]
The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national, or political reasons…
[24] Applicant A v MIEA (1997) 190 CLR 225 at 241, 260
[25] Morato v MILGEA (1992) 39 FCR 401 at 416
The meaning of the expression ‘for reasons of…membership of a particular social group’ was considered by the High Court in Applicant S[26] Gleeson J, Gummow and Kirby JJ stated:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfills the first two propositions, but not the third, is merely a “social group” and not a “particular social group”…
[26] Applicant S v MIMA (2004) 217 CLR 387 at [36]
Justice McHugh in Applicant S summarised the issue in broadly similar terms:
To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim and principle….[27]
[27] Ibid Applicant S at paragraph [69]
A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.[28]
[28] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264-266, 285
Therefore, whether a supposed group is a ‘particular social group’ will depend upon all the evidence including relevant information regarding legal, social, cultural, and religious norms in the country. However, it is not sufficient that the person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of a particular social group.
In the case, the applicant claims that he is a member of a particular social group, being a ‘Tamil, a Hindu, and a failed asylum seeker who has an imputed political opinion because of his father’s involvement with LTTE’.[29] The Tribunal accepts that the applicant’s is a person who has sought asylum and has an ethnicity, religion and imputed political opinion due to his late father’s involvement with the LTTE during the Civil War which is a characteristic shared by all members of the group and that it distinguishes the group from (Sri Lankan (non-Tamil)) society at large. As such, the Tribunal accepts that the applicant is a ‘failed asylum seeker who had departed Sri Lanka illegally and because of his ethnicity, religion and his family members’ past ties with LTTE, is a member of a PSG.
Applicant’s well-founded fear
[29] see, the Applicant’s written submission dated 1 May 2022, AAT File, at p. […]
In Chan v MIEA[30] the Court held that a ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and as a basis (well-founded) for that fear.[31]
[30] (1989) 169 CLR 379 at 396
[31] (1989) 169 CLR 379 at 396. See also MIEA v Su Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal does accept that the applicant has a subjective fear of being persecuted id she is returned to Egypt.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[32]
‘Well-founded’ must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[32] Chan v MIEA (1989)169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated:[33]
‘Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”
[33] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 186 259 at 293
The applicant claims that, in the event he is returned to Sri Lanka there is a real chance he will suffer serious harm because of him being a PSG. For the reasons expressed below, the Tribunal accepts that the applicant has a subjective and objective fear of being seriously harmed by reason of his ethnicity, religion, current status as an asylum seeker with known family ties in the past to the LTTE.
(a)Tamil ethnicity resulting in real or imputed political association with the LTTE

The Tribunal has considered whether the applicant’s ethnicity would of itself leads to an imputed political association with the LTTE.
The applicant in his evidence to the Tribunal emphasised his Tamil ethnicity as a major factor contributing to his fears about his possible return to Sri Lanka. It was noted by the Tribunal in its review of the delegate’s decision, that the delegate accepted that the applicant was not involved with LTTE personally, and never supported the LTTE, he nevertheless, could be considered by the authorities as being a Tamil with a real or imputed association with LTTE. The delegate accepted in his decision, that even though the applicant had no involvement with LTTE, the applicant’s father (who was no where to be found) did have ties to the LTTE during the civil war and had assisted the LTTE (that part of the applicant’s evidence the delegate accepted)That assistance (which the delegate) accepted as fact had come to the notice of the SLA and Karuna group as the applicant admitted in his evidence and that paternal association invited consequences for the applicant.
The Tribunal accepts that the applicant was interviewed, detained and assaulted by the SLA as he claimed. In an attempt to extract any information, it is a direct consequence of that aim that some form of arbitrary arrest happened, and the applicant suffered violence. The Tribunal also accepts that that the applicant would have been questioned, forcibly detained and assaulted by the paramilitary group, known as the Karuna group. Indeed, bringing the applicant’s past into the present, his ethnicity as a Tamil attracts (in the current situation in Sri Lanka) concerns, very real concerns that it will be infused with real or imputed political association with the LTTE not only because the applicant’s father is on the authorities’ record as a supporter of the LTTE during the civil war but also because of the fact that though the applicant had not personal link or involvement with the LTTE, he was the subject of interest by the authorities before he left Sri Lanka – suspected of knowing matters concerning the LTTE because of his father and there is no doubt in the Tribunal’s mind that with the current situation in Sri Lanka deteriorating, the applicant will attract the attention of the SLA and security forces because of his Tamil ethnicity which for the reasons considered and accepted by the Tribunal (and not dismissed on the whole by the delegate) would attach a real or imputed political association with the LTTE.
(b)The applicant, is a Tamil from a former LTTE-controlled area (in the east of Sri Lanka)
The Tribunal has considered whether the applicant would be targeted for being a Tamil who lived in an area controlled by the LTTE
The Tribunal determined from the evidence written and oral, the applicant originates from the Eastern Province of Sri Lanka, that has (demographically) a Tamil majority and was formerly a LTTE-controlled area and an area of intense wartime battles. During the civil war, more Tamils (mostly in the East and North) were detained under emergency regulations and the Prevention of Terrorism Act (PTA) than any other group. DFAT assesses that this was the case because LTTE members and supporters being mostly Tamil and that there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity.[34]
[34] CISEDB50AD105: “Sri Lanka – Country Information Report” , DFAT, 24 January 2017.
Though the delegate was ready to admit that imputation was made, in the past, when he was considering the applicant’s PVA, which was in 2017 – a lapse of five years – much has change in Sri Lanka. The political and economic situation has broken down totally, and the government has engaged in a process of maintaining law and order by the direct use of military, security forces and emergency laws. Major roles played in the curtailment of civil unrest currently is the PTA and the Tribunal accepts the applicant’s concerns and his RMA’s submission, that the applicant will (if he is returned to Sri Lanka) be targeted for being a Tamil from a former LTTE-controlled area.
Evidence which the delegate also accepted. The Tribunal agrees that the applicant has a real concern and legitimate basis for his fears of harm and persecution. For example, his father is known to have assisted or ‘supported’ the LTTE, second, the applicant and his family were admitted into an IDP camp for two months in May 2007 for processing by the authorities, third, in July 2007, the applicant was detained, interrogated, and assaulted by the SLA, four, he was then detained, interrogated and assaulted by the Karuna group (SLA -associated paramilitary) and fifth, his grandmother and sisters had their own encounters with Karuna group when the applicant had left for Australia. It stands to reason therefore, with this evidence before the Tribunal which was not on whole dismissed as irrelevant or not credible by the delegate, that the applicant would invite the attention of the authorities because he is a Tamil and from a former LTTE-controlled area (including the fact that the authorities have knowledge and records of his father’s involvement with LTTE) if he returned to his village and home district. Relevant to the applicant’s claims, there have been consist reports since the ending of the civil war of Sri Lankan civilians, including Tamils but also non-Tamils being abducted by security forces.[35] There are also reports of continued human rights violations in Sri Lanka, including the use of torture against suspects, and the ability of the security forces to act with impunity.[36]
[35] CXBD6A0DE10907: India Today, ‘Tamils continue to live in fear in post-war Sri Lanka’, 28 July 2015.
[36] OGD95BE026320: US Department of State, “Sri Lanka – Country Report on Human Rights Practices 2015”, 13 April 2015; CIS38012881: ‘Freedom from Torture, Sri Lanka – Update on Torture since 2009’, 6 May 2016, CIS 38A801275: “Silenced: Survivors of torture and sexual violence in 2015”, International Truth and Justice Project (ITJP), 07 January 2016.
Further, the recent DFAT report states ‘that Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest, and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity with the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, have told DFAT that the human rights improvements achieved under the former government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarization of the civilian government, the 20th Amendment’s centralization of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears.[37]. The important thing to notice is that ‘In December 2015, the Sri Lankan Cabinet approved the formation of a Secretariat for Coordinating Reconciliation Mechanisms within the Prime Minister’s Office.’[38]
[37] DFAT Country Information Report, Sri Lanka 23 December 2021 at paragraph [2.33].
[38] Ibid, at paragraph [2.44]
Tamils, it is reported are highly disappointed with the recent election results which have seen the Rajapaksa brothers maintaining office. The previous Sirisena government also felt short from showing any substantial progress with justice for victims. Indeed, as was stated in the DFAT country information report of 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution which reversed some measures introduced by the previous government, largely dismantling transparency and accountability reforms in the 19th Amendment, as well as enhancing the executive control of the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concerns 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.’ [39]
[39] DFAT Country Information Report, Sri Lanka 23 December 2021 at 2.31.
The last election results record that the Rajapaksa did not win in the Tamil areas which reflects the continuing feeling of trauma and fear of ethnic Tamils. Tamils, sources say that memories of the Rajapaksa period in power have caused widespread trauma and concerns about what to expect in the future.
Again, the recent DFAT report (2021) reports that ‘towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centers. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned and monitored many civilians for possible LTTE activity, or for civil resistance or anti-government sentiment.
Although not officially mandated, in many areas the military (SLA) took a visible and active role in civilian activities. The previous Sirisena Government publicly committed reducing military involvement in civilian activities, but observers expressed concern that this had been reversed and the military’s role [was] growing again’.[40] The same report goes on to express the growing concern that ‘while the LTTE was comprehensively defeated, the Sri Lankan authorities remain concerned over its potential re-emergence, and remain concerned] about separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic data bases…’[41]The Tribunal noted and finds that the applicant may be the subject of this intelligence because of his ethnicity, from where he originates from (a former LTTE-controlled area) and due of his father’s known activities with the LTTE during the civil war.
(c)Imputed political opinion of LTTE involvement/support and his family links to a former LTTE supporter
[40] DFAT Country Information Report, 23 December 2021, at 3.40.
[41] DFAT Country Information Report, 23 December 2021, at 3.40.
The applicant in his evidence to the delegate during his PVA interview and in his evidence before the Tribunal did not claim to have had any involvement with the LTTE during the civil war and has not stated that he has been involved in any activities that could be construed as supporting any ongoing Tamil separatist movement. The Tribunal accepts the applicant’s evidence as the truth and the Tribunal concludes and finds that the applicant was not involved with the LTTE, nor did he support any Tamil separatist movement after the end of the civil war. Though the applicant may not a profile with the Sri Lankan military and security forces as a person that was involved with LTTE or that had supported post-civil war Tamil separatist movements; the applicant did have family links to the LTTE because of his father’s direct involvement with the LTTE. The Tribunal noted that the delegate accepted that the applicant’s father had had an involvement with LTTE. The applicant gave consistent evidence concerning this involvement to Tribunal and the Tribunal accepts this evidence as the truth. Also, because of the applicant’s father’s involvement with LTTE, the applicant and his family were sent (for two months) to an IDP camp and they were later interrogated by the SLA and Karuna group. The applicant was also directly questioned about his father’s activities with the LTTE and subjected to detention and force by the SLA and Karuna group in order to compel him to provide information about his father. These instances of interest by the SLA and later the Karuna group, the family being taken to an IDP camp are indicative that the applicant (and his other family members) were viewed and are considered as having an imputed political opinion of LTTE involvement and support (and family) and links to a former LTTE supporter – the applicant’s father.
The Tribunal notes that sources report[42] that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic data bases…’
[42] DFAT Country Information Report, 23 December 2021, at 3.41.
The recent Easter Sunday attacks on the 21 April 2019 have put the Tamils back on danger line. Following this incident, the authorities had rushed to introduce check points, roadblocks, and emergency regulations. Even though, the Sri Lankan government claims these measures were taken to maintain the law and order of the country, it (the government) has threatened the Tamils who have had LTTE connections in the past.
The DFAT country information report also states ‘the security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. [However] the Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security has been heightened across Sri Lanka following the Easter Sunday terrorist attacks of 21 April 2019, including through the establishment of roadblocks and security checkpoints.’ Moreover, countrywide Emergency Regulations were introduced on 22 April 2019 and gave the police and military broad powers of detention and search and entry and included provisions for the death penalty. The Emergency Regulations lapsed on 22 August 2019, although a gazette issued by President Sirisena on the same day allows the military to remain deployed across the country to assist police in maintaining law and order upon request. Under the gazette, security forces cannot, by themselves, arrest or search people or properties, as was permitted by the Emergency Regulations.[43]
[43] DFAT Country Information Report, Sri Lanka 04 November 2019 at 2.56.
The Tribunal having considered the applicant’s evidence and having weighed the current country information outlined above; the Tribunal finds that the applicant does have a profile of interest to the Sri Lanka authorities. The Tribunal finds that the chance the applicant would face serious harm because of any real or perceived links to LTTE because of his father’s involvement (with LTTE) during the civil war is not remote but possible, if he were to return to Sri Lanka now, or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does have a well-founded fear of persecution due to any imputed political opinion of LTTE because of his links to a former supporter of LTTE (his father) as provided for by s.5J(1) of the Act.
(d)the applicant’s fears of the Karuna group

100. The applicant told the Tribunal that he has fears about coming into contact with the Karuna group. The applicant told the Tribunal that group acted with impunity because it was the paramilitary wing of the Sri Lankan government authorities. The applicant recalled his encounter with this group which forcibly detained him at his home and with force tried to extract information from the applicant concerning his father’s work with LTTE and whereabouts. The applicant’s encounter with the Karuna group caused him to flee his home and village. The applicant believed that the Karuna group were abducting people and despite the passage of time, the applicant believed that he remained a person of interest to this group because of his past encounters with them and because it was well-known (to them) and in the applicant’s home village area that his father had supported the LTTE in the civil war.
101. The deteriorating situation in Sri Lanka today, makes the applicant’s concerns about coming contact with the Karuna possible. The applicant is known to the authorities (and to their paramilitary wings) that though he was not involved directly with LTTE, his father (who is still missing) was and therefore, the applicant would be target for arbitrary detention, questioning and possibly physical force – all in the name of seeking information about his father. Current country information supports the applicant ‘s concerns in the opinion of the Tribunal. Of particular note, in 2021, UN High Commissioner for Human Rights has stated that ‘in Sri Lanka there are clear warning signs that past patterns of violations could be repeated… The impact on thousands of survivors, from all communities, is devastating. Moreover, the systems, structures, policies and personnel that gave rise to such grave violations in the past remain – and have recently been reinforced’.[44]
[44] Statement by Michelle Bachelet, UN High Commissioner for Human Rights, date accessed 01 May 2022
102. Also, the recent DFAT country information report stated that ‘in her January 2021 report, Bachelet said: ‘Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgement of past crimes’.[45] The DFAT report further confirms that ‘the HRCSL received 6,548 complaints in 2018, the last year for which date is available, with no figure given for how many had been resolved. Many complaints allege discrimination in school admissions and public sector promotions, but complaints also allege torture, threats, monitoring and harassment, arbitrary arrest and detention, and inaction by government entities, including the police’.[46]
[45] DFAT Country Information Report, Sri Lanka 23 December 2021 at 2.41.
[46] DFAT Country Information Report, Sri Lanka 23 December 2021 at 2.46.
103. Having considered the applicant’s profile, and the current country information and the Tribunal’s finding that he was and would be a person of interest to the Sri Lankan authorities because of his late father’s past being a member and supporter of the LTTE during the civil war, the Tribunal is satisfied, and that the applicant would face serious harm from members of the pro-SLA, paramilitary Karuna group in the reasonably foreseeable future if he was to return to Sri Lanka.
(e)Chance of harm for being a failed (Tamil) asylum seeker who departed illegally

104. Finally, the Tribunal accepts that after departing Sri Lanka by plane to [Country 1] using his Sri Lankan passport in January 2010.[47] The Tribunal further accepts that in March 2010 the applicant travelled from [Country 2] to Australia by boat illegally, when the boat was intercepted by the Australian navy and its passengers (the applicant also) spent time in detention. The Tribunal also accepts that the Sri Lankan authorities have become aware of the applicant’s place on that boat and his subsequent detention by the authorities in Australia.
[47] [Document number], at pp. 16-17
105. It may have been considered in different times that the applicant’s actions since he left Sri Lanka in 2010, may not have attracted to him or be of adverse interest to the Sri Lankan authorities but since the applicant’s departure from Sri Lanka, there have been profound changes to the political and security situation that would impact directly on the applicant if he was returned to Sri Lanka; also, having in mind what the Tribunal accepted above, as the circumstances which attach to his personal profile. Considered cumulatively, the Tribunal cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE, particularly given had left Sri Lanka after the civil war had ended in May 2009.

106. In making that assessment the Tribunal noted DFAT’s advice that Sri Lankan returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service, the Terrorism Investigation Department, and the CID. These agencies check travel documents and identify information against immigration databases, intelligence databases and the records of outstanding criminal matters.[48] Where illegal departure is suspected, they will be charged by the Police Airport Criminal Investigations Unit under the Immigration & Emigrants Act (I&E Act). During that process returnees are photographed and finger-printed and statements taken, and enquiries made about activities while abroad. At the earliest available opportunity, police transport those charged with departing Sri Lanka illegally to the closest Magistrate’s Court, where a magistrate decides on the next steps for each individual. Facilitators or organisers of people smuggling ventures are usually held in custody, while the Sri Lankan Attorney General’s Department has directed that all passengers on a people struggling venture must be charged and appear in court, at the location where the offence occurred. Bail is normally granted to fare-paying passengers of a people smuggling venture.[49]
[48] Department of Foreign Affairs & Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 5.32.
[49] Ibid at 5.34-5.36
107. The Tribunal accepts that the applicant is not in possession of a valid passport (his passport having expired) and he would require a temporary travel document to return to that country. For returnees travelling on a temporary travel document, DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting the police in their home area, contacting neighbours and family and checking criminal and court records.[50] The Tribunal considers that this investigative process will likely flag the applicant as a person who has been of adverse interest to the Sri Lankan authorities in the past.
[50] Ibid at 5.33
108. The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated. The UK Home Office also reports that the Sri Lankan authorities have a continuing interest in the surveillance of diaspora events.[51]
[51]UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 2017
109. It may be considered that individually, this matter may not clearly indicate that the applicant will be of adverse interest to the Sri Lankan authorities if he is returned to Sri Lanka but given the significant changes to the political and security situation in Sri Lanka in recent times and
110. Given the applicant’s profile as a Tamil man previously resident in an LTTE controlled area who has been of adverse interest to the Sri Lankan authorities in the past and who was subject to further investigations with the Australian authorities in 2010 onwards, the Tribunal considers he may be detained and questioned when returns to [Village 1] for the combined reasons of his Tamil ethnicity and his imputed political opinion. The Tribunal notes that brief periods of detention will not always amount to serious harm, however, the Tribunal considers the applicant’s profile may result in him being subjected to a longer period of detention and questioning than a Tamil who may merely resided in an area formerly under the control of the LTTE and later depart Sri Lanka illegally.
111. The Tribunal considers that during detention and questioning, there is a real chance the applicant will be subjected to serious harm. In making this assessment the Tribunal noted DFAT’s advice that in October 2016, the Human Rights Commission of Sri Lanka advised the UN Committee against Torture that the use of torture is routine, “practised all over the country, mainly in
112. As reported, this lack of policing ensuring the maintenance of human rights and the abuses of these rights in today’s Sri Lanka which is becoming increasing prevalent and the norm, ‘practised all over the country, mainly in relation to police detentions’, regardless of the nature of the suspected offence. The UN Special Rapporteur on the Committee Against Torture concluded in 2017 that ‘the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds’, which it notes are disproportionately Tamils. The UK Home Office reported a reduction in torture complaints in 2017, while highlighting new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions[52].
[52] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.21
113. DFAT notes the difficulties in verifying torture claims but reports that local sources advise that police routinely mistreat suspects during criminal investigations as a way of extracting confessions and some alleged violations were perpetrated by the Police STF. Sources told DFAT that such mistreatment was not confined to a geographic region or ethnic group but was a country wide problem affecting all communities[53].
[53] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.22-4.24
In its June 2017 report, the UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions. It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[54] In the circumstances, although the applicant has not claimed to have been an LTTE member or knowingly participated in any LTTE activities while in Sri Lanka or while he has been living in Australia, the Tribunal finds that there is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. The Tribunal having considered carefully and in detail the country information and the applicant’s profile, the Tribunal finds that there is a real chance the CID will attempt to extract information and details or gain intelligence details about why he departed Sri Lanka, his knowledge of his father’s activities with LTTE and why one of his sisters successfully claimed refugee status in [Country 3]. The Tribunal finds that there is a real chance the applicant would suffer significant harm from the CID because of his exposure to interrogation techniques that include torture. In conclusion the Tribunal finds that the applicant’s fear of persecution based on his Tamil ethnicity and his imputed political opinion because of his father’s activities with the LTTE during the civil war is well founded.
[54] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017
114. In light of this information, the Tribunal considers there to be a real chance the applicant will be subjected to mistreatment constituting serious harm during that process of detention and questioning. It follows that there is a real chance the applicant will face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of his ethnicity and his political opinion.
115. As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and the real chance of persecution relates to all areas of Sri Lanka.
116. For the reasons given above; the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant in the opinion and for the reasons the Tribunal provided satisfies the criterion set out in s.36(2)(a) of the Act.
117. In these circumstances, it is not necessary for Tribunal to go on and consider the applicant’s claims under the complementary protection criteria.
DECISION
118. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Vlahos
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.
…

[2022] AATA 2360

2 June 2022

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