1723126 (Refugee)

1723126 (Refugee) [2023] AATA 2226 (6 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723126
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Genevieve Hamilton
DATE:6 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2023 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity – Tamil – actual or imputed political opinion – social group – Tamil fisherman – Tamil fisherman from Udappu – asylum seeker – departed illegally – long term resident in the West – subjected to extortion attempt – family visited by authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 July 2016. The delegate refused to grant the visa on 22 September 2017.
The applicant appeared before the Tribunal on 2 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
The applicant was an unauthorised maritime arrival and accordingly was interviewed by the Department on 17 July 2012. He said he was born in Sri Lanka (Puttalam District, Northwestern Province) on [date] and supplied a copy of his Sri Lankan ID card which, translated, confirmed this information. He is Tamil, his wife and two children, mother and siblings live in Sri Lanka. Asked what happened that led him to leave Sri Lanka, he stated that as a fisherman, he had to get a Navy pass; and in order to do so was required to hand over his ID card and until it was returned he would not be able to use it for purposes such as going to the hospital. This was a problem several times in 2003. He didn’t leave Sri Lanka then because there was no opportunity to do so. Asked if he had ever been arrested or detained by the police or security organisations, he replied “No.” When asked if the police and security and intelligence had any other impact on his day-to-day life in Sri Lanka, he replied “No.” He stated that if he returned to Sri Lanka they would suspect he had given information about Sri Lanka to Australia. He could not say what they thought he might have said.
On 9 September 2012 the applicant made a protection visa application. In a supporting statutory declaration he said he was issued with a passport at some stage, but it was taken from him by an agent. His father was killed by an unknown person when the applicant was young. [In] February 2010 his daughter went to hospital as she was ill. Early the next morning he handed his ID to the navy and 2000 rupees to get his fishing pass as per normal for Tamil fishermen. It required them to return to shore before 7 am. Otherwise they would be detained and made to work in the camp without pay. On his way to the market on his bike, he was stopped at a navy camp and they demanded his fish. He said he didn’t have enough for his expenses and food for his family. He was allowed to pass, but when he went back to the Navy office to collect his ID he was questioned about not having handed over his catch, and told that all Tamils must give some fish on their return. The applicant explained that he didn’t catch enough. He was punched and kicked and still carries scars from this. His mother in law was alerted, and came from the hospital, he was released in the afternoon.
On 20 April he was late returning to shore because he had engine trouble. This excuse was not accepted and he was demanded [amount] rupees. He was given until 20 May to pay it. This wasn’t a fine, but a bribe, each person would in such a situation would be “fined” different amounts”. The applicant said he would need more time to raise such an amount. On 27 April he was told to report to camp, and when he said he didn’t have the money he was severely beaten and warned next time he would be killed or a case would be fabricated against him and he would be incarcerated for a very long time. The applicant decided to leave Sri Lanka, and did so [in] May. He would be harmed on return because of this, and because he is Tamil, and because he is from the Northwestern Province, and because he has sought asylum in another country.
In his protection interview the applicant reiterated his claims and said that the Navy was still going to his house to demand the money.
The Department refused the applicant a protection visa, the decision was reviewed by the Refugee Review Tribunal (differently constituted), with the aid of a submission by the applicant’s then representatives dated 27 February 2013, and was remitted on 28 June 2013 with a direction that the applicant was a refugee.
The Tribunal Member cited reports of Udappu Tamil civilians being detained during the war and suspicions about fishermen in particular (citing a world socialist report referred to below). The Member referred to a well-known likely war crime where 5 fishermen and another person were found dead on a beach in Pesalai in 2006. The Member also cited post war tensions between Sinhala and Tamil fishermen and related protests. They referred to a May 2006 (not 2012 as cited) Asian Tribune article about allegations Navy personnel were extorting money from people leaving Sri Lanka. The Member stated that the applicant had been informed by his wife that officials came to their house in January 2013 asking the applicant’s whereabouts. They cited an International Crisis Group report about the wide range of occupations involved in the LTTE administration and therefore the range of people caught up in investigations after the war. The Member referred to reports about the ongoing paranoia of the regime about reignition of pro-LTTE opinions, the negative view towards the Tamil diaspora and suspicion of Tamil returnees, and ongoing NGO reports of torture and killing of detained suspected LTTE sympathisers. The Tribunal found the applicant to be credible as regards his claims, and concluded he was at risk of being interrogated, imputed with a pro-LTTE political opinion, exacerbated by being a failed asylum seeker, and faced a real chance of serious harm.
The applicant was granted a temporary safe haven visa and later applied for a further protection visa, the refusal of which is the decision currently under review. By way of making his claims, the applicant relied on the RRT decision referred to above.
At the interview with the case officer on 7 September 2017 the applicant raised new information which was that his uncle had been detained by people who were looking for the applicant, for two days [in] August 2014. He didn’t mention it before because his agent said he didn’t need to. He didn’t know who detained his uncle (they were in civilian clothes) or where he was taken. It was because he hadn’t paid the money. Two people had come and threatened his wife in January 2013. He had been fishing since 2000, he bought his boat in 2005. The area was controlled by the Government (although Tamils could be rounded up if weapons were found in the area) and the Navy patrolled the sea. The applicant recounted the claimed events in February 2010 and 2012 as per his written claims. He said the Tamil fishermen were also made to work at the military camps.
In a post interview submission on the applicant’s behalf, it was contended that he faced a real chance of serious harm on the basis of this Tamil ethnicity, his membership of particular social groups Tamil fishermen, Tamil fishermen from Udappu, imputed political opinion (pro LTTE, as a Tamil fisherman), having left Sri Lanka illegally, lived in a Western country with a Tamil diaspora for many years, and a failed asylum seeker.
In their decision the Delegate referred to information indicating that Navy did not issue fishing passes after the end of the war, but for security reasons the army was still carrying out security checks on boats before they went out to sea in order to prevent smuggling, by checking registration details against information held by local fishing cooperatives. The Department of Fisheries was the only body issuing fishing licences (DFAT cable 29 November 2012 CISNET CX299951). The Delegate also referred to a news report about the difficulty for Tamils obtaining a work permit for fishing, including requiring signatures of navy and military personnel. It is not clear if the information reported also applies to Sinhalese fishermen (CX294618 The Weekend Leader 20 August 2011).
The Review application
The applicant made a statutory declaration dated 19 August 2022 in support of the review application stating as follows: his sister in law had passed away leaving her disabled husband, and their two children, dependent on the applicant and his wife. He was afraid he would be detained, interrogated, tortured or killed by the Sri Lankan authorities or paramilitary groups. He left Sri Lanka because he was a Tamil fisherman which put him in danger of being killed in Sri Lanka. Over 20 years fishing he experienced a lot of difficulties with the authorities. They interfered with work and would stop and question fisherman going out to sea in order to disrupt and delay them. In 2010 the authorities demanded his catch. When he refused they took him to the military camp and beat him. The camp is still there today (photo submitted). On a number of occasions he was rounded up with others from his village and taken to a camp to be beaten and released a few days later. The last time this happened was in 2010. Since then the situation for people like him had only become worse. People he knows are being abducted and killed. One person was a Tamil fisherman on the boat with him (a neighbour) who had been returned to Sri Lanka. The applicant’s wife told him this person’s wife told her he was abducted by the authorities in July 2021, probably because of being a failed asylum seeker, and a Tamil fisherman therefore associated with the LTTE. No one has heard from him. Other Tamils have been abducted. One was on a boat turned around by the Australian government in 2022. They are taken to the fourth floor of the CID building in Colombo. In August 2021 the applicant’s wife told him the authorities had come to the house looking for him. They were very threatening. Now she sleeps at her mother’s house. The applicant said it would be difficult for him to get a job and survive in Sri Lanka. He couldn’t go back to being a fisherman because it was dangerous and there were so many issues. He can’t work in a factory because the authorities will find him. The economic crisis meant that his extended family is struggling to survive and he was concerned about not being able to survive and support them. The applicant said he was having medical problems, and was prescribed medication for dizziness, and his anxiety about the situation in Sri Lanka was affecting his ability to concentrate and recall.
At the Tribunal hearing the applicant said he began preparing to leaving Sri Lanka in April 2012 because he was very fearful and his uncle advised him that Australian was an option.
He confirmed he paid [amount] rupees, or rather he owed it to the smuggler, he sent the money to his wife and she paid it. The applicant said he used to fish in [location] as well as in Udappu and whenever there were problems with the LTTE there the Tamils would be rounded up. There were also roundups in Udappu if weapons were found.
He recounted the incident where because he had a low catch he refused to give any to the Navy and was beaten. And then the incident where he was late back from fishing and was beaten and [amount] rupees demanded or he would be killed, or a claim fabricated against him and he would be disappeared. He had to pay by the 20^th of May. It was also common for the Navy to make fishermen work for them.
The Tribunal put to the applicant the country information cited in the Delegate’s decision that the Navy were no longer issuing fishing passes after the war ended, but carried out security checks to prevent smuggling, by checking registration details against information held by local cooperatives. The applicant said they still did issue passes for a time after the war ended.
There was some discussion about normal charges for fishing licences. The applicant said it was 15-20,000 in the first year, his uncle paid for his and he paid him back slowly, and then 2000 every six months.
The Tribunal put to the applicant that he had not mentioned being beaten in his entry interview and that according to that interview nothing happened to him after 2003. The applicant noted that his claims were considered by the RRT. The applicant also referred to his injuries and said they could not have happened any other way.
The Tribunal asked the applicant why someone was looking for him in 2013. The applicant said because he didn’t pay the [amount] and went overseas they said “we will not give him back alive or dead”. Later when they came looking for him his neighbour was abducted instead, and his wife was threatened. The Tribunal asked why they kept coming if they knew he was overseas. The applicant said they wanted to find out if he was back, and they didn’t have access to the immigration records. They also came in August 2021. The Tribunal asked why they would come again so many years later. The applicant maintained it was because he didn’t obey their orders.
The applicant said he was also at risk because he was a Tamil and because he left illegally. The Tribunal said the rules around illegal departure from Sri Lanka appeared to apply equally to everyone.
The applicant said people were being abducted and taken to the CID’s office on the 4^th floor in Colombo. His uncle had been detained by people in civilian clothes and blindfolded and taken to a dark room where he was interrogated.
The applicant was also concerned about the economic and humanitarian situation in Sri Lanka. His sister-in-law had broken her leg and was not treated because of the crisis. The pain was so bad she committed suicide.
On 4 October 2022 the Tribunal wrote to the applicant in accordance with s 424A inviting him to comment on adverse information. The letter read in part as follows:
The particulars of the information are:
In your entry interview conducted on 17 July 2012, you were asked what happened
to you that led you to leave Sri Lanka. You stated that as a fisherman, you had to
get a Navy pass; and in order to do so you were required to hand over your ID card
and until it was returned you would not be able to use it for purposes such as going
to the hospital. This was a problem for you several times in 2003. You didn’t leave
Sri Lanka then because there was no opportunity to do so at that time. When
asked if you had ever been arrested or detained by the police or security
organisations, you replied “No.” When asked if the police and security and
intelligence had any other impact on your day-to-day life in Sri Lanka, you replied “No.”
This information is relevant to the review because you did not mention, at that
interview, that you had ever been detained or beaten or experienced a demand for
money that you could not afford to pay. You did not mention any problems with the
authorities since 2003. This is inconsistent with the clams later made in your
protection visa application and may cause the Tribunal to doubt whether those claims
are true.
If we rely on this information in making our decision, we may find that you do not have
a well-founded fear of persecution, which would be a reason for affirming the
Delegate’s decision.

The applicant replied with a further statutory declaration stating that he had been on the sea for 18 days when he arrived in Australia, heartbroken about leaving his family and not in a proper mind set. He was afraid if he disclosed events in his entry interview the Australian government would return him to Sri Lanka and would share the information with the Sri Lankan government. If the Sri Lankan government knew he had told all that had happened to him he would be punished on return to Sri Lanka or that they would harass his family as they previously have. This view was informed by his previous dealings with the Sri Lankan authorities. He had seen videos of Sri Lankan fisherman protesting against the Sri Lankan Government and a boat being set on fire by the Government. This added to his fears.
The declaration was accompanied by a video file showing a violent protest in Mullaitivu.The applicant also submitted a compilation of sources of country information provided to him by Amnesty International. These are relevantly summarised as follows:
Human Rights Watch World Report 2016: stating that the PTA (Prevention of Terrorism Act) continued to be used after the war to detain people suspected of links to the LTTE, including forcibly returned asylum seekers. Police continued to torture and ill treat people taken into custody.
Amnesty International Report 2017/2017 Sri Lanka: Tamils suspected of links to the LTTE continued to be detained under the PTA. Torture and other human rights abuses persisted, including against human rights defenders and journalists. Tamils continue to complain of ethnic profiling, surveillance and harassment by police. The PTA was used disproportionately against Tamils.
International Crisis Group: Sri Lanka’s North, the denial of minority rights, 16 March 2012: the forcible registration of Tamils in all districts of the North, overt surveillance and the use of a large network of informers. In a footnote it is stated that Tamil and Muslim fishermen in the North and East required specially military issued ID cards to pursue their livelihoods.
Carnegie India: The India Sri Lanka Fisheries Dispute… in the Palk Bay. Properly read, the article relates to the treatment of fishermen from Tamil Nadu (not Sri Lankan Tamils), due to Indian trawling, and poaching in Sri Lankan waters, and Sri Lankan fishermen protesting about lack of Sri Lankan Government action to prevent this.
Asylum Research Consultancy (a UK NGO) report dated March 2016: a compilation referring to:
HRW allegations that torture of failed asylum seekers with suspected links to the LTTE has been “documented”.
A TNA politician stating in April 2015 that failed Tamil asylum seekers had been arrested by the TID at the airport.
Norwegian Landinfo report July 2015 stating that media have reported Tamils previously in the UK have been arrested and tortured on return to Sri Lanka. But Landinfo itself has not received any such reports.
International Truth and Justice Project (a pro-Tamil NGO based in South Africa) says it has taken statements from witnesses who sought asylum and were detained and tortured etc on return to Sri Lanka.
The ICG report referred to above
A UNHCHR September 2015 report which in turn cites the UK NGO Freedom from Torture, which said that 37% of cases referred to it concerned people who had returned to Sri Lanka after the conflict, “a few of them rejected asylum seekers”.
Individual cases reported mainly in the pro-Tamil media (Tamilnet, Tamil Guardian), of returnees to Sri Lanka from a range of countries being arrested for immigration offences, or for being ex-LTTE (even though supposedly rehabilitated), or suspected LTTE, and other forms of harassment of Tamils
Other country information about the extensive surveillance of Tamils including unannounced visits to detainees rehabilitated and released after the war.
UK Home Office Policy and Information Note: Sri Lanka: Tamil Separatism dated June 2017. Advises that internal relocation is not an option for people at risk of persecution. The Note also advises that being of Tamil ethnicity would not in itself warrant international protection, nor in general past membership of connection to the LTTE unless they had a significant role or are still active in separatism. Participating in diaspora activities such as demonstrations to be considered in light of whether they have a significant role and each case to be assessed on its merits.
Austrian Red Cross Sri Lanka COI compilation dated December 2016, refers to the US DOS Report for 2015 which states that there were documented and undocumented detentions of civilians accused of LTTE connections; the Amnesty International report referred to above; the Human Rights Watch report referred to above; the Home Office Report referred to above; the Landinfo report referred to above; the Freedom from Torture report referred to above, media reports of specific cases e.g. British Tamil man returned to Sri Lanka was detained and tortured, he was previously involved with the LTTE, and a report that Sri Lankan asylum seekers (ethnicity unspecified) deported from the Cocos Islands were taken into custody at the airport (evidently for illegal departure). Also refers to the UNHCR report dated November 2015 about the extent of surveillance of returned Tamil refugees (including house visits by the military and police).
The applicant subsequently submitted evidence that he is earning wages in Australia.
In his statutory declaration the applicant asked for a further hearing. However, the Tribunal took the view that the applicant had already had sufficient opportunity to explain his case at the hearing that had already been held. He subsequently asked for more time to engage an agent and present new information that he is of adverse interest to the authorities in Sri Lanka. The Tribunal set a deadline for the applicant to supply any further information. Nothing was received by the due date. In these circumstances the Tribunal has decided to proceed to a decision based on the information before it.
Country information
In February 2009 the World Socialist Web Site (wsws.org) published an article about a SEP (Socialist Equity Party) visit to Udappu, described as an isolated village in the Puttalam District of Northwestern Province, in advance of upcoming elections. It states that although Udappu was nowhere the frontlines of the civil war, it reached into every aspect of life. The Tamil fishermen were treated as supporters of the LTTE and suspected of smuggling. Heavy restrictions have been placed on them leading to a loss of income. They were subject to constant harassment by police and military personnel who conducted frequent sweeps through the village. Over the past year several people had been murdered or abducted, likely by military sponsored death squads that had killed or disappeared hundreds throughout the island. Fishing was expensive and profits meagre, and living standards had deteriorated since the war restarted in 2006. They had to take their national ID cards with them as well as their fishing pass when going out to sea, but had to have days without earning any money in order to get a pass. They go to the East (Trincomalee) to fish during the monsoon season for six months. But there were of course war-related restrictions there. (If they went beyond five miles off shore they could be shot at by the navy.) In Udappu a navy camp had been set up for patrolling. Boats must not go close to navy vessels. Boat owners had to go to Kalpitiya, 70 miles North, to obtain their navy pass. If they go went sea without a pass or got too close to a navy boat they risked physical abuse. Limitations had been placed on the fishing areas, normal fishing activity was not possible. (“SEP campaigns in a Sri Lankan fishing village”).
DFAT’’s country report on Sri Lanka contains the following information.
Tamils
According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.
Monitoring, harassment, arrest and detention
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner.
Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events.
Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war. In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.
DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.
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The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour. In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.
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DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
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Exit and Entry Procedures
Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
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Conditions for Returnees
Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.
Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.
DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.
FINDINGS AND REASONS

Based on the information in his application the Tribunal finds that the applicant is a citizen of Sri Lanka. He is a Tamil fisherman from Udappu, Northwestern Province Sri Lanka.
The applicant claimed that he risked persecution on the basis of his ethnicity (Tamil), actual or imputed political opinion (Tamil, Tamil fisherman, Tamil fisherman from Udappu, asylum seeker, departed illegally, long term resident in the West), and membership of particular social groups iterated along similar lines. As such his claims fall to be considered against the refugee provisions of the Act.
As indicated in the World Socialist report, Tamil fishermen in Udappu could be blamed for supporting the Sea Tigers during the war, like fishermen off the coasts of the North and East provinces where the war was also active on land. They risked being killed by the Navy when out at sea and a good number were. In addition, there have been fishing strikes and protests in Sri Lanka over many years which could occasionally turn violent, as when one fisherman was shot dead during a protest in Chilaw in February 2012 over fuel cost hikes.
However, the Tribunal is not satisfied that the applicant was physically harmed in February 2010 or April 2012 as claimed. It is not satisfied that he was faced with an extortion threat that caused him to leave Sri Lanka. The applicant stated at his protection visa interview that he left Sri Lanka because of issues to do with the administration of fishing passes. He answered negatively that he had ever been arrested or detained by the police or security organisations, or that the police and security and intelligence had any other impact on his day-to-day life in Sri Lanka.
The Tribunal found the applicant’s explanation for the later development of his claims unpersuasive. While understanding that he would have been exhausted and emotional, the interview was his opportunity to state why he was seeking refugee status. He was cautioned, as the interview record shows, that he needed to give correct information because it could be compared with anything he said at a later stage. He was asked if there was anything else he wanted to say and replied in the negative. He was assured that his claims would be kept confidential. If the applicant had the experiences he later claimed, the Tribunal would expect he would mention them at this stage.
Moreover, the applicant attributed these events to the Navy. But the Navy were no longer issuing fishing passes after the war ended. They carried out security checks to prevent smuggling, by checking registration details against information held by local cooperatives, but licences were issued by the Department of Fisheries and permitted fishing hours were no longer related to security threats. There were no reports of Tamil fishermen being subject to Navy extortion, even though there were reports of the Navy extorting people smugglers. Regarding the applicant’s physical injuries, these are insufficient to outweigh the credibility concerns described above, as they could just as easily and more likely have been caused by an accident.
Based on what the applicant said in his entry interview, the Tribunal is not satisfied that he was ever detained in a security round up either in Udappu or when he was over in the East, although he certainly would have been aware of such events.
As the Tribunal is not satisfied that the applicant was subjected to an extortion attempt, it does not accept that there were visits to his family in 2013, or that his uncle was detained in 2014, or that his wife was again visited by the authorities in 2021. Moreover the applicant’s claim that the authorities were still taking an active interest in him in 2021, so long after the war ended and when he would not have been on their radar for any contemporary reason, was not easily believable.
Items of country information were submitted suggesting that Tamil asylum seekers returned to Sri Lanka have been seriously harmed. The Tribunal found did not find these reports compelling as they are not documented in detail and not followed up. Freedom from Torture supports asylum seekers making claims in the UK and therefore its data is not wholly reliable, yet it has been repeated as fact. Human Rights Watch’s assertion that it has “documented cases” of tortured asylum seekers is not explained but has been picked up in other reports. Specific cases cited by the applicant’s representative relate to suspected or actual former LTTE members (which the applicant is not). Penalties for illegal departure (e.g. the boat turned back from Cocos Keeling Island) do not amount, as claimed by the applicant, to “abduction”.
The Tribunal gives weight to the DFAT report. It indicates that Tamils in general, but especially those in the North and East, face some discrimination and difficulties dealing with the authorities because of language barriers and disrupted education due to the war. Sinhalese have moved into the North and East provinces in numbers significant enough to enhance the sense of discrimination among Tamils, and there is a strong military presence. Tamils in the North and East are subject to a degree of monitoring and surveillance focusing mainly on those involved in commemoration events and protests about sensitive issues such as land release or war crimes. Tamils returning to Sri Lanka who have a separatist profile will be monitored, others have no particular security concerns.
The applicant is from Udappu, which was never an LTTE stronghold, and had no involvement with the LTTE. He does not fit the security risk profile of the Tamil groups identified by DFAT as likely to be of adverse interest to the Sri Lankan authorities.
Failed asylum seekers are interviewed by various government agencies to check their identity and where they come from, and any criminal background or security concerns. Some returnees to the North and East are actively monitored (e.g. visited by CID) on their return but not on an ongoing basis. If returnees left Sri Lanka illegally they are likely to be bailed and released, and after a cumbersome court case issued with a fine. There is minimal social discrimination against returnees.
It is reported in the UK Home Office Fact Finding Report (20 January 2020) that the IOM noted that claiming asylum abroad is not an offence, and so when someone returns to Sri Lanka who has been absent for a number of years or has an expired visa, they would not be questioned about this and there were no reports of returnees being interrogated on such grounds.
None of the above concerns amount to serious harm directed at Tamils, including returned asylum seekers, including Tamil fishermen from Udappu, within the meaning of the Act, nor indicate that they are, by virtue of those identities, imputed with a pro-LTTE opinion. They face practical challenges including expenses, and obtaining employment and housing notwithstanding that they may obtain some resettlement assistance, but this does not amount to active denial of the capacity to subsist.
The Tribunal does not accept that a returnee from Australia who was a neighbour of the applicant in Udappu has been abducted and disappeared. The claim is at odds with the DFAT report. It is not plausible that such an event would occur without the information somehow coming to the attention of NGOs, the media and the Australian authorities.
Fishing is still regulated in Sri Lanka. It’s a hard occupation, and has been very difficult during Sri Lanka’s recent economic crisis, because of fuel shortages and prices. There are persistent allegations that Sinhalese fishermen are advantaged by the regulations but the Tribunal is not satisfied that this prevents Sri Lankan Tamils from being able to subsist.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of harm for reasons of his ethnicity, imputed or actual political opinion, or membership of a particular social group, by virtue of being a Tamil asylum seeker from a fishing background, notwithstanding that he left Sri Lanka illegally and has lived in Australia for a number of years.
The applicant was understandably concerned and distressed about the current economic situation in Sri Lanka, and worried about his ability to get employment. He mentioned having mental and physical health struggles, but there was no suggestion that they were sufficiently pronounced that he would be at risk of serious harm under the Act.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm for the reasons specified in s 5J(1). He therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that he is not a refugee as defined in s.5H(1).
Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions. As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Genevieve Hamilton
Member

[2023] AATA 2226

6 March 2023

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