1723229 (Refugee)

1723229 (Refugee) [2022] AATA 1547 (29 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723229
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Haag
DATE:29 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 29 March 2022 at 4:02pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – suspected links to Liberation Tigers of Tamil Eelam (LTTE) – race – Tamil – particular social group – failed asylum seeker – complementary protection – torture – fear of killing – escape from detention – illegal departure – refusal to witness on LTTE involvement – suppression of past atrocities – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 11 January 2016.[1] The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).
[1] Date received by the Department as stated on Decision Record. SHEV application dated 8 January 2016.
The applicant appeared before the Tribunal on 24 March 2022 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s identity
The applicant claims to have been born in [Town 1 in] Badulla District, Uva Province, Sri Lanka on [date]. He claims to be of Tamil ethnicity and Hindu religion. The applicant states he can read, write and speak Tamil, and speak Sinhalese and English.[2]
[2] Part C – SHEV application form 790B.
The applicant provided the Department with of copies of his birth certificate with an English translation, his Sri Lankan passport, his untranslated Sri Lankan National ID card bearing his photograph, school character certificate, GCE school examination results, employment offers, photographs of his [business 1] in Sri Lanka, a certified statement dated 15 February 2012 indicating his mother’s ownership of the [business 1] ‘[named]’ and which is run by the applicant, statement of income and various documents that indicate the applicant successfully completed various in service training courses.[3]
[3] Dept file [number].
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen and national of Sri Lanka, and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant first arrived in Australia [in] December 2011 as an unauthorised maritime arrival.
In his application for a protection visa dated 8 January 2016, the applicant claims to have departed Sri Lanka [in] August 2009 from Colombo airport using a legitimate passport issued in his own name. He then travelled to [Country 1] via [another country] as an asylum seeker, arriving [in] August 2009, and departing [in] February 2011 for [another country]. He remained [there] as an asylum seeker until 28 November 2011.[4]
[4] Part C – SHEV application form 790B.
The applicant was in immigration detention at [specified locations] from [December] 2011 to [May] 2012.[5]
[5] Part C – SHEV application form 790B.
The applicant lodged an application on 14 December 2011 for a Protection Obligations Determination. On 14 March 2012, the Protection Obligations Evaluation officer found he was not owed protection and he was referred for an Independent Protection Assessment.[6] [In] September 2012 the Independent Protection Assessment found he was owed protection.[7]
[6] Dept file [number], folio 155.
[7] Protection visa Decision Record, 19 September 2017.
The applicant submitted a valid Safe Haven Enterprise visa (XE-790) dated 8 January 2016 on 11 January 2016. The applicant is presently lawful onshore in Australia on a bridging visa.
The above-mentioned protection visa application was refused by the Department on 19 September 2017. The applicant applied for Tribunal review of this decision on 27 September 2017.
The Tribunal has read the record of the delegate’s decision the applicant provided to the Tribunal.
Applicant’s evidence
The applicant claims to have never married. At the time of application, the applicant’s father, mother and sister were living in Sri Lanka.
At the time of application, the applicant had been self-employed in his own [service] business since February 2014 and, at the date of hearing the applicant continues to own and operate the business. He previously worked in Australia as [an occupation 1] in 2013 and at [another business] in 2012. At other times he was unemployed and received ASAS support.
He attended [a named school] in Colombo, Sri Lanka, [between specified years].
The applicant claims to have lived in Colombo from [specified year] until 2009, and when he was an infant in ‘[Town 2]’, Uva Province, Sri Lanka from May 2009 until August 2009. Thereafter his parents continued living together in the family home in Colombo. The applicant’s father owned and operated a [business]. The applicant’s maternal uncle is close to his sister, the applicant’s mother, and he owns a [product 1] business. His business is well established and he independently wealthy.
When living in Sri Lanka, the applicant worked in the period 2002 to May 2009 in the [specified] sector as [an occupation 2] in [product lines], and as the owner and manager of [a business 1].[8] The business was operated by staff during the day. The applicant attended the business in the evenings where he oversaw the business, supervised staff and attended to business related paperwork. During the day he worked for [Employer 1] as [an occupation 2].[9]
[8] Part C – SHEV application form 790B.
[9] The name of [Employer 1] is misspelt in the visa application and corrected in evidence at hearing.
The applicant was abducted in 2009 from the [business 1] by agents of the state, detained for about 48 hours and tortured for information about his friend [Friend A]. The applicant claims his ordeal ended when he escaped from the detention facility.
The applicant claims he sought shelter and support from his maternal uncle. Initially the hospital he attended refused to treat his injuries. According to the protection visa interview conducted by an officer of the Department on 23 August 2017, [he suffered a serious specified injury]. The applicant demonstrated to the interviewer that [he] had been permanently disabled. The applicant agreed to provide another copy of a medical record relating to the injuries and treatment. The interviewer remarked the record was referred to in the materials he received from to the Department, but it was not contained in the file available to him. The applicant’s representative was present during the interview and volunteered to provide a second copy of the document to the interviewer shortly after the interview. That was done.
The Department file available to the Tribunal contains the relevant medical record. It has the date 4 May 2009, and it appears on its face to be a hospital requisition form that authorised the x-ray department of the hospital to x-ray the applicant’s [specified injury].
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
Claims for protection and other supporting documentation
The applicant provided a statement of claims as part of the protection visa application in a statutory declaration dated 8 January 2016:
Background:
1. My name Is [name] and I am [an age] years old male born in [Town 1 in] Badulla, Uwa [sic] Province, Sri Lanka. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the Departmental officer.
2. An Entry interview was conducted with me on arrival to Australia with a DIAC officer. During that interview I was asked to provide my claims in a brief form which is why not all my claims were given at that stage. Also I have not been explained what was relevant and what I was required to disclose to the Department for the purpose of assessment of my claims.
3. I was found to be owed protection obligations on 6 September 2012. Given there has been no significant change to my circumstances since the assessment was made, I believe the finding should be relied upon in the current assessment.
4. My race is Tamil. My religion Hindu. I have never been married and have no children. I have one sister and no brothers. My parents and sister remain in Sri Lanka. I am a Citizen of Sri Lanka. I have no legal right to reside in any country other than Sri Lanka. I departed Sri Lanka in 2009, I travelled to Australia through [specified countries]. I fear returning to Sri Lanka for the reasons outlined below.
Why I left my country:
5. I was forced to depart Sri Lanka as I feared for my life. Prior to departing Sri Lanka, I run [a business 1] called [name]. I had a regular customer called [Friend A] and we became friends.
6. In April 2009, I was also working at [Employer 1]. I returned from my work at [Employer 1] to the [business 1] around 5pm. I went outside for a cigarette then came back in and sat at the corner computer. A little later [Friend A] came in and occupied the [position] near me. Within half an hour, four or five men came in and beat up [Friend A]. They then dragged him outside. The men asked where the owner of the business was, my employee told the men I was not there as he was scared I would face issues. [Friend A] was taken in a white van. I immediately closed the shop and sent everyone home. I told my father about this incident and he informed me to tell the Police. I went to [Police Station 1] and made a complaint. The Police made a record of my complaint, visited my shop and then informed me I coud re-open my business.
7. I then proceeded to open the shop and carry on business as usual. In May however I was requested to report to the Police Station. I attended the Police Station with my uncle. I was taken into a room and questioned by two officers. I was asked a lot of questions about [Friend A]. I was then allowed to return home. The following day, I completed my work at [Employer 1] and then went to work at the [business 1]. I closed the [business 1] at approximately 10pm and walked my employee home. After I had left him, I was approached by a van. The man in the van pulled a gun on me and demanded I get in the van without making a sound. The men spoke Sinhalese, I was scared they would shot me as such felt I had no option except to adhere to their demands. Once I was in the van, my hands were taped behind my back. I was drive [sic] to the nearby army checkpoint. One man exited the vehicle at the checkpoint and another entered. I was then blindfolded. We drove for approximately two hours.
8. I was taken from the van and sat on a chair with my hands tied behind me. I was questioned about [Friend A] and about whether [Friend A] had provided me with anything. The men forced me to take my clothes off and tied me upside down. I was interrogated about my personal details and my knowledge of [Friend A]. I was asked how we became friends. I was then asked if I knew [Friend A] was involved with the LTTE. I was continuously beaten. I was beaten with the butt of a rifle and a large pole. As a result, I lost some teeth and was very badly bruised. The pain was excruciating. The men then filled a bag with liquid and tied it around my neck. I could not breathe. I was then dropped to the ground and kicked me and urinated on me. This resulted in me receiving [specified] injury. I was then retied to the chair. They pressed a knife to my [body parts] and pulled my toenail off. I was continuously questioned about [Friend A] and the information they believed that he had shared with me.
9. I was left in the room. The next morning, they came and asked me to sign a blank piece of paper. I said that I would not sign it, I was again beaten. I knew I could not tolerate any more beating; I was a broken man as such I felt I had no option except to sign the paper. The men demanded that I pay [amount] rupees for my release. My mother had to sell her jewellery to raise the money. My family provided the money to a man near [Police Station 1]. Despite my family paying the money, I was not immediately released. I was again tortured again. A man came from behind me and wrapped his arms around my neck. I passed out. On the forth morning, I woke up and found myself in a room with 3-4 others and was not sure if they were alive. The room was filled with blood. When I looked around I saw some trousers hanging up, I took them and wore them and went to the toilet. I was able to escape through a window. There was a bushy area where I hid and then made it to the main road. I was still covered in blood, I was concerned I would be detected as such I tried to stay behind the bushes. That night, I stopped a three-wheel auto and asked him to help me. He contacted my uncle and I went to the hospital.
10. While at the hospital, I was with my uncle and I was asked many questions. My uncle spoke to them as I was in a bad state. I had surgery on my [injury] and my other wounds were attended to. My father told my uncle that men had come to my house looking for me. My uncle took me to [Town 2]. I stayed in hiding. My parents were constantly harassed by the men who were looking for me. They said they must hand me over.
11. I knew I could not stay in [Town 2] as I would be required to register with the Police and there was an Army Camp nearby. It was also a Sinhalese Area. I was very scared. My uncle made arrangements for me to travel to Colombo. My uncle's friend arranged to bring my passport and ID documents to Colombo. I was introduced to a man who had an important job at the airport. He assisted me leave Sri Lanka without detection.
12. Since I have departed Sri Lanka, my family have been regularly visited by a group of men asking about my whereabouts. In recent years, the men said they know that I am in Australia and that when I return, I will face serious problems. My family have told me that I cannot return.
What I fear might happen If I go back to my country:
13. If I was forced to return to Sri Lanka, I fear that I would be subjected to serious harm and torture.
Who I think will harm or mistreat me If I go back:
14. If I was forced to return to Sri Lanka, I fear harm from the Sri Lankan Authorities including the CID and Sri Lankan Army. In particular, the people who previously abducted and tortured me.
Why I believe they will harm or mistreat me if I go back:
15. If I was forced to return to Sri Lanka, I believe I would be harmed due to the fact I was previously considered to be an LTTE supporter given my association to [Friend A]. I believe the authorities believed I used my [business 1] to assist him with his work with the LTTE. The fact I escaped detention ensures the Authorities have an ongoing interest in me, as such I would be treated with suspicion and subjected to serious harm upon return to Sri Lanka.
16. In addition, I fear harm given the fact I have resided abroad for a prolonged period of time and have claimed asylum while abroad. If I was to return to Sri Lanka, given my race, area of origin and previous Issues with the authorities, I would be at serious risk of harm. In particular, I believe I would be treated adversely as I fled close to the end of the War. This would result in me being considered an LTTE affiliate especially given my previous issues with the authorities.
17. Further, I fear that I may be targeted by the men who previously targeted me as they may be fearful that I would act as a witness in a Human Rights Trial Against them. They may try to eliminate me to ensure I do not provide evidence against them.
18. My family has advised me that the situation in Sri Lanka remains precarious. The Sri Lankan Authorities continue to treat our people with suspicion and do not allow us to live freely. The Sri Lankan Authorities continue to rely on torture, cruel and inhuman treatment and punishment in order to intimidate, coerce and punish Tamils. Despite the change of government, the authorities remain the same and still kidnap those who they believe oppose them.
Why I believe that the authorities in my country will not protect me if I go back:
19. Given it is the authorities in my country I fear, I cannot obtain protection from them. The Sri Lankan Authorities continue to commit human rights abuses and subject individuals to Torture. I have been subjected to extreme cruelty in the past and know there is no way I can return to Sri Lanka without being further harmed from them.
Why I believe I will suffer significant harm:
20. I was previously subjected to cruel, inhuman and degrading treatment and torture. This severe mistreatment has had a serious impact on my mental and physical wellbeing. Given my race, age and previous dealings with the authorities, I am fearful I would be subjected to further significant harm.
Why I cannot relocate
21. Due to the fact it is the Sri Lankan Authorities that I fear there is nowhere I can live to avoid them. Even if I did go to another area of Sri Lanka, I would need to register and the authorities would be able to examine my past and rely on this to subject me to harm.

The applicant had also made the additional claims in a statutory declaration dated 7 February 2012:[10]
Other matters that I would like the Department to take into account:
All I have stated here is the truth and they are real incidents that happened to my life and I fear they will continue to persecute me and possible kill me.
When our boat was picked up by the [Country 1] Navy we were taken to [a specified] camp. This was the second time that I had been detained by the [Country 1] authorities and after 3-4 days they told us that the Sri Lankan authorities were coming. The Sri Lankan authorities had a general talk to all of us asking us why we left and that there are no problems there and that they would look after us. Then the Sri Lankan authorities took each person's details and took individual photographs of us, one facing the camera and one from the side. Also the press had taken photos of us sitting on the ground after being taken off the boat. The first time I was arrested in [Country 1] to be deported my name appeared in [a media source] as one of those arrested and waiting for deportation, however the UNHCR got us released and we did not get deported.
[10] Dept file [number] folios 132–5.
The applicant’s representative at that time also made submissions (undated) citing various sources of country information and news articles dated December 2010, May 2009, May 2010, February 2010, August 2009 and March 2010, in support of the applicant’s claim for protection.[11]
[11] Dept file [number], folios 119–31.
The applicant submitted a statement of claim to the Tribunal dated 17 March 2022, in which he made the following claims:
3. In approximately early 2018, the Sri Lankan Authorities came to visit my family's home. The Sri Lankan Authorities asked my parents about my whereabouts. My parents advised I was in Australia, however the Authorities stated they believed I may have returned. They questioned my parents further before leaving.
4. My family has warned me not to return to Sri Lanka, as they have grave fears for my safety. They do not give me a lot of information when I speak to them as they are worried that the phone may be being monitored by the Sri Lankan Authorities. They have warned me however that the situation in Sri Lanka remains dangerous for our community.
The applicant also stated his reasons for disagreeing with the delegate’s decision, namely that he would not have been able to depart Sri Lanka without assistance, the Sri Lankan Authorities still have an interest in him, and he would be detained, questioned and tortured again by the authorities if he returned to Sri Lanka.
The applicant’s representative also made submissions to the Tribunal, dated 17 March 2022, stating that the applicant fears he would either be killed or subjected to torture and serious harm upon return to Sri Lanka, based on his Tamil race, perceived affiliation with the LTTE (imputed political opinion) and as a returnee from the West/failed asylum seeker (membership of a particular social group). In summary, the representative also submitted that:
a)    The delegate did not properly take into consideration the totality of the applicant’s evidence and ongoing situation in Sri Lanka in the aftermath of the civil war;
b)    The fact that the applicant was subjected to torture by the authorities and was not released, but escaped, from detention means he is a person of interest to the authorities, and he was able to leave the country because of assistance from a friend of his uncle who worked at the airport;
c)    He will be identifiable as Tamil and as a failed asylum seeker; he was photographed and questioned by Sri Lankan authorities while in [Country 1] seeking asylum;
d)    The representative also cited various sources of country information that indicate repression and persecution of minority groups in Sri Lanka is still ongoing, the signalisation and militarisation of Tamil areas is increasing, and Tamils are still targeted by the authorities;
e)    Based on this evidence, he has a well-founded fear of harm upon return;
f)     There is also a real risk he will suffer significant harm if refouled from Australia.
At hearing the applicant’s representative was granted leave to make additional submissions and she submitted:
(a)The delegate found the applicant is a credible witness and that finding is an additional reason the Tribunal should find the applicant is a credible witness
(b)The evidence is to be considered cumulatively
(c)The current administration in Sri Lanka contains persons who committed atrocities against Tamils during the civil war and therefore the applicant faces a real risk of significant harm in Sri Lanka.
(d)The evidence is sufficient to establish the existence of a real risk the applicant would face significant harm if he is returned to Sri Lanka now or in the reasonably foreseeable future.
In oral submissions the applicant’s representative, without concession, focused on the Complementary Protection criteria rather than the refugee criteria. This clear-sighted appreciation of the relative merits of the applicant’s claims and the evidence was of considerable assistance to the Tribunal.
Well founded fear of persecution – the refugee claims
In pre-hearing written submissions to the Tribunal the applicant claims to be a refugee on three grounds:
·Tamil race
·Imputed political opinion
·Membership of a particular social group, being a failed asylum seeker.
Elsewhere in the materials the applicant claimed to be a refugee on an additional ground:
·Religion
In light of the closing submissions made by the applicant’s representative, who is a registered Australian lawyer, the Tribunal will deal with each of the refugee criteria in a more confined way, that may otherwise have been the case.
Tamil race
The DFAT Country Information Report of 23 December 2021 states military involvement in civilian life has decreased overall since the end of the civil war in May 2009. The security situation has improved significantly, including the north which has a large Tamil population where the military maintains a significant presence. The government exercises effective control over the entire country.
DFAT assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official or societal discrimination based on ethnicity or case, including ability access employment or housing. In so far as there is inconsistency between the DFAT report and other reports on the current circumstances facing Tamils in Sri Lanka that were referred to in the applicant’s written submissions, the Tribunal after considering those reports, gives greater weight to the DFAT report and assessments.
According to the evidence the applicant’s sister is married and living in the applicant’s home country. There is no evidence she has experienced discrimination on the grounds of ethnicity.
The applicant’s parents live in the capital Colombo. They were not made available to give evidence in this review. In evidence the applicant did not claim that his parents were currently experiencing persecution or significant discrimination on the basis of their Tamil ethnicity, and the same can be said for the applicant’s evidence about his maternal uncle’s current circumstances. He also lives in Colombo.
The applicant lived and worked in Colombo all this working life. There is no evidence he was persecuted or suffered significant discrimination before he was kidnapped in 2009.
The evidence considered in conjunction with the DFAT report and the other country information reports relied on by the applicant is insufficient to establish to the satisfaction of the Tribunal existence of a real chance the applicant would suffer serious harm due to race if he were returned to Sri Lanka now or in the reasonably foreseeable future.
Religion
According to the answers the applicant provided in the 2017 protection visa interview he was born into a Hindu family. He believes in God but he does not believe in religion. The applicant gave evidence that disclosed that his attitude towards religion has not changed and further, that he does not participate in religious activities.
The Tribunal is not satisfied the applicant would participate in religious activities in Sri Lanka and believes that it is unlikely religion would bring him to the adverse attention of other religious groups or the authorities in Sri Lanka.
The evidence considered in conjunction with the DFAT report and the other country information reports relied on by the applicant is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would suffer serious harm due to religion if he were returned to Sri Lanka now or in the reasonably foreseeable future.
Imputed political opinion/Membership of a particular social group, namely returning failed asylum seekers
According to the applicant’s evidence he has never been involved with the Liberation Tigers of Tamil Eelam (LTTE) nor have any members of his family in either Sri Lanka or elsewhere including Australia. He has never supported Tamil separatism nor have any members of his family.
The applicant has not claimed, and the evidence does establish the state actors who kidnapped and tortured him alleged he was a Tamil separatist or affiliated with the LTTE. According to the evidence he was tortured for the purpose of discovering all he knew about his friend [Friend A]. According to the applicant’s evidence he had no knowledge at any material time that [Friend A] was affiliated with the LTTE or that he sympathised with their separatist objectives.
According to the evidence and documents the applicant provided to the Department in support of his protection claims, the applicant was employed by various companies, including [a specified] company, as [an occupation 2]. He excelled and his employer trained him to work as an accredited [occupation 3] and later, for promotion to leadership positions within the company.
As [an occupation 2] and later the operator of [a business 1] the applicant was in plain site of the security services, should they have had any interest in him. There is no evidence the applicant was suspected of affiliation or association with the LTTE or Tamil separatists prior to him being kidnapped in 2009, about the time the civil war was ending.
The evidence does not establish the applicant was suspected of being a Tamil separatist during the time he was being tortured.
The applicant’s evidence about being kidnapped and tortured, if accepted, demonstrates the persons involved in these events were concerned about obtaining information about [Friend A] and his activities as a member of the LTTE. The evidence does not establish the applicant was being tortured because of his suspected involvement in the LTTE and Tamil separatism.
Relevantly, the evidence establishes the applicant did not leave his home country illegally.
The Tribunal accepts that Tamil refugees who departed Sri Lanka around the time the civil war was ending form a particular social group as defined in the Act.
The evidence does not establish to the satisfaction of the Tribunal that the applicant was suspected of having any involvement with Tamil separatists, the LTTE or that he was imputed with or that he would be imputed with political views that posed a threat to state security, upon his return to Sri Lanka from Australia as a long-term absentee and unsuccessful asylum seeker.
The evidence does not satisfy the Tribunal that the applicant would be subjected to a real chance of serious harm in Colombo or any other part of Sri Lanka if he is returned to Sri Lanka now or in the reasonably foreseeable future on the ground of imputed political opinion or belonging to the relevant particular social group.
FINDING
The Tribunal has considered the applicant’s claims individually and cumulatively. Based on the whole of the materially relevant information and evidence, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant would suffer serious harm because of his actual or imputed political opinions, or on any other ground specified in s 5J(1)(a) of the Act.
Complementary protection
The Tribunal will now consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will satisfy the criterion in s 36(2)(aa) of the Act if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Sri Lanka, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36A of the Act, which is reproduced in the attachment to this decision.
DFAT reports that according to Transparency International’s Corruption Perception Index 2020, Sri Lankans think government corruption is a big problem and that bribery of officials is not uncommon. There is much corruption in senior levels of government.
DFAT reports that on 20 October 2020 the Sri Lankan parliament amended the Constitution. The amendment reversed certain measures made by the previous government. The amendments largely dismantled pro-transparency and accountability reforms, as well as enhancing executive control over the legislature and the judiciary. The amendments fundamentally eroded the independence of bodies established to oversee and call to account members of the executive and the apparatus of state control by eroding the independence of the key commissions and intuitions, including the Human Rights Commission of Sri Lanka, the Election Commission, the National Police Commission and the judiciary in terms of selection, appointment and dismissal of senior judges and other high-ranking officials. All of this must have been done for a purpose.
DFAT reports on 23 December 2021 that in November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President. He chose his elder brother Mahinda Rajapaksa, a former two term President, as his Prime Minister. It is apparent from this chronology of events that the Rajapaksa brothers either alone or together have dominated the halls of political power and influence in Sri Lanka for decades. The amendments to Sri Lanka’s constitution referred to in the previous paragraph were made during their watch.
The DFAT Country Information Report informs that UN human rights organisations documented serious violations in the final states of the war when Mahinda Rajapaksa was President. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians. Additional aspects of the DFAT report is consistent with this information.
Consistent with this information DFAT assesses that progress on accountability for war-era violations is unlikely in the near-term. DFAT further assesses that Sri Lankan journalists, investigators, activists, and former police officers probing historical abuses face a high risk of official harassment and a moderate risk of violence. This assessment, combined with the forgoing DFAT country information, indicates the current government and political administration may be actively working pre-emptively to ensure that persons who may expose atrocities allegedly committed against civilians, and by necessary implication, against themselves during the defeat of the LTTE separatists are at significant risk of harassment and violence.
The forgoing country information considered cumulative, indicates that a Tamil who was not believed on any reasonable basis to be a member of LTTE, or affiliated with the LTTE or sympathetic to the separatist ambitions of the LTTE, who was tortured in the hope that he may inform on members of the LTTE, may be regarded within the ranks of the government and the security apparatus, a potential source of embarrassment.
More specifically, a Tamil returnee who escaped from the place where he was being tortured, who may be able to provide cogent evidence of torture and atrocities linked to the present administrative apparatus, may be viewed as a potential embarrassment to members of the present government and the reputation of existing state agencies. It is reasonable to expect that a Tamil returnee who fitted this profile would face a risk that is not of a lessor nature than the nature of the risk of harm currently faced by journalists, investigators, activists and former police officers who probe historical abuses of human rights.
The Tribunal has listened to the protection visa interview that was conducted by an officer of the Department on 23 August 2017 (the interview). Answers the applicant gave during the interview that the Tribunal considered to be material to this decision were the subject of evidence in this review.
On behalf of the applicant, it was submitted that the delegate’s prior assessment of the applicant to be a credible witness should be considered, and that it weighs in favour of accepting the applicant’s evidence. This submission is contrary to established principle and the Tribunal puts it to one side.
The applicant does not put his case on the basis that he was a Tamil separatist, member of or affiliated with the LTTE, or that he was arrested and tortured because of his suspected involvement in LTTE and Tamil separatism.
The applicant’s claim for protection in Australia is based on being arrested and tortured because he was friendly with [Friend A] who was arrested in the applicant’s [business 1] a few days before he says he was kidnapped, detained, and then tortured over the following 48 hours. The purpose of the torture was to force him to disclose any information he may have had about [Friend A] and his involvement in the LTTE. The applicant does not claim he was tortured because his torturers apprehended, he is a member of the LTTE or involved in or that he sympathised with Tamil separatism.
According to the applicant’s evidence, after he witnessed [Friend A] being forcefully removed from his [business 1] he never saw him again or learnt of his fate. He was ignorant of any involvement [Friend A] may have had in the LTTE.
If the evidence is insufficient to satisfy the Tribunal as to any one of the following assertions of fact the likely outcome of this review would be the delegate’s decision would be affirmed: that the applicant was kidnapped, tortured and that he escaped from the building in which he was being tortured.
Essentially, the decision depends on the Tribunal’s assessment of the applicant’s veracity as a witness in this review. In reaching its decision the Tribunal has given neutral weight to the applicant’s demeanour while he was giving his evidence.
The Tribunal has carefully considered and weighed the applicant’s evidence.
The Tribunal has given weight to the fact that the applicant provided to the Department prior to the interview in 2017, a medical record that has a date and treatment information that is consistent with his evidence about the injury to his [body part] he claims was inflicted on him by the agents of the state who tortured him. A copy of this record was made available to the Department and interviewing officer in 2017, and it was included in the Department file that is available to the Tribunal in this review.
During the interview the applicant demonstrated to the interviewing officer that he has [a specified disability], he said this disability was inflicted on him by the torturers. The interviewing official asked about a scar on the applicant’s face. The applicant, without hesitation, made clear the scar was not related to the torture. That is to his credit.
There were a number of opportunities in the applicant’s evidence for him to ‘gild the lily.’ If in the judgment of the Tribunal, he had done so, the applicant would not succeed in this review. In assessing the veracity of the applicant’s evidence, the Tribunal is satisfied the applicant gave his evidence contentiously, he was accurate in places where a less than truthful witness may have distorted the facts to his advantage, the applicant does not appear to have done so.

It is unnecessary for the Tribunal to refer in detail to all parts of the applicant’s evidence that led the Tribunal to assess the material parts of his evidence as reliable. Nevertheless, the Tribunal will consider two specific parts of the evidence that are material to the Tribunal’s evaluation of the applicant’s evidence.
The applicant restricted the subject matter of the interrogations to [Friend A] and any information the applicant may have learnt from him about the work they believed he performed for the LTTE. The applicant did not take that extra step and seek to advance his case by elevating his personal profile by claiming the interrogators asserted or suspected him by association with [Friend A], to be an LTTE activist, supporter or sympathiser with the cause of the LTTE and Tamil separatists.
Important to the applicant’s case is his claim that he escaped from the building in which he was detained and tortured. According to the applicant’s evidence other detainees less fortunate than himself were tortured to death.
At hearing the applicant claimed during a long and continuous period of torture and interrogation that he was choked by a person behind him and that is all he recalls until he became conscious in a room. He was on the floor of an open room. He was lying there amongst a number of people who were dead. It was immediately obvious to him that they had been tortured. The applicant immediately seized upon what he saw as a chance to survive; to escape.
He left the room and made his way along a corridor to a toilet room. He climbed through a window that put him outside the building which was somewhat isolated. The applicant left the area and hid in the bush. He then made his way to a road and with the aid of a passing hire vehicle driver, he made his way to the home of his wealthy uncle.
The applicant did not explain in the 2017 interview or by submissions or his written statement to the Tribunal just how the security in a place where state sponsored actors were said to be torturing people to death, was so lax that he was able to escape.
It seems that the applicant did not contemplate that his evidence about the circumstances of his escape may be viewed as inherently implausible. Common experience would suggest that the security arrangements in an interrogation and torture building under the control of state security would be strong and strictly regulated.
The fact that the applicant did not anticipate the apparent implausibility of his account of his escape and meet it during the interview, and in his prehearing statement to the Tribunal is a matter of considerable interest to the Tribunal.
Experience suggests to the Tribunal that a witness who had carefully concocted his account of events or who was prone to inaccuracy in order to advance his case, is typically predisposed to anticipating and meeting in advance inherent weakness in their narrative. In this instance the applicant did not do so. It was as if the applicant was willing to stand by his account of his escape and that he had not anticipated the inherent implausibility of this aspect of evidence.
If this aspect of his evidence were not accepted by the Tribunal, it would be difficult for the Tribunal to accept his evidence about being detained and tortured. In the experience of the Tribunal, it is reasonable to regard as likely that this risk would have been glaringly obvious to the calculating witness who was giving carefully crafted false evidence for the purpose of obtaining a protection visa.
Considering the applicant’s undisputed successful career in business in his home county achieved over many years of employment by various companies in his home country, and his employment history in Australia, including the establishment and operation of his own successful business, his intelligence and ability to anticipate difficulties and to plan ahead is not open to doubt.
The Tribunal put to the applicant that his account of his escape seemed to be implausible, and that the Tribunal had difficulty accepting it. The applicant suggested that maybe the people who were torturing him thought he was dead. That was to say, maybe they thought they had successfully chocked him to death.
Considered in context of the whole of the applicant’s evidence of his torture, the extreme methods of torture he says he was subjected to over something like 48 hours and that he was rendered deeply unconscious and woke in a room apparently used to store dead detainees, it is quite possible the torturers thought they had killed the applicant. Consequently, he was removed to a room where they stored their dead victims, anticipating there was no need to guard the dead. In that circumstance the applicant’s evidence assumes a reasonable degree of plausibility.
This evidence when considered in the context of the applicant’s evidence as a whole, assumes a reasonable degree of sufficiency. The Tribunal is unable to reasonably reject the applicant’s account of being kidnapped, detained in a torture centre established and operated by agents of the state, and his unlikely escape in circumstances in which his torturers mistakenly believed they had killed him.
In reaching the forgoing view of the evidence the Tribunal has considered the applicant’s evidence about the circumstances in which he was able to depart from Colombo airport without being detained at the airport.
The applicant says his uncle used his influence to identify a senior Sinhalese official at the airport who would accept a substantial bribe to escort the applicant through the departure checks at the airport. The official was bribed, and the applicant was escorted through the departure procedures and onto the aircraft without being stopped during the departure checks.
This evidence is consistent with the DFAT country information report about high level corruption being used to corruptly facilitate favourable outcomes from highly placed bribe takers.
It stands to reason that during the dying days of a civil war that official corruption could have been of an order of magnitude similar in nature to the levels of official corruption that is discussed in the current DFAT report.

100. The applicant’s evidence and DFAT country information considered together, indicate that bribery of a senior Sinhalese airport official was a realistic possibility that enabled the applicant to depart Sri Lanka.
101. In the circumstances of this case, the fact that the applicant departed Sri Lanka by air is of insufficient weight, when considered in the context of the whole of the evidence and the DFAT country information report, to justify rejecting the applicant’s evidence about the circumstances of his departure from Sri Lanka.
FINDING
102. Considering the applicant’s evidence in conjunction with the information in the DFAT report considered earlier in the decision, about the likelihood that the present political administration is operating systematically to supress any risk of past atrocities being exposed to the public, the Tribunal has concluded the evidence, considered as a whole, is sufficient to satisfy the Tribunal of the existence of a real risk the applicant will suffer significant harm if he is returned to Sri Lanka now or in the reasonably foreseeable future.
103. 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION

105. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Peter Haag
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1547

29 March 2022

Key Legal Topics

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Immigration

Administrative Law

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Procedural Fairness

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