1725641 (Refugee)
[2022] AATA 2841
•29 June 2022
1725641 (Refugee) [2022] AATA 2841 (29 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Andrea Main
CASE NUMBER: 1725641
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Justin Meyer
DATE:29 June 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 29 June 2022 at 2:37pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and imputed political opinion – Tamil participant in anti-government protests imputed as member of LTTE – detained and beaten, and friend killed – brother an LTTE member now holding temporary protection visa – scarring and mental health and treatment – assessed as refugee before policy change – wife and child now permanent residents with citizenship applications in progress – clear and consistent claims and evidence – country information – economic crisis, health care and continuing surveillance – relocation or modification of behaviour not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 1 March 2016. The delegate refused to grant the visa on the basis that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country. There was no information to the delegate’s mind to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker. The applicant did not hold a well-founded fear of persecution on account of being a Tamil failed asylum seeker. The delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act. He also was not satisfied the applicant had a real chance of serious harm for one of the reasons in s5H of the Act in the reasonably foreseeable future if returned to Sri Lanka.
The applicant appeared before the Tribunal on 27 April 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 invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video via Teams. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by video. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to him during the video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 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 decision under review should be remitted for reconsideration.
Identity
The applicant’s identity is established as a [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 claims were these:
·He is a Tamil and a Hindu, from [City 1].
·He studied at [named] University from May 2006. He promoted pro-Tamil protests, both from conviction and because of pressure from other students.
·In June 2006 he was travelling by bus from [City 1] to [Town 1]. Following a bomb blast on the same road the Sri Lankan Army (SLA) stopped the bus and detained 10 of the Tamil passengers, including the applicant. The soldiers accused him of being in the Liberation Tigers of Tamil Eelam (LTTE), beat him with their rifle butts and kicked him with their boots. The applicant was held for two days, and released after his father paid approximately 10,000 rupees for his release.
·The following month, fighting between the LTTE and the government intensified, and on 11 August the SLA placed [named] University under a curfew. On 15 August 2006, the SLA relaxed the curfew and students were allowed to leave the campus for food. That day a close friend of the applicant, [Mr A], and another student left the campus together and were fatally shot. Other students witnessed the killing. The applicant believes [Mr A] was shot because he organised pro-Tamil student events, and would have been imputed with a pro- LTTE political opinion. The applicant believes [Mr A] would have been killed by a paramilitary group such as the Eelam People's Democratic Party (EPDP).
·Following [Mr A]'s killing the applicant was too frightened to leave the campus.
·On about 18 August 2006 the SLA rounded up all of the Tamil students from the university hostels, filmed them, demanded the students admit to association with the LTTE, and threatened to shoot them. The SLA was searching for LTTE members. The students were held for 12 hours. The applicant denied any association with the LTTE.
·On about 20 August 2006, the applicant saw a notice at a [Location]. The notice listed five names, including the applicant's and two of his university friends', and a phone number. The notice asked readers to call the listed number with information about the location of the five named people. No author was listed, but the applicant believes the SLA or a paramilitary working with the SLA put the notice up. The two friends listed also put up posters for pro-Tamil protests, and were also friends of [Mr A]. They left Sri Lanka in fear for their lives. The applicant also heard from other students that the SLA was asking where he was and what area he was from. The applicant feared for his life and for the next three months he stayed in his hostel.
·In October 2006 the authorities acceded to a request from the university administration and some 800 students, including the applicant, left [City 1] for [City 2]. The applicant later found his displaced family in [Village 1].
·In [Village 1], the LTTE were forcibly recruiting young Tamil men. The applicant his with a relative was 20 kilometres away, but the LTTE began forcible recruitment there as well. The applicant walked through the forest for two days to [Town 2], and then caught a bus for Colombo.
·Fearing both the SLA and the LTTE, the applicant fled Sri Lanka for [Country 1] on [date] October 2007. He entered on a tourist visa and then registered as a refugee.
·On 20 October 2008 he returned to Sri Lanka with the intention of resuming his studies. From Colombo he called a friend, [Mr B], in [City 1] to ask if he could continue his studies. The friend advised him that his name was still on the SLA's list, and it was unsafe for the applicant to return to [City 1]. On 27 October 2007 the applicant left for [Country 2].
·On the morning that he left the police came to the lodge where he was staying. The police conduct routine checks of lodges, and they became suspicious. The applicant was away from his room during the scheduled check. The applicant had gone to the canteen. When he returned to his room the police forced him to strip and beat him with their rifle butts and kicked him with their boots. The police wanted to take the applicant to the police station, but the lodge manager intervened on the applicant's behalf and secured his release for the payment of 500 rupees.
·The applicant entered [Country 2] on a three-month tourist visa, and after it expired he registered with the United Nations High Commissioner for Refugees. He was detained in [Country 2] from April 2010 to August 2010. While he was held he refused to meet with Sri Lankan officials who were visiting the detention centre. The applicant believes the [Country 2] authorities disclosed his identity and presence in detention to the visiting Sri Lankan officials.
·In about August 2011 the applicant called his friend [Mr B] from [Country 3] and was informed that the authorities are still searching for the applicant.
·The following month, fighting between the LTTE and the government intensified, and on 11 August the SLA placed [named] University under a curfew. On 15 August 2006, the SLA relaxed the curfew and students were allowed to leave the campus for food. That day a close friend of the applicant, [Mr A], and another student left the campus together and were fatally shot. Other students witnessed the killing. The applicant believes [Mr A] was shot because he organised pro-Tamil student events, and would have been imputed with a pro- LTTE political opinion (as a Tamil who has lived in an LTTE-controlled area), his membership of the particular social group 'failed Tamil asylum seeker'. For the same reasons he will be subjected to significant harm.
·If the applicant were to return to Sri Lanka he would be harmed, detained, killed and harassed. He will be harmed by the SLA, the EPDP or other unknown paramilitary groups, or the police. They will harm him for his Tamil race, his real pro-Tamil political opinion, his imputed pro-LTTE political opinion (as a Tamil who has lived in an LTTE-controlled area), his membership of the particular social group 'failed Tamil asylum seeker'. For the same reasons he will be subjected to significant harm.
·The authorities will not protect him because it the authorities he fears. He cannot relocate to avoid harm as the authorities have effective reach throughout the country. Further, it would not be reasonable for him to relocate, as he lacks familial support in other parts of. Sri Lanka, has only limited employment skills and experience, and does not speak Sinhalese.
In his statement to the department of 8 May 2017 the applicant made these further claims:
·The applicant's brother [Mr C] was forcibly recruited into the LTTE in 2007. He was a sea tiger. He was rehabilitated after the war. On a return to Sri Lanka from [Country 4] he was detained for 10 days and questioned. The applicant has not previously disclosed this as he and his brother came to Australia separately, and at the time of the applicant's Protection Obligations Determination he did not have much knowledge of [Mr C]'s activities.
·The applicant was also briefly involved with the LTTE. He provided food and supplies on a casual basis. Some of the protests that the applicant attended were organised by the Tamil students' association in affiliation with the LTTE.
·The authorities are still seeking the applicant and his brother [Mr C]. In December 2016 they questioned their younger brother in Sri Lanka about the applicant's and [Mr C]'s Whereabouts.
·His son has a developmental delay, and there is no adequate medical treatment for him in Sri Lanka.
In a SHEV (XE 790 Safe Haven Enterprise Visa) interview of 11 May 2017 the applicant said:
·The authorities will suspect the scarring on his [body part] is evidence of combat trauma, and it follows evidence of LTTE involvement.
In a post-interview submission of 18 May 2017 the applicant stated:
·The applicant was previously found (on 23 February 2012) to be owed protection, and any decision by the department to subsequently revoke the applicant's status as a refugee is one that has a high threshold, per Article 1C(5) of the Refugees Convention.
·He will be fined for his illegal departure, and the fine may impose a significant financial burden.
·As a result of his torture the applicant has ongoing mental and physical health issues that will hamper his capacity support himself and subsist.
Pre-hearing submissions were made on 20 April 2022:
·[The applicant] is a Sri Lankan citizen of Tamil ethnicity and the Hindu faith. He was born in [year] in the Northern Province of Sri Lanka. Conflict had already commenced between the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lanka Government when he was born. He resided in a Tamil-controlled area.
·His brother, [Mr C], was a member of the LTTE and [the applicant] was himself involved. 5. [The applicant] attended the highly controversial [University] in 2006, where he was involved in promoting student protests. At around this time he also attended 2 demonstrations organised by the LTTE.
·During the Sri Lankan war, [the applicant] was subject to periodic detention and serious physical abuse and torture on account of his ethnicity and suspected involved in the LTTE.
·[The applicant] was recognised by the Australian government to be a person to whom Australia owed protection obligations and to be a refugee and was informed of this outcome by letter dated 23 February 2012. The decisionmaker accepted that [the applicant] would be imputed with a pro-LTTE association and at risk of persecution as a result.
·It is submitted that on account of the above, there is a real and substantial risk that [the applicant] would suffer persecution within the meaning of s 5J(4) of the Act in Sri Lanka, now and in the reasonably foreseeable future. It was further submitted that his individual fears of persecution in Sri Lanka are well-founded, and on this basis, he meets s 36(2)(a).
·[The applicant] fears that, if he is returned to Sri Lanka, he will suffer serious harm in the form of arbitrary arrest and detention, disappearance, serious physical harm, interrogation, physical harassment and ill-treatment, torture and/or death at the hands of the Sri Lankan authorities, including the police and the Army, other paramilitary groups, other inmates while in remand and/or prison, prison guards and/or other Sinhala locals for the following essential and significant reasons, either cumulatively or separately:
- His ethnicity as an ethnic Tamil; and/or
- His actual or imputed political opinion of being anti-government; and/or
- His actual or imputed political opinion of being pro-LTTE and/or pro-Tamil separatism; and/or
- His inclusion in the following particular social groups:
- i. A Tamil person and member of the Tamil diaspora who is perceived to have personal interests in fermenting the resurgence of the LTTE or post[1]conflict Tamil separatism; and/or
- ii. A Tamil person with a history of involvement with the LTTE;
- iii. A Tamil person who is a family member of an LTTE member; and/or
- iv. A Tamil who is the victim of past atrocities committed by the Sri Lanka government;
- v. A Tamil man from an area formerly controlled by the LTTE;
- vi. A Tamil man with visible scarring; and/or
- vii. A Tamil person with mental health issues.
·With regard to his actual and imputed membership of the above particular social groups, we submit that, with regard to the test in s 5L of the Act and relevant country information:
- The groups are identifiable by a characteristic that is shared by each member;
- [The applicant] shares or is imputed by others to share this characteristic with the groups; and
- This characteristic distinguishes the group from society in Sr Lanka.
·[The applicant]’s fear of persecution is genuine and well-founded. This fear is informed by his past experience of harm, including threats, harassment, torture and detention by the Sri Lankan authorities. His fears are also supported by current country information, summarized, in part, below.
·[The applicant] cannot be expected to act discreetly or modify his behavior and profile to hide his past as such modification:
- would not be reasonable in all of his personal circumstances for s 5J(3); and/or
- would be a modification of a kind not permitted by ss 5J(3)(a), (b) and (c). 13. The persecution feared by [the applicant] extends to all areas of Sri Lanka, as the harm he fears is from the state authorities. Accordingly, relocation within Sri Lanka is not possible.
·It is further submitted that [the applicant] is also owed complementary protection pursuant to s 36(2)(aa) of the Act. There is a real risk that he would suffer significant harm if removed from Australia to Sri Lanka, in the form of arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment at the hands of individual members of the Sri Lankan security forces; Sri Lankan ultra-nationalists; other inmates while in remand and/or prison; prison guards and individual police officer; other Sinhala locals.
…
·[The applicant] faces a risk of contracting COVID-19 and therefore suffering serious harm or death, as a result of the prevalence of people with his profile being detained or imprisoned. The high infection rates and particularly poor treatment of Tamils, suspected separatists and those with links to the LTTE. The above information means that [the applicant] faces a real harm of serious illness or death as a result of his likely treatment by Sri Lanka authorities and that this risk disproportionately faced by him on account of his profile and membership of particular social groups referred to above.
..
·[The applicant]’s poor mental health will impact his capacity to subsist in Sri Lanka, and is also relevant to his ability to relocate. Furthermore, [the applicant]’s ability to seek appropriate treatment and find work will be further inhibited by the current economic crisis in Sri Lanka.
·Sri Lanka is ‘in the midst of one of the worst economic crises it’s ever seen’, resulting in protests against the government and inflation that is ‘sending the cost of basic goods skyrocketing’.
…
The crisis is also impacting the healthcare systems with hospitals running out of essential supplies and medicines.
·There is a real risk of persecution now and in the reasonably foreseeable future, and in the alternative a real risk of significant harm, in all parts of Sri Lanka. Following this, relocation cannot be considered further. Furthermore, [the applicant]’s inability to relocate is reinforced by the current economic crisis in Sri Lanka.
A Statement of applicant was made, dated 19 April 2022 (abridged):
·“My older brother, [Mr C], now has a temporary protection visa in Australia. As I explained in my previous statement dated 8 May 2017, he was forcibly recruited to the Liberation Tigers of Tamil Eelam (LTTE) in around 2007 and was involved with the Sea Tigers arm of the LTTE. The fact that he was a member of the LTTE makes me scared for my own safety. I fear that the authorities will come after me because of his LTTE involvement.
·I haven’t had any contact with my younger brother, [Mr D], for a long time. I’m worried that if I talk to him the authorities will find out through their surveillance and will target him. I’m very scared that the authorities will hurt him. Recent activities in Australia. I attend Tamil and LTTE events in Australia. For example, in 2020 and 2021 I attended Maaveerar Naal commemorations. Maaveerar Naal is also known as ‘Great Heroes Day’. It is held each year on 27 November to remember and pay tribute to those who fought and died for the LTTE. In 2020, Maaveerar Naal was held in [Suburb 1] and in 2021 it was held in a park in Sydney. I’ve included with this statement a photograph of me at the 2020 commemoration (see Attachment 2). I also attend Black Tigers Day commemorations. Black Tigers Day commemorates the deaths of members of the Black Tigers, a wing of the LTTE that planned and carried out attacks and suicide bombings. I went to commemorations in Sydney on 5 July 2020 and again on 5 July 2021. We put flowers on the photographs of old LTTE members and held a minute’s silence. I’ve included with this statement two photographs of me at the 2020 commemoration in [Suburb 2] (see Attachments 3 and 4). If I was forced to return to Sri Lanka I would want to continue to commemorate these days that are important to Tamils but I would be fearful about the consequences of doing so
·I have struggled with mental health issues for many years. As I have detailed in materials previously provided to the Department, my mental health deteriorated significantly in 2017. I attempted suicide on 4 May 2017 and was hospitalised on 5 May 2017. That was the week before my Department interview on 11 May 2017. That was a very hard time for me. I have previously sought mental health support from [Organisation 1], a support service for victims of torture and trauma in Melbourne. I attended regular counselling sessions in 2017 and 2018. After I moved to Sydney I continued to have some phone contact with [Organisation 1] in Melbourne because I really needed the support.
·[Organisation 1] referred me to [Organisation 2], which is the equivalent torture and trauma service in Sydney. I had some initial contact with [Organisation 2] and they put me on a waiting list because of high demand on their services due to the COVID[1]19 pandemic. I am still waiting to be seen by a counsellor.
·In about January 2022 I went to the emergency department at [a] Hospital in Sydney because I felt very unwell. I felt like my whole body was frozen. They said I had depression and high blood pressure. It was a really scary time for me. I now take tablets for high blood pressure and sometimes I also take anti-depressant medication.
·I frequently have nightmares and can’t stop thinking about bad things that have happened in my past, including being held, interrogated and tortured by the authorities, the murder of my university friend and the years of war and violence we experienced in Sri Lanka.
·I currently do [job] and I run an online business. My mental health impacts my ability to work. I’m always thinking about my past and my situation. I can’t concentrate on working.
·If I am forced to return to Sri Lanka I would also be separated from my wife and son. That would be devastating for me and for them.
·I’m terrified that my mental health will deteriorate seriously if I’m forced to return to Sri Lanka and that I won’t be able to support myself. My mental health issues and my past experience of torture by the authorities would also make any period in custody or prison much harder for me. My fears of harm in Sri Lanka
·There are many reasons why I fear harm in Sri Lanka. I still fear harm because of my ethnicity, my involvement with the LTTE and the fact that my brother was a member of the LTTE. I fear harm because I’m from [City 1], an area that was controlled by the LTTE, and I went to [named] University where I was involved in promoting pro-Tamil protests. I also fear harm because of my actual and imputed political opinion against the government.
·I fear that when the authorities or others in Sri Lanka see the scars on my [body part], which are clearly visible, they will think that I was an LTTE member and involved in the fighting.
·I support the TNA (Tamil National Alliance) party in Sri Lanka because they are fighting for the rights of Tamil people. I fear that my political views and any activism I engage in in Sri Lanka would also put me at risk of harm from the authorities who do not want people to advocate for Tamils.
·I also fear that I will be harmed because I would be returning as a failed asylum seeker who has lived in Australia for a long time.
·I fear this harm because I have been targeted, arrested and tortured by the authorities before.
·About once a year, the authorities go to my parents’ house and ask about me and my older brother. They are from the CID and ask about things like where we are, if we’re married, how many kids we have. They want to know if we’re still in Australia or if we have returned to Sri Lanka. My parents have told me that the authorities last visited them and asked about me roughly four months ago.
·I’m worried that what happened to me in the past will happen again. You can be arrested at any time in Sri Lanka. You can be tortured by the authorities. You can be killed. Sri Lanka is not a safe or peaceful country and the situation is getting worse there, especially for Tamils. I am against the Rajapaksa government because of how they treat Tamil people. If I am forced to return to Sri Lanka I would want to protest against the government but I would also be very scared about what would happen to me if I did.
·If I am returned to Sri Lanka, where I faced significant trauma, I fear that my mental health will deteriorate and I will face difficulties accessing the support and treatment that I need. I don’t think I would be able to receive mental health treatment in Sri Lanka as I have in Australia. There is a lot of stigma and no respect in relation to people with mental health issues in Sri Lanka. There is not much freedom like there is in Australia to be open and honest about mental health. There is shame attached to mental health issues in Sri Lanka and that will make it extremely difficult to access services.
·I cannot return to Sri Lanka. If I am forced to return, I fear I will be arrested, detained and possibly killed by the authorities. This will happen because I’m Tamil, I oppose the government and I’ve been involved with the LTTE and anti[1]government activities. I also fear that my mental health will deteriorate and I will struggle to work.
·All of the issues I have raised in this statement and in my previous statements will compound to put me at risk.
·The Sri Lankan authorities cannot protect me because they are the ones who are persecuting me.
·The issues that I have described in this statement mean that I would not be safe anywhere in Sri Lanka.
·For these reasons, I seek protection in Australia.”
Report of [Mr E], [Organisation 1], dated 14 April 2022 (summary)
·The applicant received ongoing counselling (approximately 25 sessions)
·He reported a history of torture and trauma in Sri Lanka including living in a conflict zone during the civil war from an early age, along with frequent displacement, being detained and tortured and other events of a traumatic nature.
·An uncle was killed in a shelling of a school near his home when he was around 12.
·The applicant was transporting his younger brother who had been injured in the conflict to hospital on his bicycle when 16. His elder brother was a member of the LTTE and sustaining significant injuries as a result of a war related shelling incident;
·The applicant was tortured over a period of days by the Sri Lankan army in June 2006 from which scarring remains. He reported experiencing ongoing nerve pain in his legs.
·Fellow Tamil students known to the applicant were shot.
·He was threatened at gun point and on another occasion was beaten by Sri Lankan soldiers while at university
·He fled Sri Lanka over concerns for his safety, lived in [Country 2] and then [Country 3] before making his way by boat to Australia in 2011, initially being held on Christmas Island.
·In April 2017 he had been contacted by the Department to attend for a SHEV visa application interview. He was in shock for two weeks at suddenly receiving this news after no news or action on his application for many years and that he struggled to move from his bed such was the fear and paralysis he felt about attending the interview and its outcome.
·In February 2012 he had received a letter from the Department that stated he was owed protection following his protection claim interview.
·Soon after this government policy changed and because the steps to finalise this visa grant had not been completed the grant of a protection visa did not occur.
·He said that for the preceding five years it had become increasingly difficult for him to manage his mental health and he expressed suicidal ideation at this time. He also expressed distress and anger at having been provided with a decision by Australian authorities that he was owed protection and then for this not to be formalized and then to be refused protection when his claim was assessed again in 2017.
·He described mental health symptoms, including frequent nightmares and flashbacks, with the nightmares often waking him at night or him being woken by his wife because he was screaming and crying. The content related to being detained and tortured and on waking he feared he was going to die.
·He thought about death as it would be a means to stop his mental suffering. He said that he feared being returned to Sri Lanka and what fate might befall him from Sri Lankan authorities, believing that he would be harmed and detained, if not killed.
·This was fuelled by reading about events current in Sri Lanka and he noted in one session of hearing of an asylum seeker in Australia returning to Sri Lanka and their whereabouts not being known after they returned, believing Sri Lankan authorities had detained him. He expressed considerable anxiety about the impending interview as it was being proposed to be by phone and he felt this would disadvantage him not being able to see the delegate and them not being able to see him.
·After the first session of assessment at [Organisation 1] and a week prior to his protection claim interview the applicant made a suicide attempt and was hospitalized briefly after this attempt. He was talking with a [Organisation 1] counsellor moments prior to the attempt and the counsellor contacted 000 when it was apparent that his safety was at risk. Police attended after this and intervened. Throughout the period of his engagement with [Organisation 1] he presented with various levels of suicidal ideation and it was a constant aspect of the engagement for counsellors involved to monitor his suicide risk and discuss safety plans, on occasions along with his wife.
·When not having suicidal ideation he would frequently mention that he feared he may not be able to manage his reactions should he receive a negative decision and that suicidal thoughts were fanned whenever he heard of a Tamil receiving a negative decision.
·When the applicant received a negative primary stage decision in October 2017 there was a notable decline in his mental health presentation and his reported daily functioning. There was a reported increase in frequency of nightmares to four to five nights a week. The most prevalent nightmare related to events around a person detained at the same time as him and the torture they were subjected to.
·Until he was able to establish for himself that he was at home in his bedroom in Melbourne he would awake from his nightmares and feel that he was in a dark room in jail. He also reported an increase in his levels of agitation and anger and the difficulties he experienced in managing his feelings of anger around other people, particularly in the workplace. At times he would become quite tearful and cry at length when talking about his reported torture in Sri Lanka and matters relating to his protection claim in Australia.
·There were occasions where [the applicant] dissociated when recalling the reported events of torture. In initial assessment sessions and during counselling [the applicant] went into some detail about how he and others were tortured by Sri Lankan authorities. It was noted that [the applicant] would often speak at a faster than normal rate when discussing his torture and other events relating to the conflict in Sri Lanka and that volume of speech would increase the more agitated he became. He did say that he wished he were shot and killed when detained and tortured by the Sri Lankan authorities rather than having to experience and survive the torture and often relive the torture in nightmares, flashbacks and intrusive memories.
·The applicant spoke of his anger and sadness at having his life so disrupted by the civil conflict and being forced into a level of involvement with the LTTE, when he simply wished to live a peaceful life and to study at university. He noted that he began university studies in [Discipline 1] and that these were curtailed because of an escalation in the civil conflict in 2006.
·There were triggering memories and hypervigilance.
·He struggled when he had to be apart from his son, who had some delayed development and challenging behaviours. his son was diagnosed in April 2018 as having autism. This caused further sadness and worry. When his wife took his son to [Country 1] to attend a special education setting soon afterwards he presented as extremely sad and depressed at being separated from his son, added to, he said, by having to field questions about his son’s disability from members and friends of the local Tamil community. He was overwhelmed trying to respond to this, also trying to manage a significant financial debt and seeking legal assistance for his protection claim.
·Concentration in the workplace could be hard to maintain due to ruminating upon current stressors and experiencing intrusive trauma related memories. Memories included his torture by the Sri Lankan army where he reported being suspended upside down, beaten and burnt with cigarettes. He has poor short-term memory.
·He reported some levels of mental health improvement as a result and improved capacity to engage over time in work, study and the care of his son.
·In Sydney he attended an asylum seeker torture and trauma service, and he consistently in counselling at [Organisation 1] over a period of 16 months, followed by less regular counselling and check ins and advocacy focused support over a subsequent two-year period.
·He presented with symptoms consistent with PTSD, depression and anxiety. The PTSD related symptoms, including descriptions of frequent and vivid torture related nightmares and intrusive memories during daytime, startled responses, hypervigilance, dissociation and anger are consistent with somebody who has experienced torture and other traumatic events and are congruent with the events of torture and trauma described
In a post hearing submission of 27 May 2022 the applicant pointed out that:
·The applicant had already been recognised as a person for whom Australia has protection obligations under the Refugees Convention, by virtue of the Protection Obligations Determination decision, conducted by the Department on 23 February 2012.
·In the 2012 protection decision, the decisionmaker accepted that the applicant was at risk of harm by the Sri Lankan authorities or paramilitary groups acting on their behalf on the basis of his imputed political opinion and that he may be detained or abducted, interrogated with violence and/or killed if forced to return to Sri Lanka.
·At the time that the first protection decision was made the Sri Lankan government was led by President Mahinda Rajapaksa, who was president for a decade between 2005 and 2015, including during the final stages of the civil war. As acknowledged by DFAT, there are many credible reports of ‘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’
·Since 2019, Sri Lanka has been once again governed by the powerful Rajapaksa family and their allies. The political and human rights situation in Sri Lanka has deteriorated significantly since their re-election with increasing marginalisation of Tamils, use of the Prevention of Terrorism Act almost exclusively against Tamils and continued torture and ill-treatment by law enforcement officials
·The deterioration in the political and human rights situation in Sri Lanka since the Rajapaksas brothers’ re-election is exacerbated by the current economic and political crisis
·The applicant’s brother, [Mr C], has been granted a temporary protection visa in Australia. He was a member of the LTTE. The applicant has described his brother’s forced recruitment to, and membership of, the LTTE in his statutory declaration dated 8 May 2017 and has provided a copy of his brother’s rehabilitation letter and Certificate of Socialisation as annexures to the same statutory declaration. He still fears that he is at risk of harm as a result.
·The applicant’s mental health and daily functioning will deteriorate significantly if he is refused protection in Australia and is forced to return to Sri Lanka. He has now been in Australia since 2011, nearly 11 years. Despite the uncertainty created by his visa status, he has built a safe and happy life here with his wife and son. Both have passed the citizenship test and are awaiting their citizenship ceremony in the coming months. If he is forced to return to Sri Lanka he would be forced to leave his family. He instructs that he is a pivotal financial, practical and emotional support for his wife and young child.
·His mental health would also deteriorate when forced to return to a place – Sri Lanka - where he experienced considerable torture and trauma and fears further serious and significant harm. The risks to his mental health are compounded dramatically by the current political and economic crisis, described further below, where citizens are experiencing extreme food, petrol and medicine shortages, prolonged power outages, unemployment and inflation nearing 40 percent.
·This will severely impact his capacity to work in Sri Lanka, creating a dangerous downward spiral that will likely mean he is unable to subsist in Sri Lanka.
·The applicant left Sri Lanka legally.
·At the hearing, it was put to the applicant that country information suggested that ‘ordinary Tamils’ in the North and East are at low risk of harassment. The applicant is not an ‘ordinary Tamil’ by virtue of: a. His past involvement with the LTTE; b. His brother’s membership of the LTTE; c. His involvement in Tamil commemoration activities in Australia, including Maaveerar Naal, also known as ‘Great Heroes Day’, and Black Tigers Day, of which there is photographic evidence; d. His prolonged mental ill-health; e. The authorities’ continued interest in his whereabouts, evidenced by their visits to his parents; f. His political views against the government and pro-Tamil rights and freedoms; g. His visible scarring; h. His membership of the Tamil diaspora; i. The long period of time he has spent in Australia and elsewhere outside Sri Lanka.
·With respect to the repeated and recent visits by the authorities to his parents, this suggests he is personally of continuing interest to the authorities. It is also indicative of the government’s growing and well-documented concern about the resurgence of the LTTE.
·At the hearing, the applicant was asked ‘If you had to go back to Sri Lanka, would you continue with pro-Tamil activities?’. In response, the applicant stated that ‘I do not want to return and again start those activities or anything because I don’t want to be involved, not to participate in those kinds of things’. The applicant has since instructed that he mis-interpreted the Member in relation to this question. He instructs that while he would not be involved in any violent activities, the Tamil people need freedom and he would be involved in activities that promote freedom for Tamils. This is consistent with the evidence he provided in his pre-hearing statement dated 19 April 2022.’
·He will be at risk of arbitrary arrest and detention, disappearance, serious physical harm, interrogation, physical harassment and ill-treatment, torture and/or death.
The applicant gave the following oral evidence in the hearing:
·His parents are in Northern [City 1].
·He studied [Discipline 1] at university in Sri Lanka in 2006 but only completed four months because of the war.
·He was living in a hostel at that time. I asked if he was interested in the political situation in time. He said that there were student union-organised protests in which he participated.
·I asked the applicant his opinions as to the way Tamils were being treated at that time. The applicant said that when he was in year 12 if he needed to cross a checkpoint he needed to produce an ID card. This only applied to Tamils not Sinhalese.
·The situation had a big impact, people were killed and women were sexually abused.
·I asked the applicant what he demanded. He said the student union believed that the majority had made the Tamils feel like slaves. At that time he supported the student union helping Tamil fighters by giving them food for example.
·I asked whether the group wanted more representation or an independent state. The applicant said people’s aim was to get a separate state and Tamils should support that. I asked if he believed that all Tamils need to have a separate state. He said they would not be happening, but the Tamils have been massacred.
·He said in June 2006 he went from [City 1] to [Town 1]. He visited a friend, [Mr A]. He said somebody threw a hand grenade into a camp. He was stopped and checked for ID. He was found to be in the LTTE. He was harmed, hit with a rifle butt and kicked. He was held for two days. Eventually they released him. He said that although he was described as an LTTE member he was not in fact a member. Money changed hands to secure his release – some 10,000 rupees (LKR10,000).
·I asked if there was any more trouble or incidents of adversity. He said that a route was closed down and at that time he was at the hospital. He was interrogated and videoed. He was asked about who was in the LTTE. He said his student friend was shot dead on suspicion of being LTTE. He said his friend was not a member but organised protests.
·I asked if the applicant knew anybody who actually was an LTTE member. The applicant said that his brother was a LTTE member, who was forcibly recruited. His brother ended up in Australia. His brother had a successful asylum claim in Australia but the applicant did not know the details of the claim. He has contact with his brother who lives in another city.
·The LTTE had tried to forcibly recruit the applicant himself. The applicant said he ultimately went to [Country 1] in October 2006 and tried to register as a refugee. He came back to Sri Lanka however because [Country 2] did not recognise him and no protection visa was granted to him.
·The applicant returned to Sri Lanka and things became more normal. But the war was continuing and Colombo was under tight security. He was questioned. He was approached by a government agent. He was asked if he had been organising. The applicant said that the agent hit him in a room. He was taken to a hotel room by police. He asked the manager to please help him.
·The applicant said that the scarring on his [body part] was from this episode.
·The applicant said he did not have trouble leaving Sri Lanka. He foresaw that there would be a problem so he arranged for an official to be bribed and he departed in 2008.
·I asked the applicant if it was plausible that a poster would be put up with his name on it. He said four months ago the CID and come to his family’s house in Sri Lanka asked ‘about us’. He said his parents had told him about this. Despite more than a decade having passed, they still wanted to know who was who. Authorities still worry about Tamils.
·I asked if the visit from the detective was simply checking of a household registration. The applicant said local police had these details but this was handled by CID. They showed their ID card to his parents.
·There was documentary evidence that the applicant’s brother was in a rehabilitation can. Eventually he came home but he was scared and scared of the security situation. The applicant said that he eventually entered [Country 2] but the Sri Lankan High Commission wanted him to be deported. He registered with the UNHCR. They interviewed him.
·The Tribunal discussed with the applicant the 2021 DFAT Sri Lanka Country report[1], particularly paragraphs [3.4], [3.8] and [3.13] (detailed below in my evaluation).
[1] DFAT Country Information Report Sri Lanka (December 2021)
·I asked the applicant if he was in fact a ‘normal’ Tamil and had a low risk of harassment. He said the government had destroyed his community and is still in power. Tear gas was used on the ordinary person such as university students.
·I asked the applicant whether he would continue with pro-Tamil activities if he had to return. He did not want to do this for reasons of safety he said and this was the main reason why he came to Australia. He was concerned about government influence.
·I asked if the applicant had involvement in causes since arriving in Australia. He said that he had been to Martyrs Day commererations. He attended black Tigers days. He said the black Tigers were suicide squads. There was commemoration of those individuals. I asked the applicant if he had changed his views on the LTTE since coming to Australia. The applicant said that they sacrificed their life. He said he was still non-violent.
·The Tribunal discussed 3.42 of the DFAT report where LTTE individuals are noted has having run for Parliament. It was noted that there have been no attacks since 2009. It says there are not many problems with typical LTTE persons. However, for those who raise issues there would be problems. There were very few LTTE members. The rest were military.
·The applicant said he still believe that he would face problems. He said that this was a former war-torn country and ‘they’ know who’s who. His brother was an LTTE member.
·The applicant said that he would be seen as present risk to the state even though he had been away for 15 years. There is no guarantee for his life. The Tribunal said that perhaps the applicant might become second-class citizen but queried whether this was persecution.
·The applicant said he had PTSD, depression and anxiety due to the problems he had suffered. He was struggling for his son. His son has Permanent Residency, as has his wife. The applicant said it would affect him more if he was removed, as he was a person who was not in good mental health.
·He is currently [an Occupation 1] and I asked how his mental health condition affects his work. He said he remembers the past and becomes worried. His mental health condition has worsened in the last seven years.
·The applicant said he has made social media posts and shared videos on the Tamil cause. The applicant also said that in the current Sri Lankan economy he cannot subsist. His parents cannot support him as they are very old.
·Freedom of expression is deteriorating in Sri Lanka. The government is concerned about the re-emergence of the LTTE. Tamils are arrested under terrorist acts
Findings and evaluation
Overall the Tribunal found the applicant’s evidence to be consistent. He gave a clear account of his upbringing and education and reasons for leaving Sri Lanka
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 helped supply food to Tamil Tigers and organised student events and activities that were supportive.
I accept that his brother was a member of the LTTE, albeit one who was forced to join. He and his brother had a bond and this might well increase his perceived linkage with the group. His brother had a successful asylum claim in Australia which adds weight to the applicant’s case.
I find that he is a Tamil, that he was beaten and released in 2006 as he described and that his friend [Mr A] was shot and killed. I accept that the applicant was rounded up with others in 2006. I find the sought to avoid LTTE recruitment in 2007 and fled to Colombo and then [Country 1]. I also accept that he left for [Country 2] to avoid harm. He has suffered mental and physical harm as he has described, by the persons he described and he has supplied written expert evidence to support this.
I am prepared to accept that the applicant is active in the Tamil community in Australia and attended events and protests and has an online presence supporting Tamil liberation and independence. He has strong views on the subject.
It is accepted that within recent months CID have been questioning his parents about his whereabouts, and that this is not a merely spot check or family registration query, based on a clear account.
He has been consistent in a variety of interviews, psychological assessments and Tribunal proceedings.
The Tribunal has considered DFAT’s latest report on Sri Lanka[2], published on 23 December 2021, and in particular these sections:
[2] DFAT Country Information Report Sri Lanka (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.
[3.6]
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.
[3.7]
DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses. Monitoring, harassment, arrest and detention
[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 (see Civil society organisations and government critics and Media).
[3.10]
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 (see Liberation Tigers of Tamil Eelam).
[3.11]
LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
[3.12]
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 Country Information Report Sri Lanka (December 2021) 20
[3.13]
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.
….
[3.77]
Local sources told DFAT that participants in politically-sensitive protests in the north, particularly in relation to missing persons and land returns, are monitored and sometimes questioned by the authorities. DFAT assesses that the Rajapaksa Government is increasingly intolerant of criticism or political dissent especially with reference to alleged historical abuses.
….
Liberation Tigers of Tamil Eelam (LTTE)
[3.39]
At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.
[3.40]
Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
[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.
[3.42]
Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex-combatants established the Crusaders for Democracy party and ran for election. While the party did not DFAT Country Information Report Sri Lanka (December 2021) 25 win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
[3.43]
The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
[3.44]
The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’. Rehabilitation
[3.45]
Since the end of the war, successive Sri Lankan Governments have managed a large-scale ‘rehabilitation’ process for former LTTE members. The aim of the 24 rehabilitation centres was to process LTTE members who surrendered in the final stages of the war and to assist them to adjust to a life after war, with a focus on vocational training. According to Sri Lankan Government statistics from March 2019, 12,191 former LTTE members (including 2,265 women) had completed rehabilitation. Some centres previously used to rehabilitate former LTTE members have since been redeployed for the purposes of rehabilitating drug addicts and possibly Muslim detainees under the PTA (see Rehabilitation of non-LTTE members).
[3.46]
Local sources have previously estimated that between 4,000 and 6,000 former LTTE members are undisclosed and non-rehabilitated, the majority of whom may now be living overseas. Military sources have previously estimated the number of undisclosed and non-rehabilitated former LTTE numbers within Sri Lanka as being low, including approximately 280 individuals in Jaffna (Northern Province). High-profile former LTTE members
[3.47]
‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. The LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution, regardless of whether they performed a combat or civilian role during the war. Although most of the LTTE’s leadership died during the war, a number surrendered or were captured and sent to rehabilitation centres or prosecuted/detained. Some former leaders may have left Sri Lanka before, during or after the war (see Former LTTE members living outside Sri Lanka). Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE. Other former leaders, such as Karuna Amman (previously a leader of the TMVP, now a member of the Sri Lankan Freedom Party (SLFP), part of the President’s ruling coalition), defected and are allied with the Government.
[3.48]
DFAT assesses that the number of high-profile former LTTE members living in Sri Lanka is small and that the vast majority would already have come to the attention of the authorities. DFAT also assesses that any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts and, once they had completed DFAT Country Information Report Sri Lanka (December 2021) 26 their prison sentences, be subjected to some form of rehabilitation. The average judicial process in Sri Lanka, including appeal, is protracted (see Judiciary). High-profile former LTTE members would likely continue to be monitored by the Sri Lankan authorities following their release from prison and completion of any rehabilitation process. 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[1]profile former LTTE member might be monitored but would generally not be prosecuted. Monitoring of former LTTE members
[3.50]
Some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.
[3.51]
Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect, and involved questioning the neighbours of suspected former LTTE members. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).
[3.52]
DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE. Former LTTE members living outside Sri Lanka
[3.53]
At least one million Sri Lankan Tamils live outside Sri Lanka, mostly in Canada, Europe (with large communities in the UK and France), Australia and India. Members of the Sri Lankan Tamil diaspora may be citizens or legal residents of those countries, or dual nationals. Some members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora provide an important source of income for family and community members in Sri Lanka.
[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 DFAT Country Information Report Sri Lanka (December 2021) 27 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.
[3.55]
In March 2021, the Sri Lankan Government proscribed a number of Tamil diaspora groups including the Australian Tamil Congress and the Tamil Youth Organisation (Australia), as well as a number of individuals based in Australia, the UK, Germany, Italy, Malaysia and several other countries. The Australian Tamil Congress and the Tamil Youth Organisation are not proscribed in Australia, while the LTTE remains a proscribed organisation in Australia.
[3.56]
Approximately 95,000 Sri Lankan Tamils live as refugees in Tamil Nadu, India. (see Returnees from Tamil Nadu).
[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. Family members of LTTE
[3.58]
The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.
[3.59]
Most former LTTE members released from rehabilitation have been accepted back into their communities in the north and east, despite some suspicion that they may be pressured to act as informants for Sri Lankan authorities. There is an acknowledgement within the Tamil community that many people were forced to participate in LTTE activities against their will. DFAT assesses that low-profile former LTTE members face a low to moderate risk of societal discrimination. Societal discrimination against former LTTE members is also related to caste, as the majority of former LTTE members are lower caste. Former LTTE members can readily access government services.
[3.60]
Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society. Sources told DFAT that unemployment among this cohort, particularly the women, is high. Many, even those who received vocational education as part of the post-war rehabilitation process, lack the skills to find and hold meaningful employment, and some have reportedly resorted to criminal activities. Reluctance by employers to hire known former LTTE members, for fear of inviting monitoring by the authorities, is also reported as a factor. In-country sources said that the lack of economic options experienced by former LTTE members meant that some had become paid informers for the authorities. Anecdotal evidence indicates that mental illness linked to the war is prevalent among former LTTE members. Those with disabilities sustained during the war receive minimal state support, if any at all.
[3.61]
Local sources report that female former LTTE members face additional hardships, including the risk of sexual harassment and difficulties finding marriage partners owing to their LTTE past. Women who were forcibly recruited by the LTTE are more likely to be accepted back into their communities than those who joined voluntarily.
[3.62]
DFAT assesses that members of the LTTE suspected of serious human rights violations against other Tamils face a moderate risk of societal discrimination. This includes those believed to be responsible for forced recruitment, particularly of children, or those suspected of torture or other mistreatment of Tamil civilians.
The Tribunal considers the applicant to be a Tamil with actual or imputed LTTE links, per [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, and threats and seizure of mobile devices.
The applicant may well face discrimination both within his community and from government officials. 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 political activities such as attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, and his presence on social media. 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.
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 – he would be potentially separated from his immediate family and suffer from exacerbated serious pre-existing psychological conditions.
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 Sri Lanka Report 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 imputed a political opinion which is anti-regime or supportive and sympathetic of LTTE, particularly given that 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 resided in an area formerly under the control of the LTTE.
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.
DFAT notes the difficulties in verifying torture claims but reports that local sources advise that police routinely mistreat suspects during criminal investigations as a way of extracting confessions and some alleged violations were perpetrated by the Police STF. Sources told DFAT that such mistreatment was not confined to a geographic region or ethnic group but was a country wide problem affecting all communities [5].
[5] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 4 November 2019 at 4.22-4.24
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, his knowledge of his brother’s activities with LTTE and why he had chosen to leave Sri Lanka as he did after the end of the civil war. The applicant’s mental health and psychological state as described by professional psychologists are make him more vulnerable and potentially less resilient to withstand questioning, harassment
and surveillance and increase the possibility of serious harm now or in the reasonably foreseeable future.
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 the 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. [6]
[6] 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 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
Statutory Interpretation
Legal Concepts
Judicial Review
Procedural Fairness
Jurisdiction
Remedies
Statutory Construction
Natural Justice
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