1721730 (Refugee)

[2020] AATA 6179

1721730 (Refugee) [2020] AATA 6179 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1721730

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Dr Colin Huntly

DATE:17 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 December 2020 at 11:18am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected support for Liberation Tigers of Tamil Eelam (LTTE) – particular social group – Tamil male from the north of Sri Lanka – returnee from a Western country – detention – physical assault – voluntary return to Sri Lanka – support for Tamil causes – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 33
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 104, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ASIC v GetSwift Limited [2020] FCA 504
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SDAQ v MIMA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v MIMIA (2006) 228 CLR 152
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253
Tetley v Goldmate Group Pty Ltd [2020] FCA 913
WAKK v MIMIA [2005] FCAFC 225

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 6 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act)

   BACKGROUND

   Applicant migration history

2. The applicant arrived in Australia as an unauthorised maritime arrival [in] March 2011.  On 13 March 2012 the applicant was granted a UJ-449 Temporary Humanitarian visa and was released from detention.  The applicant was also granted a WE-050 Bridging Visa.

3. On 29 October 2015 the Minister ‘lifted the bar’ at s.46A(2) of the Act, permitting the applicant to apply for a Protection visa in Australia.

4. On 29 September 2015 the applicant applied for a XE-790 Safe Haven Enterprise visa (SHEV).

5. A delegate of the Minister refused to grant the applicant a SHEV in a written decision dated 6 September 2017. 

6. On 14 September 2017 the applicant applied to this Tribunal for a review of that decision.

   Proceedings before the Tribunal

7. The applicant appeared before the Tribunal on two occasions to give evidence and present arguments, namely: by telephone on 29 September 2020; and, in person on 26 October 2020.

8. The applicant was represented in this application by a registered migration agent.

9. All hearings were held in the English language with the services of an interpreter fluent in both the English and Tamil languages.

   Identity

10. The applicant claims to be a citizen of Sri Lanka.  He provided copies of his personal identification documents to the Department of Immigration and this information is included in the applicant’s Departmental file.  I have reviewed the applicant’s Departmental file and I have had the opportunity to interview the applicant on two occasions.  In the basis of this information, I find the applicant is a citizen of Sri Lanka, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

11. There is nothing before me to suggest the applicant has a right to enter and reside in a third country for the purposes of a s.36(3) assessment.

    DECISION SUMMARY

12. The issue in this case is whether the applicant engages Australia’s protection obligations because he holds a well-founded fear of persecution in Sri Lanka now, or in the reasonably foreseeable future for the essential and significant reason of his membership of a particular social group or because of his actual or imputed political opinion.  In the alternative, if the applicant satisfies the requirements for a protection visa in Australia on complementary grounds if he were to return to Sri Lanka, now or in the reasonably foreseeable future. 

13. For the following reasons, I have concluded that the decision under review should be affirmed.

    DECISION-MAKING FRAMEWORK

14. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994.  Extracts of the relevant legislative provisions are attached to this decision below.  An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    President’s Direction

16. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

    ·     that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and

    ·     that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

    [1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).

    [2]At [8.1].

17. As noted above, I exercised the discretion to hold the first hearing by telephone in September 2020.  Both hearings with the applicant were held during the COVID-19 pandemic.  I determined that it was reasonable to hold the first hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.  I note that this practice accords with the observations of the Tribunal as constituted in the related cases Tribunal Refugee Refs: 1816541 and 1820632 as follows:[3]

    As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4]  In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.

    [3]1816541 (Refugee) [2020] AATA 3476 (3 September 2020) at [6]; and 1820632 (Refugee) [2020] AATA 3477 (3 September 2020) at [5] per Deputy President Redfern. (Extract taken from Tribunal Ref: 1816541 at [6]).

    [4]“Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].”

18. In making the procedural and logistical arrangements that were adopted in hearing this matter, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the second hearing was not to be conducted by video.  I also note that I granted a postponement at the request of the applicant’s registered migration agent before scheduling the second hearing to a time when it could be held in-person. 

19. I am satisfied that, in the circumstances applicable to this application for review, the applicant was given a fair opportunity to give evidence at both hearings including by means of opportunities to provide further written submissions.  I was able to interact with the applicant directly, and all parties were able to maintain appropriate communication throughout each of the proceedings.

    Applicant credibility

20. The Tribunal’s task of fact-finding may involve an assessment of applicant credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [5]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

21. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic AffairsandMcIllhatton,[6] Foster J stated that ‘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.’[7]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [6](1996) 40 ALD 445.

    [7]At (482).

22. I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[8] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[9]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    [8](1996) 185 CLR 259.

    [9]At [25].

23. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it 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, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[10]  Nevertheless, as Burchett J counselled,[11] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [10][1997] FCA 1198 ( accessed 15 February 2017).

    [11]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

24. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[12]  On this point, I also take into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86 relating to the previous statutory regime. 

    [12]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2017).

25. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[13]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[14]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[15]  I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[16]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [13]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.

    [14]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [15]MIMA v Rajalingam (1999) 93 FCR 220.

    [16](1999) 197 CLR 510 at [191].

26. I note, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held. 

27. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  I note that in Iyer[17] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[18]

    [17]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

    [18]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

28. I am mindful of the salutary comments of Flick J,[19] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:

    31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.  Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

    [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

    [19]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].

29. As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[20]

    … Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

    (a)      failure to afford procedural fairness;

    (b)      reaching a finding without any logical or probative basis;

    (c)      unreasonableness; and/or

    (d)      jurisdictional error as discussed by Flick J in SZVAP.

    [20]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].

30. I note the particular reference by their Honours (in the extract above at (b)) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings.  I further note that, later in the same judgement,[21] their Honours referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 relating to the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[22] (Stoyanov):

    The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”:

    [21]CQG15 v MIBP [2016] FCAFC 146 at [43].

    [22](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.

1. However, a number of judicial caveats are of relevance when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be.  Firstly, as their Honours noted in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:

   … the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

   In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]–[56]):

   52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

2. Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Court in the recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. Their Honours made the following observations of utility:[23]

   32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

   33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others.  To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].

   34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. 

   [23]Per Rangiah, Perry and Bromwich JJ.

3. In addition to the foregoing judicial guidance, I have also had regard to the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[24]

   [24]At [8].

4. Further:

   In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements at section 423A of the Act.[25]

   [25]At [13].

5. The Guidelines also advise that:

   Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

   A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

   However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[26]

   [26]At [17]–[19].

6. With respect to contradictions, inconsistencies and omissions, the Guidelines state:

   Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

   The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[27]

   [27]At [27]–[28].

   New claims and evidence

7. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for an applicant to make their own case.[28]

   [28]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

8. Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.  Two obligations here are particularly relevant:

   i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and

   ii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. 

9. In such cases, if the Tribunal is satisfied that an applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.  This is unremarkable, given that on one view the statutory provisions reflect ordinary principles of inquiry and inference.

10. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so. 

    INTRODUCTION

    Hearings

    First hearing

11. At the first hearing on 29 September 2020, I advised the applicant and his representative what documents I had in my possession and it was confirmed that I had all the relevant material before me.

12. Also at the start of the hearing I surveyed the applicant’s claims for protection contained at pages 3-5 of the delegate’s record of decision.  I noted the summary of claims elucidated by the applicant’s representative by email dated 29 August 2017 to the delegate[29] and repeated in pre-hearing submissions dated 23 September 2020[30] which was as follows:

    … the applicant fears harm from the Sri Lankan authorities on the basis of the following reasons:

    ·     Tamil race

    ·     Imputed Political Opinion as a Liberation Tigers of Tamil Eelam (LTTE) supporter/sympathiser/member.

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

    [29]Delegate’s decision record at 5.

    [30]At 2.

13. I asked if these were a fair and accurate summary of the claims for protection and the applicant responded in the affirmative.

14. I noted that the delegate essentially did not accept that the applicant was ‘a person of interest to the Sri Lankan authorities for any reason when he left the country’, and essentially would not be such a person on return giving rise to Australia’s protection obligation at s.36(2)(a) of the Act.  The delegate was also not satisfied that the applicant faces a real risk of significant harm in Sri Lanka now, or in the reasonably foreseeable future for the purposes of the complementary criteria at s.36(2)(aa) of the Act.

15. I pointed out to the applicant that I also had questions about the applicant’s voluntary return to Sri Lanka from [Country 1]; the circumstances of his departure for India; and, the fact that his former wife and child remained in Sri Lanka.  I indicated that I would like to understand his life in Sri Lanka before coming to Australia for myself.  I pointed out to the applicant that circumstances in Sri Lanka had changed considerably since he departed the country, including three changes of national government.

16. I invited the applicant and his representative to provide additional submissions relating to these matters, including relevant country information prior to the next hearing.

17. The first hearing was then concluded.

18. Following the second hearing, I received a statutory declaration made out by the applicant and a written submission from his representative, both dated 19 October 2020.

    Second hearing

19. At the second hearing on 26 September 2020, I acknowledged receipt of the fresh statement and submissions dated 19 October 2020 and confirmed that the claims that were asserted by the applicant had not changed.

20. I then took a detailed personal history from the applicant.  He is the only child of his mother’s first marriage.  In the late 1980s, when the applicant was [age range] years of age, his parents separated.  Shortly after this, the applicant resided with and was raised by his [grandparents] in the village of [Village 1].  The applicant remains close to his [extended family], having grown up with his uncle and [aunts] and having lost contact with his father prior to that individual’s death in 2011.  Eventually, the applicant’s grandmother moved in with one of her daughters, an aunt of the applicant, in [Village 1], after the death of the applicant’s [grandfather].

21. During his youth, the applicant was visited on approximately a weekly basis by his mother, and occasionally his stepfather.  They lived in a village approximately five kilometres away and raised a separate family, the applicant’s [step-family].

22. After he completed his [schooling], he had to take up responsibilities at home, caring for his grandfather and operating the family’s small rice growing business.

23. In 2004 the applicant eloped to [City 1] and entered a civil marriage with a woman from the nearby village of [Village 2].  The applicant’s spouse also had grown up in her grandparents’ home as an orphan.  In 2005 the couple returned to [Village 2] to live with the family of the applicant’s then spouse.  The applicant resumed contact with his own family in nearby villages. 

24. In 2006, due to the civil war, the applicant together with his spouse, their son and his spouse’s grandmother relocated for approximately seven months to Colombo and rented accommodation from distant relatives.  Eventually, the applicant secured employment in [Industry 1] in [Country 3].  On occasion, the applicant states that he was stopped and questioned by the Criminal Investigation Department (CID).  The applicant claims that, due to the civil war he was under suspicion as a young Tamil male in a predominantly Singhalese city, recently arrived from the predominantly Tamil north of the country. 

25. The applicant travelled lawfully to [Country 3] to take up his employment opportunity in [Industry 1] work there.  Shortly after his departure, the applicant’s spouse, their child and his spouse’s grandmother returned to the north, moving into a home in [City 1].

26. The applicant did not find conditions in [Country 3] agreeable.  He did not enjoy the work and working conditions were poor.  After one of his workmates was killed in a workplace accident, the applicant expressed a desire to return to Sri Lanka.  The contractor for whom he was working refused to return his passport and sign his departure visa for some time.  Eventually, he was permitted to leave.

27. On return to Sri Lanka in 2008, the applicant joined his family in [City 1] and took up labouring jobs in that area.  While living there, he was stopped many times by the Sri Lanka Army units and subjected to questioning and harassment because he was a young Tamil male.  Growing tired of the civil conflict in Sri Lanka, the applicant found out about employment opportunities in India through his extended family network in India. 

28. In 2009, the applicant travelled again to Colombo in transit to India.  While he was briefly in that city waiting for his visa and departure flight to India, on his way home from church one morning, he was stopped by CID officers and taken for questioning.  During this period of questioning, the applicant claims that his human rights were violated by CID officers over a period of hours.  He states that he was stripped and beaten with canes.  He was questioned about his knowledge of or involvement with the Liberation Tigers of Tamil Eelam (LTTE).  The applicant told them that he was travelling to India on a pilgrimage.  Eventually. that evening, the applicant was released with a warning that he was being monitored.  Two days later, the applicant departed lawfully for Chennai, India, by air.

29. While in India, the applicant lived with distant relatives of his mother and worked as an [occupation 1].  Two or three months after his arrival, he was joined in India by his wife and son.  Sometime in 2011, the applicant’s wife received news that her grandmother had become caught up in the civil war which was having adverse effects on the population of northern Sri Lanka, particularly the Tamil population. The applicant’s wife and son returned to Sri Lanka and, after a brief period of rehabilitation, she reunited with her grandmother and has remained there ever since.

30. The applicant did not find conditions in India agreeable.  He stated that Sri Lankans were discriminated against in India and he did not feel safe there.  He stated that the Indian CID equivalent service “Q” branch monitored his movements in that country.  I asked the applicant why his extended family remained in India, if this was the case, the applicant stated that his relatives had been there for many years and owned land there and were settled.  The applicant’s aunt tried to assist the applicant to travel to [Country 4], without success.  Then she suggested that he travel to Australia.  That was how he came to pay a people smuggler to transport him from India to Australia unlawfully.

31. I asked the applicant why he chose to leave India illegally, given that he had twice departed Sri Lanka legally previously.  The applicant then suggested that he had paid a bribe to depart Sri Lanka for India.  He had told the official at Colombo airport that he would never return when he paid the bribe, so it was not safe to return there.  He stated that he was still wanted for questioning by the CID following his questioning and beating in 2009.  He also stated that the CID were aware of his support for Heroes Day celebrations and other pro-Tamil functions in Australia due to the evidence given to them by his brother [Brother A].

32. I asked the applicant when he had last spoken to his brother.  The applicant stated that they had spoken four or five months ago.  I indicated that this was inconsistent with the applicant’s earlier statutory declaration, which indicated that they lost contact with this brother in October 2019. 

33. The applicant confirmed that he and his former spouse were divorced by means of a petition filed [in] February 2019.  The divorce was granted some time in November that year.  The applicant remains in regular telephone contact with his [age]-year-old son.

34. I asked the applicant about his mother and stepfather.  He indicated that he had spoken to them the previous day.  His stepfather was in poor health and his mother was in low spirits.  They had moved in with the applicant’s grandmother in [Village 1].  I put to the applicant that his remaining immediate and extended family appeared willing and able to continuously live in essentially the same area in Sri Lanka where the applicant claimed that it was not safe for Tamils to live.  The applicant claimed that both his former spouse and his mother had been regularly harassed throughout their lives in Sri Lanka, including being questioned about the applicant’s whereabouts since 2014.

35. I put to the applicant that his evidence of departing from Sri Lanka by means of paying bribes and promising not to return to that country appeared to be of late invention, having not previously been made.  I also put to the applicant that his former spouse’s voluntary return to Sri Lanka from India with their [son] in 2011, to their home area, suggested that she did not hold a fear of persecution from any person for any reason in that place.  The applicant stated that his former spouse was moved for concern about her grandmother.  I accepted that this may indeed have been part of the reason for her departure.  I asked the applicant if his former spouse expressed the desire to separate at the time of her departure from India and the applicant stated that they had, indeed quarrelled before she departed and that their relationship did not continue after this time.

36. The applicant stated that he did not personally hold a subjective fear of harm for any reason from any person in Sri Lanka until after his return from [Country 3] in 2008. 

37. I put to the applicant that it may be open to find that his travel to India in 2009 appeared more like an orderly international family relocation with the assistance and support of expatriate extended family than flight from persecution.  The applicant acknowledged that he initially had hoped to settle down in India and open a [business].  After his marriage became unhappy, his former spouse returned to live with her grandmother.

38. I pointed out to the applicant that it was for him to make his own claims for protection in as much detail and with as much relevant evidence as possible.  I put to him that he had provided little in the way of the sort of corroborating evidence to support his claims for protection that one might reasonably expect.  The applicant suggested that this was due to the current COVID-19 emergency and the subsequent lockdown in Sri Lanka.  I suggested to the applicant that, given that he had arrived unlawfully in Australia almost 10 years previously and had been in regular contact with his family in Sri Lanka throughout that time, most of whom continued to live in the same area in that country, this explanation did not appear to be sincere.

1. At the conclusion of the hearing I gave the applicant and his representative three weeks to provide additional submissions to assist me in making the correct and preferable decision in this application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Tamil identity (Race)

2. In the signed, witnessed and undated statement attached to the applicant’s original 5 February 2016 application for a SHEV, the applicant relevantly stated as follows:

   6. In left Sri Lanka in order to ensure I was not killed given the fierce war between the Tamil Tigers and the Sri Lankan Army. Due to my race, age and area of origin, my life in Sri Lanka was very difficult.  …

   11. My aunt had been contacted several times by members of the CID who were looking for me and she too was threated if she did not tell them of my whereabouts. My family continues to find it difficult to live freely in Sri Lanka due to the authorities continuously monitoring them. Most of the time they are required to remain in our village and cannot travel to other areas.

   12. Just prior to my departure from Sri Lanka. In about 2009 on my way back from church I was detained by the Sri Lankan Army and beaten. They targeted me because they say I am Tamil and they are suspicious that I support the LTTE due to my area of origin. I was held for one day. While held I was interrogated and beaten. I was told that I would be again detained in the near future. After this incident, I decided that I could not remain in Sri Lanka.  …

   15. If I was forced to return to Sri Lanka, I believe I would be harmed due to the fact I am a Tamil male from the North of Sri Lanka. Tamil males are imputed with pro LTTE sentiments and subjected to harm. The fact I fled Sri Lanka near the end of the War would further impute me with pro LTTE sentiments.  …

   17. I have been advised my family the situation in Sri Lanka remains dangerous. The Sri Lankan Authorities continue to misuse their power in order to monitor and harass the Tamil population. Further, they consider to subject individuals who they deem to be previously affiliated to the LTTE to serious harm.

   20. Due to the fact my identity card indicates that I am a young Tamil male from the North of Sri Lanka, I would be treated with suspicion and subjected to harm no matter where I reside in Sri Lanka. The authorities rule the entire country and as such I cannot escape from them.

3. The applicant submitted a letter of support apparently from the [Official 1] of the ‘[Community Organisation 1]’ dated 18 October 2020.  This letter contains no formal letterhead and none of the contact information appears to relate to any of the public-facing [Community Organisation 1] online presence (such as it is).  I also note that the applicant has not chosen to call this witness at any of the hearings.  Having made these observations, I accept the letter in its terms, as some support for the applicant’s own sworn statements and a photograph showing the applicant in attendance at one such event, that he has participated in Tamil community remembrance events since 2016.  The letter relevantly states as follows:

   I write this letter to state the active participation of [the applicant] of [address] in our organisation from 2016 to up to date.

   He has been working with us for the events organised such as Maveerar Maal (Tamil Heroes Day event), Tamil genocide Remembrance Day and etc. He is a very active, polite and helpful person in our community.

   His participation at present and the past is much appreciated.

   Please feel free to contact me if there is any further information is needed.

4. In the applicant’s statutory declaration dated 19 October 2020 attached to pre-hearing submissions, the applicant relevantly stated as follows:

   5. When I resided in Sri Lanka, there was significant conflict between the Sri Lankan Army and the Liberation of Tamil Eelam (LTTE). Due to the conflict, there was ongoing fighting and ethnic divides. Given the conflict in Sri Lanka, my life was very difficult. The Sri Lankan Authorities treat Tamils with a high level of suspicion as they believe Tamils are supporters of the LTTE.  …

   8. While living in Sri Lanka, I was suspected of being involved in the LTTE. …  On several occasions, the Sri Lankan Authorities came to my house to question me. I knew the Sri Lankan Authorities could harm Tamils as much as they wanted, therefore I lived in constant fear.  …

   10. In April 2011, after I arrived in Australia, the Sri Lankan Army went to my home and threatened my wife and son. They demanded my wife inform them of my whereabouts by 6:00pm or she would be detained. My wife was scared. Her and my son fled the house to avoid harm. My [Aunt A] was also contacted by the Sri Lankan Authorities several times after my departure from Sri Lanka. She was the local Grama Sevakar (“village officer”) She was threatened that she must tell them about my whereabouts. 

   11. In 2014, my mother and stepfather were run over by a truck belonging to the Sri Lankan Authorities. The truck was driven by soldiers who were drunk. My mother and stepfather sustained injuries. My stepfather had a broken leg. He was in hospital for three months. Upon release from hospital, he was still on crutches. It was a serious injury. My mother broke her arm. Given they were injured, they tried to obtain compensation by lodging proceedings with the Court against the Sri Lankan Authorities. Court processes in Sri Lanka take a lot of time.…

   14. In mid-2017, my wife stopped speaking to me. She thought I was having an affair in Australia. This is incorrect.  I was helping a Tamil family in Australia who was in need. I was not in a relationship with anyone, however due to gossip, my wife thought I was having an affair. She subsequently sought a divorce. I no longer have any contact with my former wife. I speak to my son on a regular basis.

   15.Each year since 2016, I have attended Hero’s Day and Rememberance Day Commemoration in [City 2].  Hero’s Day occurs on 27 November and is to remember the fallen Heroes who sacrificed life for Tamil Community. We remember them and pay our respect. Remembrance Day is on 18 May each year, we remember the death of militants who died for the LTTE. The Tamil Community in [City 2] organise these events. They often collect donations to hire a venue for these events.

   16.As a Tamil, I have a respect for the sacrifices made by people who have fought for our community. I believe they deserve to be honoured and therefore I attended these events to provide my respect. I also assist organise the days, by setting up the hall, putting up banners and pictures of the fallen hero’s the day before the event.

   17. While I attend these events to pay my respects, I am concerned that the Sri Lankan Authorities will suspect I am supportive of the Tamil diaspora and therefore treat me with a higher level of suspicion upon return to Sri Lanka. The Sri Lankan Authorities are concerned that the Tamil diaspora will assist the LTTE reform in Sri Lanka. …

   20. As outlined since my arrival in Australia, I fear harm upon return to Sri Lanka due to my Tamil race. The war in Sri Lanka was ethnic based. While the conflict has ended, there is still a high level of hatred between the Sinhalese and Tamil communities. The Sinhalese as the majority group and given the Sinhalese monopolise positions of power they are able to discriminate and persecute Tamils.

   21. I fear harm due to the fact I am a Tamil male from the North of Sri Lanka. Tamil males from the north of Sri Lanka are automatically imputed to be LTTE affiliates.  …

   23. As a Tamil male from the North of Sri Lanka, I would be treated with suspicion no matter where I live. The Sri Lankan Authorities control the entire country, therefore there is no where I could live away from them. I am fearful I would be detained and harmed upon re-entry to the country. I cannot obtain protection from the Authorities given it is the Authorities I fear. Rather than protect me, they will harm me.  …

   25. The delegate accepted that my parents were involved in an accident in 2014 and a court case was initiated. As outlined by the delegate, corruption is common in Sri Lanka. The Authorities knew my parents were powerless and therefore forced them to withdraw the case. This situation demonstrates the unfair situation for Tamils in Sri Lanka.

   26. …  The Sri Lankan Authorities want to punish Tamils, they have a deep hatred for us.  …

   27. The delegate indicated that only high level LTTE members are at risk of harm upon return to Sri Lanka. I disagree with this. The Sri Lankan Authorities continue to treat members of the Tamil community and anyone they suspect of an LTTE affiliation very badly. They are very worried that the LTTE will resurge and therefore continue to monitor our community.

   28. The delegate found the situation in Sri Lankan has improved, I respectfully disagree; it is still dangerous especially for Tamils. Given my race, area of origin, brother’s confession about me and the fact I left the country near the end of the war and have remained abroad since, I strongly believe I will be detained, interrogated and harmed if returned to Sri Lanka.

   29.The Rajapaksa government is currently in control in Sri Lanka. Nandasena Gotabaya Rajapaksa is the current president of Sri Lanka. He previously served as the Defence Secretary under his brother’s administration from 2005-2015. Both Nandasena and his brother held power during the war during a period when Tamils were killed. I am very worried that his leadership will ensure the ethnic divides in Sri Lanka continue. I understand COVID-19 is being used as an excuse to monitor and restrict the movement of Tamils. I am fearful I will still be harmed upon return to Sri Lanka due to my race and imputed political opinion, given the current government.

   30.My mother, stepfather, sister and son advised that life for Tamils in Sri Lanka continues to be difficult. They still cannot live freely. The Sri Lankan authorities discriminate against Tamils and treat them with suspicion. The authorities know that Tamils are powerless. I worry about my family very much. Being separated from them is very difficult. However, I know if I return, I would be at risk of being killed and that would cause them more heartache. My mum has already lost one child, I would not want her to experience that again.

5. In the applicant’s statutory declaration dated 17 November 2020 attached to post-hearing submissions, the applicant relevantly stated as follows:

   India

   5.After I returned from [Country 3], the situation in Sri Lanka continued to worsen. I felt if I remained in Sri Lanka, I would be killed. At the time, it was very dangerous, particularly in the north for Tamils. …

   7.While I stayed with family in India, the purpose of my trip was not to visit family, the family in India with distant relatives who I had not met before. Many Sri Lankan Tamils have family in India, given many Tamils have moved India. I was concerned for the safety of my wife and son and therefore they joined me in India. Our life was difficult in India, we were monitored by the authorities. The Q branch would come and question me. The authorities monitored Tamils who had departed Sri Lanka near the end of the Civil War.

   8.In 2011, my wife and son return to Sri Lanka. I pleaded with my wife not to return to Sri Lanka, as I was worried about her and my son. However, my wife had a very close relationship with her grandmother who had been placed in an internally displaced persons camp. Many Tamils in this camp were being treated very badly. My wife was extremely worried for her grandmother and decided to return. She did not want me to return with her as she was worried, I would be at a greater risk of harm than given it was males who were usually considered to be LTTE affiliates. …

   Return to Sri Lanka

   9.If I was forced to return to Sri Lanka, I am genuinely fearful that I would be harmed. The current administration in Sri Lanka were a part of the government during the Civil War. During this period, Tamils were tortured, harassed, persecuted, and killed. The anti-Tamil agenda continues. Given I am a Tamil male from the north of Sri Lanka who fled prior to the end of the conflict and has not returned I would be treated with a high level of suspicion.

6. I note that the applicant has submitted two signed and witnessed statements purporting to be from the applicant’s mother in Sri Lanka.  Relevantly, one of these statements reads as follows:

   I am [name] who living above address awarded My son [the applicant] who went to Australia in the Year of 2011 by the reason of unfavourable situation in Srilanka he faced many threaten in the period of lived at Srilanka.  Moreover many times we called for inquiries by the CID after he went to abroad.

7. On the same document is a footnote signed by a “[named person]” being a “Grama Miladhari” which reads as follows:

   I Certify with my knowledge above applicant’s son [the applicant] went to Australia in the year of 2011 and his Parents was inquired persistently after he went to Australia.

8. This statement of Grama Miladhari above relating to the applicant’s journey to Australia certifies to a fact about which the maker of the statement had no personal knowledge.

   Findings

9. Based on the foregoing evidence I find that the applicant is a Tamil male from northern Sri Lanka.  From a young age, following the separation of his parents, the applicant was raised by his [grandparents] in [Village 1] and he had minimal contact with the second family of his mother.  The applicant’s contact with his mother’s second family was limited to routine visits, mainly by the applicant’s mother, to the applicant’s home.

10. It is significant that the applicant failed to disclose the true facts relating to his being raised by his [grandmother] in Sri Lanka from a tender age following the separation of his parents until he was closely questioned at the second hearing before the Tribunal on 26 October 2020.  It is not sufficient to answer this lack of candour for the applicant to state that he was not asked before that time.  Especially when the applicant has sought to colour his own claims by a narrative implying, as it clearly and consistently did before all prior tribunals of fact leading to the present review, that the applicant formed part of his mother’s second family unit.  This failure to fully and candidly disclose the basic facts of the applicant’s life in Sri Lanka puts much of his evidence relating to the second family of the applicant’s mother into a different light.  It also suggests that the applicant’s evidence lacks credibility in material respects.  I find, therefore, that the applicant has not appropriately disclosed or characterised the basic facts of his life in Sri Lanka as these relate to his mother or his mother’s second family.  Consequently, I find that it is not appropriate in the circumstances to give the applicant the benefit of any doubt to the extent that his evidence relates to those aspects of the applicant’s claims.

11. The applicant married a Tamil woman from the nearby village of [Village 2] in 2004.  Together, they had a son in [year] and the family unit initially lived in the village of [Village 2], which was the applicant’s spouse’s home village.  At the height of the Sri Lankan civil war, the applicant, his spouse, son and the grandmother of the applicant’s spouse relocated to Colombo as a family unit for approximately seven months.  The family unit then relocated back to [City 1] and shortly thereafter, the applicant secured employment in [Industry 1] in [Country 3].  During the civil war, the applicant was questioned a number of times by agents of the Sri Lankan state, including members of the military forces.

12. The applicant departed Sri Lanka lawfully to work in [Country 3] in 2008.  He returned to Sri Lanka voluntarily and lawfully in 2009.  On arrival, he initially returned to [City 1] and his family unit and worked as a day labourer in the area.  In 2009, through family connections, the applicant secured the possibility of employment in southern India.  In transit to this employment opportunity, he again lived briefly in Colombo.  While in that city, he was questioned by CID officers. 

13. The applicant departed Sri Lanka lawfully as planned and took up the residential and employment opportunities arranged for him by extended family members who were long-term residents in that country.  After a settling-in period of a few months, the applicant was joined in India by his spouse and their son as planned.  The applicant’s spouse and their son left Sri Lanka lawfully.

14. Some time in 2011, the applicant’s marriage became unhappy.  The applicant’s spouse and son returned to Sri Lanka voluntarily and lawfully to locate and re-join the grandmother of the applicant’s spouse in northern Sri Lanka.  The applicant remained in India.  The applicant’s family unit has not been reunited since that time.  The applicant continues to be in electronic communication with his son, but his marital relationship ended some years ago and his former spouse eventually petitioned for divorce in Sri Lanka in early 2019.

15. Following the departure of his spouse and son from India in 2011, the applicant began exploring other migration options.  Assisted by his aunt, he considered the possibility of entry into [Country 4].  After this possibility became problematic, she suggested relocating to Australia.  At this point, the applicant utilised the services of a people smuggler and departed India unlawfully by sea with the intention of entering Australia as an unauthorised maritime arrival.

16. The applicant has social contacts within the [City 2] Tamil community and has attended public Tamil cultural events since 2016, including Tamil diasporic commemorations acknowledging the Tamil perspective on the Sri Lankan civil war.

    Imputed Political Opinion as a LTTE supporter/sympathiser/member.

17. In the signed, witnessed and undated statement attached to the applicant’s original 5 February 2016 application for a SHEV, the applicant relevantly stated as follows:

    6. In left Sri Lanka in order to ensure I was not killed given the fierce war between the Tamil Tigers and the Sri Lankan Army. Due to my race, age and area of origin, my life in Sri Lanka was very difficult.  …

    7.My [step brother] was forcibly recruited to the LTTE in 2006. He fought for the LTTE between 2006 and 2009 when he was able to escape. The Sri Lankan Authorities never became aware of his involvement. My family and I lived in constant fear that the Authorities would become aware of my brother's involvement.

    8.In the beginning of 2009, the fighting in our area was very intense. My [step-siblings] and mother were crossing the river trying to avoid being harmed by a shelling attack when my [step brother] was hit and killed. My [other] step brother was also badly hurt. We later arranged for him to go to India to obtain treatment for spinal injuries that he had received.

    9.Prior to my departure from Sri Lanka, the Sri Lankan Army suspected me as a person who was involved with the L TTE activities. The L TTE policy required one member of each family must join and support them. As my [brother] had been killed by shrapnel, and my other stepbrother sustained spinal injuries, the Sri Lankan Army thought I must be supporting the LTTE as there was no one else in my family that could do so. On several occasions, the Sri Lankan Army came to my house to search me. I was in constant fear as I never knew when they might come. This made it difficult for me to live freely.

    10.After I came to Australia, in approximately April 2011, the Sri Lankan Army went to my house and threatened my wife and child. They demanded that she inform them of my whereabouts or they would be abducted. The members of the CID left their phone number with my wife for her to call and tell them what they wanted. She was required to do this by 6:00pm or be detained. My wife and child fled the house in order to avoid harm.

    11.My aunt had been contacted several times by members of the CID who were looking for me and she too was threated if she did not tell them of my whereabouts.  …

    12. Just prior to my departure from Sri Lanka. In about 2009 on my way back from church I was detained by the Sri Lankan Army and beaten. They targeted me because they say I am Tamil and they are suspicious that I support the LTTE due to my area of origin. I was held for one day. While held I was interrogated and beaten. I was told that I would be again detained in the near future. After this incident, I decided that I could not remain in Sri Lanka.  …

    15. If I was forced to return to Sri Lanka, I believe I would be harmed due to the fact I am a Tamil male from the North of Sri Lanka. Tamil males are imputed with pro LTTE sentiments and subjected to harm. The fact I fled Sri Lanka near the end of the War would further impute me with pro LTTE sentiments.  …

    17. I have been advised my family the situation in Sri Lanka remains dangerous. The Sri Lankan Authorities continue to misuse their power in order to monitor and harass the Tamil population. Further, they consider to subject individuals who they deem to be previously affiliated to the LTTE to serious harm.  …

    20. The Sri Lankan Authorities rely on torture, cruel, inhuman and degrading treatment and punishment as a means to punish and coerce individuals. Given I would be returning to Sri Lanka on a travel document, I would be detained and interrogated upon return. Due to the fact I fled Sri Lanka at the end of the War and my family has been previously involved in the LTTE, I would be subjected to significant harm upon return.

1. As discussed above, I have had regard to the letter of support apparently from the [Official 1] of the ‘[Community Organisation 1]’ dated 18 October 2020.  As indicated previously, I accept the letter in its terms, as some support for the applicant’s own sworn statements and a photograph showing the applicant in attendance at one such event, that he has participated in Tamil community remembrance events since 2016. 

2. In the applicant’s statutory declaration dated 19 October 2020 attached to pre-hearing submissions, the applicant relevantly stated as follows:

   5. When I resided in Sri Lanka, there was significant conflict between the Sri Lankan Army and the Liberation of Tamil Eelam (LTTE). Due to the conflict, there was ongoing fighting and ethnic divides. Given the conflict in Sri Lanka, my life was very difficult. The Sri Lankan Authorities treat Tamils with a high level of suspicion as they believe Tamils are supporters of the LTTE. 

   6.In approximately 2006, my [Brother A] was forcibly recruited to the LTTE. The LTTE expected a member of each family to assist with their cause. [Brother A] did not want to join them however they forced him to do so. He was a cadre for the LTTE. The Sri Lankan Authorities never became aware of his involvement with the LTTE. My brother has always lived in fear that the Sri Lankan Authorities will imprison and punish him for his LTTE affiliation.

   7.In 2009, the fighting between the LTTE and Sri Lankan Authorities increased. My half-brothers and mother were trying to escape the conflict by crossing a river. A shelling attack occurred and [Brother B] was killed by shrapnel. While my mother and [Brother A] survived, [Brother A] was seriously injured trying to assist [Brother B]. This greatly impacted my life.

   8. While living in Sri Lanka, I was suspected of being involved in the LTTE. …  On several occasions, the Sri Lankan Authorities came to my house to question me. I knew the Sri Lankan Authorities could harm Tamils as much as they wanted, therefore I lived in constant fear. 

   9.In 2009, shortly prior to my departure from Sri Lanka, I was detained by the Sri Lankan Army for one day while in Colombo. While detained, I was beaten. The Sri Lankan Authorities believed I was an LTTE supporter. Thy released me but indicated they would detain me again. I was very scared; I would not be released if detained again. Accordingly, I decided to flee the country.

   Incidents subsequent to my departure

   10. In April 2011, after I arrived in Australia, the Sri Lankan Army went to my home and threatened my wife and son. They demanded my wife inform them of my whereabouts by 6:00pm or she would be detained. My wife was scared. Her and my son fled the house to avoid harm. My [Aunt A] was also contacted by the Sri Lankan Authorities several times after my departure from Sri Lanka. She was the local Grama Sevakar (“village officer”) She was threatened that she must tell them about my whereabouts.  …

   12. In 2016, [Brother A] was detained by the Sri Lankan Authorities. He was detained while attending a court hearing for my parent’s compensation matter. While detained he was accused of being associated with the LTTE. [Brother A] was concerned for his safety and therefore advised the Sri Lankan Authorities that it was me that was involved with the LTTE not him. I had sent photos of me attending a Hero’s Day Ceremony in [City 2].  [Brother A] showed the photographs of me at this event to the Sri Lankan Authorities as proof I supported the LTTE. [Brother A] knew I had been found to be owed protection in Australia. He assumed I would not return to Sri Lankan and therefore would not face harm for these accusations. The Sri Lankan Authorities advised [Brother A] that if my parents dropped their case for compensation, they would release him. As [Brother A] was involved with the LTTE, my mother and stepfather were very worried the Sri Lankan Authorities would harm him therefore they discontinued their case for compensation.

   13. My mother and stepfather have informed me that from 2018 onwards, the Authorities continued to harass [Brother A]. [Brother A variant] has a lot of scarring on his body. The Authorities believed that he may have fought for the LTTE due to this scaring. In October 2019, my brother [Brother A variant] fled Sri Lanka. He fled to [Country 5] and intended to travel to [Country 4]. My family however lost contact with him after he arrived in [Country 5]. My aunt has lodged a request with the International Organisation for Migration (‘IOM”) to try to find information about his whereabouts. She has not been able to obtain information about his whereabouts. We are very worried something has happened to him on his journey. It is difficult for me to speak to my parents to obtain information about my brother, as they are scared they are being monitored by the Sri Lankan Authorities who have shown they are interested in obtaining information about my brother.

   15.Each year since 2016, I have attended Hero’s Day and Rememberance Day Commemoration in [City 2].  Hero’s Day occurs on 27 November and is to remember the fallen Heroes who sacrificed life for Tamil Community. We remember them and pay our respect. Remembrance Day is on 18 May each year, we remember the death of militants who died for the LTTE. The Tamil Community in [City 2] organise these events. They often collect donations to hire a venue for these events.

   16.As a Tamil, I have a respect for the sacrifices made by people who have fought for our community. I believe they deserve to be honoured and therefore I attended these events to provide my respect. I also assist organise the days, by setting up the hall, putting up banners and pictures of the fallen hero’s the day before the event.

   17. While I attend these events to pay my respects, I am concerned that the Sri Lankan Authorities will suspect I am supportive of the Tamil diaspora and therefore treat me with a higher level of suspicion upon return to Sri Lanka. The Sri Lankan Authorities are concerned that the Tamil diaspora will assist the LTTE reform in Sri Lanka. …

   21. I fear harm due to the fact I am a Tamil male from the North of Sri Lanka. Tamil males from the north of Sri Lanka are automatically imputed to be LTTE affiliates.  I fled the country near the end of the War this will further result in the Sri Lankan Authorities believing I was involved with the LTTE. I am further at risk of being treated with a high level of suspicion and harm given my brother’s admission to the Authorities that I was an LTTE affiliate.  The Sri Lankan Authorities are aggrieved by the LTTE and want to punish LTTE affiliates and make sure the LTTE do not resurge. My brother showed the Authorities a photograph of me at a Hero’s Day Ceremony.  The Sri Lankan Authority will deem my attendance at this ceremony as further evidence I am aligned with the LTTE. I am very scared I would be detained at the airport and interrogated by the Authorities who would want to obtain further information about me. The Sri Lankan Authorities continue to rely on torture to punish people and obtain information from them. I am concerned during this interrogation; I would be seriously harmed. I do not believe I would be released. If I were, I would be monitored and unable to live freely.  …

   22.… confession of my brother is likely to be me being treated with a high level of suspicion and serious harm. The fact my brother has now fled the country, is likely to result in the Authorities questioning me about his whereabouts, given they were interested in him prior to his departure. I also had an uncle that was in the LTTE, he was a soldier on the frontline. The Sri Lankan Authorities may think I am member of an LTTE family and further treat me with suspicion.  …

   Comments on the primary decision

   24. The delegate accepted I was detained prior to my departure from Sri Lanka. I request the Tribunal also accept this claim. However, the delegate found that the Authorities were not interested in me at the time I left the country. While I was only detained for a short period in Sri Lanka, I was threatened I would be detained again. I was scared I would face more serious issues, therefore left Sri Lanka. At the time, I departed, there was a high level of chaos in Sri Lanka, due to the escalation of the War. Therefore, I was able to leave without issue. I travelled to India, where the Authorities also monitor Sri Lankas, I may have had more difficulty leaving if I went to another country. If was to return, I fear I would be detained upon re-entry as I would now be considered an LTTE affiliate.

   26. The delegate accepted my half brother was detained and advised that I am an LTTE affiliate. He acknowledged that my half-brother thought I was safe in Australia due to being found to be owed protection obligations and therefore made up information about me to safeguard himself. However, the delegate found the photo my half brother showed to the Authorities of me at a Tamil event in Australia was not enough to prove I am LTTE affiliate. I respectfully disagree. The Sri Lankan Authorities believe that individuals who attend these events are very supportive of the LTTE. I have continued to attend events of this nature in Australia as it is important to me to pay my respects to Tamils who have sacrificed their lives. The Sri Lankan Authorities want to punish Tamils, they have a deep hatred for us. The confession of my brother and photo he showed them would be enough for them to believe I was an LTTE affiliate.

   27. The delegate indicated that only high level LTTE members are at risk of harm upon return to Sri Lanka. I disagree with this. The Sri Lankan Authorities continue to treat members of the Tamil community and anyone they suspect of an LTTE affiliation very badly. They are very worried that the LTTE will resurge and therefore continue to monitor our community.

   28. The delegate found the situation in Sri Lankan has improved, I respectfully disagree; it is still dangerous especially for Tamils. The delegate found the situation in Sri Lankan has improved, I respectfully disagree; it is still dangerous especially for Tamils. Given my race, area of origin, brother’s confession about me and the fact I left the country near the end of the war and have remained abroad since, I strongly believe I will be detained, interrogated and harmed if returned to Sri Lanka.

3. In the applicant’s statutory declaration dated 17 November 2020 attached to post-hearing submissions, the applicant relevantly stated as follows:

   Contact with mother, stepfather, and siblings in Sri Lanka

   3.I wish to clarify that while I lived with my grandmother after my parents separated, I spent time with my mother, stepfather, and half siblings at least once per week. As I explained my hearing, they would come and visit me. They lived approximately 5 km away, it was easy for them to come and visit. Even though I did not live with them on a permanent basis, I am still a part of their family and have a close connection with them. I do not believe the fact I did not live with my mother, stepfather, and siblings, reduces the risk I would be harmed upon return to Sri Lanka. Authorities consider me to be a part of their family. The fact [Brother A] advised the authorities while he was detained that I was a member of the LTTE, makes me feel very scared about returning to Sri Lanka. I am also worried I will be interrogated by the authorities, if returned to Sri Lanka, about his whereabouts given he has now fled the country. …

   5.…  As explained in my hearing, while living in [City 1] I was scared I would be arrested as mine national identity card at my address is Vanni. In the Vanni, the LTTE had forced many Tamils to fight for them. Therefore, I was concerned I would be considered to be an LTTE member due to my national identity card. I was also concerned I would face issues due to my half-brother’s involvement with the LTTE. Therefore, I decided to flee to India and hope it would be safer.  …

   8.In 2011, my wife and son return to Sri Lanka. I pleaded with my wife not to return to Sri Lanka, as I was worried about her and my son. However, my wife had a very close relationship with her grandmother who had been placed in an internally displaced persons camp. Many Tamils in this camp were being treated very badly. My wife was extremely worried for her grandmother and decided to return. She did not want me to return with her as she was worried, I would be at a greater risk of harm than given it was males who were usually considered to be LTTE affiliates. …

   Return to Sri Lanka

   9.If I was forced to return to Sri Lanka, I am genuinely fearful that I would be harmed. The current administration in Sri Lanka were a part of the government during the Civil War. …  My brother’s confession that I am a LTTE affiliate, particularly given he provided a photo of me at Hero’s Day Ceremony to the authorities places me at an even greater risk of harm. The Sri Lankan authorities have not changed. They continue to harm Tamils, especially those who they suspect to support the LTTE. I cannot return to Sri Lanka. If I was forced to return, I would be at risk of being killed.  …

   11.…  I reiterate that the fact my brother has told the Sri Lankan authorities I am an LTTE affiliate, makes me very scared to return to Sri Lanka.

   Findings

4. I accept that the applicant developed an interest in commemorating the participation of the Tamil community during the Sri Lankan civil war while living in [City 2] from November 2016.  I find nothing in the applicant’s evidence to suggest that he was ever supportive of, or involved in, any LTTE-related activities before this time.  Based on the foregoing evidence I accept that the Sri Lankan authorities may have some knowledge of the applicant’s participation in the civil war commemorative events arranged by the Tamil community in Australia since November 2016.

5. I acknowledge the applicant’s evidence that his half-brother [Brother A] identified the applicant as an LTTE sympathiser or operative in late 2016 during interrogation of that person by members of the Sri Lankan Army.  I do not accept that the evidence is determinative of the veracity of the applicant’s claim in this respect.  I likewise accept the applicant’s claims to have had an ‘uncle that was in the LTTE, he was a soldier on the frontline.’  This claim, which ought reasonably have been made earlier by the applicant, given the terms and context in which it has been made, does little more than re-state the applicant’s broader claim to being imputed with LTTE affiliation or sympathies.

6. The applicant stated that he remained in contact with his half-brother [Brother A] until either late-2019 or the first half of 2020 (depending on which of the applicant’s statements one relies upon).  The applicant has provided no corroborating evidence in support of this integer of his claims despite having been in constant contact with his family in Sri Lanka since departing Sri Lanka in 2009.  I acknowledge that the applicant has suggested that this is because his family in Sri Lanka fears state surveillance of Tamils.  However, this suggestion is at odds with the applicant’s other claims that his aunt in Sri Lanka has been seeking information outside of Sri Lanka about the whereabouts of the applicant’s half-brother [Brother A].  The suggestion is also at odds with the applicant’s open online-sharing of personal information relating to his attendance at pro-Tamil events in Australia.  Despite this, the applicant’s evidence is that his [son] and the applicant’s grandmother both remain in their respective home villages. 

7. I acknowledge the brief written statements referred to above which suggest that there were ‘visits’ and ‘inquiries’ after the applicant departed Sri Lanka in 2009.  These statements include one from the applicant’s mother which states; ‘Moreover many times we called for inquiries by the CID after he went to abroad.’  The other statement is from an aunt of the applicant to the effect that; ‘his Parents was inquired persistently after he went to Australia’.

8. Accordingly, there is nothing before the Tribunal to suggest that the applicant’s son or grandmother in Sri Lanka have experienced physical harassment, intimidation or threat in Sri Lanka from agents of the Sri Lankan state for the essential or significant reason of their association with the applicant.  The applicant’s evidence relating to the basic facts of his life before 2009 in Sri Lanka and relevant events in Sri Lanka post 2009 lacks coherence.  There is an unaccountable absence of meaningful corroborative evidence over an extended period of time that would support key aspects of the applicant’s claims, given the applicant’s continuous contact with close family members in Sri Lanka since his departure in 2009.  These considerations suggest that his claims are unacceptably vague and lacking in credibility.

9. On balance, taking the applicant’s evidence at its highest there is insufficient material to support the applicant’s contention that his half-brother [Brother A] informed against the applicant during an interrogation by Sri Lankan authorities in 2016, as the applicant has suggested.  As indicated above, I am disinclined to give the applicant the benefit of the doubt relating to these claims.  However, having accepted that the Sri Lankan state may have knowledge of the applicant’s participation in Tamil community civil war commemorations in Australia since late 2016, this matter is not material to the question of the applicant’s imputed support for the LTTE on return to Sri Lanka now or in the reasonably foreseeable future.  I accept that the applicant may be imputed with generalised LTTE support given his lengthy membership of the Sri Lankan Tamil diaspora. 

10. Balanced against this possible imputation is the fact that the applicant’s former spouse and child returned voluntarily to Sri Lanka and have lived peacefully in that country since 2011.  The applicant’s mother and stepfather and stepsister all live in northern Sri Lanka.  The fact that the applicant’s mother and stepfather may have experienced official harassment aimed at discouraging valid legal claims against the Sri Lankan Army suggests official harassment and discrimination against the Tamil individuals in question, but this family unit does not, and never has, included the applicant personally given that he was raised in another village by his grandmother.  I accept that the applicant’s former spouse may have been questioned about the applicant’s whereabouts in 2011, shortly after her return without him to Sri Lanka from India.  The singularity and datedness of such an inquiry, and the absence of any corroborating evidence is more suggestive that the applicant is not of continuing interest to the Sri Lankan authorities than it is suggestive that there is any current interest in the applicant by those agencies.

11. I accept the premise that the Sri Lankan authorities may inquire about the whereabouts of one of its citizens with members of their immediate or extended family still resident in that country.  However, balanced against this is the fact that, like innumerable Sri Lankan citizens over time, the applicant (and subsequently his spouse and their [child]) departed Sri Lanka lawfully on valid passports and visas and travelled to India in 2009.  His spouse and child returned lawfully to Sri Lanka in 2011.  While it is possible that such inquiries may have been made, I do not accept the premise that those inquiries necessarily would have been addressed to the residence of a mother (with whom the applicant has not resided since).  As discussed above, the applicant’s sworn statements about the nature of his relationship with his mother’s second family has lacked transparency and clarity over time.  On 14 April 2011 the applicant stated:

    My parents separated after I was born. I then lived with my mother. My father died in [2011]. My Mother and her husband are alive and live in Sri Lanka

139.   Accordingly, I find that, on return to Sri Lanka, it is likely that the applicant will be held at the airport and administratively processed in a manner that conforms with Sri Lankan law as it applies generally.  He may specifically be questioned about his support for pro-LTTE causes and Tamil independence while in Australia.  This support has been in the nature of the most general and anodyne, amounting to being helpful and showing respect.  Based on my findings above, there is nothing in the applicant’s history that would give rise to the applicant being imputed with a particular profile of interest to Sri Lankan authorities for any reason relating to his life in Sri Lanka.  Accordingly, I find on balance that he would be released after being questioned on arrival at the airport in Sri Lanka.

140.   Based on the DFAT country information discussed above, I find that the applicant may face monitoring by Sri Lankan security agencies on return to his home area.  I find that, following his questioning at the airport, he would be free to return to his home area to one or other of his familiar home villages.  He would not be denied access to any of his former family, almost all of whom, on the applicant’s own evidence, still reside in relative safety in that country.

141.   On the basis of the foregoing, while I accept that the applicant may face some discrimination on return to Sri Lanka now or in the reasonably foreseeable future for the essential or significant reason of his actual or imputed Tamil identity, I am not satisfied that this would give rise to a real chance of serious harm to the applicant on return.  Having found that the applicant does not meet the criterion at s.36(2)(a) of the Act, I have considered the alternative, complementary criteria at s.36(2)(aa) of the Act.  I note that the threshold for the real risk of significant harm is the same as that for the assessment of the real chance of serious harm.  For the reasons I have given above, I am not satisfied that, as a necessary and significant consequence of the applicant being returned to Sri Lanka that he would face a real risk of significant harm from any person because of his actual or imputed Tamil identity now or in the reasonably foreseeable future. 

Imputed Political Opinion as a LTTE supporter/sympathiser/member.

142.   As indicated above, I have relevantly found as follows:

a)    I accept that the applicant developed an interest in commemorating the participation of the Tamil community during the Sri Lankan civil war while living in [City 2] from November 2016.  I do not accept that he was ever supportive of, or involved in, any LTTE-related activities before this time. 

b)    I accept that the Sri Lankan authorities may have some knowledge of the applicant’s participation in civil war commemorative events arranged by the Tamil community in Australia since November 2016.

c)    The applicant’s evidence relating to the basic facts of his life before 2009 in Sri Lanka and relevant events in Sri Lanka post 2009 lacks coherence.  There is an unaccountable absence of meaningful corroborative evidence over an extended period of time that would support key aspects of the applicant’s claims, given the applicant’s continuous contact with close family members in Sri Lanka since his departure in 2009.  These considerations suggest that his claims are unacceptably vague and lacking in credibility.

d)    In particular, the applicant’s sworn statements about the nature of his relationship with his mother’s second family has lacked transparency and clarity over time.  This failure by the applicant to fully disclose the basic facts of his early life in Sri Lanka at the first reasonable opportunity does not appear to be reasonable in all the circumstances.  I do not accept that anything arising from the lived experience of the second family of the applicant’s mother gives rise to the applicant being imputed with a particular profile of interest to the Sri Lankan authorities for any reason arising from actual or imputed LTTE affiliation.

e)    I accept that the applicant may be imputed with generalised LTTE support given his lengthy membership of the Sri Lankan Tamil diaspora. 

f)     I do not accept that the applicant’s claims to be a person of continuing interest to Sri Lankan authorities after his lawful departure to India in 2009 are credible.

Country information

143.   Regarding those members of the Tamil Sri Lankan diaspora overseas who have demonstrated solidarity with or support for the LTTE-cause during the civil war, DFAT states as follows:[43]

[43]DFAT Country Information Report Sri Lanka (4 November 2019).

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.

144.   I note that the treatment of returning Sri Lankan citizens is addressed as follows by DFAT:

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.

145.   And:

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.

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

146.   With respect to the treatment of returnees, I note DFAT’s most recent assessment is as follows:[44]

[44]DFAT Country Information Report Sri Lanka (4 November 2019).

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.  …

5.46 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.

147.   The United Kingdom’s Upper Tribunal found, in the 2013 case of GJ and others that an ongoing risk category of relevance in assessing asylum claims for that jurisdiction included:[45]

[45][2013] UKUT 00319 (IAC) (5 July 2013) at [356].

Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka

148.   In the same decision, the UK Upper Tribunal also found that:[46]

[46]Id.

In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government

149.   The UK Home Office’s May 2020 advice that:[47]

[47]UK Home Office, Country Policy and Information Note – Sri Lanka: Tamil separatism, May 2020 at [2.4.13].

Available evidence suggests that whilst Tamils may sometimes be subjected to discrimination, they are unlikely to face persecution based on their ethnicity alone. People returning to Sri Lanka after a long period of absence are, irrespective of their ethnicity, likely to be questioned on arrival by immigration officials. This is a standard procedure to confirm their identity, check for outstanding criminal offences and make relevant checks with local police in the area where the person claims to have previously lived. Where someone has had previous links to the LTTE they may be questioned further but it will depend on the individual case and may not necessarily mean that a person is detained. Tamils returning from abroad are generally monitored in the community and the period of monitoring by local police can vary. There is no evidence to suggest that all returning Tamils are at risk of being perceived to have links to the LTTE, or if they do have links that this is a problem for them on return, as the LTTE is viewed as a spent force with previous combatants having been rehabilitated and absorbed into society with some, for example, being employed by the security forces or civil defence force or given government employment as bus drivers and conductors

150.   With respect to ‘stop and watch lists’, the UK Upper Tribunal has identified persons on such lists as constituting an identifiable risk category of returnees.  In this respect the following UK Home Office advice is noted:[48]

[48]Ibid at [2.4.46].

The airport maintains a list of persons-of-interest to law enforcement agencies that have violated Sri Lankan law, those on the ‘stop list’ are persons who have a warrant outstanding, or order to impound their Sri Lankan passport. This is monitored on exit and entry. Those on the ‘watch list’ are persons that are of interest to the authorities including for suspected separatist or criminal activity.

151.   I have considered the evidence of the applicant at the hearings, and the further written submissions including the applicant’s additional statements and other written submissions made by the representative on the applicant’s behalf. 

152.   In particular, I note the following passage from the submissions of the applicant’s representative dated 23 September 2020:[49]

[49]Representative’s Submission, 23 September 2020, at (6).

The Applicant instructs that the fact he has fled to Australia seeking asylum will simply increase his chances of being detained by the Sri Lankan authorities upon his return. He instructs that he will be interrogated by the authorities upon his arrival and either killed or imprisoned indefinitely. The Applicant is likely to be easily identifiable upon return to Sri Lanka as a failed asylum seeker especially given the prolonged period of time, he has spent in a Western Country and given he would return on a travel document. The Applicant claims that the authorities will accuse him of being a spy and punish him accordingly. He instructs that given he is a Tamil male who fled the country; there is no doubt he would be subjected to harm upon return. Further country information outlined below further supports the notion the applicant would be at risk of serious harm upon return to Sri Lanka due to his membership of this particular social group.

153.   It is by no means clear that ‘returnees from the west/ failed asylum seekers’ meet the relevant requirements of a ‘particular social group’ in the relevant sense.  However, proceeding for the purposes of inquiry on the assumption that it may, it will be appreciated that the applicant’s departure from Sri Lanka in 2009 has been found above to have been both orderly and lawful.  While his departure from India in 2011 and arrival in Australia was unlawful (and by means of people smugglers to whom he paid a fee), the applicant has never claimed to have ‘fled’ India where he had lived lawfully for more than two years.  I accept that the applicant may be identified as a failed asylum seeker, given his likely means of arrival in that country.  While the applicant may hold apprehensions about what awaits him on return to Sri Lanka, or even subjective fears, the Act requires that the assessment of Australia’s international protection obligations be based on probative evidence, including relevant country information.

154.   It will be appreciated that the relevant country information surveyed above is not consistent with the applicant’s claims relating to the potential circumstances of his return to Sri Lanka in material respects.  This assessment is based primarily on the foregoing findings relating to the applicant’s Tamil identity and about the applicant’s claims to be an imputed LTTE supporter.  I have found above that, on return to Sri Lanka, it is likely that the applicant will be held at the airport and administratively processed in a manner that conforms with Sri Lankan law as it applies generally.  I accept that the applicant may specifically be questioned about his support for pro-LTTE causes and Tamil independence while in Australia.  As already discussed, that support has been in the nature of the most general and anodyne, amounting to being helpful and showing respect.  Based on my findings above, there is also nothing in the applicant’s history that would give rise to the applicant being imputed with a particular profile of interest to Sri Lankan authorities for any reason relating to his life in Sri Lanka.  Accordingly, I find on balance that he would be released after being questioned on arrival at the airport in Sri Lanka. While I accept that the applicant’s close questioning at the airport and future monitoring on return to his home village might constitute discriminatory conduct, I am not satisfied that it reaches the threshold of either serious harm or significant harm for the purposes of s.36(2)(a) or s.36(2)(aa) of the Act.

155.   By reference to the DFAT country information surveyed above, I accept that the applicant may face monitoring by Sri Lankan security agencies on return to his home area.  Following his questioning at the airport, he would be free to return to his home area to one or other of his familiar home villages.  He would not be denied access to any of his former family, almost all of whom, on the applicant’s own evidence, still reside in relative safety in that country.

156.   On the basis of the foregoing, while I accept that the applicant may face some discrimination on return to Sri Lanka now or in the reasonably foreseeable future for the essential or significant reason of his membership of what might be termed the particular social group ‘returnees from the west/ failed asylum seekers’, this would not amount to a real chance of serious harm to the applicant on return for the purposes of s.36(2)(a) of the Act. 

157.   Having found that the applicant does not meet the criterion at s.36(2)(a) of the Act, I have considered the alternative, complementary criteria at s.36(2)(aa) of the Act.  I note that the threshold for the real risk of significant harm is the same as that for the assessment of the real chance of serious harm.  For the reasons I have given above, I am not satisfied that, as a necessary and significant consequence of the applicant being returned to Sri Lanka that he would face a real risk of significant harm from any person because of his being a returnee from the west/ failed asylum seeker now or in the reasonably foreseeable future. 

CONCLUSION

158.   The applicant’s evidence, taken at its highest, does not satisfy the Tribunal that he faces a real chance of persecution for the essential and significant reason of his being a Tamil male from northern Sri Lanka who is an imputed LTTE supporter/sympathiser/member and a returnee from the west/failed asylum seeker. 

159.   As discussed above, the applicant is not a person for whom Australia owes protection obligations under either s.36(2)(a) or s36(2)(aa) of the Act for the essential and significant reason of his being a Tamil male from northern Sri Lanka who is an imputed LTTE supporter/sympathiser/member and a returnee from the west/failed asylum seeker.

160.   With regard to the applicant’s more recent evidence about his medical condition, the applicant did not raise any particularised claims for protection relating to this.  The medical report provided in submissions makes no comment about the applicant’s prognosis beyond indicating that he is recovering from [a condition] and being treated for allergic rhinosinusitis. 

161.   There is no material before the Tribunal to suggest that the applicant’s medical evidence bears upon the assessment of the applicant’s protection claims under either the refugee criteria at s.36(2)(a) or the complementary criterion at s.36.(2)(aa) of the Act.

162.   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

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

Dr Colin Huntly
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.

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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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