1721064 (Refugee)

[2022] AATA 2459

1721064 (Refugee) [2022] AATA 2459 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division  

REPRESENTATIVE:  Mr Chellappah Ambikaipalan (MARN: 9905055)

CASE NUMBER:  1721064

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Peter Vlahos

DATE:9 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 9^th June 2022 at 8.00AM.

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – imputed political opinion – refusal to join the Karuna group – suspected links to Liberation Tigers of Tamil Eelam (LTTE) – race – Tamil – particular social group – failed asylum seeker – torture – fear of killing – illegal departure – physical scarring – mistreatment during criminal investigations – decision under review remitted

LEGISLATION

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

CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1989) 169 CLR 379
MIEA v Su Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is [an age]-year-old male from [Town 1], Batticaloa district, in Sri Lanka’s Eastern Province. He seeks to invoke Australia’s protection 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 the Liberation Tigers of Tamil Eelam (LTTE), and his refusal to join the Karuna group, ‘wealthy Tamils (from overseas) in Sri Lanka’ and ‘failed Tamil asylum seekers who departed illegally.

3. 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

4. [In] March 2007 the applicant left Sri Lanka and entered [Country 1] lawfully on a tourist visa. In December [no date specified] the applicant travelled from [Country 1] by plane. In August 2008 [no date specified] the applicant travelled from [Country 2] to [Country 1] by boat with assistance of people smuggler. [In] April 2010 the applicant was found working illegally in [Country 1] by the [Country 1] authorities and he was detained at the [named] Centre. [In] August 2010 the applicant was released from detention through the assistance of UNHCR. [In] February 2011 the applicant travelled from [Country 1] to [Country 2] by boat with the assistance of a people smuggler. [In] September 2011 the applicant arrived in Christmas Island in a vessel codenamed “[name]”. On 20 October 2011 the applicant attended an Entry interview in Christmas Island ([file numbers]). On 13 December 2011 the applicant attended a Protections Obligations Evaluation (POE) interview in Christmas Island ([file number]).

5. On 27 March 2012 the applicant was granted visa subclass UJ-449 Humanitarian Stay (Temporary) subclass visa which remained in effect until 3 April 2012. The applicant was also released from immigration detention. Subsequently, the applicant was granted a subclass WE-050 Bridging visa E (‘BVE’) which he still holds at present.

6. On 24 November 2015 the Minister for Immigration and Border Protection lifted the section 46A bar on the applicant allowing him to apply for a protection visa in Australia. Then, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (‘TPV’) or for a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).

7. On 30 November 2015 an invitation letter for a Temporary Protection (subclass 785) visa (TPV) of Safe Haven Enterprise (subclass 790) visa (SHEV) was resent to the applicant.

8. On 21 March 2017 the applicant lodged an application for a SHEV ([file number]). On 12 May 2017 the applicant was interviewed in relation to his SHEV application.

9. On 12 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.

10. On 17 May 2022 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

11. The applicant was represented in relation to the review by his solicitor/registered migration agent.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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

18. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of nationality and the applicant’s identity

19. At the Protection visa (PV) interview, the applicant presented the following documents as evidence of his identity:

    §Birth Certificate[1], document no.[number], uncertified copy, and its English language translation.[2]

    §Receipt of payment for enrolment at [a named college] in Batticaloa, Sri Lanka, document no.[number], dated 6 February 2007.

    §Certificate of school examination at [another named] College, Batticaloa, Sri Lanka, issued by the College Principal, dated 28 June 2011.

    [1] [File number]

    [2] [File number]

20. The delegate also noted that the English translation of his birth certificate indicates the applicant’s name and date of birth are as he claims. The birth certificate copy, according to delegate, appears ‘consistent with formally-issued birth certificates in Sri Lanka.’ With the applicant’s SHEV application, the delegate noted, that the applicant provided copies of the letters of registration issued by the UNHCR in [two specified countries]. These letters include the applicant’s personal details, including his name, date of birth and nationality as claimed. The records of the Department indicate that the applicant’s date of birth was recorded shortly after his arrival on Christmas Island as ‘[DOB 1]’. However, this was after changed to ‘[DOB 1 corrected]’. The delegate recorded, that he was satisfied that the former was recorded in error. The delegate then considered the documents as provided by the applicant and accordingly accepted the applicant’s identity as claimed.

21. Based on the above information which the Tribunal has also observed and considered and in the 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 to the Tribunal) assessed against that country in relation to his claims made pursuant to s. 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence currently before the Tribunal, the Tribunal further considers and find’s the applicant’s identity as claimed.

    Department file before the Tribunal

22. 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 of the Applicant’s migration and visa history deleted]

    The civil war in Sri Lanka

23. 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 predominately 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.[3]

    [3] Department of Foreign Affairs & Trade DFAT Country Report: Sri Lanka 4 November 2019 at paragraphs [2.1] to [2.2].

24. 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, the United States, Canada 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 civil 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.[4]

    The Applicant’s claims of past harm in Sri Lanka [5]

    [4] Ibid at paragraph [2.2]

    [5] see, Department of Home Affairs File [number]

25. The applicant’s claims for protection, including those provided at the protection visa interview, and supporting evidence are contained in the Department’s file [number]. The applicant’s claims for protection are in summary the following:

    §The applicant is a young Tamil man born in [Town 1 variant], Batticaloa district, Eastern Province, Sri Lanka.

    §On [a day in] February, members of the Karuna group took him to their [Location 1 variant] office for questioning. The applicant was asked to join the Karuna group. When he refused, they took him to [another location] office and asked him again to join the Karuna group. The leader of the group and two other men, [named], from his village beat him. The applicant fainted. The following morning, he realised his hands and ears were broken. They threw a bucket of water on him and kicked him. On [the following day], they released him.

    §When the applicant did come home, his father reported to the police that he was missing.

    §One person from the Karuna group told his mother not to take him to the hospital or the police and told his mother if they did, his parents would receive the same treatment as the applicant received.

    §On the night of [that day], the applicant travelled with his family to a private house in Colombo for medication.

    §The applicant’s father organised a passport through a people smuggler. [In] March 2007 he travelled to [Country 1] on a tourist visa. Shortly after, the applicant left Sri Lanka, a member of the Karuna group came to see his father. His father told the person that his son had run away and his whereabout are unknown.

    §In December 2007, the applicant travelled to [Country 2] by plane. In August 2008, the applicant returned to [Country 1] with the help of a people smuggler. [In] April 2010, the [Country 1] authorities detained him at [a named] Centre after they found him working illegally.

    §[In] February 2011, the applicant travelled to [Country 2] by boat with the assistance of a people smuggler. [In] September 2011, the applicant boarded a boat on rout to Australia.

    §The applicant believes the Karuna group is still after him and will beat him if he returns to Sri Lanka.

    §The applicant fears the Sri Lankan authorities who marginalise and persecute Tamil people.

    §The applicant will be harmed and/or mistreated for his Tamil ethnicity.

    §The applicant will be harmed/and or mistreated for reasons of his imputed political opinion because he refused to join the Karuna group and as such has been imputed with an anti-government political opinion, and as a Tamil imputed with association with the LTTE because of his significant time abroad and because he refused to join the Karuna group, the applicant fears he will be imputed with the political opinion supporting the LTTE.

    §The applicant will be harmed and/or mistreated for reasons of his membership of particular social groups such as (1) Failed Tamil asylum seekers and (2) young Tamil men from Eastern Province of Sri Lanka.

    • He fears he will be detained at the airport upon his arrival in Sri Lanka. He has a higher likelihood of being detained for a significant period due to his past dealings with the Karuna group who now work alongside the Sri Lankan authorities and this will cause the Sri Lankan authorities to detain him for longer than the average period before they release him.
    • He fears the authorities; they will not protect him.
    • The authorities cannot and will not protect Tamil people from the paramilitary groups, including the Karuna group.

26. Relying in part on the documentary evidence provided by the applicant, the SHEV officer made the following findings:

    §The applicant is a young Tamil male who originates from Batticaloa, Eastern Province, Sri Lanka.

    §Members of the Karuna group abducted and assaulted him in February 2007. They demanded of the applicant to become a member of the Karuna group, but he refused. He has subjective fears of the members of the Karuna group or the TMVP.

    §The applicant was not a person of interest to the Sri Lankan authorities or any other group for any reason when he left Sri Lanka.

    §The applicant departed Sri Lanka illegally. He lived outside Sri Lanka for a prolonged period. If he were removed from Australia to Sri Lanka, he would be returning as a failed Tamil asylum seeker.

    §The has scarring on his hand. He has medical issues with his hand and his hearing. As this claim is not established within one of the s5J(1 )(a) reasons, it will be assessed under the Complementary Protection provisions.

27. Ultimately, the delegate formed the view that while the applicant had been subjected to significant harm by the paramilitary – the ‘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 Karuna group was not significant. The delegate concluded there was not a real chance the applicant would be seriously harmed by that group, other groups or by the authorities if he returned to Sri Lanka now or in the foreseeable future.

    EVIDENCE AT THE HEARING

    Background

28. The applicant told the Tribunal that he arrived in Australia by boat from [Country 2] organised by a people smuggler in 2010. The applicant told the Tribunal that since his arrival in Australia, he has never returned to Sri Lanka and has no intention in the near future to return to Sri Lanka.

29. The applicant said that he has family still living in Sri Lanka. That family consists (according to the applicant) an elderly father, [and specified family members] – all adults and married with their own families and all living in the village.

30. Currently, in Australia, the applicant works as [an occupation 1]. He has held that employment for the past ten years. The applicant also told the Tribunal that he married in 2019 to the witness, [Ms A], who is an Australian citizen. The applicant and his wife have no children currently.

    Discussion of the issues that cause the applicant to leave Sri Lanka

31. The applicant said that the paramilitary group, he identified as the Karuna group one day came to his village and detained him against his will and also assaulted him. This experience, the applicant told the Tribunal, caused him to suffer from nerves and physical damages.

32. The applicant said that the Karuna group ‘had the power’ (at that time) and ‘did what they wanted’ with people. He went on to say that this group was a paramilitary group and was in his opinion ‘part of the government.’ Moreover, the applicant said that ‘no one dared to question them’ as far as it involved their actions; when confronted by this group, the applicant said, ‘they could do anything’ to ‘you’.

33. The applicant was asked by the Tribunal, why was he targeted by the Karuna group? The applicant said that this group was patrolling the area (2007) and was actively recruiting ‘young Tamil males’ to serve with the group. The applicant told the Tribunal that he had ‘no interest in politics’ and had ‘no intention in joining this group.’

1. The applicant said that when he ‘refused’ their ‘demands’ for him to join them, he was ‘assaulted’. He went on to tell the Tribunal that the Karuna group told his father ‘not to take [him] to hospital.’ The applicant was asked – why did the Karuna group warn his parents ‘not to take him to hospital’? The applicant’s response was that [he] ‘did not know’ but soon after this incident, fearing the worse to come, the applicant said that his father sent him to Columbo where he was provided with medical assistance. While in Columbo, the applicant’s father had made enquiries with an agent who was paid to organise the applicant’s travel documents so that he could leave Sri Lanka for [Country 1].

2. The applicant was asked – whether he experienced any issues while in Columbo with the Sri Lankan authorities? The applicant’s response was to tell the Tribunal, that he was asked by the authorities to provide his ‘identity card’ and to tell then ‘the reason or reasons he was in Columbo’ and the applicant went on to say, that ‘after the payment of money’ (to the authorities) he told them that he was in Columbo ‘receiving some medical treatment.’ In this period, the agent had been paid by the applicant’s father to organise the applicant’s exit from Sri Lanka to [Country 1].

3. The applicant said that he left Sri Lanka as the holder of a tourist visa for [Country 1] [in] March 2007.

4. The applicant said that he ‘stayed in [Country 1] for five years’. He also said, that that UNHCR ‘did not provide help or assistance to him while in [Country 1]’. To ‘survive’ the applicant said he was working ‘any work’ and one day, he was ‘caught by the [Country 1] police and placed into detention.’ After being in detention, the officials from the UNHCR visited the applicant in detention and he was (according to the applicant) ‘released’.

5. The applicant explained that he was able to secure his release from [Country 1] immigration detention because the ‘UNHCR classified him as a ‘refugee’…’ Then, the applicant (through contacts in [Country 1]) ‘found an owner of a boat’ paid him approximately [amount] of Sri Lankan rupees (approximately, AUD$[amount]) to transport him to Australia.

6. The applicant said that he arrived on Christmas Island in 2010 and with the help of a ‘case worker’ he was able to eventually ‘come to Melbourne.’ At the time of the applicant’s arrival in Melbourne, the applicant said, he knew ‘no other person (s) in Melbourne.

7. The applicant said that in 2014 (as he recalls) he met his wife, [Ms A]. Since that time the two became ‘close’ as the relationship was described to the Tribunal, and from that closeness the relationship led to their marriage in ‘2019’. The applicant also told the Tribunal that his wife’s family support his ‘marriage to [[Ms A]]’.

8. The applicant said that he has not involved himself in politics or participated in any organisation concerning itself with the issues in (political or otherwise) in Sri Lanka while in Australia.

9. The applicant was asked by the Tribunal, if he had or would have any issues with the Sri Lankan Consular authorities in making an application for the renewal of his passport if it was required? The applicant’s response was that he had ‘no wish to visit Sri Lanka…’

10. The applicant was asked by the Tribunal, why he had no wish to visit his family still living in Sri Lanka? The applicant’s response was that he ‘missed his family’. He recalled the anguish for not being at his mother’s side ‘when she died’ – he ‘worries about his father’ and siblings living there but to ‘go back’ is very difficult because of the way he left Sri Lanka. The applicant said that he ‘was scared’ and feared ‘the people who assaulted [me]’ who are ‘still in the village.’

11. The applicant said that these persons who are members of the Karuna group have gone to his family and asked, ‘where is [your son] – (the applicant)’ and his family’s response was (according to the applicant) that ‘they did not know his whereabouts…’ The applicant said that he had ‘no intention’ of returning to his village or Sri Lanka under any circumstances.

    The applicant as a ‘failed asylum seeker’

12. The applicant said that his ‘major fear’ was the paramilitary group known as the Karuna group. The applicant was not confident that he will be treated properly by the Sri Lankan authorities if he was to return to Sri Lanka. The applicant emphasised the point, that his fears and treatment by this group while in Sri Lanka caused him to leave that country and he had no confidence in returning there.

    EVIDENCE FROM THE APPLICANT’S SPOUSE

13. The witness verified that she and her husband were married in 2019. She also told the Tribunal that her family supported her marriage to the applicant.

14. The witness said that she was an Australian citizen who had been born in [an overseas location].[6]

    [6] AAT File, see [Ms A] copy of Australian Passport

15. The witness said that her relationship with her husband had commenced as close friends and developed into a very close relationship. She also described her relationship as having endured for more ‘than 6 years…’ Also, the witness told the Tribunal that both she and the applicant had purchased their ‘own home’ which was situated in ‘[Town 2], Victoria’.[7]

    [7] see, Mortgage Documents provided by the applicant and his wife, [Ms A]. The Tribunal was told that the applicant does not appear on the documents because the applicant is a foreign national and would need to gain Treasury approval to purchase property. However, he makes contributions through his earnings: see, bank statements provided to AAT on File.

16. The applicant said (and this was confirmed by the witness (wife)) that the two had committed to a ‘mortgage’[8] which the witness told the Tribunal was being paid by the applicant from the money he earned as an [occupation 1] (approximately, $2,200.00 per month). The witness went on to tell the Tribunal that the applicant’s name does not appear on the title of the property as the co-owner of the couple’s matrimonial home because the applicant is a not an Australian citizen.

    [8] see, AAT File.

17. The witness confirmed that the amount owing on the couple’s mortgage was approximately, AUD$590,000.00.

18. The witness told the Tribunal that if the applicant was to leave Australia, ‘she would out on the streets’ because ‘there was no way she [alone] could be responsible for the mortgage payments.

    Submission provided by the Applicant’s legal counsel

19. The applicant’s legal counsel provided the following (in summary here,) written submission dated 10 May 2022 to the Tribunal:

    §The applicant arrived at Christmas Island [in] September 2011. He attended his entry interview in accordance with the procedures of the Department on 20 October 2011. He then attended a Protection Obligations Evaluation on 13 December 2011.

    §As per the requirements in subsection 5H(1) Migration Act 1958, the applicant is a citizen of Sri Lanka. He has no legal right to reside in any other country. He is outside his country of Nationality. These were all accepted by the delegate. Further, the applicant is unable to return to Sri Lanka due to a well-founded fear of persecution. He has a well-founded fear of persecution because there is a real chance, that if returned, he would be persecuted. He would be persecuted due to his race, imputed political opinion, religion, and membership of a particular social group, a returnee from the West/ failed asylum seeker and ‘perceived wealthy Tamil’.

    §The applicant is an ethnic Tamil. The applicant is identifiable as a Tamil due to his appearance, language, and name. He is also known personally by members of the community in Sri Lanka as an ethnic Tamil. Tamils are subject to persecution in Sri Lanka due to their race. This has been raised previously, however the situation in Sri Lanka is continuing to deteriorate, as such, it will be further elaborated.

    §The Applicant is a young Tamil male from [Town 1], Batticaloa, Eastern Province of Sri Lanka. The Applicant fled Sri Lanka [in] March 2007 to escape the persecution he was suffering in Sri Lanka due to his age, ethnicity, history with the Karuna Group, and the ongoing Civil War.

    §On or around [a day in] February 2007, the applicant was abducted from a bus stop in [Location 1] by a group of individuals, later discovered to be members of the Karuna Group. Whilst in their control, the abductors requested the applicant’s Identification documents. The applicant provided them his student ID card.

    §Following this, the abductors began to torture the applicant, either in an attempt to convince him to join the group, or as punishment for his refusal to join. They tortured the applicant until he lost consciousness. When he awoke, his hands were broken and his ears bloody and damaged. A bucket of water was thrown on the applicant, he was discarded and told not to go to the police or local hospital. The applicant returned home, and his family took him to a private hospital in Colombo to receive treatment for his injuries. During this period, the Karuna Group had visited the family home and threatened the applicant’s parents telling them to keep their mouths shut. This incident, and the resulting injuries, has been accepted by the delegate. These injuries have compounded the mental trauma that the applicant suffers from and heightens his fear of return. The applicant is continuing to receive counselling for this trauma. A copy of his counsellor’s report is attached.

    §Following this, the applicant was terrified. The torture that he had experienced had left him with lifelong injuries, and he knew if he was ever taken again, he may not survive. Due to this fear, the applicant fled Sri Lanka.

    §The applicant, because of the above, his imputed political opinion, ethnicity, and age, fears he will suffer significant harm. In addition, the applicant is a member of particular social groups, being a ‘perceived wealthy Tamil’ and ‘failed returned asylum seeker’.

    ‘Failed asylum seeker and detention once returned to Sri Lanka’

    §As the applicant illegally departed Sri Lanka, on arrival he will be referred to the CID at the airport and charged accordingly. Penalties for departing illegally have a maximum penalty of ‘up to five years and a fine’.

    §The applicant will also be imputed with LTTE links because of his ethnicity, age, and place of birth.

    ‘Karuna Group’

    §The Delegate accepted the applicant’s claims that he was abducted and accepts that the Applicant has a subjective fear of the Karuna Group. The applicant still possesses this fear. Whilst it may no longer be called the Karuna Group, the individuals who kidnapped and tortured the applicant still likely remain in Sri Lanka, and they likely still act with impunity.

    §Further, and importantly, due to his past torture, the applicant has visible scars. An individual of the applicant’s age, of Tamil ethnicity, who has fled, is likely to be assumed to have had a combat function. This will increase his chances of being detained.

    COUNTRY INFORMATION – THE CURRENT SITUATION IN SRI LANKA – THE RULE OF LAW AND THE PLIGHT OF TAMILS

20. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.”

6. 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.

7. 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.

8. The Tribunal also considered the UK 2021 Home Office Report.[9]

   [9] UK Home Office Report, Country Policy and Information Note, Sri Lanka: Tamil Separation, Version 7.0, June 2021.

   CONSIDERATIONS OF CLAIMS AND TRIBUNAL’S CONCLUSIONS ON THE EVIDENCE

   Credibility

9. 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.

10. 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.[10] Nor, is the Tribunal required to accept uncritically all the allegations made by an applicant.[11]

    [10] see, section 5AAA of the Migration Act 1958.

    [11] 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.

11. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[12] 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.[13] 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

    [12] 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.

    [13] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992) at paragraph [196].

12. Based on the oral evidence provided at the hearing, the Tribunal accepts and finds that:

    a)   The applicant was born in [Town 1 variant], Batticaloa district, Eastern Province, Sri Lanka on [date].

    b)   the applicant is a Tamil by ethnicity and a Hindu in faith.

    c)   the applicant completed his education in Sri Lanka.

    d)   the applicant is employed as [an occupation 1].

    e)   the applicant has a father and [specified family members] living in Sri Lanka. [Specified members] are married with families. The applicant’s mother is deceased.

    f)    the applicant is married to an Australian national.

    The Applicant’s refugee claim – the relevant grounds

13. The applicant claims to have a well-founded fear of persecution because (1) he is a young Tamil Hindu male from the Batticaloa district, Eastern Province of Sri Lanka and (2) he was abducted and assaulted by the paramilitary known as the Karuna group in February 2007 and (3) because of this abduction, and interrogation with force, he has a subjective fear of this paramilitary group. The applicant also claims that (4) he departed Sri Lanka illegally and because of this he will face consequences and possible indefinite incarceration imposed upon him by the authorities if he returns to Sri Lanka. Finally, the applicant has visible and significant scaring on his hand which may reveal him to the authorities if he is returned to Sri Lanka as a person who had some involvement in the recent civil war – supporting the LTTE combatants.

    Is the applicant’s fear well-founded?

14. In Chan v MIEA[14] the Court held that a ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if the applicant can show a 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.[15]

    [14] (1989) 169 CLR 379 at 396

    [15] (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.

15. That 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 in the reasons which follow, does accept that the applicant has a subjective fear of being persecuted if he is returned to Sri Lanka.

16. 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:[16]

    ‘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.

    [16] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397.

17. In MIEA v Guo, the Court stated:[17]

    ‘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.

    The applicant’s claims

    (a)Applicant’s encounter with Karuna group in his village  

    [17] MIEA v Guo (1989) 169 CLR 379, see: per Dawson J at 397.

18. The applicant is a Tamil male from [Town 1], in the Batticaloa district, Eastern Province of Sri Lanka. The applicant fled Sri Lanka [in] March 2007 to “escape” as he told the Tribunal “the persecution he was suffering in Sri Lanka” because of his “age, ethnicity” and his “history with the Karuna group” at a time of civil war.

19. The applicant recalled to the Tribunal in his evidence, and it was also referred to in his legal counsel’s written submission[18] that around the [day in] February 2007, the applicant was by force abducted from a “bus stop” in [Location 1] by a group of local militants, he later, identified to be members of the paramilitary group – the Karuna group. During the interrogation that followed the applicant’s abduction, the Karuna took the applicant’s personal details and also sought his identification documents.[19] What followed thereafter according to the applicant own recollection was that “he was assaulted”[20] because a Karuna member had been shot in the applicant’s hometown.[21] This, information for the reasons behind the ‘history’ of the applicant with Karuna was provided not in the applicant’s evidence directly to the Tribunal when the Tribunal asked the applicant to recall – what had happened to cause him to leave Sri Lanka in 2007 but was provided in the legal counsel’s written submission.[22] The applicant’s evidence to the Tribunal recalled that he was taken to a ‘Karuna office’ where he was asked to provide the details of his entire family. It was at this office, that the applicant was asked to join the Karuna, but the applicant refused. What followed according to the applicant’s evidence was that he was physically assaulted and after a period of time in forced detention, he was released with the caveat that he say nothing to others and not to seek any medical assistance locally. It was also in this period after the applicant’s abduction by the Karuna that they visited his home and warned his family about what could happen to them if, the Karuna’s wishes were not followed. Thereafter, the applicant told the Tribunal that he was taken by his father to Columbo where he stayed – receiving medical attention and organising for his flight ‘out of Sri Lanka.’ The applicant’s injuries, the Tribunal was told had added to his mental trauma caused by his encounter with Karuna and are heightened by fear of being forced to be returned to Sri Lanka.

    [18] see AAT File, written submission by AMBI ASSOCIATES at p.3

    [19] see, applicant’s statement to delegate at PV interview.

    [20] see, also applicant’s statement in AAT File.

    [21] see, applicant’s statement

    [22] Ibid, see AAT File at p.4

20. The Tribunal noted that the applicant has fears about coming into contact with the Karuna group. The applicant and his legal counsel told the Tribunal that this group acted with impunity because it was a paramilitary wing of the Sri Lankan government authorities. The Tribunal accepts the applicant’s evidence that his encounter with the Karuna in his own village and having been assaulted by them because he refused to join them was the main cause for his fleeing his home and family. The applicant’s encounter with the Karuna was also accepted by the delegate in his decision.[23] The delegate accepted the evidence that the applicant had been abducted by this group as he claimed and had a subjective fear of the Karuna. The applicant believed that this paramilitary 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 he was well-known to them and this interest in him was further enhanced because the Karuna had returned to the village on a later occasion and made enquiries about the applicant’s whereabouts (asking his father).

    [23] see, Department’s decision record, see paragraph [24] at p. 5

1. The deteriorating situation in Sri Lanka today, makes the applicant’s concerns about coming into contact with the Karuna a distinct possibility in the Tribunal’s opinion. The applicant is known to this group and though he was not involved directly with the LTTE, his refusal to participate with his paramilitary group and the fact that he originates from an area that had come under the control of the LTTE during the civil war, the applicant (if he returned) would be a target for arbitrary detention, questioning and possibly dealt with physical force – all in the name of seeking further information about his personal activities despite the fact he had never been involved in matters concerning the LTTE. The Tribunal considers that the country information, currently available supports the applicant’s concerns. Of particular note, in 2021, the 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.”[24]

   [24] Statement by Michelle Bachelet, UN High Commissioner for Human Rights, accessed 1 May 2022.

2. Also, the recent DFAT country information report stated that “in her January 2021 report, Bachelet said that, ‘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’”[25] The DFAT report further confirms that “the HRSCSL received 6,558 complaints in 2018, the last year for which [a] 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.’”[26]

   [25] DFAT Country Information Report, Sri Lanka, 23 December 2021, at paragraph [2.41].

   [26] Ibid, Country Information report, 23 December 2021, see paragraph [2.46].

3. Having considered the applicant’s evidence and profile and the current country information, the Tribunal is satisfied that the applicant would despite not having been an active combatant or a late supporter of LTTE, he was subjected to detention and questioning by the Karuna group and had despite having been assaulted by them, he had refused their demands to join their local group and as a result of this, this groups interest in him would be on records and therefore, the Tribunal finds the applicant would face serious harm and had a well-founded fear of persecution from the members of this group in the reasonably foreseeable future, if he was to be returned to Sri Lanka as provided for in s. 5J(1) of the Act.

   (b)Real or imputed political association or support for the LTTE because of his scarring

4. The Tribunal has considered whether the applicant’s scarring would of itself lead to an actual or imputed political association with the LTTE.

5. The applicant in his evidence and written submissions emphasised his Tamil ethnicity as major factor in his fears about his possible return to Sri Lanka. The Tribunal noted from its reading of the delegate’s decision that the delegate accepted that the applicant had not been involved with the LTTE and had never supported the LTTE’s political cause during the civil war of ‘Tamil Eelam.’[27] In other words, according to the delegate, the applicant had no perceived link to LTTE. These conclusions were further assisted by the then-current country information which described a very different situation in Sri Lanka than is the case today, as referenced above in this decision. It was submitted by the applicant’s legal counsel that ‘intelligence agencies’ of the Sri Lanka still ‘monitor some’ in the Tamil diaspora.[28] Though, this might be the case with some politically active Tamils of the diaspora, from the evidence submitted to the Tribunal this was not the case with the current applicant. He had admitted in his evidence to the Tribunal that he had not supported or sought to support the LTTE. Nor, the Tribunal was told by the applicant, he cared about the LTTE’s cause. The Tribunal accepts this to be a truthful admission on the applicant’s part.

   [27] see, delegate’s decision, in particular, paragraph [54] at p.10.

   [28] DFAT Report 202, see paragraph [3.10]. 

6. However, it was submitted by the applicant’s legal counsel, that the applicant’s significant scars on his body which was claimed were a result of past attention given to him by the Karuna group would reveal him to the authorities if he was to return or be returned to Sri Lanka as being a person of Tamil ethnicity but with significant scaring. Obviously, the applicant’s scars would be seen if he was examined, and questions would be asked of him by the SLA or security forces examining him. Country information about the risk of harm due to conflict related scarring indicates that in April and May 2009, scarring could be considered as evidence of LTTE membership.[29] There were also reports which indicated that scarring could increase a person’s risk of harm, irrespective of whether the scarring was received from torture or shelling.[30] However, in 2014, the DFAT reported that there had been no recent evidence to indicate that people have been detained due to conflict-related scarring.[31]

   [29] CIS23554: “Out of the Silence-New Evidence of Ongoing Torture in Sri Lanka” Freedom from Torture, 1 January 2011.

   [30] CIS2F827D91350: “Torture, rape and ill-treatment suffered by Sri Lankans who return home” 1 October 2014; CIS29695: ‘Human Rights Law Centre’, “Can’t flee, can’t stay – Australia’s interception and return of Sri Lankan asylum seekers” 1 March 2014.

   [31] CIS2F827D91350 “Thematic Report People with links to the LTTE”, DFAT, 03 October 2014

7. The current situation[32] and how it has deteriorated and is deteriorating in Sri Lanka has a direct bearing on the applicant’s claims concerning his ethnicity, scarring and any imputation these characteristics may place upon him as a supporter of LTTE. The most notable change in Sri Lanka is the election of Gotabaya Rajapaksa as President and Mahinda Rajapaksa as Prime Minister. The Rajapaksas’ have been reported for their involvement in the last stages of the Civil War in Sri Lanka. Also, the COVID-19 pandemic has also significantly affected Sri Lanka, with the impacts disproportionately affecting the minority Tamil and Muslim population.[33] In recent times certain human rights abuses have been committed against Tamils in Sri Lanka which it was claimed had been planned by Gotabaya Rajapaksa and his generals.[34] Hence, these developments in today’s Sri Lanka, do increase the applicant’s fears of being singled out. It was further noted by the Tribunal that since Gotabaya’s election the following have been recorded to having occurred in Sri Lanka, for example, (1) Roadblocks significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo[35] (2) Increased militarisation of the Sri Lankan government, which, as of January 2021, included the appointment of at least 28 serving or retired military and intelligence personnel to key administrative posts[36] (3) The removal of Constitutional safeguards, reversing democratic power, and concentrating power with the president[37](4) Undermining of the police and judiciary in several high-profile human rights and corruption-related cases[38] and (5) Increase in ethno-nationalistic and majoritarian rhetoric and symbols[39](6) Intensified surveillance and harassment of CSOs, human rights defenders and victims [40]and (7) Increases in deaths in police custody, extrajudicial killings, and the continued, and endemic use of torture.[41]

   [32] DFAT Report 2021 [3.10]. 

   [33] Ibid [2.16, 3.18, 3.26, 3.76]. 

   [34] International Truth and Justice Report, The Case Against Jagath Jayasuriya

   [35] DFAT Report 2021 [2.54] 

   [36] UN Report [22].

   [37] Ibid [24-25].

   [38] Ibid [26].

   [39] Ibid [29].

   [40] Ibid [32].

   [41] Ibid [38].

8. The current DFAT country information report notes that there were significant democratic backsliding, accusations of corruption and human rights violations against the Tamils during Mahindra Rajapaksa’s presidency.[42] DFAT goes on to note, that the current Gotabaya Rajapaksa government is using anti-Tamil rhetoric within the electorate to bolster its popularity.[43] Further, the military is increasing their presence in the north,[44] and it is presumed this is because of the government’s continued concerns about a potential resurgence of the LTTE and fears of separatism in general.[45] There is also further evidence of the Sri Lankan government  arresting several Tamils in 2021 for alleged ‘LTTE supportive behaviour’.[46] More to the point, it was reported that the Sri Lankan government “was possessed of a determination to prevent any form of resurgent separatism.”[47]

   [42] DFAT Report 2021 [2.33]. 

   [43] Ibid. 

   [44] Ibid [2.55]. 

   [45] Ibid [3.41]. 

   [46] Ibid [3.44]. 

   [47] Ibid

9. This increase in military presence is not a simple adding of troop numbers in the north-eastern Province. Rather, the Tamil populations of this area are in recent times experiencing according to reports (by international monitors) targeted surveillance and questioning. This current situation is in direct contrast to the situation the delegate described in his decision at paragraph [43] where he concludes that “monitoring and harassment of Tamils in day-to-day life has decreased significantly.” The Tribunal agrees with the applicant, that if he was to return to his homeland in the foreseeable future, to the Sri Lanka of today, monitoring of the applicant (based on the available country information) will follow. That monitoring will include frequent visits by police, threats, and even possible seizures of property.[48] This intensive monitoring occurs even of those persons considered to have a ‘low profile.’[49] The Tribunal accepts that the applicant may be questioned by the local police because of his ethnic background and also questions asked about his scaring and may even face more stringent attention. On account of the above, the Tribunal is satisfied and finds that the applicant (if compelled to return to today’s Sri Lanka) faces a real chance of serious harm in reasonably foreseeable future in Sri Lanka because of his ethnicity and any perceived or actual links to the LTTE on the because of scarring on his person.

   (c)Failed Tamil asylum seeker who departed Sri Lanka illegally

   [48] Ibid [3.50]. 

   [49] Ibid

10. The Tribunal has also considered the chance of the applicant suffering harm on his arrival at Columbo or after his arrival on account of him being a Tamil who has lived for a prolonged period of time abroad as an asylum seeker who had departed Sri Lanka illegally.

11. The Tribunal accepts that after departing Sri Lanka by plane for [Country 1] on a tourist visa using his Sri Lankan passport [in] March 2007.[50] The Tribunal further accepts that the applicant once in [Country 1] travelled to [Country 2] by plane and afterwards, he travelled by ‘boat’ ‘illegally’ to Christmas Island, Australia [in] October 2011, where he was placed for a period of time in immigration detention by the Immigration authorities. 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.

    [50] see, sequence of events as detailed in the delegate’s decision record dated 12 August 2017.

12. It may have been considered in different times that the applicant’s actions since he left Sri Lanka in 2007, 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 has accepted above, as the circumstances which attach to his personal profile. Considered cumulatively, the Tribunal cannot discount as remote that they will result in the applicant being imputed with a political opinion which was anti-regime or supportive of the LTTE, particularly, after the civil war had ended in May 2009.

13. 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.[51] 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.[52]

    [51] Department of Foreign Affairs & Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 5.32.

    [52] Ibid at 5.34-5.36

14. 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.[53] 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.

    [53] Ibid at 5.33

15. 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.[54]

    [54]UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 2017  

16. 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 that have occurred since he left that country. However, considered cumulatively, and the Tribunal, having in mind the current country analysis provided in the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) in particular paragraphs [324] to [358], cannot consider as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive and sympathetic of LTTE, particularly given that applicant departed Sri Lanka for the reasons he stated in his evidence during a time a civil unrest in Sri Lanka.

17. 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 2011 onwards, the Tribunal considers he may be detained and questioned when returns to Colombo or even to his village, [Town 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.

18. The Tribunal considers that during that detention and questioning, there is a real chance the applicant will be subjected to serious harm. In making this assessment I note 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 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[55].

    [55] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.21

19. 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 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.[56]

    [56]  Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.21

20. 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[57].

    [57] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.21

1. 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[58].

   [58] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.22-4.24

2. 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.[59] 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 [relatives] 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.

   [59] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017

3. 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.

4. 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.

5. 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.

6. In these circumstances, it is not necessary for Tribunal to go on and consider the applicant’s claims under the complementary protection criteria.

   DECISION

100. 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.

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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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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