1725608 (Refugee)
[2022] AATA 3172
•10 August 2022
1725608 (Refugee) [2022] AATA 3172 (10 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 1725608
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Justin Meyer
DATE:10 August 2022
PLACE OF DECISION: Melbourne
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 10 August 2022 at 11.35am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected links to Liberation Tigers of Tamil Eelam (LTTE) – particular social group – failed asylum seeker – detention – torture – physical scarring – killing of family members – escape from refugee camp – illegal departure – questioning of family members – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 22 March 2016. The delegate refused to grant the visa on the basis that:
“I am satisfied the applicant does not hold a well-founded fear of persecution on account of being a failed (Tamil) asylum seeker who departed Sri Lanka illegally and who has lived in a Western country and who is a returnee from the West.
I have considered all of the claims of the applicant, both individually and cumulatively. I find that if the applicant were to return to Sri Lanka, he would not face a real chance of persecution now or in the foreseeable future.
…
[In regard to complementary protection]:
I have found that there is not a real chance that the applicant faces serious harm in Jaffna, Sri Lanka to which I find he would return, either from the SLA, CID, other Sri Lankan authorities as the result of targeted persecution owing to his imputed political opinion, his ethnicity, for being a Tamil from the north of Sri Lanka, due to scarring or as a failed asylum seeker who departed illegally and who has lived for a prolonged period in a Western country.
I acknowledge that serious harm is different from significant harm, however, based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm from these sources.
In the absence of any further claims or integers which give rise to a real risk of significant harm, I am satisfied the applicant does not face a real risk of significant harm, should he return to Sri Lanka.
The applicant appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). 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), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant's identity is established as [an age]-year-old male, as evidenced by a Sri Lankan passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims
In his protection visa application the applicant made these claims:
In his initial application for a Refugee Status Assessment the applicant provided the following written claims in a statement dated 15 January 2011 (in summary):
·He was captured by the Sri Lankan Army (SLA) in May of 2009 because they suspected him of being a member of the LTTE. He had been injured during a bomb blast and because he was living alone, they suspected that he was a member of the LTTE. He was detained by them for approximately four months. He was tortured and beaten. They wanted information about the LTTE and who other members of the LTTE were.
·He was never a member of the LTTE; however, he worked as [an occupation 1] at [Business 1], which was owned by the LTTE. This is possibly the reason he was suspected of being a member of the LTTE.
·In August 2009 he was moved from the Army Camp into a refugee camp. He escaped from the refugee camp approximately 10 days later. Because he escaped, SLA officers visited his parents' home and his late wife's parents in a refugee camp, looking for him.
·From the time that he escaped he went into hiding and stayed with a friend in [Town 1], Sri Lanka. He did not contact family or friends, because he knew the Army would then be able to find him.
·After living like this for a short period, he decided that he should leave Sri Lanka and he made arrangements to come to Australia.
·He knows he will be killed by the SLA. He is afraid of the SLA and believes they will harm him if he returns to Sri Lanka.
·He knows that the SLA are after him because he escaped from them and because they suspect him of being a member of the LTTE. Hence he cannot seek the protection of the authorities.
In his application for a TPV the applicant provided the following written claims (in summary):
·He was married [in] October 2004 in Sri Lanka. His wife was killed by the Sri Lankan Army in February 2009. He has one son from that marriage who in Sri Lanka with his grandparents. The applicant is now re-married and has another son and [step-daughters]. His wife and stepdaughters are Australian permanent residents and his son is an Australian citizen.
·His parents reside in Sri Lanka. He has one [sibling] in [Country 1] and.one married brother in Australia. He has [another sibling] in [Country 2] and one [sibling] in Sri Lanka.
·The Sri Lankan Army and the CID would interrogate him and perhaps kill him for retribution because of his alleged or imputed association with the LTTE. Further, he fears that he would be subjected to persecution, serious and significant harm. The authorities continue to make enquiries about him and have even questioned his son at school.
·He fears that he will be suspected of LTTE involvement by the Sri Lankan authorities given that he:
o was previously considered to be involved with the LTTE;
o is a young Tamil male who has been in detention and interrogated many times;
o resided abroad for a prolonged period of time and claimed asylum abroad;
o fled close to the end of the war, resulting in him being considered an LTTE affiliate especially given his previous issues with the authorities;
o is from the Northern Province.
o the authorities in Sri Lanka cannot protect him as he fears harm from them;
o the persecution of Tamils by the Sri Lankan authorities is widespread throughout Sri Lanka and he cannot relocate safely to any area in Sri Lanka.
In a Post Interview Submission dated 10 October 2017 it was stated:
·The applicant fears harm on the basis of the following reasons:
- Tamil race.
- Imputed political opinion.
- Membership of a particular social group, a returnee from the West/failed asylum seeker.
·The submission provides:
We submit that given the applicant's previous ongoing work with the LTTE, the fact he lost his wife during the conflict and has scaring on his body, it is highly conceivable that the Sri Lankan Authorities believed that he was an LTTE affiliate in the past. His profile is further heightened by the fact he escaped from the camp in Sri Lanka. Given the prolonged period he has spent abroad and claimed asylum, especially given he fled prior near to the cessation of the conflict coupled with the fact the applicant has scaring sustained from the conflict, it is highly likely the applicant will further be treated with suspicion upon return to Sri Lanka. Moreover, we note the applicant's evidence that he attends activities with the Tamil diaspora in Australia, we submit that this will lead the Sri Lankan Authorities to question his LTTE affiliation, especially given the Authorities are concerned the LTTE will resurge in Sri Lanka given support received from the Tamil diaspora.
·The submission contains excerpts from various sources regarding the situation for Tamils in Sri Lanka, in particular the recent situation for Tamils in and around the applicant's home area of Jaffna and from the Northern Province. The submission states the applicant faces a real chance of persecution throughout Sri Lanka on account of the above stated reasons for feared harm, and that if he is found not be a refugee then he is owed protection under the complementary protection provisions.
·The delegate referred to the Department of Foreign Affairs and Trade (“DFAT”) Report dated 24 January 2017 and other reports from 2015 until 2017. The political landscape in Sri Lanka has dramatically changed since the delegate’s decision, to the severe detriment of the Tamil Community. The most recent DFAT report suggests that the situation in Sri Lanka has deteriorated.
·Due to a worsening human rights situation, I would be in danger of harm should I return to Sri Lanka. Country information indicates that the current situation is far different from the situation in 2017. In 2017, while it was still dangerous for Tamils in Sri Lanka, President Sirisena’s government looked hopeful for the country, and several positive undertakings were embraced to enhance reconciliation and accountability for atrocities committed during the Civil War.
·Since the Rajapaksa family has gained power, these developments have been wound back and many military personnel installed to run portfolios otherwise promoted, including some who have been suspected of being responsible for human rights abuses and atrocities. The current government ensures minorities including Tamils have little to no political power and are repressed. Legislation such as the Prevention of Terrorism Act has been re-enacted and allows individuals to be held for eighteen months without charge, in some cases individuals have been held for even longer. The current regime is repressive especially against Tamils.
·The delegate found me to be a credible witness. Previous decision makers have also accepted my claims. I confirm all information that I have provided has been true and correct. My life in Sri Lanka was very difficult. I lost my wife due to the conflict and I was injured and I was forced to flee, leaving behind our young child. I have never really recovered from the trauma I experienced. I worry so much for the safety of my son who remains in Sri Lanka. The delegate did not accept that my son was questioned by the Sri Lankan Authorities. I confirm that this did occur.
·I would be at risk of harm upon return to Sri Lanka given I am a Tamil male that has been suspected of having LTTE involvement given my previous work as [an occupation 1] for an LTTE business. I have no doubt I would be treated with suspicion, detained, and harmed if not killed upon return to Sri Lanka, especially given by fled the country, have remained abroad for a long time and have been involved in the Tamil diaspora. Sri Lanka is a dangerous country with no freedom or protections for Tamils especially those from the North who are suspected LTTE affiliated.
A statement of applicant 27 April 2022 states as follows:
·The delegate referred to the Department of Foreign Affairs and Trade (“DFAT”) Report dated 24 January 2017 and other reports from 2015 until 2017. The political landscape in Sri Lanka has dramatically changed since the delegate’s decision, to the severe detriment of the Tamil Community. The most recent DFAT report suggests that the situation in Sri Lanka has deteriorated.
·Due to a worsening human rights situation, I would be in danger of harm should I return to Sri Lanka. Country information indicates that the current situation is far different from the situation in 2017. In 2017, while it was still dangerous for Tamils in Sri Lanka, President Sirisena’s government looked hopeful for the country, and several positive undertakings were embraced to enhance reconciliation and accountability for atrocities committed during the Civil War.
·Since the Rajapaksa family has gained power, these developments have been wound back and many military personnel installed to run portfolios otherwise promoted, including some who have been suspected of being responsible for human rights abuses and atrocities. The current government ensures minorities including Tamils have little to no political power and are repressed. Legislation such as the Prevention of Terrorism Act has been re-enacted and allows individuals to be held for eighteen months without charge, in some cases individuals have been held for even longer. The current regime is repressive especially against Tamils.
·The delegate found me to be a credible witness. Previous decision makers have also accepted my claims. I confirm all information that I have provided has been true and correct. My life in Sri Lanka was very difficult. I lost my wife due to the conflict and I was injured and I was forced to flee, leaving behind our young child. I have never really recovered from the trauma I experienced. I worry so much for the safety of my son who remains in Sri Lanka. The delegate did not accept that my son was questioned by the Sri Lankan Authorities. I confirm that this did occur.
Updated information
·My son who remains in Sri Lanka lives with his maternal grandparents. As advised previously, while my parents in law were in an IDP camp near the end of the war, they were interrogated about my whereabouts. They advised the authorities that they were unaware of my whereabouts and when not in contact with me. My wife’s father has been questioned by the authorities on several occasions about my whereabouts. The most recent time was around three years ago, when he was again approached by the authorities, interrogated, and asked about my whereabouts. My father-in-law only recently informed of this.
·My wife was granted protection in Australia. She is now an Australian citizen. She has never returned to Sri Lanka given the fear she would be killed if she did. My wife’s ex-husband was a member of the LTTE. I am concerned that I would be further imputed with pro LTTE sentiments if I return to Sri Lanka given her previous husband was affiliated with the LTTE.
·While in Australia, I have continued to be involved with the Tamil coordinating committee (“TCC”). I attended commemorations and events organised by the TCC including hero’s day and mother’s day commemorations. I also encourage other people to attend these, spread information about the organisation’s and assist set up for events. I also collect funds to assist the Tamil community.
·I confirm my wife, biological son and [stepchildren] are all Australian citizens. If I am unable to remain in Australia, we will be unable to live together as a family unit, given they are unable to return to Australia. I would be unable to continue to maintain a personal relationship with them and this would be detrimental to my wife and children.
The applicant’s evidence in the hearing was as follows:
·The applicant said he is a Sri Lankan Tamil who completed school at [age]. He did further study and after that worked in agriculture.
·His relatives in Sri Lanka today are his son from his first marriage, his parents and [a sibling]. His first wife’s parents care for his son, who is [age].
·The applicant married again in 2014 and has [adopted] daughters and one son.
·He has a [brother] in Australia. His wife received a protection visa in Australia.
·The Tribunal asked the applicant how he was involved with the LTTE. He said there was a displacement which occurred in his village between 2003 and 2008. He worked as [an occupation 1] in a business organisation owned by the LTTE. This was in the Northern province.
·The applicant said he applied for this job when they were recruiting. There were seven to five staff, morning and afternoon. He was living in an LTTE area, controlled by the Tigers. He knew that the job was available.
·I asked if the applicant was sympathetic to the LTTE or whether it was just a job for him. He said he worked with them because he wanted to. He could name his boss and noted that this individual and his family are now missing.
·I asked the applicant about the LTTE’s goal for a separate Tamil state. He said that he had that desire as well. He did activities in terms of medical and military training. He said this was training given to everybody and he did it as well. He said the training lasted for some weeks. This included using weapons. An AK-47 was used.
·He did not see any combat. He was not needed for this.
·He said he was displaced and his family had no opportunity.
·I asked for examples of violence where the applicant or his family was a victim.
·He said that he was subject to torture by the Sri Lankan army several times. He also lost his wife towards the end of the war. He was present when they were sitting near a bunker preparing morning tea. She was feeding their son. She was fatally injured by shrapnel in the head. She died as a result of these injuries. His son was also harmed with several injuries.
·His wife’s [brother] was a Tamil Tiger and he was martyred during the conflict.
·I asked whether the applicant’s current wife, or the family, have been identified with the LTTE or linked with them. The applicant replied that his current wife’s first husband was a member of the LTTE and he died “as a martyr”.
·The applicant was detained and held in custody by the military authorities in May 2009 when the war ended. He was captured and received an injury. He was captured alone. He had received an injury on an earlier occasion, he said.
·He was questioned about his injury which he had from a shell attack - it is a severe [injury]. His [body part] did not function properly at the time, although it is now improved. His injury aroused the suspicions of the authorities and led to his detention.
·Higher up in his body he had shrapnel injuries.
·The army identified him as a fighter because of his injuries, he said.
·He was not formally charged. He was tortured. They wanted to know the identities of other fighters from the faces of other people detained. They were using his presence in the camp to identify leaders of the LTTE. I asked whether he would have in fact been able to identify leaders of the LTTE. He said he could but he did not see anyone. They wanted him just in case such a person needed to be identified. He said that he could not identify anyone, noting that suspects’ faces had changed due to their inadequate diet. He would not have been able to identify such people. At that time people barely had anything to eat.
·People were tortured and went missing from this place. He could not help them with their enquires. After four months he was put in a refugee camp and monitored. Two weeks later he asked people who were delivering water to help get him out of this camp that he was involuntarily held in. He said he was being tortured and his life was in danger. They assisted him by smuggling him out.
·I pointed out that he was a low-level [occupation 1] and asked how would he have known who the leaders were. He said he lived in areas that were fully controlled by LTTE – you would see them in the shop and see them in the street. He identified a higher up official by way of example, a high-ranking officer.
·The applicant made his way to a friend’s house in [Town 1] in the Nuwara Eliya District of Central Province. He hid there and contacted his father.
·He told his father about being tortured and decided to leave the country.
·I asked if he had a passport. He left the country with [a] passport obtained through his [Relative A] who is a “famous [occupation] in Colombo” through a person he knew (a Muslim man). He was not aware of the details but his was a false passport.
·I queried how his [Relative A] could be a prominent and successful [person] and arrange false passports. The applicant said he did not know how he made it happen, but he could. I asked if his family was privileged and had connections with higher authorities. He said no. The Tribunal was concerned that the typical person would not be able to arrange this.
·The applicant said people can be bribed.
·The applicant was asked of what interest he could be. They no longer wanted to question him and moved him to another camp. He said they were convinced he was a fighter and could identify people.
·I asked if he thought of bringing other family members. The applicant said this was too hard and his life was in danger.
·The applicant went to [Country 3] and then Indonesia. The applicant said he did not know much about the details of the arrangements to get him there. He then was taken by boat, the boat was intercepted and he was then assessed on Christmas Island. He was registered by the UNHCR.
The Tribunal discussed DFAT country information on Sri Lanka[1] as follows:
[1] DFAT Country Information Report, Sri Lanka 23 December 2021
Tamils
3.4
According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
3.5
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
…
3.8
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).
3.9
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
The applicant said that his was a politically sensitive issue and on top of that people were monitoring persons such as himself. He said that in their law they can monitor and “do anything to us”. He referred to protests against the government. He said it may continue to monitor people in the north and east. People marking memorials of the deaths of Tamils are monitored. People were followed and there was a violation of their freedom.
I put to the applicant that merely being monitored may not in and of itself amount to persecution. I asked what else might happen to him. He said after he left the country the military questioned his son. This occurred in 2019. He said that the military was still looking for him. They can arrest him.
I asked the applicant if anybody could identify him as an LTTE fighter. The applicant said that he was not a fighter. He said however that people knew that he had fled. I asked whether people might be less suspicious of him now that considerable time had passed. The applicant said that his current wife’s first husband was a Tamil Tiger. He could be associated with them.
The applicant added that he was active in the Tamil diaspora. I enquired as to how the authorities would know this. He said that the Sri Lankan government gathers information about who is in charge. I asked if he was in charge to which he replied that he was not but that he worked as a member.
The applicant said he did not attend rallies but he goes to activities. He is involved in the remembrance of the martyrs events. He said the consulate for example has an opportunity to gather information about him. He did not sign petitions. The applicant said he uploaded videos to his [social media] page relating to the Tigers – one was about fighting that occurred in Sri Lanka with the Tigers (in 2000).
I asked if he would consider doing these kinds of activist activities. He said that he always believed in fighting for the same rights as Singhalese people. A separate Tamil state was needed. This is why he undertook activities in the diaspora.
I asked if he would say this out loud if he had to live in Sri Lanka. He said he could not in the current situation. He said a Member of Parliament was giving a public speech and the government recorded what he was saying. If they can do that to a government member it would be even harder for him. He cannot modify his behaviour.
The economic and political upheaval in Sri Lanka would lead to him being treated as a second-class citizen. He said they will not let him live in the community and he will be detained. He said that the Sri Lankan government pretended that it did not persecute Tamils. The applicant said he lost his family.
The Tribunal went on to discuss the following further DFAT country information[2]:
[2] DFAT Country Information Report, Sri Lanka 23 December 2021
Liberation Tigers of Tamil Eelam (LTTE)
…
3.41
While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
…
Low-profile former LTTE members
3.49
‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low profile former LTTE member might be monitored but would generally not be prosecuted.
…
3.54
Some members of the Tamil diaspora played a central role during the war, as a source of funding, weapons and other material support for the LTTE, and as political advocates for an independent Tamil state. Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence for an independent Tamil state. High-profile leaders of pro-LTTE diaspora groups, particularly diaspora groups banned under Sri Lankan law, may come to the attention of Sri Lankan authorities because of their participation in such demonstrations. The Sri Lankan Government continues to assess that elements of the Tamil diaspora remain committed to a separate Tamil state. The UK Upper Tribunal in its May 2021 ruling on Tamils engaged in activities in the UK found that a range of political activities such as ‘attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions’ may be perceived by the Government of Sri Lanka as threatening and it may trigger official harassment upon return.
…
3.57
DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
The Tribunal put to the applicant that he was possibly an innocent and non-targeted victim when he was shelled. He said that when he was questioned the authorities suspected him. Every time he was questioned, he was not sure what the outcome would be.
The rehabilitation of Tamil fighters led to people going into prison for 10 to 20 years in the name of suspicion.
Findings and evaluation
Overall, the Tribunal found the applicant’s written and oral evidence to be consistent. He gave a clear account of his upbringing and education and reasons for leaving Sri Lanka. The applicant provided supportive consistent written evidence of his claims.
He has not claimed to have been an LTTE member, but his claims are as a sympathiser and helper to the LTTE and someone who could or would be perceived as a Tamil Tiger or imputed in this way. I find he assisted Tamil Tigers and organised activities.
I find further that:
·He is from the Northern Province.
·There was a displacement which occurred in his village between 2003 and 2008. He worked as [an occupation 1] in a business organisation owned by the LTTE.
·He had medical training and military training which lasted for some weeks.
·The applicant did not see any combat.
·He supported and still supports the LTTE’s goal for a separate Tamil state.
·His wife was killed towards the end of the war when she was injured by shrapnel from Sri Lankan Army actions in February 2009.
·The applicant’s [brother] was a Tamil Tiger and he died because of the conflict.
·He was captured by the Sri Lankan Army in May 2009 as a suspected member of the LTTE.
·He had been injured during a bomb blast.
·He was detained by the Sri Lankan Army for approximately four months. He was tortured and beaten. They wanted information about the LTTE and they also wanted to know who other members of the LTTE were.
·Although not a member of the LTTE, he worked as [an occupation 1] at [Business 1], which was owned by the LITE.
·In August 2009 he was moved from the Army Camp into a refugee camp. He escaped from the refugee camp approximately 10 days later.
·SLA officers visited his parents' home and his late wife's parents in a refugee camp, looking for him.
·He escaped and went into hiding and stayed with a friend in [Town 1], Sri Lanka. He did not contact family or friends, because he knew the army would then be able to find him.
·After living like this for a short period, he decided that he should leave Sri Lanka and he made arrangements to come to Australia.
·The authorities continue to make enquiries about him and have even questioned his son at school.
·The applicant has scarring on his body.
·He has had a prolonged period abroad claiming asylum.
·His son, who is [age], remains in Sri Lanka and lives with his maternal grandparents. His other remaining relatives in Sri Lanka are his parents and [a sibling].
·While his parents-in-law were in an IDP camp near the end of the war, they were interrogated about his whereabouts. They advised the authorities that they were unaware of his whereabouts and were not in contact with him. His first wife’s father has been questioned by the authorities on several occasions about the applicant’s whereabouts including around three years ago.
·The applicant was detained and held in custody by the military authorities in May 2009 when the war ended. He was captured and received an injury. He was captured alone.
·He had an injury from a shell attack and it aroused the suspicions of the authorities and led to his detention.
·He also had shrapnel injuries.
·He was not formally charged. He was tortured as the army tried to get from him the identities of other fighters from seeing the faces of other people detained. However, he did not know the men.
·After four months he was put in a refugee camp and monitored. He escaped this camp.
·He was a low-level [occupation 1], yet he became aware of who certain higher level people were and what they looked like.
·He took shelter at a friend’s house in [Town 1] in the Nuwara Eliya District of Central Province. He hid there and contacted his father.
·He told his father about being tortured and decided to leave the country with a false [passport] obtained through his [Relative A].
·The applicant’s second wife was granted protection in Australia and is now an Australian citizen. Her ex-husband was a member of the LTTE.
·In Australia, he has continued to be involved with the Tamil coordinating committee (TCC). He attended commemorations and events organised by the TCC including hero’s day and mother’s day commemorations. He encourages other people to attend these, and he disseminates information about the organisation and assists in setting up for events. He collects funds to assist the Tamil community.
·The applicant married again in 2014 and has [adopted] daughters and one son.
·He has a [brother] in Australia.
·His current wife’s first husband was a member of the LTTE and he died as a result of his LTTE activities
The applicant has a number of characteristics which cumulatively lead me to conclude that he has a well-founded fear of persecution.
I accept that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. He would be seen as a former supporter and a current believer in Tamil separatism. There is a real chance that information about him has been or would be collected.
He may be of interest to Sri Lankan security services, including for suspected separatist activities.
He may well be one of the low-profile former LTTE members who comes to the attention of the Sri Lankan authorities and may be suspected of having had a combat function during the war, and thus may well be detained and may be sent for rehabilitation.
The Tribunal considers the applicant to be a Tamil with actual or imputed LTTE links, per the DFAT report at [3.50] above. It finds that there is a risk that he will experience police monitoring and harassment. Even lower -profile individuals such as the applicant are monitored to guard against the LTTE’s re-emergence. Harassment for the applicant might include frequent visits by police, visits to family members, threats and seizure of mobile devices.
The applicant may well face discrimination both within his community and from government officials upon return. He may well have a heightened risk because he has family connections with a former LTTE member, his brother. He may also be subject to monitoring for this reason. Added to this is that the applicant has not been through rehabilitation, which could raise more suspicions about him.
He potentially would be in the most vulnerable and neglected segment of the Tamil population because of his former LTTE link.
The possibility of harassment upon return is increased by the applicant’s Tamil community activities such as attending meetings and commemorative events, and some online presence. In the applicant’s case this may lead to him being perceived by the government of Sri Lanka as threatening and it may trigger official harassment of him upon return. I accept that he is so active and there is third party corroboration of this in the form of a Tamil community leader declaration before the Tribunal.
From this country information I conclude that as a LTTE-imputed person he may face ongoing challenges reintegrating fully into society. This might add to his vulnerability.
There is other supporting country information to help draw these conclusions.
For returnees DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting the police in their home area, contacting neighbours and family, and checking criminal and court records.[3] The Tribunal considers that this investigative process will likely flag the applicant as a person who has been of adverse interest to the Sri Lankan authorities in the past.
[3] DFAT Country Information Report, Sri Lanka 23 December 2021 at [5.17]
The UK Home Office reports that since 2009, the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated. The UK Home Office also reports that the Sri Lankan authorities have a continuing interest in the surveillance of diaspora events.[4]
[4] UK Home Office, Country Policy and Information Note, Sri Lanka: Tamil Separatism June 2017
Considering these matters cumulatively, and also taking into account the current country analysis provided in the recent Upper Tribunal (Immigration and Asylum Chamber) case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) in particular paragraphs [324] to [358], there is a risk that is more than remote.
The applicant may well have an imputed a political opinion which is anti-regime or supportive and sympathetic of LTTE, particularly given that the applicant departed Sri Lanka for the reasons he stated during a time of civil unrest in Sri Lanka.
Considering the applicant’s profile as a Tamil previously resident in an LTTE -activity area who has been of adverse interest to the Sri Lankan authorities in the past and may be visible to them from internet presence since arriving in Australia, the Tribunal considers he may be detained and questioned when returned to Colombo or even to his town, for his Tamil ethnicity and his imputed political opinion.
A brief period of detention may not always amount to serious harm, but his profile may result in him being subjected to a longer period of detention and questioning than a Tamil who may merely have resided in an area formerly under the control of the LTTE. He has left Sri Lanka by illegal means using a false passport, and this could be established and lead to questioning and detention.
During that detention and questioning, there is a real chance the applicant will be subjected to serious harm. The UK Home Office reported a reduction in torture complaints in 2017, while highlighting new cases of Tamil victims where police had resorted to violence and excessive force to extract confessions.
There is a real chance the CID would arrest and interrogate the applicant and question him about his past and present circumstances. The Tribunal, having considered carefully and in detail the country information and the applicant’s profile, finds that there is a real chance the CID will attempt to extract information and details or gain intelligence details about why he departed Sri Lanka, and his knowledge of other family or in-law family member actions after the end of the civil war.
In light of this information, the Tribunal considers there to be a real chance the applicant will be subjected to mistreatment constituting serious harm during that process of detention and questioning. It follows that there is a real chance the applicant will face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of his ethnicity and his political opinion actual or imputed as the Tribunal discussed above.
It may have been considered in earlier times that the applicant’s actions since he left Sri Lanka, may not have attracted attention to him or be of adverse interest to the Sri Lankan authorities but since the applicant’s departure from Sri Lanka, there has been a worsening economic, political and security situation that would impact directly on the applicant if he was returned to Sri Lanka. Considered cumulatively, the Tribunal cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE.
The heightened tensions and economic crisis in Sri Lanka in the last year potentially worsen the risk for the applicant. I note that one of the UNHCR’s most recent reports (2022) states:
Reports indicate that at least 70 people have been arrested under the PTA for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. On 18 May, police arrested 10 people near Batticaloa under the PTA for organizing a memorial event; they were finally released on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained for 15 months since November 2020 in relation to photos of the LTTE leader appearing on his social media. The Government shared with OHCHR a directive issued by the Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as, possession of pictures.
In March 2021, new “de-radicalization” regulations were issued that permit arbitrary administrative detention of individuals for up to two years without any legal proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and other experts have warned that the regulations may jeopardize the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent with no effective due process guarantees. Civil society organisations obtained a stay order on their implementation while the Supreme Court considers a fundamental rights petition against the regulations. [5]
[5] Human Rights Council, Forty-ninth session, 28 February–1 April 2022, Agenda item 2 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 46
As a result, the Tribunal finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being an ethnic Tamil imputed to be or connected with the LTTE.
The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s. 36(2)(a) of the Act for a protection visa and the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations as a refugee.
Also, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Justin Meyer
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
Remedies
Jurisdiction
Natural Justice
0
0
0