1721688 (Refugee)

[2022] AATA 1668

1721688 (Refugee) [2022] AATA 1668 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721688

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Windsor

DATE:8 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 8 April 2022 at 11:34 am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected links to Liberation Tigers of Tamil Eelam – particular social group – failed asylum seekers – fears of Eelam People’s Democratic Party (EPDP) – forced recruitment – fear of killing – torture – distributing tsunami relief supplies – legal departure – decision under review affirmed

LEGISLATION

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

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 24 August 2017 to refuse to grant the applicant a subclass 790 Safe Haven Enterprise (Class XE) visa (a form of protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 4 April 2016.

3. Departmental records indicate the applicant arrived at Christmas Island [in] September 2011 as an Irregular Maritime Arrival on a [boat].  As an Offshore Entry Person (OEP), subsection 46A(1) of the Act prevented him from making a valid application for a protection visa.  He was advised, however, that the Minister may allow him to lodge a protection visa application if a Protection Obligations Determination (POD) officer finds that he meets all the requirements for the grant of a protection visa and is a person to whom Australia has protection obligations.  The applicant requested a POD be undertaken on 27 January 2012.  The applicant provided information and claims in support of this request with the assistance of an Immigration Advice and Application Assistance Scheme (IAAAS) provider.[1]

   [1] See the Departmental file.

4. On 5 March 2012, a Protection Obligations Evaluation officer made a negative POD assessment in relation to the applicant’s case.  This was then automatically referred for an Independent Protection Assessment.  The delegate’s decision record indicates that on 8 October 2012 the Independent Protection Assessment Office made a positive assessment and the applicant subsequently was permitted to make a valid application for a Safe Haven Enterprise visa, which he did on 4 April 2016.[2]

   [2] See the Departmental file.

5. In documentation submitted in support of the request for a POD, the applicant indicated he was born in [Town 1] in the of Sri Lanka on [date], is of Tamil ethnicity and the Catholic faith.  He stated he was married in [Town 2], Sri Lanka [in] October 1997 and has [children] from that marriage.  He indicated he departed Sri Lanka legally [in] September 2009 travelling to [Country 1] and then to [Country 2], where he became illegal, and then travelling to Indonesia and Australia by boat without authority, arriving at Christmas island [in] September 2011.[3]

   [3] See the Departmental file.

6. In a statutory declaration of 27 January 2012, the applicant indicated he fears the Eelam People’s Democratic Party (EPDP) and/or the Sri Lankan Army (SLA) will harm or kill him if he returns to Sri Lanka because he was detained in February 1997 on suspicion of being a member of the Liberation Tigers of Tamil Eelam (LTTE).  He indicated that he fled Sri Lanka because after he was released in August 1997 he was being pressured to join the EPDP.   

7. The delegate refused to grant the visa, noting that the applicant remained in Sri Lanka for 12 years following his release by the SLA in August 1997 without ever coming to further harm, and finding that he was not of interest to the Sri Lankan authorities, or the EDPD, at the time he departed Sri Lanka.

8. The applicant applied to the Tribunal for review of this decision on 13 September 2017.

9. The applicant appeared before the Tribunal on 6 April 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.  The applicant was not represented in relation to the review application.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant’s claims from his statutory declaration of 27 January 2012 are summarised as follows:[4]

    ·Around 1997 the SLA rounded up his whole village.  He was one of [number] people arrested on suspicion of being members of the LTTE.  They were taken to [Town 2] Army Camp [in] February 1997.  The EPDP is a paramilitary group that helped the SLA at that time.  They would come to the camp about every three days and torture the detainees.  The first three days was very serious torture.  He was hung upside down and hit.  All the other times they just hit him with batons and their hands.

    ·His family tried hard to get them released but could not.  They were only released when his family bribed the EDPD.  He was released [in] August 1997.

    ·The EPDP told him he had to join them.  They asked him to report to the camp every Sunday for six months to show he was still close by.  After six months it changed to the first Sunday of the month.  Every time he reported they tried to force him to join them.  Sometimes he would be made to do work in the camp.

    ·He heard that some of the others who were in the camp with him have been shot and killed because they refused to join the EPDP.  Consequently, he decided it was not safe for him in Sri Lanka so he fled the country.

    ·After he left Sri Lanka and was no longer reporting they came to his house looking for him.  The EPDP are very angry with him.  He fears the EPDP and SLA will harm or kill him if he returns to Sri Lanka.

    [4] See the Departmental file.

17. The POD decision record indicates that the applicant raised additional matters at an interview with the decision maker held on 31 January 2012.  Relevant additional matters raised are summarised as follows: [5]

    ·His reporting was reduced to monthly after six months.  He thought this might have been because he was married in October 1997 and they thought he would not flee the area.

    ·He showed the interviewing officer some scarring which he claimed was due to the torture he experienced.

    ·Four of the other [number] people detained at the same time as him were shot dead.  He provided newspaper articles from 2006 which referred to [Village 1] which he said indicated that those who were shot were arrested at the same time as him.

    ·He had to sign a register when he reported.  When he went to sign the register he was occasionally detained for up to three days and questioned about people in his neighbourhood.  The SLA would also come to his home sometimes.

    ·He did not join the EPDP.  They sent him letters asking him to join, which he ignored. 

    ·He was regularly harassed by the EPDP at his home but they did not seize him and left him alone when they saw his wife and children.

    ·One month prior to leaving Sri Lanka, he received a ‘red letter’ stating that if he did not join the EPDP, he would be shot.

    ·His wife told him the EPDP came looking for him in January 2010 and told his wife they would kill him if he returned to Sri Lanka.

    [5] See the Departmental file.

18. The delegate’s decision record indicates that the applicant provided further detail regarding his claims at an interview with the delegate on 28 July 2017.  Relevant additional matters raised are summarised as follows: [6]

    ·In 2005, following the 2004 Indian Ocean earthquake and tsunami, the LTTE required fishmen in [Town 2] to assist the LTTE in the Vanni (the area of northern Sri Lanka excluding the Jaffna Peninsula) for a month in order to access tsunami relief supplies.  He did this and became the subject of EPDP attention when he returned.

    ·After his departure from Sri Lanka in September EPDP members or SLA intelligence officers came to his home searching for him.  This caused his [Relative A], who was being cared for by the applicant’s wife, to leave the home.

    ·He fears he will be harmed by the EPDP or the SLA if he returns to Sri Lanka.  The record of his detention means he will be a suspect if anything happens.

    [6] See the Departmental file.

19. On 23 August 2019 and 3 February 2022 the applicant submitted a range of medical documents.[7]  These indicate he suffers from a number of chronic health conditions, including [medical condition 1], [and other conditions], has had surgery in October 2018 on his [body part] and attended psychological counselling in 2018-2019 after being diagnosed with symptoms of depression and post-traumatic stress disorder.

    [7] See the Tribunal file.

20. At the hearing the applicant indicated his wife and [children] ([years of birth specified]) continue to live at the family home in [Town 2].  He indicated [that one child] is attending [University 1] [and studying a specified course] while [another child] is completing [schooling].  He indicated his wife does not work.  He said he has [other family members] who also live in [Town 2].  He said [one family member] does not work but his brother is a fisherman.  The Tribunal asked the applicant about his [Relative A] who had been living with his wife.  He said he got married and left to live with his wife in Jaffna, about [distance] away.

21. The applicant confirmed that he had worked as a fisherman in Sri Lanka.  He indicated he is working as an [occupation 1] in Australia.

22. When asked, the applicant indicated his family moved from [Town 1], where he was born, to [Town 2] in 1984 because [Town 1] was a mixed Tamil and Sinhalese village and there was inter-ethnic conflict in 2004 where Sinhalese were ‘chasing’ Tamils and burning their homes.

23. The applicant indicated that [Town 2] had been under LTTE control but in 1997 the SLA gained control of the area and the LTTE went to the Vanni.  He said it was after this that SLA [Unit 1] instructed all the men of the town to come to the church where [number] men, including him, were identified by a masked man as having helped the LTTE.  When asked how he had helped the LTTE, the applicant said he had a boat and was forced to transport things to the Vanni for them.  When asked what sort of things he was transporting, the applicant said he did not know.  He indicated they put boxes on his boat, he transported them to beach areas and left the boat, and LTTE members came and took the boxes off the boat.

24. The applicant indicated those who were identified by the masked man were taken to the army camp where they were stripped naked and hoisted upside down using fishing rope tied to their legs.  He said he has scars on his legs from the rope.  He said this was done by SLA and EPDP personnel.

25. The applicant said he was asked why he helped the LTTE and where the goods he transported were.  He told them he was forced to help the LTTE, and did not know what the goods were or where they are.  He said they did not accept this and accused him of lying.

26. When asked, the applicant indicated that he never underwent any military training by the LTTE but just moved goods for them down to the Vanni.

27. The applicant confirmed the information in his statutory declaration that he was released [in] August 1997.  He commented that the SLA took control of the area so released him and put him under house arrest, where he was required to come and sign a register every Sunday.  When asked how long he had to do this for, the applicant said 3-4 years.  He added that sometimes they told him to come the next month.  The Tribunal queried whether it was just the SLA who decided to release him.  The applicant said his parents were always coming to the camp seeking his release and there was also an army sentry point in front of their home, so they could keep an eye on him.  When asked if the EPDP where involved in his release at all, the applicant said they got money from his family.  He said he did not know how much money they paid but his mother and others arranged that.

28. When asked if all [number] of the men who had been detained were released, the applicant said he did not know.  He said he met 2-3 of them when he was outside but does not know about the others.

29. When asked, the applicant confirmed that he only had to report for 3-4 years.  He commented that after that they introduced a pass system where people had to get a pass to go out.  He indicated that he was able to continue working as a fisherman over that period.

30. When again asked what he knew about the other [number] people who were detained when he was, the applicant said they are living in his village doing different jobs such as masonry or producing a beverage from coconut palm sap.

31. The Tribunal asked the applicant if he experienced problems with the EPDP after he was released.  He said he did not.  The Tribunal queried the applicant that in his statutory declaration he indicated they wanted him to join them.  He acknowledged this was the case but reiterated they did not harm him.  He said he told them he was a family man and couldn’t join them.  The Tribunal asked the applicant whether the EPDP accepted this.  He said they didn’t and continued once a week to ask him to join them.  When asked why they persisted, the applicant said they told him they had gotten him released.  He added that even after he came to Australia they went to his house 3-4 times asking where he is and saying he has to join them.

32. The Tribunal observed that he is talking about a very long period of time, 12 years from when he was released in August 1997 until he departed Sri Lanka in September 2009, and queried why the EPDP didn’t either take action to force him join them or accept that he was not going to join them.  The applicant replied that they said they would give him a salary and that if he did not join them he could face problems with the SLA at any time.

33. The Tribunal asked the applicant if any of the other people detained were asked to join the EPDP.  He said some were, and some did join but others did not.  He commented that if a person joined the EPDP they were required to rob, assault and murder people.  The Tribunal asked if those who refused to join the EPDP faced any problems.   He said those who did not join could receive pressure through the SLA.  When asked if he ever experienced that, the applicant commented that when a round-up comes, you have to bring all your documents and you can’t go out, but if you are a member of the EPDP the SLA do not ask for that.  When again asked if he ever faced problems with the SLA because he did not join the EPDP, the applicant said they won’t allow you to work for 2-3 days.  When asked how often that happened to him, the applicant said he could not remember but it was a lot of times.  When pressed he said it happened around 10 times.

34. The Tribunal queried the applicant about the statement in his statutory declaration that he heard that some of the others who were in the camp with him had been shot and killed because they refused to join the EPDP.  He replied ‘yes’.  When asked why he had not mentioned that previously at the hearing, he indicated he was referring to people from [Village 1] near [Town 2], who were with the fisherman’s association and helped the LTTE after the tsunami in December 2004, rather than people who were detained with him in 1997.  When asked, he said they were killed in 2007.  The Tribunal asked the applicant why he was not harmed.  He said they checked their lists and shot some of them.  When asked if he was there at the time, the applicant indicated he was.  When asked why some men were shot, he said they had gone to an LTTE controlled area and did tasks with them for three months.

35. The Tribunal asked the applicant why the fishermen did that if they were living in an area controlled by the SLA.  He indicated there was a ceasefire at that time and the LTTE and the SLA both had a presence in the area.  He indicated that the organisations distributing the tsunami relief aid were ‘listening’ to the LTTE, which was controlling the distribution of the aid and the LTTE told them they had to help with this.  The Tribunal queried why, if this was the case, the SLA would seek revenge on the fishermen who assisted the LTTE to distribute disaster relief.  The applicant said the war started again in 2007 and the SLA ‘closed the path’.

1. The Tribunal observed that in the record of his ‘Entry Interview’ (held on Christmas Island on 29 October 2011) it indicates he had mentioned that he helped the LTTE distribute tsunami relief in 2005.  The Tribunal noted that the interviewing officer wrote: ‘once they have released us i was signing and coming back, in 2005 the Tsunami came and we lost all our business and the property where we were living.  The relief association told us we would get help, during that time the Tamil fighters approached us and said we had to help them in Vanni for a month if you don’t come we will not allow you to access the relief provided.  The people in the fishing association we went and did the work and came back’.[8]  The Tribunal asked the applicant if that account is correct.  He replied, ‘yes’.  The Tribunal queried whether they did this for one or three months.  He said they were told it would be a month but the LTTE kept them for three months.  He confirmed this was in 2005.  The Tribunal notes this is consistent with the timing of the tsunami which occurred on 26 December 2004.  When asked, the applicant confirmed that this incident occurred during the ceasefire between the SLA and the LTTE.

   [8] See the Departmental file.

2. The Tribunal observed that the interviewer had then recorded that the applicant said: ‘Then because we helped the Tamil fighters the EPD came and looked for us to shoot us.’  The applicant again indicated that was correct.  The Tribunal asked the applicant if that was the case why he wasn’t shot.  He said he didn’t leave his house, the war restarted and ‘they closed the paths’.

3. The Tribunal observed that the applicant remained in Sri Lanka for a further four years until September 2009 and suggested that the EPDP would have been able to find him pretty easily over that time.  The applicant replied that they would not do it while he was at home but would wait until he was moving outside of his house.  He added that in 2009 a path was opened and then he was able to leave.

4. The Tribunal observed that the then President declared on 19 May 2009 that the civil war was over, he was able to have a Sri Lankan passport (valid for 10 years) issued in his name [later in] 2009 and departed Sri Lanka legally via Colombo international airport [in] September 2009.  The Tribunal queried how he was able to do that if he was wanted by the EPDP.  The applicant said he wanted to leave because he was living in the middle of trouble.  He indicated that the EPDP said now the war is finished and the LTTE is gone, you need to come and join us.  The Tribunal asked why the EPDP would have said that if he had consistently declined to join them since 1997.  The applicant replied that he was in an area controlled by the SLA and the EPDP thought he had to come with them.

5. The Tribunal asked what the EPDP were doing at that time, whether they were coming to his house or sending him letters.  The applicant replied that sometimes they came to the house  and other times they sent letters.  When asked, he indicated the letter would say that now he has been stamped as LTTE he has no protection but he can get protection from the EPDP.  The Tribunal observed that he had not been detained by the SLA for 12 years, was not harmed in the period leading up to the conclusion of the war, and when the war was over was able to get a passport and depart Sri Lanka legally, which seems to indicate the authorities did not consider him to be associated with the LTTE or a security risk.  The applicant replied that he had been detained and then they thought he went for training with the LTTE in 2005, and in 2007 they ‘closed the path’.  He indicated they were confined to their houses but after the war he was able to escape.

6. The Tribunal queried the applicant about his statement that the authorities thought he received training from the LTTE in 2005 when he indicated he was helping distribute tsunami relief supplies at a time when there was a ceasefire between the SLA and the LTTE.  The applicant replied that the SLA said they took training from the LTTE.

7. The Tribunal asked the applicant whether the letters he says he received from the EPDP said what would happen if he did not join.  The applicant indicated they said the SLA could take him in at any time because he has been branded as LTTE and they can detain him under the ‘terrorist’ Act.

8. The Tribunal asked the applicant if he received a ‘red letter’.  He indicated he did.  The Tribunal asked what a ‘red letter’ is.  He replied that they sent him 4-5 letters and the last one was a red letter.  He indicated this was a warning that they would not send any more letters but would then take action, and would shoot him.  He added that it said anything can happen at any time.  The Tribunal asked the applicant when he received that letter.  He indicated it was in the latter part of 2008, adding this was a crucial time.  When queried that he did not depart Sri Lanka until September 2009 the applicant commented that he could not get out until that time.  When the Tribunal observed that he remained in Sri Lanka for at least another nine months without being harmed, the applicant replied, ‘yes’.

9. The Tribunal asked the applicant who came looking for him after he had left Sri Lanka.  He said both the SLA and the EPDP did.

10. The Tribunal asked the applicant what he fears will happen to him if he has to return to Sri Lanka now.  He said he escaped from them and if he returns they will say he promoted and helped the LTTE, and put him in prison under the Prevention of Terrorism Act.  The Tribunal queried why they had not done that during the latter stages of the war or at the end of the war.  He said he was in an area controlled by the SLA and the final conflict took place elsewhere.  He said they were allowed to stay in their houses but were constantly monitored.  The Tribunal suggested that seems to indicate he was not of concern to the authorities.  The applicant replied that he faced trouble because of his involvement distributing the tsunami relief because the SLA suspected they went there and undertook training with the LTTE, even though they were only involved with relief work.

11. The Tribunal asked the applicant about the medical documents he had submitted to the Tribunal (he provided a further copy of these documents at the hearing).  He commented that he suffers from [medical condition 1] and is required to [specified treatment].  He said he has had [specified surgery]. He also indicated he uses a [treatment] for [another condition].  He indicated concern that he would not have the same access to medical facilities in Sri Lanka. 

    Findings and reasons

    Identity

12. On the basis of the copies of his birth certificate, identity card and Sri Lankan passport submitted to the Department,[9] the Tribunal accepts that the applicant is a national of Sri Lanka and that his identity is as claimed.  The Tribunal accepts that Sri Lanka is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Issues

    [9] See the Departmental file.

13. 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) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country of Sri Lanka, there is a real risk he will suffer significant harm.

14. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

15. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

16. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only 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.

17. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

18. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

19. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    Assessment of claims

    Background

20. The current DFAT Country Information Report indicates that the LTTE formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983.  Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas.[10]

    [10] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 2.2 and 2.48.

21. In March 2017 the Canadian Immigration and Refugee Board (IRB) reported sources as indicating the EPDP is a pro-government Tamil-based party, initially formed to fight alongside the LTTE, but which later allied itself with the government and operated as a paramilitary unit supporting Sri Lankan security forces against the LTTE.  The report cites sources indicating there were close ties between the EPDP and government security forces, commenting that many humanitarian groups refer to the EPDP as one of the most viable paramilitary groups operating with impunity in the country.[11]

    Assessment

    Fear of harm from the SLA and the EPDP

    [11] Sri Lanka: Treatment of Tamils in society and by authorities; the Eelam People’s Democratic Party (EPDP), including relationship with the Tamil population (2014-February 2017); Immigration and refugee Board of Canada, 17 March 2017, >

    The Tribunal finds that the applicant is [an age] year old ethnic Tamil male of the Catholic faith.  The Tribunal accepts that he was born in the Vavuniya district in the northern province of Sri Lanka and that his family moved to [Town 2] ([in] the Jaffa peninsula) in 1984. 

22. The Tribunal accepts the applicant’s evidence that [Town 2], which had been under LTTE control, came under SLA control in 1997.  The Tribunal accepts that [in] February 1997 he was among a group of single men detained by members of the SLA’s [Unit 1] on suspicion of being involved with the LTTE, after being paraded before and identified by a masked informer.  In this regard the Tribunal notes that the applicant provided to the Department (and brought to the hearing) a copy of the identity card issued to him by [Unit 1].[12]

    [12] See the Departmental file.

23. The Tribunal accepts that as a consequence, the applicant was interrogated and tortured by members of the SLA and EDPD.  The Tribunal accepts his account of having been stripped naked, bound with fishing rope around the lower legs and hoisted upside down into the air.  The Tribunal accepts that he has scarring on his lower legs associated with rope burns from this treatment.  The Tribunal accepts that he was beaten.

24. The Tribunal accepts the applicant’s account indicating that when he was detained in 1997 he was not a member of the LTTE and had never received training from the LTTE but was suspected to have been involved with the LTTE because, as a fisherman with a fishing boat, he had been forced by the LTTE to transport goods for them from the [Town 2] area to beaches in the Vanni.

25. The Tribunal accepts the applicant’s account that his family visited the army camp where he was held regularly seeking his release.  Although the applicant was unable to say how much they paid, the Tribunal accepts that a bribe paid by his family to the Tamil speaking EPDP members working with the SLA contributed to the applicant being released by the SLA [in] August 1997.  The Tribunal accepts that when the applicant was released he was required to report regularly and sign a register (initially on a weekly basis and later monthly).  The applicant indicated at the hearing that this continued for 3-4 years.  The Tribunal finds this is plausible.  The Tribunal also accepts as plausible the applicant’s evidence that when he reported he occasionally was required to do work at the army base and occasionally was questioned about the activities of others in the Tamil community.  The Tribunal notes that the applicant has not indicated he was physically harmed by the EPDP or the SLA after he was released from the army camp in August 1997.  Noting he indicated there was an army sentry post near his home, the Tribunal also accepts the applicant’s evidence that he could be monitored from there and that occasionally SLA personnel would come to his home.

26. The Tribunal also accepts that EPDP personnel may have sought to recruit the applicant to their cause but considers this would most likely have been at the time of, or shortly after, his release from detention at the army camp in August 1997.  As discussed with the applicant, the Tribunal does not accept that the EPDP would have persisted with attempts to recruit him to their cause over a 12 year period from August 1997 until September 2009, when he departed Sri Lanka.  The Tribunal finds that the applicant did not provide a convincing explanation when asked why the EPDP didn’t either take action to force him to join them or accept he was not going to join them.  While the Tribunal accepts that the EPDP might have indicated to the applicant that if he joined them he would benefit through being paid a salary and from having their protection in relation to any issues with the SLA, the Tribunal does not accept they would have persisted with this pitch for 12 years.  The Tribunal accepts that the applicant may have suffered some minor consequences from not joining the EPDP, such as not being permitted to go out for 2-3 days on approximately 10 occasions when there was a ‘round-up’ as claimed.  The Tribunal finds this is a relatively minor inconvenience over the 12 year period from 1997 to 2009, noting the applicant has not indicated he was ever harmed by either the EPDP or the SLA after he was released from the army camp in August 1997.

27. The Tribunal found the applicant’s evidence in relation to the claimed death of 4 colleagues to be vague and inconsistent.  His initial statutory declaration indicated he heard that some of the people who were in the (army) camp with him were shot and killed because they refused to join the EPDP.  He made no mention in this statutory declaration, however, of having subsequently come to the attention of authorities because he was involved in delivering tsunami relief aid for the LTTE in 2005, following the 26 December 2004 tsunami that devastated large parts of coastal Sri Lanka.  It became clear at the hearing, however, that he was not referring to people among the [number] others he claimed were identified and detained with him in February 1997, but was referring to a separate incident in 2006 or 2007, which he claimed ensued because he and other members of the fisherman’s association assisted the LTTE to distribute tsunami relief aid in the Vanni in 2005, when there was a ceasefire between the SLA and the LTTE.  Noting that he raised in his entry interview (held on 29 October 2011) that he and others assisted the LTTE distribute tsunami relief aid in 2005, the Tribunal accepts this was the case.  The Tribunal also notes that his statutory declaration of 27 January 2012, prepared with the assistance of an IAAAS legal practitioner, is very brief, and seems to focus on the period of the applicant’s detention in 1997 and immediate aftermath.  Accordingly, the Tribunal has not given weight to inconsistencies between this statement and the applicant’s evidence at the hearing.

28. The Tribunal did, however, find the applicant’s evidence at the hearing in relation to the claimed killing of four fishermen colleagues to be unconvincing.  The applicant indicated that they were forced to assist the LTTE to distribute disaster relief during a ceasefire, when both SLA and LTTE personnel were moving around the Jaffna peninsula, in the context of an extraordinary natural disaster that resulted in large scale loss of life, destruction of property and dislocation.  When asked why the SLA would have viewed their actions negatively given the context, the applicant could not offer an explanation, but simply stated the war started again in 2007.  The applicant also could not explain why, if four of the fishermen were shot, he was not also shot, even though he claimed at the hearing to have been present.  When asked why the others were shot he said it was because they had gone to an LTTE controlled area and did tasks for the LTTE for three months, but he had done the same.

29. The applicant subsequently indicated that the EPDP came looking for them to shoot them, but his explanation for why he wasn’t found and shot – that he didn’t leave his house, the war restarted and ‘they closed the paths’, was totally unconvincing.  The Tribunal does not accept that if the SLA and their EPDP allies thought the applicant had received training from the LTTE in 2005, he would not have been taken from his home in [Town 2], again detained, interrogated and possibly shot, if that is what happened to others.

30. The Tribunal does not accept, therefore, that the SLA or EDPD thought the applicant received training from the LTTE in 2005 or were looking for him after that time to interrogate him or shoot him.  The Tribunal also does not accept that the EPDP continued to persist with attempts to recruit the applicant in 2008 or 2009, or that they ever sent him a ‘red’ letter.  The Tribunal finds that the applicant was not of interest to the SLA or the EPDP either during the final stages of the civil war in 2009 or after the war ended in May 2009.

31. The Tribunal accepts that it is possible that SLA and/or EPDP personnel called at the applicant’s home in [Town 2] after he departed Sri Lanka, inquiring about his whereabouts.  The Tribunal considers this would have been part of routine monitoring checks, however, and does not accept that it reflects either a concern by the SLA that the applicant was or is an LTTE supporter and a security risk (noting he was issued with a passport and was able to depart the country legally), or desire for revenge by the EPDP because he refused to join them.  The Tribunal does not accept that the applicant’s wife was told by anyone that if he returned to Sri Lanka he would be shot.

1. Having carefully considered relevant country information, discussed with the applicant at the hearing, the Tribunal also finds there is not a real chance that the applicant would suffer treatment amounting to persecution involving serious harm, due to his being imputed with a pro-LTTE political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

2. The UNHCR prepared eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka, last issued on 21 December 2012.[13] These indicate that at the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76 per cent of what are now the northern and eastern provinces of Sri Lanka and consequently all persons living in those areas and at the fringes of areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives.  The guidelines indicate that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.  The guidelines state that, depending on the specifics of the individual case, previous (real or perceived) links that go beyond prior residency continue (at that time) to expose individuals to treatment which may give rise to a need for international refugee protection.  The guidelines state that, inter alia, this may include people who were former LTTE supporters who may never had undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

   [13] UN High Commissioner for Refugees, UNHCR Eligibility guidelines for assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

3. The Tribunal finds however, that the applicant was not an LTTE supporter.  Furthermore, as discussed above, the evidence regarding what happened to the applicant from when he was released by the SLA in August 1997 until he departed Sri Lanka in September 2009 does not support the conclusion that he was of ongoing interest to the Sri Lankan authorities or the EPDP, either because he was perceived to be an LTTE supporter or because he was forced to transport goods for the LTTE prior to being detained in February 1997 and transport and distribute relief supplies for them in the aftermath of the December 2004 tsunami.

4. DFAT advises that the SLA still maintains a significant presence in the north.[14]  DFAT states that military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province. The government no longer restricts travel to the north and east and it removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks (by local Islamic extremists targeting three luxury hotels in Colombo and three Christian churches in Colombo, Negombo and Batticaloa). DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed.

   [14] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 2.49,2.54-2.55.

5. DFAT comments that 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.  DFAT advises that members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups.[15]  Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.  It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November and the public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.  DFAT states that Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war.  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.

   [15] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 3.8-3.13.

6. DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

7. DFAT advises that towards the end of the war in 2009, government security forces arrested and detained a large number of LTTE members.[16]  Most were sent to government-run rehabilitation centres.  A smaller number were prosecuted through Sri Lanka’s court system.  Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment.  

   [16] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 3.39-3.57.

8. While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general.  Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases.  DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.  Former LTTE members, however, face no legal barriers to participating in public life, including politics.

9. Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training.  According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation.

10. DFAT assesses that, although the great majority of ‘low-profile’ former LTTE members (which includes 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) have been released following their rehabilitation, any ‘low-profile’ former LTTE member who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation.  DFAT assesses that, following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted.

11. Some Tamils with actual or 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.

12. Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such 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.

13. DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.

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

15. The applicant commented in relation to the country information and DFAT’s assessments that this is okay for normal Tamils but those connected with the LTTE face problems and some people are detained and people do not know what happened to them.  The Tribunal accepts the applicant may be questioned by relevant authorities on his return to Sri Lanka, and may be subjected to some low level monitoring for a time. The Tribunal notes that he has never been politically active, including in Australia.  Given its findings above that the applicant was not considered to be an LTTE member or supporter or a security risk when he departed Sri Lanka, and considering the relevant country information, the Tribunal does not accept that the applicant would be detained, interrogated, sent for rehabilitation, mistreated, killed or charged with any offences, including under the Prevention of Terrorism Act (PTA), should he return to Sri Lanka.

    Fear of harm due to Tamil ethnicity

16. The Tribunal has also considered whether there is a real chance the applicant would suffer persecution involving serious harm simply as a consequence of his Tamil ethnicity.  In this regard the Tribunal notes and accepts that the applicant’s family moved from their home in the Vavuniya district in 1984 because of inter-ethnic tensions between Sinhalese and Tamils in that area, at that time.  The applicant has not suggested that conflict with ethnic Sinhalese was (or is) an issue after the family moved to [Town 2] in 1984 or that he has any concerns about returning to Sri Lanka or his home in [Town 2] on this basis.  DFAT indicates both that ordinary Tamils in the north and east of Sri Lanka are at low risk of official harassment and that Tamils face a low level risk of societal discrimination based on their ethnicity.[17] The applicant indicated at the hearing that his wife, [and specified family members] continue residing in the [Town 2]/Jaffna area.  [One child] is studying at [University 1], [and another] is completing [schooling] and his brother is working as a fisherman.  He indicated that his [Relative A] left the applicant’s home because he married and moved out with his wife.  The applicant did not indicate his family members have suffered any significant official or societal discrimination or any official or societal violence.

    [17] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 3.3-3.7 and 3.13.

17. Considering the applicant’s evidence and the relevant country information, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm on account of his Tamil ethnicity should he return to Sri Lanka now or in the reasonably foreseeable future.

    Return as a failed asylum seeker

18. The applicant departed Sri Lanka legally on a valid Sri Lankan passport in September 2009 and flew to [Country 1].  He would not, therefore, be subject to any penalties for illegal departure from Sri Lanka.  He would, however, be returning to Sri Lanka as a failed asylum seeker.  The Tribunal has considered whether this would give rise to a real chance of persecution or a real risk of significant harm on return to Sri Lanka.

19. DFAT advises that unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights.[18] In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.

    [18] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 5.17-5.20, 5.26 and 5.27-5.32.

20. DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE).

21. The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

22. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

23. 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 of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. 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.

24. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

25. Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres.

26. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

27. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

28. DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities.

29. When asked to comment in response to the country information, the applicant said if he returned to Sri Lanka he would face problems due to the ‘connections’ he had.  As the Tribunal finds the applicant has never been politically active, including in Australia, and finds that he was not considered to be an LTTE member or supporter or a security risk when he departed Sri Lanka, the Tribunal does not accept that he would face problems on return due to any perceived ‘connections’.

30. As noted above, the Tribunal accepts the applicant may be questioned by relevant authorities on his return to Sri Lanka (including at the airport), and may be subjected to some low level monitoring for a time.  Given he departed legally on a Sri Lankan passport and has not been involved in any criminal matters, it should be a relatively straightforward process for the Sri Lankan authorities to verify his identity and establish that he is not wanted in relation to any criminal matters.  There is nothing to indicate or suggest that he would suffer harm while being questioned/monitored.  The Tribunal does not accept that the applicant would be detained, interrogated, sent for rehabilitation, mistreated, killed or charged with any offences, including under the PTA, should he be returned to Sri Lanka as a failed asylum seeker.

31. Considering the applicant’s personal circumstances and the relevant country information, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm due to his status as a failed Tamil asylum seeker should he return to Sri Lanka now or in the reasonably foreseeable future.

    Medical issues

32. The Tribunal also discussed with the applicant advice from DFAT regarding health care in Sri Lanka.

100.   DFAT indicates that Sri Lanka inherited a well-developed health care system at independence.[19] The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Health outcomes are lower in the north and east. According to the World Health Organisation (WHO), the health system provides access to all ‘required medicines’ prescribed in the state system in Sri Lanka free of charge. However, the WHO also notes that the overall system ‘has not evolved and transformed appropriately to meet the changing demands of the demographic and epidemiological transitions.’ It notes that 26 per cent of out-of-pocket expenses for patients in the health system are for medicines. A local source reported that this leaves considerable expense for medicines acquired privately.

[19] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 2.23-2.26.

101.   Sri Lanka offers some mental health services but there are gaps. Local sources suggest the health system has a strong mental health focus with a good cohort of trained counsellors, and a number of NGOs active in the sector. However, there are limited numbers of qualified psychologists and psychiatrists. The Ministry of Health operates the National Institute of Mental Health in Colombo which is the only state-run hospital dedicated to treating mental illness with 1,200 full-time staff and 1,500 beds. The National Institute of Mental Health admits over 8,000 patients annually. According to local sources, there is significant, ongoing need for psychosocial support in the north and east, particularly for former combatants, the families of missing persons and those affected by the 2004 Indian Ocean tsunami.

102.   DFAT assesses that there is no discrimination on the basis of religion or ethnicity with regard to health services.

103.   The applicant commented that he has a lot of health issues.  He said he was concerned that if he was taken by the SLA he would not get any kind of medical treatment.  For the reasons discussed above, the Tribunal does not accept that the applicant will be taken by the SLA or EPDP and therefore does not accept he will be denied access to necessary health care as a consequence.  As discussed with the applicant, the Tribunal accepts that while the country information indicates there is relevant and affordable health care available to him in Sri Lanka, it likely will not be as good as the heath care he receives in Australia. 

104.   Considering the relevant country information the Tribunal finds that the applicant would not be denied relevant health care in Australia for one or more of the five reasons mentioned in s 5J(1)(a) of the Act.

Refugee criterion

105.   Given the Tribunal’s findings above, and having considered the applicant’s circumstances both individually and cumulatively, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from the Sri Lankan authorities, including the SLA; the EPDP; the Sinhalese community; or from any other agency, organisation, group or individual, due to his Tamil ethnicity; an imputed pro-LTTE/anti-government political option due to perceived support for or having assisted the LTTE; his status as a member of the particular social group comprising failed Tamil asylum seekers; or for any other of the five reasons mentioned in s.5J(1)(a) of the Act, should he return to Sri Lanka now or in the reasonably foreseeable future.

106.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection criterion

107.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

108.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[20]

[20] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

109.   Considering the applicant’s circumstances individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm as set out in s.36(2A), from the Sri Lankan authorities, including the SLA; the EPDP; the Sinhalese community; or from any other agency, organisation, group or individual.

110.   Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

111.   In reaching this conclusion, the Tribunal notes that the applicant departed Sri Lanka legally in September 2009 and therefore would not be detained under the Immigrants and Emigrants Act (1948) for illegal departure on his return to Sri Lanka.[21]

[21] DFAT Country Information report, Sri Lanka, 23 December 2021, sections 5.17-5.24.

112.   In reaching this conclusion, the Tribunal also finds that any hardship or harm the applicant might experience if removed to Sri Lanka, including feelings of emotional distress, due to his medical conditions and the lower standard of available health care in Sri Lanka compared with Australia, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm.

Member of the same family unit

113.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Paul Windsor
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

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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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