1724538 (Refugee)

1724538 (Refugee) [2022] AATA 3089 (27 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER:  1724538
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Jane Marquard
DATE:27 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 July 2022 at 11:13am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and political opinion – Tamil, member of LTTE and returning failed asylum seeker – detention, beating and internal displacement as civilian – recruitment and auxiliary role in LTTE – injured in army attacks, with resultant scarring – surrendered to authorities posing as civilian – questioned and assaulted – escaped and departed on own passport – refugee claim to UNHCR in third country refused – unauthorised maritime arrival – no initial disclosure of LTTE involvement – mental health and treatment – detailed and generally credible claims and evidence – corroborative evidence from various sources – country information, including recent economic and political instability – no real chance of serious harm on basis of ethnicity alone – real chance of identification as low-level LTTE member – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 36(2)(a), 46A, 65
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v MIEA [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THIS APPLICATION FOR REVIEW

The applicant is a [Age]-year-old man from Sri Lanka. He was born in [Village 1] in the Eastern Province.
He first arrived in Australia by boat [in] December 2011. He applied for a protection visa through a process called Protection Obligations Determination (POD) on 14 December 2011. He was interviewed by the Department of Home Affairs (Department) in January 2012. On 15 March 2012 the Department assessed him as not meeting the protection criteria. On 16 March 2012 he was referred for independent merits review through the Independent Protection Assessment process (IPA). On 9 October 2012, the IPA found that he engaged Australia’s protection obligations. As he was an ‘unauthorised maritime arrival’, he was barred from applying for a visa under s 46A of the Migration Act 1958 (Cth) (the Act). This bar was lifted by the Minister for Home Affairs on 29 September 2015 to allow the applicant to apply for a protection visa.
The applicant applied for a Safe Haven Enterprise visa (SHEV) on 25 April 2016 under s 65 of the Act. The applicant claims protection on the basis of Tamil ethnicity, political opinion and as a returnee asylum seeker.
A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 25 September 2017.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person (and that person holds a protection visa of the same class).
Refugee criterion
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of that country: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).
Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836).
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]).
Mandatory considerations
In accordance with Ministerial Direction No.84,[1] made under s 499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[2] and 'Complementary Protection Guidelines'[3] prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4]
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019
[2] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[3] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and independent sources about Sri Lanka.
Summary of evidence in Department files
Interviews and documents until 2012
The Tribunal has considered:
·The written record of the biodata entry interview dated 6 December 2011;
·The Application for Protection Obligations Evaluation (POE) dated 14 December 2011;
·The written record of Protection Obligation Evaluation Interviews dated 31 January 2012 and 15 April 2012;
·The Statutory Declaration dated 27 January 2012;
·Record of the interview with the Department 28 August 2012; and
·Supporting documents
A summary of this evidence is as follows.
The applicant said that he was born in [Village 1], Trincomalee in [Year]. He is a Hindu and is of Tamil ethnicity. Most recently he lived in [Village 2], [District]. He worked as a farmer for [Number] years. He was married and has 2 sons, born in [years]. His parents, [brothers] and [sisters] are living in Sri Lanka.
He said in his entry interviews that in 1989 he began working for the Tamil National Alliance (TNA), which he continued doing until the 2012 election. He said that he was a supporter of TNA but had no political aspirations. He said that he was not a member of the TNA but assisted the TNA by announcing meetings in the village and attending meetings. His father was also a supporter. He said that he became involved with the TNA because they delivered services to the Tamil people in his area, such as repairing temples. He distributed pamphlets for meetings and collected signatures of support but was not a member. In 2000, he was warned by the army not to get involved in public matters after he had helped build a school and temple. In his interview with the Department, he clarified that he worked for the TNA until 2002 only. In his interview he said that he was detained and threatened by the Sri Lankan Army (SLA) lots of times due to his involvement with the TNA. In 2000 he was detained and taken to the police station and beaten and told not to continue assisting the TNA. His wife contacted the secretary of the TNA, who organised his release. In a separate incident, civilian army members detained him and beat him behind a local school in 2000.
The applicant also discussed his history of displacement. He said that at the age of [Age], his entire village was displaced to a refugee camp at [Town 1], Trincomalee run by the Sri Lankan government. In 1989 due to a peace agreement his family returned but fighting resumed in 1990. The applicant said that he and his family had to relocate to [District] in Vanni for 8 years from 1990.
After marrying in 1998 it took him a year to get a permit and he joined his wife in Trincomalee in a UNHCR camp. After a year he got permission to return to [Village 1] as he had no income at the camp. He worked as a farmer on land near his village in [Village 1]. It measured about [number] acres and was located [number] kms from the village. At the time, his village comprised [number] families living together in a compound mainly of temporary accommodation. He had up to 3 people working on his land. His land was used by the Liberation Tigers of Tamil Eelam (LTTE) to shoot at the army as they passed by as there was a large SLA camp in the area. In 2000, 2 SLA officers were shot and their bodies were found in the well on his land. The SLA officers came to his home but he was at the beach buying fish. His wife was questioned and the officers kicked her. The village officer (grama sevaka) was also questioned. This led to him being suspected of being an LTTE supporter. He was warned that the army was looking for him with the intention of killing him, so he fled to [District] in Vanni with his wife and settled there for nine years. He chose to go to an LTTE area as the army was looking for him. His siblings were questioned as to his whereabouts after he departed.
He said that in [District] he returned to farming, chopping down trees near his area. He drove a tractor for the LTTE civil administration when requested and had a pump that would be used to pump water from wells. He donated vegetables to orphans and provided transport. His wife did temporary work at the local [Workplace]. In 2006 he did 13 days of military training but was bitten by a snake and could not continue.
He claimed that in 2009 as the war was ending, he was displaced several times. In April 2009 he surrendered to the army with [Number] others in [Location]. He was taken to [Name] Refugee Camp in [City 2]. He claimed that he was abducted by the Sri Lankan authorities in 2009 who suspected that he had Tamil Tiger connections and interviewed him about the land incident in 2000. Three people knocked on his door and he was taken to a checkpoint and beaten. He was taken to a place with some trees and pretended to faint. They tried to tie him up with a shirt and went to get ropes. He said that he then managed to escape and went to [a part of the camp] where his cousin was residing. This cousin hid him (the camp had [Number] people) and spoke to someone with influence and paid him money, and he helped him leave the camp, and to go to Colombo. His wife had jewellery which was converted to cash. They begged the man to accept 400,000 rupees, and this was accepted. He left on a motorbike. He was told that the men were driving around the camp looking for him. He, his wife and son came out of the camp on a hospital pass, a copy of which has been provided and referred to in Attachment B. The applicant said that he had been tortured in 2009 and since then has memory loss, severe migraines and stress.
He left the country in August 2009 on a genuine passport with a tourist visa valid for one month in [Country 1]. He registered with UNHCR and said his claim was assessed and refused. [In] March 2011 he travelled to [Country 2] by boat and then to Christmas Island [in] December 2011.
After he left Sri Lanka, his wife returned to Trincomalee to live with her mother and registered with the officials. People were being released from the camp at the time. She told the applicant that men came at least three times to question her about the applicant. She provided an affidavit about this, referred to in Attachment B. A number of other documents were also provided, set out in Attachment B.
On 15 March 2012 the applicant received a negative Protections Obligation Assessment and he applied for independent merits review through IPA.
IPA: 5 October 2012
The IPA reviewer found that the applicant was a credible witness who provided detailed and consistent evidence, supported by documents. The IPA reviewer was satisfied that he met the criteria for a protection visa, given evidence of widespread interrogation, abductions and arbitrary arrests of Tamils suspected of LTTE involvement in the north and east of Sri Lanka.
Application to the Department for the SHEV: 25 April 2016
Although the IPA reviewer found that the applicant met the refugee criteria under the Refugees Convention, as he was an ‘unauthorised maritime arrival’, he was barred from applying for a visa under s 46A of the Act. This bar was lifted by the Minister for Home Affairs on 29 September 2015 to allow the applicant to apply for a protection visa, which he did on 25 April 2016.
The applicant confirmed that he was born in [Year] in [Village 1], Trincomalee in the Eastern province of Sri Lanka. He lived there until 1990 with his parents, [brothers] and [sisters]. He is Tamil and a Hindu.
He confirmed his previous evidence generally, with some changes. He confirmed that he seeks protection on the basis of his race, political opinion and as a returnee asylum seeker.
He claimed that he is easily identifiable as a Tami on the basis of appearance, language and name and that Tamils are at risk of persecution from the Sinhalese community and authorities. He referred to Sinhalisation taking place in Tamil areas.
He finished secondary school in [Year]. After that he worked as a farmer, although after 2009 he was unemployed.
He confirmed the locations where he resided from 1990 were as follows:
·From January 1990 to December 1998, he lived in Vanni.
·From January 1999 to June 1999, he lived in [Name] UNHCR camp, Trincomalee.
·From June 1999 to January 2000, he was in [Village 1] Village, Trincomalee.
·From January 2000 to August 2009 he was in [District].
He claimed that he supported the TNA campaign for the 2000 and 2002 elections but after that stopped supporting the TNA.
He provided new evidence that he was a member of the LTTE from 2000 until 2008. Upon joining, he moved to [Location 1], in Trincomalee, an LTTE controlled area. He underwent basic training for 3 months and was then appointed Head of the [Job task] Department. In 2006 the vehicle in which he was travelling in was hit by a land mine, causing damage to the vehicle. He was injured on his chin and head and was in the LTTE hospital for 3 days.
In late 2006 the SLA took control of Trincomalee and he retreated to the jungle for 5 months (January to May 2007). He then returned to Vanni where he remained in charge of [the job task] until late 2008. He said that in early 2008 in [District] in Vanni he sustained injuries in a shelling attack and had to have shrapnel removed. After recovering, he returned to his role as Head of [Job task]. In late 2008 many cadres had been killed and he was asked to fight, but he refused, and had to go into hiding out of fear of punishment. He hid with civilians who had been displaced by the war.
He surrendered to the army in April 2009 and was taken to the refugee camp, as members of his community had told him that this would happen if he disclosed his LTTE affiliation.
The applicant submitted that he did not disclose his involvement with the LTTE earlier as he feared he would be adversely treated by the Australian government. He feared deportation.
He said that his family had told him that the situation for Tamils in the north was very difficult due to the strong army presence. His family had told him that the authorities continue to question them about his whereabouts. He said that he met [a senior commander of the LTTE] and photographs were taken. He said that a friend [had] been released from rehabilitation and told his wife he had been shown the photograph and was forced to provide information about his involvement with the LTTE. He warned his wife to tell the applicant not to return.
Interview with the Department as part of the SHEV application, 28 August 2017
The applicant said that when he joined the LTTE in 2000 there were under 300 LTTE members. In his camp there were 30 to 35. He said that he was assigned to [a job task] as he can [do the job task] well and was a farmer. He [did the job task] for up to 300 people. [Details of job task redacted.] He said that the leaders allocated certain money for [supplies] and were particular about it, punishing those who misused funds.

He said that when the landmine exploded it was very close and they would have died if any closer. A huge cavity formed in the ground and the truck fell into it and turned over.
He was also injured by shrapnel, which had to be removed from his face.
He said that he surrendered in April 2009 because they had no food or water and children were dying. He said that even the Red Cross had left. He was in the camp for 3 months after the war ended. There were an excess of 2,000 families and he disguised himself by growing a beard and long hair. He said that there was no identification used in the camp.
The applicant said that he escaped after people moved away and after they had assaulted him outside the camp at a security point. He said that he was lying on the floor semi-conscious and when they moved away, he escaped. He said that he was bleeding after being hit with a pole. His hands had been tied with a T-shirt loosely and they were looking for rope. His wife was screaming, and one had gone to chase her away. He said that he just decided to run.
He told the Department that he departed Sri Lanka by aeroplane to [Country 3] and then went by bus to [Country 1]. He used his own passport. He said that his passport got lost in [Country 1].
He said that the army has a copy of a photograph of him in the LTTE given to them by people who had been rehabilitated. He said that people who had been rehabilitated and released told his wife that they had to watch videos and name people.
The applicant said that in the first few months he was in Australia he learnt that other Sri Lankans who revealed that they had been in LTTE were interviewed by ASIO. He said that he did not reveal it to the UNHCR in [Country 1] either, as he did not trust them. He feared that the [Country 1] authorities would send him back.
Submission in support dated 12 September 2017
The applicant claimed to fear returning to Sri Lanka because of his Tamil race, imputed political opinion and as a failed returnee asylum seeker.
The applicant reiterated that he had not disclosed his LTTE involvement earlier due to fears of adverse treatment and deportation by the authorities in Australia.
Evidence before the Tribunal
The applicant provided pre-hearing submissions and appeared before the Tribunal on 21 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review and his representative was also present at the hearing. In a letter provided by the representative prior to the hearing, she said that the applicant may have [medical condition] and medical evidence would be provided. Following the hearing, the applicant provided a letter dated 22 April 2022 from [Dr B] of [Medical Centre]. [Dr B] said that the applicant had been consulting with him since 7 October 2014 with shoulder and knee problems, psychological issues and elevated [deleted]. He said that he had been referred to a [specialist] for a [test]. The applicant told the Tribunal that it has not been confirmed that he has [medical condition], but he has been attending a clinic in regard to this medical condition. He said that he was feeling well and was not taking medications.
The applicant told the Tribunal at hearing that he continued to rely on his evidence to the Department. It was submitted that if he returned to Sri Lanka he would be suspected of being an affiliate of the LTTE who had not undergone rehabilitation and would face serious harm. It was submitted that the risk to him was exacerbated by the fact that he was implicated with a shooting of SLA soldiers on his land and had been out of the country for a prolonged period. Reference was also made to him having sustained serious injuries and scarring which would draw adverse attention.
The applicant confirmed that he was born in [Village 1], Trincomalee in the Eastern Province of Sri Lanka, which is where his parents came from. His parents have passed away – his father in 2015 and his mother in 2018. When he grew up his father was a farmer and his mother a housewife. His grandparents have also passed away.
He said that [Village 1] was a farming and fishing village on the coast, with 3 divisions. His parents had their own house, farm and fields, still owned by his family. He lived with his parents, [siblings] and extended family. His extended family are still living in different parts of Trincomalee. When he was growing up, the army occupied the area and the LTTE was operating from the forest. He had uncles, aunts and cousins in the region from his maternal side. Some are living in the Trincomalee region now, and they are mostly farmers.
He said that his oldest brother is married and living in a village in Trincomalee. He suffered a stroke and cannot work. His sister-in-law is [an Occupation 1], and her children are working. His sister is [an Occupation 2] and has 2 children. Another brother is living in Trincomalee and working as [an Occupation 1]. The next brother is a farmer, another [an Occupation 1] and the other 2 are unemployed, one of whom had his leg amputated.
The applicant said that his parents were not involved with the LTTE in any way, nor were his [brothers and sisters] who did not join the LTTE as they were government officers. As the siblings did not live in the Vanni area and were married and working elsewhere, they were not recruited. He said that his cousins and paternal uncles were ‘mostly involved’ in the LTTE as they were living in Vanni. They are still living in Sri Lanka although some have gone abroad. He does not know where the ones that remained in Sri Lanka are living as he has no contact. He said some were arrested and rehabilitated.
The applicant’s wife and eldest son also reside in Sri Lanka. They are living in Trincomalee town with his wife’s mother. His wife is not working due to medical conditions. She was working in a [Workplace] but has now retired. He and his wife have separated due to a caste issue - he comes from a farming family and she comes from a fishing family, and ‘due to a caste problem’ they are separated. His eldest son left his studies and is doing ‘any available work’. His son was ‘disturbed by the CID’ and left school. He said that the Criminal Investigation Department (CID) harassed his son 3 times during the regime of the former president, while his son was at [Sport], asking about the applicant’s whereabouts. His wife told the CID that they had separated. He said that his youngest son is currently studying in [Country 4]. This was arranged through a lady in [Country 4] but the applicant is paying for it.
The applicant said that his siblings have been harassed by officials from the former and current regime. The most recent occasion was at the very beginning of this new regime. The CID approached his elder sister. She refused to talk to the CID and said that she knew nothing since the applicant had separated from his wife.
The applicant confirmed that his wife was never involved in the LTTE. He had friends who were involved, but he is no longer in contact with anyone in Sri Lanka.
The applicant was asked what his parents and siblings thought about him being involved with the LTTE at the time. He said that in [Location 1] he was in an area controlled by the LTTE and he joined the LTTE after his marriage. His parents were not happy with his marriage, so he was not speaking to them at the time. His siblings did not like his involvement in the LTTE but following his marriage they were not in contact, and this ensured his safety. He said that he does not speak to his family now as he does not want to cause trouble, but he does speak to one sister to assist her as her husband’s leg was amputated.
He said that his wife is still suffering because of his involvement with the LTTE. She has had an operation in Colombo. She was harassed on a number of occasions at her workplace, because of his involvement with the LTTE. She moved on a number of occasions. He said that when the new regime came in, the CID approached everyone in that area. The most recent time she was approached by the authorities was in 2021. She showed the officers her medical certificate and told them that she would die if they came again.
The applicant said that during the civil war, he and his family were displaced on several occasions. In 1985 they were displaced from [Village 1] to [Town 1] when he was [Age] years old, and stayed in a camp run by the Sri Lankan government. In 1989, due to a peace agreement, his family returned to [Village 1] as the situation improved. He said that fighting resumed in 1990 and the family relocated to [District] in Vanni for 8 years. The entire village was displaced due to shelling. They worked together to clear bushes and build temporary shelters in Vanni for 8 years, from 1990 to 1998. He said that it was an LTTE area. They lived in a camp for a short time, then in a house.
He was asked if the LTTE tried to recruit members of his family during that time. He said that they did not generally recruit displaced people, but some were recruited unless working or studying. He said that they did not forcibly recruit at that time, which only happened later. There were no problems from the LTTE at the time. He was not working, but his wife was. In 1998 he was married. He had met his wife in his home village. After the wedding his wife returned to her native area, Trincomalee where her parents resided. It took the applicant 4 months to get a permit to join her. At the time he was living in the LTTE controlled area of Vanni and had to wait for permission to leave. He said that he then settled with his wife in a UNHCR camp in Trincomalee, where they remained for one year. He was not working at the time.
He said at interview that after one year he left his wife’s village to go to [Village 1] where he resided for about 7 months with his wife and [age]-month-old son. He lived on land belonging to his father, which has now been donated to his sister. His wife was working in the [Workplace]. He said that there was a fight on his property which went on for many hours, and army soldiers died. At the time the applicant was living in the [Workplace] quarters, and only went to the property during permitted times. There were strict conditions on him using the land, such as him having to tell the army when the LTTE were there. He said that he did not tell the authorities that the LTTE were there, as he did not meet with the LTTE. While living there, the LTTE would use his land without consent and shoot at members of the SLA who passed by. He was suspected of being an LTTE supporter for this reason. He was not there at the time the fight started in the morning at about 8am. People came running and told him. He was at the seashore at the time. He had to leave for [Location 1] in Trincomalee by boat as he was afraid the army would believe that he was involved in the death of the soldiers. If he had met with the army, they would have arrested him. His siblings and parents were living in Trincomalee at the time. He was asked if his parents or siblings were questioned about the shooting. He said that he does not know. His parents returned in 2000 and at the time the authorities were living in the town. His parents were questioned much later when he left at the end of the war.
He said that in 2000 people were forcibly recruited into the LTTE.
The applicant said that his wife joined him in [Location 1]. At the same time he was approached by the LTTE who wanted him to assist them. He said that given his fear of the SLA he decided to assist them. He said that once he got off the boat, he went to the political office for the LTTE. He was familiar with it as he had been in the village before. He joined the LTTE at the office. He underwent training for 3 months. Every morning they got up at 5am, then did physical exercises such as running. After breakfast, they had political classes and military training. In political classes, they would discuss general matters, such as the reason for fighting. They also had to take an oath not to disclose the secrets of the LTTE. He said that despite the oath he can now talk to the Tribunal about it, as he is in a different country. He said that in training they talked about the ideals of the LTTE, which he believed in and he was prepared to sacrifice himself for these beliefs. He has a strong belief in Tamil freedom. He said that some day or other, Tamils will find freedom. He said that when Tamil rights are recognised, he will return to Sri Lanka. He was given an LTTE card. He carried the card with him as well as a photograph of his national leader. He said that he cried and buried the photograph when he went into the army area.
The applicant said that his LTTE name was [Alias 1]. He was also given another as he was responsible for [a Job task] - [Nickname]. He was also given a [number].
He said that following the 3 months of training, they were allocated to different sectors of the LTTE. He was made Head of [a Job task] and had to supervise [people] and purchase supplies. He said that he was given this role as he demonstrated leadership and endeavour in training. He was provided with a car and at nights stayed in the LTTE camp. He had to liaise with many senior officials.
He worked from 2000 to 2009 as the head of [a job task]. He said that he was responsible for [the job task] and was praised by commanders saying that [the job task] was harder than military jobs. He was not asked to do military combat. He said that even if he was asked they would not have let him go as they appreciated his position. Most of the eight years he lived in the camp. They only gave him leave to visit his wife from time to time with a substitute in place, as he did the job responsibly. He was very attentive to his job. He did not see his parents or siblings during this time, as they were in an army-controlled area. He was asked what it was like living in the camp for those years. He said that he felt safe in the camp and because of his job he had no time to think about other things. He did the job perfectly and when he went to Vanni, the national leader gave him an award for performance of his duties.
He said that in 2006 he was travelling around the local area with other LTTE members, which he did often. Their vehicle was hit by a land mine and was damaged. The applicant sustained injuries to his chin and head, and he spent 3 nights in an LTTE hospital.
He said that in late 2006 the SLA took control of Trincomalee and many members of the LTTE retreated into the jungle. He joined them and stayed hidden for 5 months. After this he returned to his [job task] job in the camp in Vanni.
He said that in early 2008 while working in [District], Vanni he was injured in a shelling attack sustaining serious injuries. He was taken to [a] hospital. He had surgery to have shrapnel removed from his face.
He said that at this time, many LTTE members had been killed and the LTTE asked him to fight but he refused. He said that he fled from them into Vanni and hid amongst civilians who had been displaced. He said that ‘all the countries let the LTTE down’, and there was no safety. Everyone gave up and the area was filled with smoke. At the time, warriors left the movement and he also left. He said that the LTTE asked him to fight and they gave him cyanide. He did not want to die and nor did his wife. He left the property in 2008. He said that he surrendered to the SLA in April 2009 with around 3,000 people. He just mingled in with the population, so they did not know he was LTTE. He surrendered for his safety and to protect his life. He said that he was taken to the [Name] Refugee Camp in [City 2]. After 3 months, in July 2009, he was taken to the sentry point, stripped and beaten with a steel bar. He sustained [an injury] and [scarring]. He continues to suffer from memory loss and severe migraines. He said that he pretended to faint after he heard the officials talking about removing him to another camp. He had heard of other LTTE workers disappearing. He said he escaped to another part of the camp and ran to his cousin’s house and sought help from him. His cousin was not involved with the LTTE and he now lives in Trincomalee. His cousin organised for him to escape the camp undetected, including paying someone to get him a passport and visa.
He said that his family have continually been contacted by the SLA and questioned about the applicant’s whereabouts. The SLA showed his family a photograph of the applicant with an LTTE leader.
He was asked if he has been involved in any Tamil activities in Australia. He said that he was invited to attend a meeting. When he got there, he found that there were LTTE members there. He had told the Department that he was not involved in the LTTE. At the time he wanted to preserve his lie that he was not involved in the LTTE, so he avoided the group. Once he was issued a temporary visa, he did not want to tell a lie. On his own accord he has said that he was involved in the LTTE and has told the truth. He confirmed that he has not been involved with any Tamil activities since he has disclosed to the Department that he was in the LTTE. He was asked if he has attended Heroes Day or other events in Australia. He said that he wanted to attend once but he cried thinking about the memories and did not want to attend.
The applicant apologised for having lied in his original claims stating that he was not involved in the LTTE. He said that he has provided his reasons for suppressing this information. When he came to the country, he was puzzled and listened to people who were giving advice. He understood that he should suppress his LTTE involvement due to fear of detention by ASIO and deportation. He said that ‘on his own’ he decided to tell the truth. If he were to be sent back, he would face problems under the Prevention of Terrorism Act (PTA); either he would be put in gaol or he would suffer other harm, as he had breached the laws by not attending rehabilitation. He said that the ‘same government is in power’. He said that he does want to return to Sri Lanka when Tamils can rule their nation and there is freedom. He said that he lost his parents, and his wife is sick and anxious, but he cannot return. He left his son at the age of [age] months and his son is now [Age]. He said that he ‘cannot bear it’. He said that he has not seen his son for [years]. He said that he has told the Tribunal the truth. He fears being killed or detained if he returns.
He said that he also fears persecution as a failed asylum seeker as the authorities will be concerned that he has spoken out in Australia against the mistreatment he has suffered in Sri Lanka. It was submitted that he would return on a travel document that would bring him to the immediate attention of authorities. They would question his motives for leaving. It was submitted that he would face a moderate risk of harm in the form of torture. Reference was made to the DFAT Country Information Report.
It was submitted that many members of the current government were responsible for atrocities committed during the war and that the government continues to use the PTA adversely, especially against Tamils. It was also submitted that lack of freedom of expression along with the pandemic has restricted accessibility of information from the north. Reference was made to the United States Department of State Country Report on Human Rights Practices, which notes that international observers have been prevented from reporting during the pandemic, and also refers to violence against, and arrest of journalists. That report and others provided also refer to harassment, monitoring and discrimination of Tamils in the north and east.
The applicant provided a number of documents to the Tribunal:
·A letter from [Mr C], [Official position], LTTE [Country 5] on LTTE letterhead dated [April] 2022, which certified that the applicant was a member of the LTTE and worked for them from 2000 to 2008. The writer provided the applicant’s LTTE name and number. He verified that the applicant joined the LTTE in 2000 and worked in the Trincomalee District until 2007. The applicant told the Tribunal that he obtained the LTTE letter from [Country 5] with ‘great difficulty’ through his wife, who contacted the LTTE. She contacted a person from Jaffna or Vanni, who is married to someone in [Location 1] that they knew. The person in [Location 1] knew that the applicant was involved in the LTTE as he was a good friend and a commander in [Location 1]. He said that they were in close contact and the commander was very familiar with his activities in the LTTE.
·A letter from [a] Clinic in Sri Lanka dated 8 April 2022 stating that his wife had been receiving treatment for diabetes, mellitus, hypertension and hypercholesterolemia.
·A letter from a friend in Sri Lanka dated 13 April 2022. The letter stated ‘I knew (the applicant) (LTTE name is [Alias]) as an ex-combatant. When I was in the rehabilitation camp he asked me where he was and I was beaten and tortured many times. Now they often come and inquire. People in Sri Lanka confirm that he is in danger if he comes here’. The applicant said that the wife obtained this letter for him. The applicant said that he used to transport this friend on his motorbike while they were both in the LTTE. This friend was detained in a rehabilitation camp, and while there was asked about the applicant’s whereabouts. After he was released, his friend went to the funeral house of a relative and got the applicant’s telephone number and called him. He told the applicant that he must not show the letter to anyone, other than government officials in Australia, as there would be danger to his life. His friend has been constantly harassed by the army and was told by the army that he was under 24-hour surveillance. He is living in [District], rather than his birth town. The applicant said that this friend could be contacted but it might put the friend at risk. The Tribunal said that if it would put his friend at risk, the Tribunal would not attempt to contact him. He said, ‘that is good’. He said that he spoke to his friend the day before the hearing, and this friend said that he may move to [Country 6]. His friend told him that when he left home the authorities would visit his house and unnecessarily flirt with the women there and ask for food. His friend said that this happens to all former fighters. He said that army officers harass the women in households. He said that his friend is [tall], so everyone recognises him. He said that his friend was crying when telling him about the harassment.
·A copy of a document titled ‘Prevention of Terrorism (Temporary Provisions) Act No.48 of 1970 issued by the President and Minister of Defence’ dated 3 August 2010 in Colombo. The document stated that under s 9(1) of the PTA, Mahinda Rajapaksa, President had reason to suspect that (the applicant’s friend) was connected or concerned in unlawful acts as follows: ‘being a member of the LTTE organisation, having undergone training by the name of “[Alias 2] under the No. [Number]” with the said organisation participated in attacks on security forces personnel concerned in failing to disclose the information regarding the LTTE members to the security forces and aiding and abetting the LTTE organisation to commit unlawful activity.’ He was ordered to be detained at [a] Detention camp for 3 months. The applicant said that his friend provided the document to him to demonstrate that he had been arrested as claimed.
Independent sources about Sri Lanka

The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.
By way of background, DFAT, in its 2021 report, provides the following overview of the Sri Lankan conflicts:
Sri Lanka, formerly Ceylon, achieved independence from the United Kingdom (UK) in 1948. Historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense. Tamils received preferential treatment during British rule, including in education and civil service employment. After independence, successive Sinhalese-led governments introduced measures to promote the primacy of the Sinhalese community. These developments created a sense of marginalisation within the Tamil community and encouraged calls for an independent Tamil state, Tamil Eelam, in the predominantly Tamil-populated north and east of the country.
A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.
In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament..
In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ [5]
[5] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sri Lanka’, 23 December 2021
The Rajapaksa family has had a tight grip on power in Sri Lanka.[6] Their regime has seen continued impunity for war criminals and a clamping down on freedom of expression, harassment and intimidation of journalists and the expansion of the use of draconian laws including the PTA as well as further militarisation of the state.[7]
[6] EastAsiaForum, ‘The Rajapaksa family’s tightening grip on Sri Lanka’, 29 January 2022
[7] EastAsiaForum, ‘The Rajapaksa family’s tightening grip on Sri Lanka’, 29 January 2022
In May 2022, Prime Minister Rajapaksa resigned following widespread protests over the island’s economic crisis involving shortages of fuel and other imports.[8] President Gotabaya Rajapaksa resigned in mid July 2022 and fled the country.[9]
[8]Al Jazeera, 9 May 2022, <
[9] Washington Post, 14 July 2022 < OF THE DEPARTMENT
The delegate of the Department was not satisfied that the applicant was involved with the LTTE. The delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm for reasons of the applicant’s Tamil ethnicity or as a returnee asylum seeker.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the applicant was a member of the LTTE and the incidents in Sri Lanka took place as described by him (findings of fact).
·Whether there is a real chance of serious harm or a real risk of significant harm for reasons of his LTTE membership or any other reason.
These issues and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant provided a photocopy of a biographical page from his passport from Sri Lanka and has provided other documentation from Sri Lanka. The Tribunal is satisfied, based on this evidence and his oral testimony, that he is a national of Sri Lanka, and that Sri Lanka is the receiving country for the purposes of the legislation.
Was the applicant a member of the LTTE as claimed and did the incidents in Sri Lanka take place as described by him?
In making findings of fact in relation to the claims the Tribunal has taken into consideration the fact that assessment of credibility is an inherently difficult process and that decision-makers should be mindful of imperfect perceptions of truth.[10] The Tribunal has taken into account the special considerations in relation to asylum seekers as noted by the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[10] Fox v Percy (2003) 214 CLR 118
There may also be difficulties in the presentation of evidence including use of interpreters, nervousness and anxiety in presenting evidence to government authorities, cultural issues and stress caused by separation from home and family. Applicants may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[11] In this case, the applicant arrived in Australia in 2011 such that he may have forgotten small details about what took place over 10 years ago. As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[12] these factors which may impact on how evidence is presented, are taken into consideration in evaluating the applicant’s evidence as a whole. In this regard the Tribunal has reflected on the comments of both the High Court and Federal Court of Australia.[13] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76,that it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[11] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, < AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, < For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
Researchers have also provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[14] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[15] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[16]
[14] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[16] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal is guided by these decisions, research and commentaries in making the findings set out below.

The Tribunal is satisfied that the applicant supported and provided some assistance to Thamilar Viduthali Kootani, which later became the TNA, in around 1989 until 2000 while living in his home village, as he has been consistent about this since his entry interview in 2011. The Tribunal accepts that it is plausible that he became involved with the TNA, as his father was involved, and the TNA delivered services to the Tamil people in his area, such as repairing temples. The Tribunal accepts that he distributed pamphlets for meetings, helped set up stages and collected signatures of support but was not a member. The Tribunal is not satisfied that he was arrested or suffered other ill-treatment because of his participation in TNA activities, other than being taken to the station once and beaten. The Tribunal initially had some concerns about the credibility of the applicant’s evidence in general, as in his entry interview he said that he assisted the TNA until 2012 and was detained, threatened and beaten on a number of occasions because of his involvement. However in his Department evidence as part of his SHEV application he said he was arrested once and beaten, which he did not mention to this Tribunal. This inconsistent evidence was put to the applicant at the Tribunal hearing. He responded that he has had significant memory loss and gets confused about dates. He said that he had been attending counselling but due to the COVID-19 pandemic had missed sessions. The Tribunal notes that at the time of the Entry Interview he had not told the Department that he was an LTTE member. It is possible that he was trying to inflate the harm he suffered in Sri Lanka so as to bolster his refugee claim at that time. The Tribunal is of the view that the early evidence about the frequent harm he suffered as a result of his involvement in TNA activities was exaggerated, but this does not impact on the more recent evidence he has provided about his LTTE involvement, which the Tribunal accepts is credible evidence, for reasons set out later in the decision.

In assessing his other evidence, the Tribunal has evaluated the overall consistency and coherence of the applicant’s account.[17] In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 the court stated that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’.[18] The Guidelines state that the Tribunal must consider all evidence before it assesses whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[19] In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[20] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may, for example, be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[21]
[17] As suggested in Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, 40 ALD 445
[21] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86

A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

When considering the totality of the evidence, and because of the persuasiveness of his evidence (discussed further below), the Tribunal is satisfied that the applicant is generally a credible witness, notwithstanding his earlier evidence about the TNA. The Tribunal accepts that the applicant and his family were displaced on a number of occasions including at the age of [Age] when his entire village was displaced to a refugee camp at [Town 1], Trincomalee, run by the Sri Lankan government. The Tribunal accepts that in 1989 they returned due to a peace agreement but fighting resumed in 1990 and they relocated to [District] in Vanni, an LTTE controlled area, for 8 years, after which the applicant joined his wife in Trincomalee in a UNHCR camp. The Tribunal accepts that he then returned to [Village 1], his hometown, as he had no income at the camp, and he then worked as a farmer on land near his village. The Tribunal accepts that there was a large SLA camp in the area and in 2000, 2 SLA officers were shot and their bodies were found in the well on his land. The Tribunal accepts that the SLA officers came to his home, but he was at the beach buying fish and they questioned his wife. The Tribunal accepts that he feared being suspected of supporting the LTTE so he fled to [District] in Vanni with his wife and settled there for 9 years. The Tribunal accepts that his siblings were questioned as to his whereabouts after he departed. This series of events has been consistently recounted by the applicant since his arrival in Australia. The displacement of Tamils at that time is recorded in numerous reports[22] (see for example information from the International Displacement Monitoring Centre[23]) as is ill-treatment of LTTE supporters at the time.[24] His description of the army camp near his land and the LTTE presence in the jungle was corroborated by a letter from the Reverend, who was also able to provide personal details of his family and home, which suggested that he was a witness who knew the applicant well. This Reverend, members of the applicant’s family and a local official also provided corroborative evidence about the applicant being wanted by the army in his region. The Tribunal also accepts the applicant’s evidence generally as courts have suggested that the benefit of the doubt should be given to those who are regarded as credible but unable to substantiate all claims[25]. A similar approach is taken in the Department’s Refugee Law Guidelines[26] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook)[27], which provides useful guidance for this Tribunal. The Tribunal found the applicant to be a generally credible witness, who provided his account of his life in Sri Lanka with the kind of emotion and detail commensurate with a person who is speaking truthfully about his or her experiences.

[22] Human Rights Watch, Return to War, 5 August 2007, Displacement Monitoring Centre, 31 October 2012, <

[24] Human Rights Watch 2005, World Report – Sri Lanka, December 2006, < SZLVZ v MIAC [2008] FCA 1816 at [25]

[26] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

[27] UNHCR, re-issued February 2019 at [203]–[204].

The Tribunal is also satisfied, as he is a generally credible witness, and for the more specific reasons set out below, that the applicant was an LTTE member from 2000 to 2008, and that he worked as ‘head of [job task]’, a job he took seriously and performed competently, such that he came to the notice of senior LTTE cadres.

100. Firstly, while it may be expected that adverse inferences be drawn because the applicant did not tell the Department about his LTTE involvement when he first arrived in Australia and in his early applications and interviews, the Tribunal has not drawn those adverse inferences in this case. This is because the explanation as to why the applicant did not disclose his LTTE involvement at that stage is a reasonable one. He explained that others had told him not to disclose his involvement with the LTTE or he would be deported from Australia. This was a reasonable assumption considering how ASIO regarded LTTE cadres as a threat to national security.[28] The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia.[29] The delegate was concerned that he did not disclose his LTTE involvement to the UNHCR. The Tribunal accepts his explanation that he was distrustful, given how close this was to the end of the war and how LTTE members were treated in Sri Lanka at the time.
[28] See for example, The Guardian, 28 November 2015 <
[29] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sri Lanka’, 23 December 2021
101. Secondly, the applicant was able to articulate coherently and with detail, the reasons for joining the LTTE and specifics of his involvement, in a way that appeared commensurate with direct first-hand experience. He explained that after being suspected of being involved with the death of SLA soldiers, he chose to go to an LTTE area as the army was looking for him, a choice which appears to be plausible. He said that given his fear of the SLA, he decided to join the LTTE and he explained that he supported their vision of freedom for Tamils. His comment that ‘some day or other, Tamils will find freedom’ and that when Tamil rights are recognised, he will return to Sri Lanka, convinced the Tribunal that he had a genuine belief in LTTE objectives. Similarly, his description of crying when he buried a photograph of the LTTE leader when he surrendered, reinforced that he genuinely believed in the LTTE’s aims.
102. The applicant was also able to describe the LTTE camp, which he said had 30 to 35 members but [he did a job task] for up to 300 people. He also described the 3-month training program, from waking at 5am for physical exercises and then political lessons. He also described persuasively day-to-day life with the kind of detail commensurate with direct experience, describing how he [did the job task]. He described how leaders allocated certain money for [supplies] and were particular about it, punishing those who misused funds. These kinds of details indicate actual lived experience. He was also able to provide his LTTE name, [Alias 1], as well as a second name as he was responsible for [the job task] – [Nickname]. These names and his number appeared on the letter from the LTTE provided to verify his involvement. His descriptions of living in the camp accord with the strategy of the LTTE to run the LTTE areas as quasi-states and encompass civilians, discussed in a number of articles.[30]
[30] Cambridge Core, Governance Practices and Symbolism: De facto sovereignty and public authority in ‘Tigerland’, May 2018, Niels Terpstra & Georg Frerks. Rebel Governance and Legitimacy: Understanding the Impact of Rebel Legitimation on Civilian Compliance with the LTTE Rule, Civil Wars, 2017, 19:3, 279-307, DOI: 10.1080/13698249.2017.1393265
103. Thirdly, the applicant has provided corroborative evidence. This includes a letter from the LTTE based in [Country 5] verifying the applicant’s involvement under the name and for the term that he has claimed. He also provided a letter from a former LTTE friend who had been detained and forced to talk about the applicant during interrogation. A copy of an order for that friend to be detained pursuant to the PTA was also provided to verify his friend’s evidence. This witness was available for oral testimony to the Tribunal, but given possible repercussions he could suffer in Sri Lanka, the Tribunal chose not to call him. Other corroborative evidence was provided by an official from his village in 2010 who said that the applicant had been displaced in 2000 and that unknown persons had searched for him. The applicant’s wife also provided testimony in 2010 about ‘unknown persons’ searching for her husband. Further evidence was provided from [Mr D], [an official] in Trincomalee, dated 2011, stating that the applicant’s family was well-known to him and were strong supporters of Tamil autonomy. He confirmed that the army had searched for the applicant, suspecting him to be an activist. The local Reverend also confirmed that he knew the applicant’s family, as they lived next door to the church. He confirmed that there was an army camp next to the applicant’s land due to LTTE presence in local jungles, as claimed by the applicant. He also referred to the applicant being wanted by the authorities. Cumulatively, this corroborative evidence strongly reinforces the applicant’s claims about displacement, the incident with the death of the SLA soldiers, his LTTE involvement and being wanted by the authorities.
104. As the Tribunal has found the applicant’s evidence to be generally credible, the Tribunal is satisfied that in 2006 the vehicle in which he was travelling in was hit by a land mine, resulting in hospitalisation in an LTTE hospital for 3 days. The Tribunal is satisfied that in 2006, the SLA took control of Trincomalee and he retreated to the jungle for 5 months, then returning to Vanni where he remained in charge of [a job task] until late 2008. The Tribunal is satisfied that in early 2008 he sustained injuries in a shelling attack.
105. The Tribunal is satisfied further that in late 2008 many LTTE cadres had been killed and he was asked to fight, but he refused, and had to go into hiding out of fear of punishment. He hid with civilians who had been displaced by the war, surrendering to the army in 2009. He provided a convincing explanation for his surrender, stating they had no food or water, and children were dying and organisations such as the Red Cross had left. His descriptions of the end of the war accord with country sources which report that there were mass killings and arrests of Tamils. According to one source, government forces detained almost all ethnic Tamils escaping Vanni from March 2008 onwards. Some were subject to extrajudicial killing and forced disappearance by security forces and paramilitary groups. Tamils were detained in camps where conditions were reportedly poor and freedom of movement was severely limited[31].The Tribunal is satisfied that the applicant disguised himself by growing a beard and long hair and because there were over 3,000 people in the camp, with no means of identification. The Tribunal is satisfied that he was taken for questioning and was assaulted but managed to escape with the help of his cousin, who helped him make arrangements for travel to Australia. His evidence about this has been consistent since the interview when he first entered Australia.
[31] Human Rights Watch 2008, ‘Besieged, displaced and detained: The plight of civilians in Sri Lanka’s Vanni region’, Human Rights Watch website, December, p.4;12 < The Tribunal is satisfied that the applicant’s family were harassed after he left the country by CID and others seeking to locate the applicant. The Tribunal accepts this evidence as it has found the applicant to be a generally credible witness. Further, a corroborative affidavit has been provided by the applicant’s parents about persons questioning them about the applicant’s whereabouts, and also by a local official, the Reverend and his wife. His friend has also given evidence that the CID had photographs of him when he was in a rehabilitation camp. The Tribunal accepts that there has been recent questioning of his family members. In a report by the Immigration and Refugee Board of Canada Research Directorate reference is made to a report from the International Truth and Justice Project (ITJP), which indicates that since Gotabaya Rajapaksa was elected president in 2019 a new trend of mapping the extended family members of Tamils has begun. The report refers to sources which suggest that family members of ex-LTTE members living abroad have been questioned on the same days in different parts of Sri Lanka about their relation to people abroad and there have also been signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts.[32]
[32] Research Directorate Immigration and Refugee Board of Canada, ‘Sir Lanka situation and treatment of returnees, including failed asylum seekers (2020-March 2022), 2 May 2022, LKA2000988.E
The refugee criterion
Does the applicant have a well-founded fear of persecution for reason of his actual or imputed political opinion and/or nationality?
107. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country[33].
[33] Section 5H(1) of the Act
108. The applicant claims to fear persecution based on his actual or imputed political opinion and/or Tamil ethnicity. The next issue for consideration by the Tribunal is whether the applicant does in fact have a well-founded fear of persecution for this reason.
109. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·the real chance of persecution relates to all areas of a receiving country.

Does the applicant fear being persecuted for one of the stated reasons?
110. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
111. The Tribunal is satisfied that the applicant genuinely fears being persecuted for reasons of his political opinion, given the long history of ill-treatment of former LTTE members, discussed later in this decision and his own experiences. His evidence that he does want to return to Sri Lanka when Tamils can rule their nation and there is freedom, and that he finds it hard to bear that his children are in Sri Lanka, and he wants to be there but feels too afraid to return, was persuasive of a genuine fear of harm.
Is there a real chance of serious harm if the applicant were to return to Sri Lanka for reasons of actual or imputed political opinion?
112. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act provides an objective element to that concept[34]; not only must a person fear persecution, there must be a prospect of that fear being realised.
[34] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019,
113. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.
Identifiable as Tamil
114. The Tribunal is satisfied that the applicant would be identifiable as a Tamil from his appearance, language and name.
Tamils face some discrimination, monitoring and surveillance
115. Ethnic Sinhalese constitute 75 per cent of Sri Lanka’s total population, with Tamils at 15 per cent.[35] Tamils continue to claim discrimination in university education, employment, housing and health services,[36] however some reports suggest they are not targeted on the basis of ethnicity.[37] The most recent Bertelsmann Stiftung report found that upcountry Tamils ‘continue to face the impact of being rendered stateless for over 40 years’. The report states that the Tamil community still faces barriers in access to health care, education and public services, due to a lack of infrastructure facilities and economic opportunities, as well as language barriers as public officials communicate in Sinhala.[38]
[35] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sri Lanka’, 23 December 2021
[36] United States Department of State, ‘Country Report on Human Rights Practices for 2020 Sri Lanka’, 2021; Freedom House, ‘Freedom in the World 2021- Sri Lanka’
[37] INFORM Human Rights Documentation Centre’, ‘Repression of dissent in Sri Lanka: 1^st to 31^st May 2020’, 29 June 2020; UK Home Office, ‘Country Policy and Information Note Sri Lanka: Tamil separatism’, May 2020
[38] Bertelsmann Stiftung, ‘Sri Lanka Country Report 2022’, 2022
116. DFAT has suggested that Tamils are politically engaged and there is no official discrimination based on nationality:
Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government. Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

117. However, those Tamils in the north and east have often been subject to monitoring and surveillance, and Sinhalisation has created concern. DFAT states that there has been concern about the construction of Buddhist statues and temples and unverified claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses, although violence is not common. DFAT reports that:
Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events. Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora..
Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day. DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[39]
[39] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sri Lanka’, 23 December 2021

118. A number of reports have found that monitoring and harassment by security forces of Tamils in the north and east of Sri Lanka has increased since the 2019, and this has included a number of reports of arrest, assault and torture.[40] Political activists and journalists are more likely to be targeted.[41]
[40] United Nations Human Rights Council, ‘Promoting reconciliation, accountability and human rights in Sri Lanka Report of the Office of the High Commissioner for Human Rights’, 25 February 2022; Sri Lanka Campaign for Peace and Justice, ‘Jailing activists and pardoning murderers: Monitoring ten issues of concern in Sri Lanka in 2021’, February 2022
[41] Sri Lanka Campaign for Peace and Justice, ‘Jailing activists and pardoning murderers: Monitoring ten issues of concern in Sri Lanka in 2021’, February 2022
119. The Tribunal is not satisfied, based on these sources, that there is a real chance of serious harm for the applicant based on his ethnicity alone, were he to return to Sri Lanka. However, when considered with the other factors set out below, the Tribunal is satisfied that there is a real chance of serious harm. The reasons for this are as follows.
What would happen immediately upon return to Sri Lanka?
120. The Tribunal notes that many Sri Lankans live overseas for a variety of reasons and that the Sri Lankan government’s official position is that refugees are welcome to return. [42] The UK case of KK and RS (sur place activities: risk) Sri Lanka [2021] UKUT 130 (1AC) found that the government of Sri Lanka views the Tamil diaspora with a generally adverse mindset but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.[43] The Tribunal accepts that the applicant’s return to Sri Lanka would be on an involuntary basis and that he would travel on a temporary travel document. The applicant has been out of the country since 2009 and living in Australia for most of that time. Although the Australian authorities would not reveal the fact of the applicant’s protection visa application, it is likely on the basis of the applicant’s profile, his lengthy stay in Australia and return to Sri Lanka, and common knowledge about Sri Lankan asylum seekers, that the Sri Lankan authorities would assume that he unsuccessfully sought protection in Australia.

[74] Department of Home Affairs, ‘Situational Update, Sri Lanka: opposition groups, minorities and returnees’, 10 July 2020
[75] Human Rights Watch, ‘In a Legal Black Hole’, Sri Lanka’s failure to reform the Prevention of Terrorism Act’, February 2022
[76] Human Rights Watch, ‘In a Legal Black Hole’, Sri Lanka’s failure to reform the Prevention of Terrorism Act’, February 2022
[77] Human Rights Watch, ‘In a Legal Black Hole’, Sri Lanka’s failure to reform the Prevention of Terrorism Act’, February 2022
In November 2020, the Human Rights Commission of Sri Lanka asked the Inspector General of Police to provide the details of individuals detained under the PTA, noting in a letter that many detainees had complained of pressure to sign incriminating statements. The Rajapaksa government has pledged to look at provisions of the PTA to bring them into line with international human rights standards, and in June 2021 announced the formation of a Cabinet subcommittee to present recommendations following the adoption of a resolution in the European Parliament condemning its continued use. On 24 June 2021, authorities also released 16 ex-LTTE combatants held for extended periods under the PTA. However, the seriousness of such moves is called into question by the government’s announcement in March 2021that it would establish new rehabilitation centres under the PTA to ‘de-radicalise’ individuals promoting extremist ideologies .The plan gives the government the power to arrest and transfer people to a rehabilitation centre for one year. An extraordinary gazette dated 12 March 2021 said that this will apply to individuals suspected of holding ‘radical’ or ‘extremist’ views or who cause or plan acts of violence or religious, racial, or communal disharmony. Authorities will be able to choose rehabilitation in lieu of prosecution.[78]
[78] Department of Home Affairs, ‘Situational Update, Sri Lanka: opposition groups, minorities and returnees’, 10 July 2020

134. DFAT and the UK Home Office have reported that they have been unable to verify individual claims of torture of Tamils in detention.[79] However, Sri Lanka has a long history of the use of torture for those detained under the PTA.[80] While there have been some changes to the PTA, human rights organisations have called them ‘cosmetic’[81] and a way of ‘dodging international pressures’.[82] The law still allows the government to detain people for up to a year without charge or evidence and without the possibility of bail. There is a long history of the use of the PTA to enable prolonged arbitrary detention, to extract false confessions through torture and to target minority communities.[83] Rajapaksa was the defence secretary in the former government between 2005 and 2015, with direct responsibility for abuses against ethnic Tamils. The amendments still allow confessions to be given to the police as evidence in PTA cases, permitting the routine use of torture, and to remove the suspect to any place, which has increased the risk of disappearance.[84] The Analyst, quoted in the recent Canadian Immigration and Research Board report, reported that there have been credible reports over the years of people thought to have LTTE connections being arrested, detained and tortured.[85]
[79] UK Home Office, ‘Report of a Home Office fact-finding mission to Sri Lanka’, 20 January 2020
[80] UN Special Rapporteur, July 2018
[81] Human Rights Watch, ‘Sri Lanka’s changes to abusive security law superficial’, 26 March 2022
[82] Human Rights Watch, ‘Sri Lanka’s changes to abusive security law superficial’, 26 March 2022
[83] Human Rights Watch, ‘In a Legal Black Hole’, Sri Lanka’s failure to reform the Prevention of Terrorism Act’, February 2022
[84] Human Rights Watch, ‘In a Legal Black Hole’, Sri Lanka’s failure to reform the Prevention of Terrorism Act’, February 2022
[85] The Analyst, 24 March 2022 in Research Directorate Immigration and Refugee Board of Canada, ‘Sir Lanka situation and treatment of returnees, including failed asylum seekers (2020-March 2022), 2 May 2022, LKA2000988.E
135. These sources cumulatively suggest that there is a real chance of the applicant being detained and sent for rehabilitation if he returned to Sri Lanka, as he was a low profile former LTTE member, who had an administrative role for many years. He was also suspected by the army of being involved in a shooting of SLA soldiers on land in his hometown. Were he to return to Sri Lanka, this may well be remembered, given the corroborative evidence provided by the applicant. This would increase the risk to him of rehabilitation and detention, even possible prosecution or torture. The applicant has said that authorities continue to question him about his whereabouts. There has been increasing militarisation, and the changes to the PTA have not been substantive, and in some ways the legislation has become more repressive. While there is little evidence of torture of Tamil detainees currently, the record of the government regarding torture of detainees under the PTA is poor.
136. The Tribunal has also considered whether the recent economic crisis and overthrow of the Rajapaksas will impact on the conclusions that the applicant would face a real chance of serious harm upon return. Unprecedented public protest in Sri Lanka due to a devasting economic crisis in 2022 led to the resignation of Prime Minister Rajapaksa. Government thugs attacked protesters leading to a wave of violence and disorder across the country.[86] Recently, the new President Ranil Wickremesinghe has said that Sri Lanka is bankrupt.[87] Millions of people are struggling to buy food, medicine and fuel. Tamils have been hit hard by the crisis, due to neglect by the Sinhalese dominated government.[88]
[86] Human Rights Watch, 16 May 2022, <
[87] CNN 5 July 2022, <
[88] DW Asia, 24 May 2022, <
137. There is some hope that the demands for change in Colombo could lead to a more pluralist society, with Human Rights lawyer Ambika Satkunanathan writing that there was growing awareness and space to speak of issues previously not though possible.[89] Gotabaya Rajapaksa agreed to step down as President following protestors storming his residence and setting the prime minister’s home on fire.[90] Although there is room for some measured optimism, the Tribunal is not satisfied that the overthrow of the Rajapaksas will alleviate the real chance of serious harm for the applicant in the reasonably foreseeable future, as the key personnel and institutions are still in place. The Tribunal notes that the government has responded to the economic and political crisis by implementing a country-wide curfew, state of emergency and blocking access to social media sites.[91] There have been over 600 arrests.[92] Despite the resignation of Prime Minister Rajapaksa in May 2022, the change in leadership at this stage does not appear to have impacted on the treatment of Tamils. Armed soldiers have been patrolling the streets.[93] Many of the same people in power today held senior positions in 2009, when at the end of the war, tens of thousands of civilians were killed and hundreds of Tamils disappeared in army custody.[94] Media reports referred to troops firing on Tamils queuing for food in June 2022. [95] New President Ranil Wickremesinghe is a long-time ally of the Rajapaksas. One day after taking office his troops forcibly dispersed protestors and more than 50 people were injured. He has previously called protestors ‘fascists’.[96] His school friend, Dinesh Gunarwedena, also an ally of the Rajapaksas has been sworn in as Prime Minister.[97] In this environment, the Tribunal is not satisfied that there will be significant changes for Tamils or former LTTE members in the reasonably foreseeable future.
[89] Human Rights Watch, 16 May 2022, < Aljazeera, 9 July 2022, < Tamil Guardian, ‘Go home Gota! – Jaffna students demand Sri Lanka’s president resign as crisis continues’, 4 April 2022
[92] Tamil Guardian, ‘Sri Lanka arrests over 600 people for violating curfew as protests continue’, 3 April 2022
[93] DW Asia, 24 May 2022, < Human Rights Watch, 16 May 2022, <
[95] Tamil Guardian, < Human Rights Watch, 22 July 20022, < Indian Express, 23 July 2022, In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’. The Tribunal is satisfied that the chance of serious harm for this applicant has a real substantial basis given the incident with the soldiers on his land, his long involvement with the LTTE, the information about enquiries of his whereabouts, his length of stay in Australia and country sources about treatment of former LTTE members, increased militarisation in recent years and the current repressive response to the economic crisis.
139. The Tribunal is satisfied that there is a real chance of serious harm for this applicant in the reasonably foreseeable future, for reasons of his actual or imputed political opinion.
140. The Tribunal is satisfied that political opinion would be the essential and significant reason[98] for the harm, there would be serious harm[99] (such as detention) and systematic and discriminatory conduct[100] in that the authorities would be motivated to harm the applicant in a non-random manner.
[98] Section 5J(4) of the Act
[99] Section 5J(4) of the Act
[100] Section 5J(4) of the Act
141. The Tribunal is satisfied that the real chance of persecution relates to all areas of Sri Lanka[101] as the harm feared is from the authorities of Sri Lanka. The Tribunal is not satisfied that effective protection[102] is available as the harm feared is from the state. The Tribunal is not satisfied that he could modify his behaviour[103] to avoid harm as the state would become aware of his former LTTE activity for the reasons set out earlier.
[101] Section 5J(1)(c) of the Act
[102] Section 5J(2) of the Act
[103] Section 5J(3) of the Act
Findings on refugee criterion
142. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion were he to return to Sri Lanka in the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
143. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
144. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jane Marquard
Member

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

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

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

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

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

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

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

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

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

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

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;

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

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

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

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

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

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

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

Attachment B – Documents
Documents provided as part of the Protection Obligations Determination/IPA application
UNHCR asylum seeker certificate, [Country 2]
Bearing applicant’s name
Affidavit of the applicants’ parents dated 28 November 2010
The applicant’s parents stated that the applicant was displaced due to ‘threatening’, They said that after he was displaced, some ‘unknown persons came to us on many occasions and inquired about him’. They said that they believed his life was in danger.
Certificate from [Village 1] Divisional Secretary’s Office, Gramma Niladhari dated [December] 2010
This certificate verified that the family of the applicant was displaced from the village in 2000. The author said that he was aware that unknown persons were searching for the applicant after he had been displaced.
Affidavit of the applicant’s wife dated 3 December 2010
The applicant’s wife said that she was living in [Village 1] and there was tension in the village following violent activities and they had to leave and give up their house. They went to Vanni. She said that they were again displaced and went to [City 2]. She said that she was living at a relative’s house and unknown persons went there on several occasions, searching for her husband.
Letter from [Mr D], [an official] Trincomalee District, [December] 2011
[Mr D] said that the applicant’s family were well known to him and were strong supporters of the Tamil demand for political autonomy in the northern and eastern provinces of Sri Lanka. He said that the applicant was an activist and suspected by the armed forces of supporting the militants. He said the army had searched for him.
Letter from [Rev E], [Church affiliation] dated [December] 2011
The Reverend said that he knew the applicant’s family who lived [near] the church. He said that the region of [Village 1] was remote and surrounded by jungles and close to the Eastern sea shore and therefore harboured the LTTE and was their training ground. He said that consequently the navy established their camp along the coastal area and began to suspect families who were fishermen or farmers. Many locals were displaced. He said that the applicant was still a wanted person. His wife found a job as [an Occupation] and her father was shot dead in crossfire.
Police report
The police report indicated that the property of the applicant’s wife had been taken by the army.
Death certificate for father-in-law
This certificate confirms kidnapping and death at the hands of unknown persons.
Photocopy of Birth certificate
Photocopy of biographical page of passport
Photocopy of National identity card
Photocopy of refugee card [City 2]
Photocopy of marriage certificate
Photocopy of hospital pass for applicant, son and wife from the refugee camp, 2009
Documents provided as part of the SHEV application
Report on the applicant from [Organisation] dated 24 August 2017 by social worker [Ms F]
[Ms F] reported that the applicant attended 21 sessions in 2016 and 2017. She reported that he told her that he fears for the safety of himself and his family if he returns to Sri Lanka. He reported symptoms of depression, anxiety and post-traumatic stress disorder (PTSD). The applicant told [Ms F] that he was affiliated with the TNA, formally known as the Thamilar Viduthali Koorani. His role was to spread information about the party’s objectives and repair schools and temples. [Ms F] said that he recently disclosed involvement in the Liberation Tigers of Tamil Eelam (LTTE) from 2000 to 2008. He said that he received basic military training and then was head of the [job task]. He said that he did not partake in direct conflict. He said that he was injured in 2006 from a landmine. In January 2007 when the Trincomalee District became army controlled, he hid in the jungle for 5 months. He resigned in 2008 after refusing to partake in direct conflict in Vanni, where he was [doing a job task] for injured soldiers. He surrendered along with about 2,000 other Tamil civilians. He stayed in the [City 2] Refugee camp. To protect his safety he destroyed photographs and other evidence of his LTTE involvement. While in the camp he was captured and taken to a Sri Lankan army checkpoint and tortured. He fled while the army officers were distracted and stayed in a cousin’s tent. He told [Ms F] he was remorseful for initially providing the Department with incorrect information about his LTTE involvement and said that he had been told that it would impact on his ability to remain in Australia. [Ms F] referred to treatment, and a commitment by the applicant to attend counselling regularly to assist with reducing his symptoms.

[2022] AATA 3089

27 July 2022

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