1723375 (Refugee)

1723375 (Refugee) [2019] AATA 6173 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723375
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:David McCulloch
DATE:20 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2019 at 9:11am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – imputed political opinion – harassment by government agents – friendship with suspected Tamil Tigers member – country information – status of Indian Tamils in Sri Lanka – credibility – inconsistent evidence – previous travel to another country without restriction – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 7 November 2012 and the delegate refused to grant the visa on 7 January 2014. The applicant was interviewed by the delegate on 22 April 2013.
The matter has already been considered by the Tribunal which upheld the delegate’s decision in a decision dated 16 May 2016. The applicant sought judicial review of the decision. By consent, [in] September 2017, the Federal Circuit Court determined that the Tribunal had made a legal error and remitted the matter to the Tribunal to re-determine according to law. This was on the basis that the Tribunal failed to comply with s.425 of the Act in failing to put the applicant on notice of an issue under review, namely the issue of the applicant’s family members been able to stand as a guarantor for the applicant. It was noted that the Tribunal made adverse findings which were crucial planks in its reasoning of its decision.
In the Tribunal’s initial consideration of the application (leading to the remittal of the decision), the initial Tribunal hearing was held on 28 April 2015. At that hearing, the applicant indicated that he had not been able to provide sufficient instructions to his migration agent. On that basis, the matter was adjourned and none of the applicant’s substantive claims were canvassed in that hearing. The adjourned hearing was held on 16 June 2015 which addressed the substantive claims in some detail (‘first Tribunal hearing’). Prior to the matter being finalised, the Member to whom the matter had been constituted ceased to be a Member of the Tribunal and the matter was reconstituted to a different Member. As a result, a second substantive hearing of the Tribunal was conducted on 6 May 2016 (‘second Tribunal hearing’).
The applicant appeared before the Tribunal considering the remittal on 17 July 2019 to give evidence and present arguments (‘third Tribunal hearing’). The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented by his registered migration agent, who attended the hearing.
The applicant’s migration agent had requested a postponement of the scheduled third Tribunal hearing as the applicant had not had timely notice of the hearing and was impeded in his ability to obtain representation. Ordinarily in a hearing the Tribunal would take evidence from the applicant and at the end of the hearing the representative would be given the opportunity to make oral submissions. Given the long-standing nature of the applicant’s claims and the long-standing expectation that the remitted matter would be returned to the Tribunal for a hearing, the Tribunal advised the applicant that it was not prepared in the circumstances to postpone the hearing. However, it was advised that the opportunity would be provided following the hearing to provide further written submissions. A written submission and further statement by the applicant was provided after the third Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.84 made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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. The Tribunal has before it DFAT Country Report – Sri Lanka, 23 May 2018.
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Migration background and claims and submissions
The application forms for the protection visa indicate that the applicant left Sri Lanka [in] June 2012. The applicant left the country illegally, clandestinely by boat. He left from the [eastern] Sri Lanka.
The application forms for the protection visa indicate that the applicant was born on [date] in [Town 1], Central province, Sri Lanka. The applicant provided details of both parents [and specified siblings] in Sri Lanka. The applicant has never been married. The applicant read, writes and speaks Tamil and just speaks Sinhalese a ‘little bit’. The applicant had previously travelled to India in January 2009 and again in January 2010 on religious pilgrimages. From October 2002 until June 2004 the applicant lived at an address in the town of [Town 2]. From June 2004 until June 2007 the applicant lived in a [shop 1] in the main street of [a town]. From June 2007 until June 2012 the applicant lived in Colombo, being at a [shop 2]. The applicant attended a total of [number] years education in Sri Lanka from [year] until [year].
From January 1996 until January 2000 the applicant assisted his father as a [farm hand]. From January 2000 until June 2001 the applicant worked as a factory hand in [a company]. From July 2001 until July 2007 the applicant both helped his father and also worked in a [shop 1]. From July 2007 until June 2012 the applicant worked in a [company] in Colombo.
The applicant provided as part of his claims for protection a Statutory Declaration dated 29 October 2012 which provides as follows (not corrected for spelling or grammar):
(1)      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 protection claims during my interview with the DIAC officer.
(2)      Introduction:
I am a Tamil of Sri Lankan Nationality and was born on [date] in [Town 1] from the Central Province, Sri Lanka. I am the [birth order] child to my parents and I have [number] siblings [specified]. My parents and siblings are all living in [Location, Town 2], Sri Lanka
(3)      The reasons I left:
I was working in a [shop 2] in Colombo before fleeing to Australia by boat. While working in this shop I became friendly with a customer by the name of "[Mr A] ". He was working in a [workplace] called [Business Name]. He told me that he is from [a certain location] and he is the son of a [person of occupation] named [Name] from [a certain location]. After a while he stopped coming to my shop.
[In] July 2010 the CID officer's visited my shop and took me to a hideout for inquiry. They inquired me about my friend "[Mr A]". They told me that he had connection with LTTE and made inquiries about my involvement with him. They accused me of collaborating with him in planning terrorist activities. They stripped me and noticed a scar in my leg. They told me that I was in the LTTE and the scar was a battle wound. I told them I was never involved with LTTE and the scar in my leg was caused by an accident. They threatened me and told me that I should have known his where about and wanted his contact number. I told them that I was not in possession of his number. They then dropped me at the bus halt and instructed me to inform them the details of [Mr A] if I see him again.
The CID then visited my house in [Town 2] and had a complete search of the premises. They then visited on many occasions to the shop and made inquiries about "[Mr A]". My employer was displeased with frequent visit by the CID officer's and started curtailing my facilities. It became impossible for me to work in the shop. I could not continue with my work due to the activities of the CID officers and feared for the worst. I decided to flee the country and looking for ways to do so.
I approached my cousin and he told me that a boat is leaving to Australia and I decided to flee the country. I left Sri Lanka [in] June 2012 and reached Christmas Island [later in] June 2012
(4) What I fear may happen to me if I return:
I could be implicated with [Mr A] and LTTE activities and imprisoned and perhaps killed
(5) Who might harm me if I return:
The Sri Lanka Authorities, the CID and other security apparatus.
(6)      Why I think that might happen to me if I return:
Due to my race as a Tamil coupled with my innocent involvement with "[Mr A]" whom the authorities suspect as a terrorist.
(7)      Do I think the authorities can protect me if I return?
They are the perpetrators.
(8)      Can I go anywhere else in my country, apart from where I used to reside?
Being a Tamil it is difficult for me to live in any other part of Sri lanka without coming to the attention of the Authorities.
The applicant provided a further statutory declaration to the Tribunal dated 10 July 2019. It details again the applicant’s relationship with [Mr A] when the applicant was at [shop 2]. It details the account of the men visiting the shop asking about [Mr A] and taking the applicant to another location where they beat and tortured him and identified his scar. The applicant refers to the applicant been further visited by these men ‘several times’. This created difficulties with the applicant’s employer. The applicant says that these men went to his house in [Town 2] twice before he came to Australia and once after he had left for Australia. On the third visit they took photographs of the applicant and [Mr A]. The applicant provides evidence of been contacted by his friend in [Country 1] advising him about difficulties suffered by his family in Sri Lanka.
The applicant has referred to potential interpreter problems in interviews and in the first two Tribunal hearings. This has been as a product of the use of an interpreter with a different Tamil dialect to that of the applicant. (In the third Tribunal hearing the applicant indicated that he understood the interpreter.)
Prior to the first Tribunal hearing the applicant provided to the Tribunal a statutory declaration from him dated 13 May 2015. The applicant provides further details which he indicates were not known to him when he was interviewed by the delegate. The applicant indicates that in January 2014 he was contacted by a friend in [Country 1] who had been a neighbour in Sri Lanka. This person indicated that he had been contacted by the applicant’s father who had advised this person of family troubles in Sri Lanka. As a result of this conversation the applicant contacted his father. The applicant’s father informed him that four to five men had visited the family home and had assaulted the applicant’s father and pushed his [brother] against the wall causing him a minor [injury]. They searched the home and took away a photo album. This contained many photos of the applicant with [Mr A] who the authorities knew was a member of the Liberation Tigers of Tamil Eelam (LTTE). They informed the applicant’s father they were looking for the applicant as he was a supporter of a known member of the LTTE.
Provided to the Tribunal is a supporting statement from [Mr B] of [Organisation] dated [April] 2015. The statement indicates that the applicant comes from a disadvantaged background with limited education and is struggling to understand and articulate the reason why he has a well-founded fear of persecution. As belonging to a family of Tamil [plantation] workers, the applicant is from a group which is one of the most disadvantaged communities in Sri Lanka. Independent information is cited concerning harm and the risk of harm to Tamils due to suspected LTTE involvement. Additional submissions are also provided including in relation to the risk to the applicant from authorities in Sri Lanka based on being a failed asylum seeker who has been deported from Australia.
Mr [B] also provided an affidavit to the Tribunal dated 16 June 2015. Mr [B] states that he spoke to the applicant on 26 April 2015 and also on 27 April 2018 before his Tribunal hearing on 28 April 2015. Mr [B] indicates the applicant advised him of learning after the interview with the delegate that his father and brother had been assaulted by men in Sri Lanka. The applicant also indicated that his [siblings] do not live in the area any more due to fear for their safety. All the problems have arisen because of the applicant’s friendship with [Mr A].
Mr [B] indicates that in June 2015 he spoke with the applicant’s friend in [Country 1]. This person indicated that he had lived in Sri Lanka about five to 10 minutes’ walk from the applicant’s family home. This person indicated that in around October or November 2013 his sister-in-law had told him that there is a big problem in the home of the applicant’s family. Information was provided that the applicant’s father and brother had been hit by people who are linked to the government. They were accusing the applicant of smuggling weapons and funds to the LTTE. This person about a month later contacted the applicant to ask if everything was okay. He then realised from the applicant’s answer that the applicant did not know about the situation.
The applicant’s migration agent provided a submission to the Tribunal dated 13 May 2015 in advance of the first Tribunal hearing. It refers to the applicant being repeatedly questioned and harassed by CID officers regarding his support for the LTTE. This caused the applicant to lose his employment and fear for his life. The applicant will be at risk of being detained and assaulted and tortured should he return to Sri Lanka.
Independent information is cited as supporting the claim that the applicant faces harm as a Tamil. There is reference to discrimination against the Tamil minority continuing. DFAT information from 2015 is referred to in relation to disappearances and claims of torture in Sri Lanka. A 2013 Human Rights Watch report makes reference to ongoing threats of harm faced by Tamils. UNHCR Eligibility Guidelines for Sri Lanka are cited as indicating that ethnicity and place of birth are relevant factors needed to be considered when assessing a risk of harm.
Reference is made to independent information concerning the situation facing failed asylum seekers. A report from August 2014 from the Edmund Rice Centre refers to failed asylum seekers suffering harm on return to Sri Lanka. A US State Department report from 2012 refers to security forces torturing and abusing detainees and poor prison conditions. It is submitted that the situation of the applicant is such that he would be subject to more than just perfunctory screening on his return to Sri Lanka. It is submitted that independent information indicates that there can be problems from authorities after release from the airport. It is submitted that the applicant will be suspected of organising the journey to Australia and supporting the LTTE and will be harmed for those reasons.
DFAT information is referred to as indicating the process that will face the applicant on return, being security checks of the applicant. He will be questioned at the airport. CID and authorities in his home area will be notified of his return. He may be contacted by authorities in his home area.
In relation to the complementary protection criterion, it is indicated that the applicant is likely to be charged and remanded on return for offences of leaving Sri Lanka unlawfully. Any period in which the applicant is in detention would result in him facing a real risk of significant harm. It is indicated that there will be a mandatory term of imprisonment. It is submitted that the applicant may be sentenced to a term of imprisonment of one to five years. Reference is made to independent information as supporting the position that the applicant would face torture or cruel and degrading punishment or treatment while in police custody or detention. Reference is made to a decision of the UK Upper Tribunal indicating that if a person is detained by Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
A further undated submission was provided to the Tribunal. It is indicated that the applicant is a Tamil of Indian origin and only a Sri Lankan national through a 1987 accord. It is submitted that the Indian Tamil population is akin to Rohingya Muslims. Indian Tamils were not settled with the indigenous Tamil population but with the Sinhalese in other provinces to work in tea and rubber plantations. From inception they attracted the hatred and hostility of the Sinhalese. This population was widely affected by the 1977 and 1983 violence. Indian Tamils began interacting with the LTTE and this began to be recognised by the Sri Lankan authorities. LTTE would gain cadres from the Indian Tamils. The fear of the applicant arises in this context.

It is submitted that the applicant has no formal education and does not have the ability to structure his claims or put forward his evidence in the proper context of the situation in Sri Lanka.
Submissions are made in relation to adverse perceptions of the applicant due to his involvement with a person claimed to have been involved in the LTTE. Reference is made to the applicant learning while in Australia about the problems faced by his family back in Sri Lanka.
It is submitted that the DFAT assessment that the vast majority of Tamils directly associated with the LTTE during the civil conflict have been able to reintegrate back into society is superfluous and self-seeking as seen through DFAT’s political policy considerations. This does not take into account those who are monitored by security forces or individuals thought to have been connected to the LTTE and believed to have escaped. The release of the applicant by officials might not have been because he was not considered to have been involved in the LTTE. It may have been in order to monitor the applicant and as a strategy to find [Mr A].
Submissions are made as to the risk faced by the applicant when questioned at the airport on return. It is indicated that detention is not for a few days. Detention is riddled with graft. In many cases bail is unattainable.
The applicant’s representative provided a submission to the Tribunal dated 16 July 2019, in advance of the third Tribunal hearing. The submission refers to credibility issues raised by the Tribunal during the applicant’s previous hearing, and submits that the applicant has explained these credibility issues in the statutory declaration dated 10 July 2019.
The submission then turns to independent information supporting the claims that the applicant faces harm as a Tamil, a failed asylum seeker, and as someone imputed to have pro-LTTE opinion. Reference is made to the International Trust and Justice Project Sri Lanka (ITJP)’s report regarding ongoing human rights violations against Tamils with tenuous links to the LTTE. The submission notes a 2015 report by the NGO Freedom from Torture and a 2016 report in The Guardian regarding ongoing discrimination and human rights abuses undertaken by Sri Lankan security forces against Tamils, and that the military and intelligence services have continued to terrorise Tamil communities.
The submission discusses country information regarding the prison conditions in Sri Lanka. The submission makes reference to a prior Tribunal decision which quotes country information regarding the imprisonment and maltreatment of Sri Lankan returnees, and the poor quality of prisons within Sri Lanka. Reference is then made to a 2015 report on TamilNet stating that the Sri Lankan military intelligence engages in ongoing abductions and threats of Tamils.
The submission refers to the ITJP report and a UK Country of Origin in relation to the treatment of returnees, which includes reference to abductions of returnees and the in-depth interrogation and background checks of returnees by Sri Lankan security forces. Reference is made to another prior Tribunal decision regarding the treatment of returnees, including possible detention and criminal charge. The submission argues that the applicant would be imprisoned, as it is likely that the airport background checks would show the applicant’s prior detention by security forces.
The submission states that the situation in Sri Lanka has not improved for Tamils. The submission refers to another prior Tribunal decision which found that a Tamil detained for longer than a short period of time faces a real chance of inhuman or degrading treatment, due to the poor prison conditions and discrimination against Tamils. The submission states that, in light of the referenced country information, the applicant continues to face a real risk of persecution due to the ongoing discrimination against Tamils, and his return following an illegal departure, as well as him being of prior notice to the Sri Lankan authorities.
Independent evidence sourced by the Tribunal
DFAT Country Report – Sri Lanka, 23 May 2018 provides variously as follows (portions particularly relevant to this matter are underlined by the Tribunal). The Tribunal provided on the day of the third Tribunal hearing a copy of the information below to the applicant with relevant underlining in order to assist in responding following the hearing in writing to the preliminary views of the Tribunal in relation to independent information and the applicant’s claims as discussed with the applicant in the hearing:
RACE/NATIONALITY
Sri Lanka is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. The Sri Lankan Constitution provides that ‘no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds’. The ethnic dimensions of the civil conflict, and Sri Lanka’s previous discriminatory language policy, the 1956 Official Language Act (also referred to as the ‘Sinhala Only Act’) which listed Sinhala as the only official language, have shaped ethnicity and language as sensitive issues in Sri Lanka. An amendment to the Constitution in 1987 recognised Tamil as the second official language. In 2012, the Trilingual Policy gave Sri Lankans the right to communicate in Sinhala, Tamil or English throughout Sri Lanka. Under this policy, all civil servants employed after 1 July 2007 must be proficient in both official languages within five years of employment in order to receive annual salary increments. Ethnicity and language are fundamental considerations in the reconciliation process.
Most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. This is the outcome of Tamils and Muslims moving from other parts of the country to access greater economic opportunities in Colombo, and internal relocation due to the conflict. Tamils comprise most of the population of the Northern Province, and the isolation of the region during the conflict has left it less ethnically diverse.
DFAT assesses that Sri Lankans of all backgrounds face a low risk of official or societal discrimination based on ethnicity, including in relation to access to education, employment or housing.
Tamils
Tamils are the second largest ethnic group in Sri Lanka. According to the most recent census, the Tamil population was 3.1 million in 2012, compared to 2.7 million in 1981. Tamils live throughout Sri Lanka, concentrating in the Northern Province, where they comprise 93 per cent of the population, and the Eastern Province, where they comprise 39 per cent of the population.
Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The Tamil Makkal Viduthalai Pulikal (formerly known as the Karuna Group) contested and won some seats in the February 2018 local government elections. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the local elections. Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities.
DFAT assesses that there is no official discrimination on the basis of ethnicity in public sector employment. Rather, limited Tamil appointments are a result of a number of factors, including disrupted education because of the conflict and language constraints.
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 conflict. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Political Opinion (Actual or imputed)).
Members of the Tamil community in the north and east continue to claim that authorities monitor public gatherings and protests, and practise targeted surveillance and questioning of individuals and groups. In the north, security forces are more likely to monitor people associated with politically sensitive issues, including missing persons, land release and memorial events (see Civil society organisations and government critics and Media). Police increased their presence following a rise of criminal activity and violent attacks that authorities attributed to the Avaa group (alleged to comprise former LTTE members recruited by military intelligence) in Jaffna and other parts of the Northern Province in 2016 and 2017. One measure was the establishment of security checkpoints on the A9 highway (the major road into Jaffna from the south) in November 2017, where authorities stopped private and public vehicles and searched luggage.
Communities in both 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. Some members of the Tamil community reported they felt more empowered to question monitoring activities. In the east, local informants within the community (including neighbours and business owners) reportedly undertook monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues.
During the conflict, authorities detained more Tamils under the Prevention of Terrorism Act (1978) (PTA) than any other ethnic group. Since 2015, the government has reviewed some cases of persons still detained under the PTA and released some detainees, mostly Tamils (see Arbitrary Arrest and Detention). The PTA is currently suspended but remains legally in force.[1]
[1] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.1-3.12
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
Sri Lanka has regularly held democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have they always been described as entirely free and fair. The Commonwealth Observer Group said the most recent (2015) national elections were ‘credible, met the key criteria for democratic elections, and the outcome reflected the will of the people’.
Political representation of minorities, including ethnic and religious minorities
No constitutional, legal or other restrictions bar minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious or ideological interests. Political representation in parliament is broadly proportional to the overall population. The current parliament includes 29 Tamils and 21 Muslims among its 225 members. President Sirisena presides over a diverse coalition of more than a dozen political parties, which are comprised predominantly of Sinhalese Buddhists but also include Muslim and Tamil members.
Sri Lanka has no banned political parties and all parties operate freely within the same legal framework. DFAT is not aware of any evidence to suggest that Sinhalese, Tamil, Muslim or other parties face any differences in treatment. The PTA restricts certain actions by political parties or groups. Specifically, any person who ‘causes or intends to cause commission of acts of violence or religious, racial or communal disharmony’ can face a maximum of five years’ imprisonment.
DFAT assesses that no laws or official policies discriminate on the basis of political opinion, nor is there systemic political discrimination against any particular group.
Liberation Tigers of Tamil Eelam (LTTE)
At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE had an intelligence wing, a political wing and an extensive administrative structure based in its de-facto capital in Kilinochchi in northeast Sri Lanka. The majority-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE as a matter of course. The LTTE was supported by foreign funding and both voluntary and forced recruitment of Tamils.
Towards the end of the conflict, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. Since 2015, the government has publicly committed to reducing military involvement in civilian activities.
Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities. The UK Home Office reported that the ‘watch list’ comprised minor offenders and former LTTE cadres. DFAT assesses those on a watch list are likely to be monitored.
Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy group and ran for election. While they did not win any seats, their participation demonstrated the openness of the electoral process.
DFAT assesses that the LTTE no longer exists as an organised force in Sri Lanka. Any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans, including those returning from abroad. The government has demonstrated a commitment to easing restrictions: in November 2015, it reviewed its United Nations Security Council Resolution 1373 list and removed eight Tamil diaspora organisations and 269 individuals from its terrorist list.
Some members of the LTTE (and the Sri Lankan forces) may be ineligible for international refugee protection because of involvement in war crimes and serious violations of human rights committed during the conflict. Such crimes include: abductions and enforced disappearances; indiscriminate attacks on civilians; forced displacement; torture and other cruel, inhuman and degrading treatment; murder, including political assassination; mass killings; extrajudicial and summary executions; rape; and forced recruitment for the commission of attacks and/or military service and/or labour, including recruitment (sometimes through abduction) of children.
Rehabilitation
Since the end of the civil conflict, the Sri Lankan government has managed a large-scale rehabilitation process for former LTTE. The government established 24 rehabilitation centres in the Northern, Eastern and Western Provinces for approximately 12,000 former LTTE members who surrendered in 2009. The Bureau of the Commissioner General of Rehabilitation used a ‘three pronged approach’ to manage the arrested LTTE members: those to be investigated and prosecuted under normal court of law; those to be rehabilitated; and those to be released upon confirmation by intelligence agencies of their peripheral involvement in the conflict. LTTE members undergo two forms of profiling: psychosocial, including an assessment of their level of radicalisation; and socioeconomic, including education, professional skills and vocational interests. Personal files assess the progress of former LTTE in terms of rehabilitation and de-radicalisation. Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised. The first six months of the program focuses on ‘rehabilitation of the mental and physical state’, including education, spiritual, religious and cultural training and sports, and the last six months is dedicated to vocational training.
Although the activities undertaken in the rehabilitation centres vary, vocational training for men includes welding, masonry, plumbing, driving, tailoring, wiring, language, computer skills and vegetable cultivation. Women receive training in cookery, beauty therapy, tailoring, language and computer skills. Former child soldiers are able to complete their education. While many of those who have completed rehabilitation have reported difficulty finding regular employment following their release, others have said the vocational skills gained during rehabilitation made them more employable. The unemployment rate among rehabilitated former LTTE members, particularly women, is reportedly higher than the national average but this may reflect factors such as the weaker economic conditions in the north and east, conflict-related disabilities, and a reluctance to hire known former LTTE members. The 2018 budget allocated LKR 25 million (approximately AUD 209,000) for rehabilitated ex-combatants in the north and east to attain National Vocational Qualifications.
According to the Bureau of the Commissioner General of Rehabilitation, by November 2017, 12,882 people, primarily former LTTE, had completed rehabilitation. Only one centre with eight inmates remained open in Vavuniya in December 2017. In 2016, Vavuniya inmates reported conditions were significantly better than in prison. Other centres have redeployed for drug rehabilitation.
The rehabilitation program is expected to conclude once the last intake has completed the one-year program. The government estimates 5,000 undisclosed ex-combatants remain in the community. Ex-combatants are reluctant to identify as such for fear of rehabilitation or prosecution. A Sri Lankan official told DFAT that former LTTE members who are not already rehabilitated are unlikely to be rehabilitated now. Extension of the program would create an obligation for the government to support the families of new inmates while they undergo rehabilitation. DFAT is not aware of rehabilitation being imposed on any former LTTE members who have returned from Australia.
Although no formal parole arrangements apply, former LTTE members are required to register with the Civil Affairs Office of their local military unit and may be subject to monitoring, the level of which would depend on the degree of their assessed LTTE involvement. Most individuals released from rehabilitation centres have returned to their places of origin upon release and, like all other citizens, are required to register with a local grama niladhari (village officer) to receive financial and other support for repatriation and access to public services. Some international and domestic NGOs also provide post-release support. DFAT understands that no travel restrictions apply to rehabilitated former LTTE members, who may obtain a passport. Some may limit their own travel to avoid telling authorities of their movements.
DFAT is aware of reports that more than 150 former LTTE members died of cancer after being in rehabilitation camps. Some Tamil political leaders, including Northern Province Chief Minister Wigneswaran, raised allegations in 2015 and 2016 that former LTTE members received poisonous injections during rehabilitation resulting in fevers, heart disease and cancer. The Northern Provincial Council directed its health ministry to investigate over 200 allegations and concluded there was no evidence of injections.
The government has used the rehabilitation process to screen and profile LTTE members through interviews, informants and other relevant information to assess individuals’ depth of involvement, period of involvement and activities. Security forces can use such information to categorise individuals and potentially to determine whom to prosecute for terrorism or other offences. DFAT is not aware of specific cases where this has occurred.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
In 2012, UNHCR identified a range of people with real or perceived links to the LTTE:
·     persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern provinces of Sri Lanka;
·     former LTTE combatants or ‘cadres’;
·     former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
·     former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
·     LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and
·     persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
Some Tamils with imputed LTTE links reported police monitoring and harassment in 2016. The UK Home Office assessed in 2017 that anyone actively promoting Tamil separatism could risk persecution.
High profile former LTTE members
The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s leadership died during the conflict, a number surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see Former LTTE members living outside Sri Lanka). Others considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE.
On 11 April 2014, following the alleged posting of pro-LTTE flyers in Kilinochchi, the military killed three suspected LTTE members in Vavuniya district. DFAT is not aware of any similar cases since 2014.
DFAT assesses that the number of high profile former LTTE members living in Sri Lanka is small and the vast majority would already have come to the attention of the authorities. DFAT further assesses that any remaining high profile former members who came to the attention of Sri Lankan authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts. Following their release from prison, high profile former LTTE members would likely continue to be monitored by Sri Lankan authorities.
Low profile former LTTE members
‘Low profile’ former LTTE members include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict. DFAT assesses that, although the great majority of low profile former members have already been released following their rehabilitation, any other low profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation, low profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe, Australia, Malaysia, and the Indian state of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to provide an important source of income for family and community members in Sri Lanka.
Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE, and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult to raise funds from Tamil diaspora communities.
Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities because of their participation in such demonstrations.
A large number of Sri Lankan Tamil refugees live in camps in Tamil Nadu; in September 2017, the population of these camps was 62,209 (see Returnees from Tamil Nadu). Of this number, 20 people reside in a ‘special camp’ in Tiruchirappalli, Tamil Nadu, managed by the Tamil Nadu Prisons Department. DFAT cannot verify the profile of the Tiruchirappalli camp population, but understands this camp houses former LTTE members. After the end of the conflict, the camp population has included Sri Lankan Tamils travelling without valid identity documentation and other foreigners arrested under the provisions of India’s Foreigners Act (1946). DFAT understands that, unlike other refugee camps in Tamil Nadu, special camp inhabitants are not permitted to leave, and they may not be eligible for benefits that other Sri Lankan Tamil refugees receive.
The government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
Family members of LTTE
The Sri Lankan government acknowledges that ex-combatants and their families may continue to face discrimination both within their community and from government officials. The TNA and the Tamil Civil Society Forum reported in 2016 that authorities continued to follow and monitor former LTTE cadres and their families. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring.
Arrest, Detention and Prosecution
Under Regulation 22 of Sri Lanka’s Emergency Regulations (2005) (repealed in 2011), administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation. Under the PTA, which is currently suspended but still in legal force, authorities can hold suspects without charge for extendable three-month periods, not exceeding a total of 18 months, though some persons have been held for more than 10 years. In addition to those arrested under the PTA, some former LTTE members have faced other criminal charges.
Modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system. In November 2015, then Justice Minister Wijeyadasa Rajapakshe publicly reported that 204 suspected LTTE cadres (including around 50 in rehabilitation centres) remained in government custody, 56 had been convicted, and trials were in process for 124. DFAT is unable to verify independently the number of former LTTE members in places of detention other than rehabilitation centres.
The Attorney-General may seek a person’s admission to a rehabilitation program, a prison sentence, or dismissal of a case. Case dismissals have been rare, and recommendations for rehabilitation alone have applied only to low profile detainees. Some high profile detainees have received prison sentences following their release from rehabilitation centres.
DFAT has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.
Societal discrimination
Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may act as informants for Sri Lankan authorities. Tamil populations in these areas understand that many people were forced to participate in LTTE activities, and DFAT assesses that societal discrimination against low profile LTTE members is low, although some have faced difficulty finding employment, as some potential employers are concerned about increased police and military attention (see Rehabilitation). Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste.
Local NGOs report that female former LTTE members face additional difficulties, including the risk of sexual harassment and stigmatisation within the community, and difficulties finding a marriage partner or securing employment. DFAT has been unable to verify these claims. Women who were forcibly recruited are more likely to be accepted back into their communities than LTTE volunteers.
DFAT assesses that members of the LTTE suspected of serious human rights violations against Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
Scarring
DFAT is aware of reports that people with conflict-related scarring are more likely to attract adverse attention from the Sri Lankan authorities. Freedom from Torture’s 2011 report ‘Out of the Silence’ documents an unidentified number of people detained by Sri Lankan authorities in April or May 2009, because their scarring was deemed evidence of LTTE membership. The cases raised in the report date from the immediate end of the conflict and DFAT is unaware of more recent evidence of people being detained because of scarring. DFAT is aware of the conclusions of the UK Court of Appeal in 2017 of self-inflicted scarring in the case of an asylum claimant who alleged torture because of his previous links to the LTTE.[2]
[2] DFAT Country Report – Sri Lanka, 23 May 2018, paras 3.31-3.67
…
TREATMENT OF RETURNEES
Exit and Entry Procedures
Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. The Immigrants and Emigrants Act (1949) (the I&E Act) governs exit and entry from Sri Lanka. Sections 34 and 45(1) (b) of the I&E Act make it an offence to depart other than via an approved port of departure, such as a seaport or airport. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. If a returnee voluntarily returns on their own passport on a commercial flight, they may not come to the attention of local authorities if they had departed Sri Lanka legally through an official port on the same passport.
Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service and the Criminal Investigation Department and, at times, the Terrorism Investigation Department, process returnees, including those on charter flights from Australia. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Australian officials based in Colombo may meet charter flights carrying voluntary and involuntary returnees. IOM meets assisted voluntary returns after immigration clearance at the airport. Processing of returnees at the airport can take several hours, due to the administrative processes, interview lengths, and staffing constraints at the airport. Returnees are processed in groups, and individuals cannot exit the airport until all returnees have been processed.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which 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 the person’s claimed hometown police, contacting the person’s claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
Most Sri Lankan returnees, including those from Australia, are questioned (usually at the airport) upon return and, where an illegal departure from Sri Lanka is suspected, they can be charged under the I&E Act. DFAT understands the Sri Lankan Police Airport Criminal Investigations Unit at Colombo’s Bandaranaike International Airport makes most arrests. In the process, police will take photographs, fingerprints and statements from returnees, and further enquire about activities while abroad if returnees are former LTTE members. At the earliest available opportunity after investigations are completed, police transport the individual to the closest Magistrate’s Court, after which custody and responsibility for the individual shifts to the courts or prison services. The magistrate then makes a determination as to the next steps for each individual; crew and facilitators or organisers of people smuggling ventures are usually held in custody. Apprehended individuals can remain in police custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be detained for up to two days in an airport holding cell.
The Sri Lankan Attorney-General’s Department has directed that all passengers of people smuggling ventures, not only those suspected of facilitating or organising irregular migration, be charged under the I&E Act and appear in court. Those charged are required to appear in court in the location where the offence occurred, which involves legal and transport costs. The frequency of court appearances depend on the magistrate and vary widely, but those charged are required to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitator or organiser of a people smuggling venture. Cases are taken forward in court only when all members of a people smuggling venture have been located, contributing to protracted delays. In November 2017, over 800 separate court cases were pending, with most involving several people. The I&E Act does not specify minimum mandatory sentences.
Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine. In practice, most cases result in a fine and not imprisonment. The Attorney-General’s Department, which is responsible for the conduct of prosecutions, claims no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally. However, fines are issued to deter people from departing illegally in the future. Fine amounts vary from LKR 3,000 (approximately AUD 25) for a first offence to LKR 200,000 (approximately AUD 1,670). A guilty plea will attract a fine, which can be paid by instalment, and the defendant is free to go. Where a passenger returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. Anecdotal evidence suggests that most passengers of people smuggling ventures spend many years on bail, and that most are free to go after paying a fine. DFAT is unable to obtain any data to support this claim.
Bail is usually granted to voluntary returnees. Bail conditions are discretionary, and can involve monthly reporting to police at the returnee’s expense, including for those who have subsequently relocated to other parts of the country. Facilitators and organisers of people smuggling ventures can be charged under section 45C of the I&E Act and are not usually released on bail. According to Sri Lankan Police information as at September 2017, all facilitators, organisers and skippers (captains of boats) convicted under section 45C had received prison sentences of one year. DFAT could not obtain information on the number of persons convicted.
The processes outlined above apply to returnees who travelled illegally to India and then onwards to a third country. Children over 14 can be charged; no bail or fines are imposed for children under 14. The Sri Lankan government claims no returnee from Australia to Sri Lanka has been charged under the PTA. DFAT cannot verify this claim. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure. In October 2012, a court issued warrants for the arrest of a group of returnees for the theft of a vessel used to travel to Australia, for causing of grievous harm to persons, and for people smuggling.
DFAT assesses that the Sri Lankan government differentiates between fare-paying passengers and the facilitators and organisers of irregular migration. It is more likely to pursue those suspected of being facilitators or organisers of people smuggling ventures. DFAT is unable to assess if penalties for multiple illegal departures are higher. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high.
DFAT understands the Sri Lankan parliament is expected to consider new legislation to replace the I&E Act by mid-2018.
Conditions for Returnees
Between 2008 and 2017, over 2,400 Sri Lankan nationals departed Australia for Sri Lanka. This includes nationals who were returned from the Australian community, and those removed from Australian onshore immigration detention centres. Many others returned from the US, Canada, the UK and other European countries, and 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, or because they have existing family links, or because of the relatively lower cost of living compared to the south. Around one quarter of approximately 5,000 IOM-supported voluntary returnees (including failed asylum seekers, irregular migrants and stranded migrants) from 2002 to January 2016 returned to Jaffna.
The government has consistently said that refugees are welcome to return to Sri Lanka, and announced in 2016 the ‘National Policy on Durable Solutions for Conflict-Affected Displacement’. During a visit to Australia in February 2017, Sri Lankan Prime Minister Ranil Wickremesinghe stated publicly that failed asylum seekers from Australia would be welcomed back to Sri Lanka (see Offences under the Immigrants and Emigrants Act). Human rights groups greeted this statement with scepticism.
Despite positive government sentiment, refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some refugee returnees receive reintegration assistance in the form of transport assistance and livelihood support upon return to Sri Lanka from the government, UN organisations and international NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. In 2016, the Sri Lankan government promised to recognise the educational and professional qualifications acquired by refugee returnees outside Sri Lanka, but returnees continue to report challenges in obtaining recognition for foreign qualifications.
While the government has reportedly decreased systematic surveillance of returnees, DFAT is aware of anecdotal evidence of regular visits and phone calls by the Criminal Investigation Department to failed asylum seekers in the north as recently as 2017. A UNHCR survey in 2015 reported that 49 per cent of refugee returnees in the north had received a visit at their homes for a purpose other than registration, with almost half of those visits from the police. Refugees and failed asylum seekers reported social stigma from their communities upon return; in some communities, people resent the financial support provided to refugee returnees.
Bureaucratic inefficiencies rather than official discrimination present the biggest challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR facilitation, can experience delays in obtaining necessary identification documents and citizenship. Lack of documentation inhibits access to social welfare schemes and their ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east (see Employment) 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 they may face. Only 0.3 per cent of refugee returnees interviewed by UNHCR (including UNHCR-facilitated and voluntary returns) in 2016 indicated that they had security concerns following their return.
DFAT assesses that returnees may face some societal discrimination upon return to their communities, which could also affect their ability to secure housing and employment. DFAT further assesses that continued surveillance of returnees contributes to a sense of mistrust of returnees within communities.[3]
[3] DFAT Country Report – Sri Lanka, 23 May 2018, paras 5.27 – 5.42

UNHCR’s July 2012 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’ states, in part:
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[4]
[4] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p. 25 <>
The 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant.^[5]
…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[6]
[5] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325
[6]Ibid, para. 356(3)
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[7]
[7] Ibid, para.356(7)(a)
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence,
both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities
know that many Sri Lankan Tamils travelled abroad as economic migrants and also
that everyone in the Northern Province had some level of involvement with the
LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history
[8] Ibid para. 356(8)
will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[8]
Independent information indicates that those known to have supported the LTTE were rounded up into rehabilitation camps shortly after the end of the civil conflict. Most have now been released.[9]
[9] International Crisis Group, ‘Sri Lanka's North I: the denial of minority rights’, Asia Report No.219, 01 March 2012, p. 10, footnote 73 CIS22742
The Tribunal had the Country of Origin Information Services Section of the Department of Home Affairs undertake research into the situation in Sri Lanka involving Indian Tamils. The following was provided in a report dated 19 April 2019:
Indian Tamils in Sri Lanka have been subject to various levels of marginalisation, discrimination or mistreatment in Sri Lanka as a result of previous citizenship restriction, which ended in 2003, however there is limited information to indicate the extent of such treatment in the last year.[10]
[10] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 1, CISEDB50AD8247
Indian Tamils in Sri Lanka, also referred to as “Up Country Tamils”, “Hill Country Tamils” and “Plantation Tamils”,[11] comprise around four percent of Sri Lanka’s population, according to the latest census, 2012, which was the first since the end of armed hostilities.[12] In its Report on International Religious Freedom for Sri Lanka, albeit in 2016, the United States Department of State found the Indian Tamil community had a large presence in Sabaragamuwa and Uva Provinces, located inland and in the central region of the country.[13]
[11] ‘Country Information Report: Sri Lanka, Department of Foreign Affairs and Trade, 23 May 2018, p. 6, CIS7B839411064
[12] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 2, CISEDB50AD8247.
[13] '2015 Report on International Religious Freedom - Sri Lanka', US Department of State, 10 August 2016, p. 2, OGD95BE926808
Indian Tamils in Sri Lanka were adversely affected by the operation of previous citizenship law in Sri Lanka, which a 2017 source noted “resulted in Up Country Tamils being rendered stateless”.[14] Similarly, a 2018 report published by the Daily Mirror observed that Indian Tamils were effectively denied enjoyment of civil and political rights following the end of colonial rule in Sri Lanka, and the passage of citizenship laws:[15]
[14] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 1, CISEDB50AD8247
[15] 'After War Ends: A Road to national reconciliation', Daily Mirror (Sri Lanka), 23 January 2018, CXBB8A1DA20649
On the face of it, the provisions of the Act do not seem to discriminate against any particular community. However, due to the manner in which the Act was implemented, the community’s relatively short history in Sri Lanka and poor socioeconomic conditions, it impacted the Up Country Tamil community more adversely than any other. In fact, by its implementation the Act seemed to be contrived specifically to deny citizenship to Up Country Tamils.[16] [emphasis added]
[16] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 4, CISEDB50AD8247
In 2003 the Grant of Citizenship to Persons of Indian Origin Act was enacted in Sri Lanka, and was regarded as significant for demonstrating a human rights-based interest and perspective to the situation of Indian Tamils in Sri Lanka, “rather than simply an interstate or political issue as it had been previously”.[17]
[17] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p.p. 10-11, CISEDB50AD8247
In 2017 the United States Department of State reported that “[b]oth local and Indian origin Tamils maintained they suffered longstanding, systematic discrimination in university education, government employment, housing, health services, language laws, and procedures for naturalization of noncitizens”.[18]
[18] ‘Country Report on Human Rights Practices 2016 – Sri Lanka', US Department of State, 03 March 2017, p. 19, OGD95BE926876
According to a 2017 study of Sri Lanka’s citizenship law, the impact of previous citizenship exclusion has a legacy impact and continues to affect Indian Tamils in Sri Lanka, causing economic disadvantage and social vulnerability:
The issue of statelessness among the Up Country Tamil community, created by the citizenship regime set up immediately after independence, has now been resolved legislatively. The statutory changes were a result of a change in political culture and attitudes towards the Up Country Tamil community and their place within Sri Lanka. As such one is hopeful that the existing citizenship regime will not be implemented in the same manner it was done historically, with the intent to exclude this community from the Sri Lankan state. Despite being considered a global success story in resolving the issue of statelessness, Sri Lanka still needs to deal with the impact of excluding the Up Country Tamil community from political life and denying them basic rights and freedoms for several decades. This has left a majority of the Up Country Tamils economically deprived and socially vulnerable.^[19]
[19] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 16, CISEDB50AD8247
The same source suggests that although Indian Tamils in Sri Lanka were denied citizenship for a variety of political and economic reasons, the economic contribution made by the Indian Tamil community through tea and rubber plantation labour served as a catalyst for citizenship reform, and ultimately their access to formal citizenship.[20]
[20] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 2, CISEDB50AD8247
The new law provided protection for Sri Lankans from being required to produce a citizenship certificate for any purpose to prove citizenship, which has been regarded as “particularly useful for Up Country Tamils in order to assert their rights and access government services.”[21]
[21] 'Report on Citizenship Law - Sri Lanka', Robert Schuman Centre for Advanced Studies, 01 May 2017, p. 14, CISEDB50AD8247
The 2017 report of the United Nations Special Rapporteur on Minority Issues indicated that Indian Tamils in Sri Lanka experience significant inequity in various social, economic and cultural rights, and concluded: “[a]ccording to all the socioeconomic and health indicators, including access to housing, health, education, literacy, sanitation and safe drinking water, Plantation Tamils are the most deprived group in the country”.[22]
[22] ‘Report of the Special Rapporteur on Minority Issues on her Mission to Sri Lanka’, United Nations Special Rapporteur on Minority Issues, 31 January 2017, CISEDB50AD346
A 2017 study published by BioMed Central Public Health noted the “Tamil community in the plantation sector has been isolated socio-economically and geographically from the other parts of Sri Lanka”, and that members of this community “showed the lowest educational levels, health and nutrition conditions and the highest mortality levels in Sri Lanka”.[23]
In 2016 the United Nations Committee on the Elimination of Racial Discrimination reported that Indian Tamils in Sri Lanka continue to face challenges, including:
a.High levels of poverty, poor compensation for work and poor working conditions;
b.Poor housing conditions and difficulty in gaining access to health services;
c.Lack of quality education and higher dropout and child labour rates than the national average
d.Difficulty in obtaining citizenship papers or identity documents, leading to problems with owning housing, opening bank accounts and avoiding detention;
e.Caste-based discrimination.[24]
COISS was unable to locate any information to indicate specific occasions of retribution or specific instances of harm or adverse treatment of Indian Tamils in Sri Lanka in the last year.[25]
[23] ‘Nutritional status and correlated socio-economic factors among preschool and school children in plantation communities, Sri Lanka’, Biomed Public Health, 2 May 2017, 20190429100121
[24] ‘Concluding Observations on the Combined Tenth to Seventeenth Periodic Reports of Sri Lanka’, United Nations (UN) Committee on the Elimination of Racial Discrimination (CERD), 6 October 2016, CIS38A80123498
[25] Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources.
Credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and accordingly his claims will be assessed against Sri Lanka.
In the interview with the delegate and in all Tribunal hearings the applicant has given detailed and consistent accounts of being visited in July 2010 in [shop 2] where he worked by six individuals who the applicant believes were from the CID. The applicant has been consistent in claims of these men inquiring with the applicant as to his relationship with [Mr A]. The applicant provided a detailed account of him being driven by these men to a home in Colombo where they questioned him further about his relationship with [Mr A]. The applicant has provided believable accounts of these men noticing a difficulty in the applicant standing from a seated position, identifying a physical injury on the applicant’s legs. This then involved the applicant having his pants removed and scars on his leg being revealed. This caused the men to suspect the applicant’s involvement in LTTE activities which the applicant denied. The applicant gave evidence that this injury occurred when he was exiting a bus which began to move as the applicant was exiting causing the injury.
The applicant has also provided a consistent and detailed account of meeting [Mr A] who was seeking [products] in the applicant’s shop and then the applicant becoming friends with this person. They would go to the beach and movies. The applicant indicated that his last contact with [Mr A] was before the visit by the men to the applicant’s shop in July 2010. The applicant indicated in the first Tribunal hearing that the men who visited the applicant and took him for questioning found [Mr A]’s phone number on the applicant’s mobile phone which the men tried to call. However, this number was disconnected. The applicant gave evidence in the first Tribunal hearing that he later himself tried to contact [Mr A] but he could not do so because the number remained disconnected.
The applicant has given evidence in the interview and hearings that he had no knowledge that [Mr A] was involved with the LTTE.
The Tribunal accepts that the applicant developed a friendship for several months in 2010 with [Mr A]. The Tribunal accepts the applicant’s account of six men who were likely to have had government connections, most probably with the CID, inquiring with the applicant as to his relationship with [Mr A]. The Tribunal accepts that the men who visited had suspicions that [Mr A] was involved with the LTTE. The Tribunal accepts that these men were seeking from the applicant information in relation to [Mr A] and were also seeking to satisfy themselves that the applicant himself was not involved in the LTTE. The Tribunal accepts that these likely CID officials had an increased suspicion of the applicant’s involvement in the LTTE due to his relationship with [Mr A] and the applicant’s scars which these men exposed on the applicant. The applicant himself gave evidence that he did not have positive knowledge himself that [Mr A] was involved in the LTTE, and the Tribunal accepts this.
However, the Tribunal is not satisfied with the applicant’s claims of subsequent multiple visits by these CID officials to the applicant’s shop or of claims that these officials visited the applicant’s family home both prior to and after the applicant departed for Australia. The Tribunal has credibility concerns that officials physically harmed the applicant’s father and brother.
The credibility concerns of the Tribunal in relation to this evidence follow.
Firstly, when the applicant was first interviewed by the Department of Immigration after arriving in Australia he made mention of only one visit to himself by the six men that he believed were from the CID. The applicant did not provide at the Entry Interview evidence later provided in the Tribunal hearings that he was visited by these men 30 to 40 times in the two years between 2010 and 2012.
In the Entry Interview that took place on 13 August 2012 the applicant provided details as to why he left Sri Lanka. The applicant referred to a visit by six men in 2010 to the shop in which he worked questioning the applicant about his relationship with [Mr A]. The applicant indicates that following the visit these men visited his family home and then visited his family home again in 2012. However, no mention is made by the applicant by any other visits to the applicant of these men.
This is in contrast to evidence given by the applicant in the first and second Tribunal hearings in which he indicates that various of these original six men who visited him in July 2010 returned on between 30 and 40 occasions prior to the applicant leaving Sri Lanka in 2012. He indicated that they would visit the shop checking on the applicant and asking the applicant whether he had had any contact with [Mr A]. The applicant also indicates that they would monitor him in activities outside the shop. For instance, when the applicant was in a restaurant they would sit near by monitoring him.
The applicant gave evidence that these visits became so intrusive at his workplace that the high regard that his employer had for him diminished. The applicant indicated that the level of intrusion was such as to cause the applicant to decide that he needed to leave for Australia.
In the second Tribunal hearing the inconsistency was put to the applicant in terms of his failure to provide evidence in the Entry Interview of a multitude of visits by these men to the applicant between 2010 and 2012. The applicant responded that he was told to keep the details short in this interview and therefore he did not provide this information. In that hearing the applicant’s migration agent submitted that undue regard should not be had to the Entry Interview.
In the third Tribunal hearing, the Tribunal put to the applicant pursuant to the procedural requirements of s.424AA of the Act that the applicant failed in the Entry Interview to make any mention of many return visits by these CID men to the shop or otherwise to visit or monitor the applicant. The Tribunal noted that this information was relevant because it was inconsistent with later claims of 30 to 40 visits by these men to the applicant and frequent monitoring of the applicant’s activities. The consequence of relying on this information could be to question the applicant’s credibility as to the ongoing attention by these men towards the applicant.

In response, in the hearing the applicant indicated that he was told that he should keep his claims short in the Entry Interview and therefore did not provide details of subsequent visits and monitoring.
The Tribunal acknowledges that the Entry Interview is not designed to flesh out the full claims of an individual for protection, however it does require the applicant to articulate the key reasons why he left his home country. In that interview the applicant referred to the initial visit by these six men to his shop. He referred to two subsequent visits by these men to the home of his family. The Tribunal is not persuaded, that if there were the multitudinous number of visits as had been claimed and that these visits to his workplace were a significant reason for the applicant deciding that he needed to leave Sri Lanka that the applicant would not have mentioned this many visits in the Entry Interview. The fact of the applicant providing evidence in that interview of many, many visits by these men would not be a lengthy or complex fact to convey in the interview.
Secondly, the applicant has not provided consistent evidence as to the number of visits by these men to his family home before the applicant left Sri Lanka.
In each of the interviews with the delegate and in the first and second Tribunal hearings the applicant indicated that, as far as he was aware, there had been only one visit by these men to his family home in [Town 2] prior to the applicant leaving Sri Lanka. In contrast, in the Entry Interview the applicant indicated that after the six men initially visited him in 2010 that, after they dropped the applicant off, they went to his family home which they searched and questioned his parents. The applicant indicates that in 2012, when the applicant was still in Sri Lanka, they again visited and asked questions about the applicant and whether he had met up with [Mr A]. They advised that they should be informed if the applicant is in contact with him.
This inconsistency was put to the applicant in the third Tribunal hearing. In response the applicant indicated that he had not been told about the second visit until some point after he arrived in Australia. The Tribunal indicated to the applicant that this did not explain why the applicant would have in the Entry Interview have referred to two visits and then later one visit only. The applicant then indicated that he did say that there had been two visits in the interview with the delegate and in the Tribunal hearings. The Tribunal in the third hearing put to the applicant that from its listening to the interview and these hearings that the applicant only referred to one visit. The Tribunal gave the applicant the opportunity following the hearing to seek to counter this clear impression of the Tribunal.
The applicant provided a written statement following the third Tribunal hearing addressing this issue. The applicant indicated that he was confused in the hearing because he was told to attend the hearing within a short period of time and that it had been four years since his last hearing. He was nervous and confused. That is why he had asked for a postponement of his hearing. The applicant indicated that he did not answer correctly in the hearing because he was nervous and stressed.
The applicant indicated that he subsequently stated that there had been only one visit because he thought he was being asked how many visits there had been after the applicant had arrived in Australia.
The Tribunal is not satisfied that this explains the discrepancy in the second Tribunal hearing. In that hearing the applicant is specifically asked if there was only one visit by authorities to the family home while the applicant was in Sri Lanka. In response, the applicant indicated that there were three visits, one while the applicant was in Sri Lanka and two visits after the applicant had arrived in Australia.
It is a not insignificant difference as to whether there were one or two visits by these men over a period of two years to his family home while the applicant remained in Sri Lanka. The Tribunal considers that the fact of such visits would be disturbing and impactful events for the applicant. The Tribunal does not consider that the applicant would fail to remember or be confused as to the precise number of visits. Whilst, again, the Tribunal acknowledges that the Entry Interview is not designed to fully set out claims for protection, this inconsistency on a not insignificant and, in itself, straightforward issue causes credibility issues for the Tribunal.
The Tribunal does not consider that the applicant has been prejudiced in relation to this issue by the Tribunal not agreeing to postpone the scheduled third Tribunal hearing. The applicant was provided the opportunity, and did, provide subsequent written submissions in relation to credibility concerns identified by the Tribunal in the third hearing which had been taken into account by the Tribunal.
Thirdly, the Tribunal struggles to accept that if the applicant, himself, was under any serious suspicion of having been linked to the LTTE, and in particular of having been suspected of smuggling weapons, that this would not have been thoroughly investigated and finally determined by authorities in the two years from the six CID men initially visiting the applicant in 2010.
The applicant has now claimed that there were continual visits to him and monitoring of him for two years prior to him leaving Sri Lanka in 2012. The DFAT report extracted in this decision makes clear that Sri Lankan authorities had sophisticated intelligence techniques. The Tribunal considers that given this claimed level of investigation and scrutiny that authorities would have determined, one-way or another, if the applicant had an adverse profile or not. If he had been considered to have had an adverse LTTE profile the Tribunal considers that he would have been sent to one of the LTTE rehabilitation centres that had been set up. The fact of this two-year period passing with the claimed level of scrutiny and investigation causes the Tribunal to consider that, if this level of scrutiny did indeed occur, that authorities have determined that the applicant is not of adverse interest and would therefore not have an adverse interest in the applicant if he were to return to Sri Lanka.
This concern of the Tribunal was discussed with the applicant in the third Tribunal hearing. In response he indicated that it did take that much time to investigate the applicant.
In the written submission provided following the third Tribunal hearing it is submitted that it is not uncommon for persons with an imputed political opinion to be monitored. UNHCR guidelines are referred to as indicating difficulties that may be suffered by individuals with real or perceived links to the LTTE.
In the written statement provided by the applicant following the third Tribunal hearing the applicant indicated that there were different people who would come to visit him on each of these 30 to 40 occasions.
The Tribunal remains unconvinced as to the length and extent of claimed visits and monitoring of the applicant by these claimed CID officials.
If the claimed level of return visits, monitoring, scrutiny and visits to his family home did not occur, the Tribunal would not consider that the applicant would be of adverse interest on return to Sri Lanka today, based on one visit by six CID men in July 2010 enquiring as to the applicant’s relationship with a known LTTE supporter.
Fourthly, the Tribunal has credibility concerns that the applicant’s family in Sri Lanka would not tell the applicant reasonably soon after an incident where it is claimed that his father and brother were physically assaulted by the CID men who the applicant claims to fear harm from.
The applicant has given evidence to the Tribunal that his family in Sri Lanka know about the applicant’s claim for a protection visa. In that context, the Tribunal considers that the applicant’s family would be aware and that the applicant himself would have advised his family to swiftly advise the applicant as to events in Sri Lanka that would be supportive of his claims for protection.
Given that the applicant claims to face a real chance of serious or significant harm from these six men from the CID, the Tribunal considers that the fact of some of these men visiting the applicant’s family home and assaulting the applicant’s father and brother would be crucial information to swiftly convey to the applicant for the purpose of supporting his claims in Australia for a protection visa. As it is, the applicant has claimed that he only happened to find out about this incidents from a friend in [Country 1] who had been told by the applicant’s family about these difficulties. The applicant himself had not been told by his family.
The Tribunal considers that it defies common sense and belief that the applicant’s family in Sri Lanka would avoid providing key information that would support his claims for a protection visa because of concerns that this would worry the applicant.
This was put to the applicant for comment in the third Tribunal hearing. In response the applicant indicated that his parents had been scared to tell the applicant about the visit because they thought that the telephone might be monitored by authorities. The Tribunal asked the applicant why they did not seek to communicate with him by other means, such as a letter. In response, the applicant indicated that they would not have had the capacity to do this.
Given the obvious importance of this visit by claimed CID men to the applicant’s home after the applicant had left for Australia, the Tribunal is concerned that the applicant’s parents did not make efforts to tell the applicant about this visit given the knowledge of his protection visa application in Australia.
Fifthly, independent evidence suggests that Indian Tamils were not supporters of the LTTE separatist cause. This undermines claims that the applicant would be seriously suspected of being a supporter or smuggling weapons for the LTTE.
For example, a 2015 report suggested Indian Tamils in Sri Lanka were viewed as a community that did not support separatism and possessed limited political influence:
As the war increased in scope and intensity, it became apparent that the democratic Tamil opposition in parliament was not able to speak for the Tamil majority. The tea estate workers in the central mountains were Tamils of more recent arrival to Sri Lanka, and they did not support the rebels. The Tamils in the hill country, the “Indian Tamils,” were viewed as being loyal and had limited political clout.[26] [emphasis added]
[26] ‘Drug-Sniffing Mongooses and Other Tales of the Sri Lankan Civil War’, Association for Diplomatic Studies & Training, September 2015, 20190426151218
This independent information was discussed with the applicant in the third Tribunal hearing. In response, the applicant indicated that government reports cannot be trusted. The Tribunal indicated that the independent information was from an independent body not the government of Sri Lanka.
In the written submissions and statement that was provided following the third Tribunal hearing it was asserted that the applicant faces harm merely based on being Tamil without any distinction being made between Indian and other Tamils. No independent evidence was provided in relation to Indian Tamils being linked with the same anti-government views as other Tamils.
The Tribunal considers that the independent information extracted tends to undermine claims by the applicant that he would be considered a supporter of the LTTE by authorities by virtue of his Tamil ethnicity, given that he was an Indian Tamil.
However, this is not an issue which is given significant adverse weight by the Tribunal.
In relation to this issue in the third Tribunal hearing, the Tribunal asked the applicant to indicate what the view of his family and other Indian Tamils was to the separatist conflict in Sri Lanka and the LTTE. In response, the applicant indicated that he had no knowledge of the opinion of Indian Tamils in this respect. The Tribunal indicated that it found it surprising he would have no idea as to the general view of Indian Tamils towards the violent and extremely impactful separatist conflict in Sri Lanka and the LTTE. The applicant maintained that he had no knowledge of this.
The Tribunal considers these five credibility issues. Cumulatively considered they are undermining of the truth of the applicant’s substantive claims beyond the applicant’s first encounter with the six men from the CID.
The applicant has claimed that there have been past interpretation problems but has not pointed to any specific instances or evidence of interpreter error. The Tribunal is not satisfied that the various credibility concerns identified are cumulatively explained by interpreter error.
The Tribunal is not satisfied that the applicant has been a truthful or credible witness in relation to subsequent contact by the applicant himself or his family with these men. The Tribunal is not satisfied that the applicant had continual visits and monitoring by these men from the CID after the applicant’s first encounter with them. The Tribunal is not satisfied that these men searched the applicant’s home on any occasion or that they visited the applicant’s family home after the applicant had arrived in Australia harming his father and brother and indicating an adverse interest in the applicant due to his known connection to an LTTE supporter or based on believing that the applicant was smuggling weapons for the LTTE.
The Tribunal has taken into account the applicant’s claims that a friend in [Country 1] told him that his family had contacted this friend to tell him of a visit to his family by authorities and them harming the applicant’s father and brother and claiming that the applicant was of adverse interest. The Tribunal has taken into account the statement of Mr [B] referring to a conversation with the person in [Country 1].
However, this evidence does not convince the Tribunal or overcome the cumulative credibility concerns identified which cause the Tribunal not to believe claims of continual harassing and monitoring of the applicant and visits to his home after the applicant was first taken by these men to a home in Colombo.
The Tribunal accepts the statement of Mr [B] as to what he was told by this individual in [Country 1], but the Tribunal is not satisfied with the truth of what the person in [Country 1] indicated.
The Tribunal is not satisfied that authorities in Sri Lanka have any ongoing adverse interest in the applicant based on his connection with a known supporter of the LTTE or based on a suspicion that the applicant was smuggling weapons. Whilst the Tribunal accepts that the applicant was visited by six men from the CID in July 2010 as claimed by the applicant and discovered the applicant’s scars from a bus accident, the Tribunal does not believe the applicant’s claims as to later frequent harassing and contact by these men and visits to his family home. The Tribunal finds that these men substantially satisfied themselves that the applicant was not a person of ongoing interest either at or soon after the incident where they took the applicant to a home in Colombo and discovered his scars.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of authorities in Sri Lanka having an ongoing adverse interest in the applicant suspecting him of significant links to the LTTE or having been a weapons smuggler, or based on his scars.
The Tribunal considers the applicant’s broader claims that he faces a real chance of serious or significant harm based on being an Indian Tamil or a returnee and failed asylum seeker.
In the written submission provided on behalf of the applicant following the third Tribunal hearing it is indicated that the applicant faces harm given his profile as an Indian Tamil living in Colombo. Independent evidence is cited concerning action by authorities to protect against an emergence of the LTTE. It is indicated that the danger to the applicant arises from him being Tamil not from any distinctions between him being an Indian Tamil rather than an ‘ordinary’ Tamil.

100. The Tribunal does not consider that the weight of independent evidence before it suggests that merely based on a person in Sri Lanka being Tamil that they face such systemic discrimination and mistreatment that they are at a real chance of serious or significant harm. As discussed below, the Tribunal does not consider that there is anything in the applicant’s own circumstances that would exacerbate the risk based on being Tamil. On that basis, the Tribunal does not consider that the applicant faces a real chance of serious or significant harm based on a generic Tamil ethnicity.
101. Despite the submission being made that there is no relevant distinction for the purpose of the claims as between the applicant being a Tamil and an Indian Tamil, previously claims have been made on the basis that the applicant is an Indian Tamil. Therefore the Tribunal considers such a claim. The Tribunal does consider the fact that the applicant is an Indian Tamil. The independent evidence does indicate that Indian Tamils have suffered long standing discrimination in Sri Lanka in certain areas. However, in assessing the applicant’s own situation he has been reasonably steadily employed in a series of jobs since 2002. The applicant has travelled for work within Sri Lanka. The applicant has travelled to India for a religious pilgrimage. There is no suggestion that the applicant encountered any difficulty leaving and re-entering the country. The applicant has not provided any evidence, apart from his claims relating to the LTTE, that he has otherwise suffered significant problems in the progressing of his life in Sri Lanka based on his ethnicity. In the third Tribunal hearing the applicant indicated that his father, a farmer, had been readily able to provide for his family from this occupation. The applicant indicated that his [brother] who was student was not encountering significant difficulties in life.
102. The Tribunal is not satisfied that considering the situation faced by Indian Tamils in Sri Lanka together with the applicant’s own circumstances in his life that he faces a real chance of serious or significant harm on the basis of being of Indian Tamil ethnicity.
103. In the further statement provided by the applicant following the third Tribunal hearing the applicant indicated that if he relocates within Sri Lanka he will have to report to authorities and this may subject him to a risk of harm because he is Tamil and has relocated.
104. Whilst the Tribunal is prepared to accept that the applicant may have to register with authorities if he relocates within Sri Lanka, the Tribunal does not think that this is a basis on its own and in combination with the applicant’s Indian Tamil ethnicity which would cause him to be subject to a real chance of serious or significant harm.
105. In the written statement provided following the hearing the applicant also referred to a risk based on the scar on his leg and that he walks with a limp. The applicant indicated that this may mark him as being involved in the civil conflict. The Tribunal is not satisfied of this given that it has been 10 years since the end of the civil conflict and the process of identifying and causing LTTE members to undergo rehabilitation has substantially concluded.
106. The Tribunal considers claims based on being a returnee and failed asylum seeker. Following the third Tribunal hearing a submission was provided on behalf of the applicant which sought to rely on prior submissions in relation to this issue.
107. As a returnee and failed asylum seeker, as the independent information makes clear there will be a process at the airport on return in Colombo where Government agencies will check details in relation to the applicant and seek to assure themselves that he is not a person of adverse interest.

108. The Tribunal has not believed the applicant’s claims as to the ongoing scrutiny of the CID after the applicant was initially questioned by them with his scar being discovered. The Tribunal finds that authorities determined that the applicant was not of continuing adverse interest. The Tribunal considers that any government records that would exist that might be retrieved upon the applicant’s entry back to Sri Lanka would not indicate the applicant being a person of ongoing adverse interest.
109. Independent evidence suggests that the potential for contact and monitoring on return to home areas is more pronounced for those from the north. This is not where the applicant is from. The Tribunal accepts the possibility for the applicant to be contacted by authorities on return to the location of his family in the Central Province but does not consider that authorities would have any adverse interest in the applicant such as to indicate that this contact would lead to a real chance of serious or significant harm for the applicant.
110. The Tribunal acknowledges that there can be integration hurdles for returnees in finding employment and housing. The Tribunal considers that, initially at least, the applicant will be able to secure housing with his parents. The Tribunal is not satisfied that any hurdles the applicant may face in obtaining permanent housing or employment or other re-settlement issues would constitute serious or significant harm. The Tribunal accepts that returnees may face some degree of societal discrimination on return to their communities but, again, the Tribunal is not satisfied that the level of discrimination would constitute serious or significant harm.
111. The weight of independent information before the Tribunal and the applicant’s own situation does not persuade the Tribunal that the applicant would face a real chance of serious or significant harm on return to Sri Lanka either through the process of official investigation of the applicant on return either at the airport or in his home area, or as part of the process of reintegrating into the society.
112. The Tribunal considers claims that the applicant is owed protection based on charges or the sentence he will face on return to Sri Lanka for having left Sri Lanka unlawfully, which the Tribunal accepts that he has done. The Tribunal accepts that the applicant will be charged on return to Sri Lanka under the Immigrants and Emigrants Act (1949). The weight of evidence suggests that the applicant would be detained on remand before appearing before a magistrate for no longer than a few days. The weight of the independent evidence before the Tribunal indicates that the applicant will be granted bail.
113. The Tribunal put to the applicant in the third Tribunal hearing that if a personal surety or guarantee by a family member is required for bail that it would expect that either of his parents or siblings would be in a position to provide this. The Tribunal noted that the applicant had previously given evidence that his father had contributed towards the LKR10 cost of his journey to Australia. That suggested to the Tribunal that the applicant’s family would provide support for bail requirements. In response in the third Tribunal hearing the applicant said that he had no comment.
114. The Tribunal is not satisfied that the applicant would be considered by Sri Lankan authorities to have been anything other than a passenger on the illegal boat leaving Sri Lanka. There is no evidence before the Tribunal to cause it to be satisfied that the applicant is or would be suspected of being an organiser of people smuggling operations. Sri Lankan authorities assert that no mere passenger on an illegal boat has ever been given a prison sentence for leaving Sri Lanka unlawfully. There is no independent evidence before the Tribunal that would contradict this. Given the international scrutiny that has taken place with respect to returning Tamils to Sri Lanka the Tribunal considers that if prison sentences had been given to mere passengers on boats that there would be evidence of this. The Tribunal considers that the applicant will be fined between approximately AU$25 and AU$1670 for having left Sri Lanka unlawfully. The fine may be paid in instalments. The Tribunal considers that the applicant would be in a position to pay off this fine through instalments from either his own resources or from help from his family.
115. These preliminary conclusions of the Tribunal were discussed with the applicant in the third Tribunal hearing. In response the applicant indicated that he wished to comment in writing after the hearing. The written submissions provided following the third Tribunal hearing did not discuss this issue.
116. The Tribunal is not satisfied that there is evidence to suggest that the law would be applied to the applicant in a discriminatory manner. The Tribunal considers that the fact of the applicant being charged for leaving Sri Lanka unlawfully and any fine together with being in detention on remand for a few days prior to being brought before a magistrate to consider bail would be non-discriminatory treatment and would be as a consequence of a law of general application, meaning that such treatment would not meet the Refugees Convention criterion.
117. The Tribunal considers the position of the applicant being in detention for a few days prior to being brought before a magistrate under the complementary protection criterion.
118. While the Tribunal accepts that prison conditions in Sri Lanka are inferior, the Tribunal is not satisfied that having to spend a few days in detention prior to being brought before a magistrate and bail being granted would fall within any defined category of significant harm. Inferior prison conditions would not constitute definitions of significant harm, being cruel or inhuman treatment or punishment and degrading treatment or punishment. This is because in both definitions there needs to be the intention of a perpetrator to inflict such harm. Inferior prison conditions would not be a product of any intention but rather due to the resources allocated by the state to detention facilities. The Tribunal is not satisfied that there is a real risk that the applicant would be subject to any intentional treatment that would constitute cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention for a few days on remand. In the absence of any independent evidence of torture of Sri Lankans returning from overseas facing charges and in detention on remand for leaving the country unlawfully, the Tribunal is not the satisfied that the applicant faces a real risk of torture during such detention.
119. The above matters were raised with the applicant in the third Tribunal hearing and the applicant elected to respond in writing following the hearing. The written submissions provided following the third Tribunal hearing did not address these issues.
120. The statement provided by the applicant following the third Tribunal hearing makes the claim that the applicant faces additional danger because on return there is likely to be a large investigation as to how the applicant left Sri Lanka and who organised the boat. The applicant believes that he may be harmed in questioning. If the applicant does disclose as to who assisted in getting him to Australia the applicant may be harmed by this person.
121. No independent evidence has been provided to the Tribunal of serious or significant harm being faced by failed asylum seekers returning to Sri Lanka who had left unlawfully by boat as a result of questioning by authorities about the circumstances of departure or by the individuals who had organised illegal boat departures. Given the not insignificant scrutiny by governments and human rights bodies as to the situation facing failed asylum seekers in returning to Sri Lanka the Tribunal considers there would be reports if harm had been suffered by returnees for these reasons. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm based on questioning by authorities as to the circumstances of him leaving Sri Lanka or by the organisers of the boat on which he left.
122. The Tribunal is also not satisfied on the evidence that the applicant would be suspected of being an organiser of the illegal boat from Sri Lanka. The Tribunal is therefore not satisfied that there is a real chance of serious or significant harm being faced by the applicant as a result of any more significant legal sanctions as a result of being accused of being a people smuggler.
123. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
124. 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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
125. 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
126. The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

[2019] AATA 6173

20 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction