1726249 (Refugee)
[2022] AATA 2625
•9 June 2022
1726249 (Refugee) [2022] AATA 2625 (9 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Jennifer Anne Blakeman
CASE NUMBER: 1726249
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:David McCulloch
DATE:9 June 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 June 2022 at 9:38am
CATCHWORDS
REFUGEE – protection Visa – Sri Lanka – race – young man of Tamil ethnicity – fear of persecution by the Sri Lankan Army – young Tamil male with suspected LTTE associations – membership of the particular social groups – people who have fled Sri Lanka illegally – low-level involvement with the LTTE – failed asylum seeker returning from a western country – compassionate circumstances – Ministerial intervention requested –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5,36, 65, 417,499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288Any 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 6 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 12 February 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 6 April 2022 at 9.30am to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. 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 remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented by a registered migration agent who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Sri Lanka, 23 December 2021, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled, For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history is extracted from the delegate’s decision record as follows:
12/10/2009
Attended entry interview
19/11/2009
Lodged request for a Refugee Status Assessment (RSA)
06/01/2010
RSA outcome (negative)
15/01/2010
Independent Merits Review (IMR)/Independent Protection Assessments (IPA) (negative)
30/05/2011
2nd – Independent Merits Review (IMR)/Independent Protection Assessments (IPA) (negative)
08/05/2012
3rd - Independent Merits Review (IMR)/Independent Protection Assessments (IPA) – Post JR (positive)
05/06/2012
UJ-449 and WE-050 visas granted – released from detention
12/02/2016
Application for a Temporary Protection Visa (TPV) lodged
The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Eastern Province, Sri Lanka. The applicant is a Hindu of Tamil ethnicity who speaks, reads and writes both Tamil and English (limited). The applicant’s parents and two sisters reside in Sri Lanka. The applicant lived at two addresses in Sri Lanka from birth until September 2009 and for 16 months at his father’s friend’s house in [City 1]. The applicant attended Kindergarten, primary school and secondary school from [year], graduating from [a] Secondary School in [year]. The applicant also worked at [Workplace 1] in [City 1] from March 2007 until July 2007. The applicant was working with his family friend, fishing and drying fish for 16 months. The applicant was unemployed for a period from July 2007 until September 2009 while in Sri Lanka. The applicant was also unemployed from September 2009 until July 2012 while fleeing persecution and applying for asylum in Australia. From July 2012 until the time of application, the applicant had been working for three employers consecutively. At the time of application, the applicant was working at [a workplace] in [NSW].
Claims and evidence leading to 3rd positive Independent Merits Review decision and findings in that decision
A history of the applicant’s claims and evidence up until the positive decision of the third Independent Merits Review is set out in the decision which the Tribunal extracts as follows:
CLAIMS AND EVIDENCE
23. I have before me;
· Relevant material from the Department's files relating to the claimant
· The claimant's claims to engage Australia's protection obligations under the Refugees Convention
· Submissions from the claimant/claimant's agent
Record of arrival interview -23 October 2009
24. On 23 October 2009 a Departmental officer interviewed the claimant following his arrival on Christmas Island.
25. The claimant stated that he was born in [City 1], Sri Lanka on [date] and is now almost [age] years old. He stated that his Sri Lankan passport, identity card and birth certificate were located in Sri Lanka.
26. His parents and two sisters are living in [City 1] and he has had contact with them by mobile telephone. He completed high school in Sri Lanka.
27. He left Sri Lanka and came to Australia directly by boat on [date] September 2009 but did not use his passport for the journey. His father arranged for his travel to Australia through a sub agent in Sri Lanka.
28. In his entry interview he claimed;
·In about April 2008 members of "the Karuna group" took him to their office in [City 1] and tried to recruit him by force.
·He was taken by three people on a tractor when he was in the street. He was on a motorcycle when he was stopped; they threatened him and took him and his motorcycle to their office. After they took him to their office he realised they were from the Karuna group.
·He was held until his father was able to arrange his release.
·He feared returning to Sri Lanka because he was a young Tamil and it was very dangerous for him because young Tamil boys were being kidnapped and recruited by force.
·If he returns he will be questioned as to why he left Sri Lanka and the reason he left by boat. He fears the people who come in a white van.
29. On 19 November 2009 the claimant requested a Refugee Status Assessment. He provided a statutory declaration made on 19 November 2009, a copy of the biodata page of his Sri Lankan passport, a copy of his Sri Lankan identity card and birth certificate. His passport shows his place of birth as [City 1].
30. In his statutory declaration he set out his claims for refugee status in more detail as follows:
· He is a young man of Tamil ethnicity and fears he will be persecuted if he returns to Sri Lanka.
· He left Sri Lanka owing to his fear of persecution by the Sri Lankan Army (SLA), the Karuna Group, the CID and other government agencies. He fears harm because he is a young Tamil male and will be imputed with support for or affiliation with the Liberation Tigers of Tamil Ealam (LTTE).
· He was born in [City 1] and lived his entire life there. He did not complete high school because of security concerns at that time.
· After he stopped attending school he stayed home for 4 months and then decided to complete a course with [Workplace 1] of [City 1]. He attended a course and passed an examination [in] 2007. After the course finished he did not find a job in this area but helped his father in his [fields].
· In April 2008 he was travelling on his motorbike when he was approached by 3 people on a tractor. They showed him their guns and told him to stop and insisted that he accompany them to their office in [City 1]. He did not know who they were but when they reached their destination he realised they were from the Karuna group.
· Inside the office they threatened him with harm if he did not join the group. They did not physically harm him but he was afraid. He refused to join the group.
· One of the bystanders who saw his removal to the Karuna office contacted the claimant's father and as a result his father came to find him. The group threatened his father and asked for 2 lakhs. His father organised his release by arranging to pay this amount in 5 days if the claimant was released.
· In May 2008 he was offered a one year contract of employment with [Workplace 1]. However he had to refuse this work due to the dangers involved in travelling through SLA areas. He feared that as a Tamil he would be a target for the SLA or CID. He had already had problems with the Karuna group in April 2008 and did not want-to have further problems.
· However, he continued to have problems with the Karuna group. Sometimes when they found him on his motorcycle they took it away and would drive it around for 4-5 hours and then return it. Usually when this happened it was returned damaged with no fuel. This happened about once a month and once when he refused to hand it over they slapped him in the face.
· When there was a bomb blast in the surrounding area the SLA, police and CID would question all the young Tamil men including the claimant, even if they had no connection with the suspects. He was always afraid of something happening to him because he knew some boys who were kidnapped in white van and disappeared.
· There is a shop close to the claimant's home and the shopkeeper advised him that people had come to the shop asking about him. He heard they were from different groups; some spoke in Sinhalese and some spoke in Tamil. He was very worried when he heard this.
· In about August 2008 four people came to his house and he believed they were from the Karuna group as they were speaking in Tamil. The claimant, his sisters and mother were at home at the time and the men threatened the claimant with a gun whilst they robbed the house. The claimant stayed at home most of the time because he feared being caught by the Karuna group or other groups.
· The last 4-5 days before his departure from Sri Lanka he stayed at the home of his sister. Whilst at his sister's home he was told that the SLA had come to his parent's home looking for him.
· The claimant always wanted to leave Sri Lanka and obtained his passport in June 2008. He did not have an opportunity to leave until September 2009 when his father organised for his departure from Sri Lanka by boat.
· The Sri Lankan government is bringing in more Sinhalese people to the Tamil areas and there is continuing discrimination against Tamils.
· If he returns to Sri Lanka he fears he will be harmed because he is a young Tamil male. He will continue to suffer harassment and discrimination and also fears that the SLA, CID and police will take him away for questioning because he left the country illegally. He claimed that he had been regularly questioned in the past.
· He claimed that the Karuna Group is working in conjunction with the SLA and young Tamil men are in danger of being kidnapped, beaten or killed by members of the Karuna group. He fears for his safety if he returns to Sri Lanka.
31. He attended an interview with a Departmental officer on 21 November 2009. At his interview he stated; [sic]
Request for Independent Merits Review (IMR) and First IMR
32. A request for review was received on 25 January 2010. On 13 February 2010 the claimant's agent provided written submissions and a further statement made by the claimant on 13 February 2010.
33. The written submissions addressed matters of fact and law. In particular the submissions referred to the claims for refugee status, relocation, the claimant's disclosure of further information, country information and the human rights situation in Sri Lanka.
34. The statement made by the applicant responded to some of the matters of concern in the Departmental officer's decision. The claimant stated;
·When he had his entry interview and RSA interview he was still afraid of the process and did not know who to trust. The agent who assisted him told him not to mention anything to do with the LTTE or he would not obtain protection. He realized his mistake and stated he failed to disclose relevant information. He also stated he was in a disturbed state when he arrived in Australia and also pointed to tight timeframes in putting his case.
·He claimed that in January 2008 the LTTE started to threaten him to force him to purchase provisions for them. Some ordinary people came up to him and started to threaten him with a gun if he did not do what they wanted. Other young Tamils including two of his friends had been intimidated in this manner. His friends were arrested by the Apache gang in a white van on accusation of having an LTTE association.
·He was asked to buy provisions such as water, mobile phone recharge cards and biscuits for LTTE members living in hiding. He did this many times between January 2008 and April 2008 arid met them in out of the way places to hand over the goods. He used to buy a large number of recharge cards and would deliver the provisions in different nominated places.
·He was kidnapped by the Karuna group in April 2008 because they found out he had been providing goods to the LTTE. They had accused him of this when he was kidnapped and he confessed. They ordered him to tell them when he was next contacted by the LTTE so that they could lay a trap. They also asked for money to sure his release and his father paid this money.
·The claimant was kidnapped in [a town] which was under the control of the Karuna group. Many of the people in this area knew his father so they told his father straight away and he arranged the applicant's release. Members of the group took away his licence and insurance papers for his motorcycle. Part of the condition of his release was that he had to report back to the Karuna Group.
·He was terrified of both the Karuna Group and the LTTE. He could not leave his home as one of his abductors ([Mr A]) knew the claimant's family and would be able to find out where he lived and his current whereabouts.
·He tried to avoid both groups by keeping a low profile and staying at his sister's home and only coming home at night to sleep.
·In May 2008 a letter came from the Karuna Group saying he had not responded to their commands and if he did not respond they would abduct him. After this letter he went to live at his father's friends fishing hut but would visit family from time to time. During the day he helped his father's friend with fishing and drying fish.
·He claimed that, after this incident, members of the SLA and Special Terrorism Force came to his house, terrorized his family and asked about his whereabouts. [Mr A] also came to the family home and asked about his whereabouts.
·The robbery he had referred to in an earlier statement occurred during a home visit and these were members of another Karuna group; not the group responsible for his abduction.
·With reference to his earlier statement regarding his [Workplace 1] job-he could not take this job for reasons set out above.
·During 2009 he heard that two of his friends had been abducted by the Apache group due to their suspected involvement with the LTTE. He was afraid that the same thing would happen to him and fortunately his father was able to arrange his departure for Australia soon after he heard of their abductions. He claimed that the Apache group and the SLA regularly come to his parents home to ask about his whereabouts.
·He disagrees that it is safe to return to the east of Sri Lanka. He points to continuing problems with the Apache group and the SLA and human rights abuses of the Tamil population. He claims he would be targeted by paramilitary groups for imputed LTTE associations. He cannot go to Colombo as he would be targeted as a young Tamil male from the east.
·He claims he will face questioning and torture if he returns due to his particular profile as a young Tamil male with suspected LTTE associations and having organized an illegal departure.
35. The claimant's submissions extracted a large amount of material related to the security situation in Sri Lankan. during 2009, and in particular the period of time immediately after the cessation of hostilities in the civil conflict. As the claimant left Sri Lanka in 2009 it is understandable that those submissions would be focussed on country information relevant to this period.
36. On 7 March 2010 Reviewer I interviewed the claimant and on 20 April 2010 made a recommendation that he was not a refugee within the meaning of the Convention.
Second IMR
37. On 3 December 2010 the recommendation decision was referred for reconsideration by Independent Merits Review. The claimant's application for review was assigned to Reviewer 2 to conduct the review according to law.
38. The claimant's agent made written submissions on 28 February 2011 and provided a further statement made by the claimant. Those submissions addressed the issue of the claimant's credibility and up to date country information on the situation in [City 1] and Sri Lanka generally.
39. In the statutory declaration of 25 February 2011 the claimant states;
· He spoke to his father in about September 2010. His father told him that army and police officers came to the family home in [City 1] looking for suspected members or supporters of the LTTE. The officers asked about the claimant and his father told them he was overseas. It is his belief that these searches take place from time to time and anyone suspected of supporting the LTTE is taken away, interrogated, then detained and not released. He is not an LTTE supporter but is afraid that he is still wanted.
· He denied that the report he had given in support of his application is untrue. He claims he was upset and confused and after January 2008 felt he was caught between the LTTE and Karuna Group, neither of which he supported. When he arrived in Australia he took the advice of the people smuggler who told him not to mention anything about the LTTE. He stated that the reason he did not tell the full story at his entry interview was because he was very young and was upset at the time.
· He confirmed that he spent 16 months living at the coast with a friend of his, fathers. He returned to his family home twice a month, not twice a week and after his family home was burgled he rarely returned because he realised the Karuna group knew where he lived. He did not wish to give this information in his application for asylum because it might show he was an LTTE supporter.
· With respect to the inconsistent information he had given about his motorcycle he stated that when he was taken by the Karuna group in April 2008 he stated that the group had taken his bike and his licence. They returned his bike but he kept his licence. Until he went into hiding he used his bike around town but not where he thought he might be caught for riding without a licence. When he went into hiding his brother in law took his bike. He claimed that the bike was taken from his brother in law on 2 occasions. When he stated that the bike had been taken every month he meant that at that time it had been driven by his brother in law and he told him that the Karuna group was responsible for taking the motorbike.
· He repeated his claim that his two friends were taken away in• a white van and this incident made him afraid.
· When he was interrogated by the Karuna in April 2008 he has no clear recollection of what was discussed but the boy [Mr A] who knew him and his family. The members of the group questioned him about what he knew about the LTTE in his area.
· He moved with other detainees from Christmas Island to [Detention centre 1] in March 2010 and he had been told this move was photographed and shown in Sri Lanka. If the information is correct he fears he will be harmed when he returns to Sri Lanka. He also points to newspaper articles that say returning Tamils are being interrogated at the airport.
40. On 3 March 201 1 Reviewer 2 held an interview with the claimant and was assisted by an interpreter of the Tamil and English languages.
41. At that interview the claimant provided further information about his claims which were broadly consistent with information he had given to Reviewer 1.
42. On 14 March 2011 the claimant's agent provided further written submissions. The agent submitted that the core claims of the claimant indicated that he met the Convention definition of refugee based on the statements made by the claimant and known country information. The agent also submitted that past mistreatment is a powerful indicator that there is a well founded fear of persecution of more or less similar events. With respect to the inconsistencies and additions to the evidence the agent points to the claimant's age, vulnerability and psychological report from [a refugee support service].
43. There were 5 media reports provided to support the claims. These reports did not refer to the claimant but were more in the nature of background information on the situation of Tamil youths at the international airport and mistreatment of Tamil youths in [City 1] and generally in Sri Lanka.
44. Reviewer 2 recommended that the claimant not be recognised as a refugee on 30 May 2011.
45. On 16 September 2011 the Federal Court made a declaration that in recommending that the claimant should not be recognised as a person to whom Australia had protection obligations Reviewer 2 made an error of law by failing to accord the claimant procedural fairness. The matter was returned to the IPAO for a fresh assessment of the claims.
Third IMR
46. I am now considering the matter following the declaration of the Federal Court.
47. On I November 2011 the claimant's agent made written submissions on matters of fact and law. Those submissions addressed the history of the case, gave a summary of claims, a summary of the factual background, responded to the adverse credibility findings and provided updated country information. In particular, the agent reiterated earlier submissions on the reasons for the evolution of the claims and urged me not to take into account minor inconsistencies but rather look at the core claims of the claimant which have remained consistent throughout the application and review process.
48. The submissions also pointed to recent country information from Amnesty International in March 2011 and from the International Crisis Group in July 201 1 on the treatment of persons suspected of having LTTE connections. Both reports suggested that those suspected of LTTE connections were still subject to arrest and detention by Sri Lankan government authorities. Further there were reports sourced from Tamilnet that Tamils from the [City 1] area were frequently mistreated by government authorities.
49. With respect to the claimant's claims that he would face harm for reason of being a failed asylum seeker the agent referred to a Canadian research response in which noted that a person with suspected LTTE connections would be screened at the airport on return and taken into police custody. The report also noted reports of mistreatment of airport detainees.
Third IMR Interview- 4 November 2011
50. I interviewed the claimant at [Detention centre 1] with the assistance of an interpreter of the Tamil and English languages on 4 November 2011. The claimant's agent was present during the interview.
51. The claimant provided information regarding his background and family composition which was consistent with earlier information given by the claimant. He stated he had left school when he was [age] years of age due to security concerns.
52. His father has a farming business in a village in the [City 1] area and his mother has always looked after the family and home. He has 2 older sisters who are living in [City 1]; one is married and the other lives in the family home. He has telephone contact with his parents once every 3-4 months.
53. He explained that he did not have many problems before he left school at the age of [age] years in about [year]. He then attended a training program [in] about 2007/2008 and hoped at the end of the training he would be qualified to work [in that area]. He was offered a job working for the [company] after his training but in the end he did not work for the company because he had "problems" in his local area.
54. He stated that by the time he was qualified he had been abducted by the Karuna Group on one occasion in April 2008 and they had written him a letter asking him to attend their local office in May 2008. He claimed that the letter asked him to attend the office but he and his-family became frightened and he went into hiding. His job in a town [was] then offered to someone else because he could not travel one and a half hours to work each day because he feared he would be picked up again by members of the Karuna Group if he was travelling on the local roads. He and his family decided he should go into hiding.
55. The claimant told me that the Karuna Group was a group which had split from the LTTE some years ago and was also known as the TMVP. I asked the claimant why the group had an interest in him. He stated they were interested in everything going on in his local area.
56. I asked him to tell me about the contact he had with the group. He stated that they used to take his motorbike away and once they chased him in [Town 1]. He explained that [Town 1] was located very close to [City 1].
57. His father gave him a motorcycle when he was [age] years old. He explained that his father was making good money from the farm and used this money to buy his only son a motorcycle. He rode around his area on the motorcycle and people in the area knew he was the owner.
58. He told me that after he first got his motorcycle people from the Karuna Group stopped him about 4-5 times. Then in April 2008 they stopped him and took him to their camp. He stated he was riding along one of the small local roads near [Town 1] when he came upon 3 people sitting on a tractor on the other side of the road. They appeared to be digging sand and turning the tractor around thereby blocking the road. He could not pass and they told him they needed to take him and his motorcycle with them. They told him if he did not get off his bike they would shoot him. As they had guns with them he got onto the tractor and they took him and his bike to an office in [Town 1].
59. He did not know who these people were at the time they picked him up but when they got to the camp, [which] he recognised, he realised they were from the Karuna group.
60. He felt so scared during the tractor ride and at the camp that he was numb. When they arrived at the camp he was taken into a room and questioned by one of the group. He also saw someone he knew as "[Mr A]" who lived locally and was known to his family. They kept asking him if he was helping the movement (LTTE) and they threatened him with harm.
61. They kept him until about 4pm that day until his father arrived at the camp. He later found out that some people [had] seen him being abducted by the men from the Karuna Group and taken to their camp so they told his father who came to find out what was happening.
62. His father kept asking them to let him leave the camp but they would not let him go. His father stayed until the evening pleading for him to be released until the people at the camp agreed they would release him if his father paid them 2 lakhs. His father told them he would take a few days to get the money and they released him from the camp. As [Mr A] knew his family and where they lived he knew they would pay the money promised.
63. They let him take his bike but kept the registration and licence papers for the bike. He thought they did this to make sure he did not leave the area or ride his bike outside the local area. In the end he gave the bike to his brother in law who rode it without the registration papers. After about 5 days his father raised the money, paid it to the group and they returned the papers for his bike.
64. After this incident the claimant went to stay with his sister. He and his family were afraid they would be targeted by the members of the local Karuna group if he stayed at his family home. He stated that members of the group did not appear to know he was staying at his sister's home. He stated that he stayed at his sister's home until his parents received a letter asking him to come to [camp] again.
65. He stated the letter had been sent to his family home in May 2008 and his father came and told him about the letter. The letter told him to attend a camp [which] was located in another district of [City 1]. It was a much bigger camp than the camp near [Town 1] and he had heard that people had gone there and then disappeared. He became very frightened and thought they must have known or suspected he had given some minor assistance to the LTTE. However, he did not know for certain why they asked him to come to that camp. He stated sometimes people are asked to join the group and on other occasions people just disappeared. He did not respond to the letter asking him to go to the camp. He learnt from his father that people came to the family home and asked where he had gone and his father told them he had gone overseas.
66. His father had a friend who had a fishing business on the coast. [His] father arranged for him to stay with this friend and help him with his business. The claimant stated he stayed with his father's friend from May 2008 until he left Sri Lanka in October 2009.
67. His father's friend had a fishing hut and he stayed in that hut during his time[there]. There were 2-3 fishermen who would also come and stay in the hut and they would come and go. The claimant helped his father's friend catch and dry fish and would do other jobs for him whilst he was staying in the hut.
68. The fishing village was about [distance] from [City 1] and his father used to visit him regularly. He took him home occasionally because his mother was ill but he was careful to keep a low profile.
69. I asked him how he travelled to Colombo to get his passport during this time. He stated his father organised for an agent to apply for his passport and the claimant travelled to a Muslim town on the rail line and caught the train from that town to Colombo. He was not known to anyone in that town so his presence was not detected.
70. I asked he claimant why the Karuna group could not find him given how well informed they were. He stated he did not know; perhaps they were not actively looking for him at that time.
71. I put it to him that his evidence had been that members of the Sri Lankan Army had come to his home and his father had told them he was not at home. I asked him why he thought members of the SLA had come looking for him. He stated that he believed they were looking for people who had assisted the Movement (the LTTE). He claimed they came to know he had given items to the LTTE when he was living at his family home and before he was called in by the Karuna Group in May 2008.
72. He stated that in about January 2008 there were still quite a few people from the LTTE still living in the area. They were hiding in the outlying jungle areas near [City 1] and were moving northwards but were dependent on local people to provide them with provisions.
73. One day in January 2008 he had given his friend his motorcycle and was waiting for him to return it at about 6-7 pm in the evening. He was waiting on the road in an area close to his home which also backed onto a forested area. He saw some men in sarongs come out of the trees. He was on foot at that time so could not easily escape. He tried to stand on the other side of the road and ignore them but they called out to him. They asked him how many people lived in the area and whether he lived in the house close by. They told him they needed him to buy items for them and at first he refused but they told him they would shoot him if he did not agree. They told him they wanted him to buy phone cards for them at a local shop and deliver the cards to them. They told him that he should buy the phone cards and they would meet him at the edge of the forest at a certain time.
74. He bought the phone cards and delivered them to the group as requested. He was afraid because they had guns and he knew that there were LTTE members living in the forest at the time. He also was aware that the SLA and other paramilitary groups were looking for them. By this time in early 2008 the SLA were well in control of the [City 1] area but there were scattered remnants of the LTTE in the forest areas.
75. After his abduction in April 2008 the claimant was concerned that the Karuna group had found out that he was supplying provisions to the LTTE and this was the reason for their interest in him. He does not know how they found out but they had many contacts in the local area and could have well found out from these contacts. He also stated that the shop owner from whom he purchased his phone cards was highly suspicious of the large number of phone cards he bought between January and April 2008.
76. The claimant applied and was issued with a passport in June 2008. He stated that his father was concerned about him and wanted him to leave Sri Lanka for his safety because young Tamil men were targeted by both the government authorities and the LTTE so he thought the claimant would be safer out of the country. His father organised an agent to make the application. The agent also organised someone from [City 1] to take him to Colombo to pick up. his passport.
77. His brother in law organised a rickshaw to take him, his father and their companion to a Muslim [town]. There were 2 security checks on the way to Colombo and their bags and ID cards were checked but the person who accompanied them spoke in Sinhalese and they had no particular problems during their time in Colombo. They did not stay very long in Colombo; just long enough to pick up his passport. After this visit he returned to the fishing village and continued to help his father's friend.
78. When he returned to the fishing village he did not have any further contact with the Karuna Group or the SLA, although he was told the Army went to his home looking for him.
79. He and his father hoped he could use the passport to travel overseas. He was hoping to go to [Country 1] but needed police clearance to go to [Country 1] and the family did not want to draw attention to the claimant so they decided not to make that application. When I asked why he would have problems with a police clearance he stated that he believed that the Karuna Group would have been informed if he sought police clearance.
80. In the end he could not use his passport because he did not want to apply for a visa. When he came to Australia the organisers of his travel took it off him when he got on the boat leaving for Australia. He stated that his father did not have his original passport but did have a photocopy. He stated that when he got on the boat the organisers took everyone's passport.
81. He stated he decided to leave Sri Lanka by boat after he experienced problems with the Karuna Group. He became afraid for his own safety and even though he had a passport could not apply for a visa. I asked him why he waited for such a long time to leave after his problems with the Karuna Group. He stated that his father organised his departure and he did it at the first possible opportunity. They investigated the possibility of getting a visa but when that was not feasible his father arranged his place on a boat.
82. I asked the claimant what he thought would happen if he returned to Sri Lanka. He stated he would kill himself rather than return. When I asked him what he feared would happen to him he stated that the CID would know he had returned and would question him about his background and his place of origin. They would make enquiries at his local police station and find out about his background. Once his background became known he could be detained, beaten and seriously harmed. At worst they could torture or shoot him. He is a young Tamil male and he feared they could find out about his assistance to the LTTE. He stated things were still difficult in Sri Lanka, particularly in the [City 1] area. He stated that even though there is some information suggesting that Sri Lanka is stable and safe that it is not so for persons like him.
83. I discussed the 2010 UNHCR guidelines and the opinion stated that his Tamil ethnicity would not put him at risk of harm for that reason alone. He stated that he would be at risk due to the suspicion that he is associated with the LTTE. I put it to him that if I accepted his evidence it indicated that he was not a high level or committed activist-he had simply helped with provisions and only because of his fear of the LTTE fighters. He stated he also feared the government authorities; that is the SLA and police. He also feared the Karuna Group which co operated with and provided information to the SLA and police. I put it to him that his parents and siblings still lived in [City 1] and had continued a normal life there after his departure. He stated that his parents were older and not at risk. However, it was particularly dangerous for a young Tamil male from [City 1].
84. I put it to him that if he returned he might be questioned but he did not have any LTTE associations so he should not be at risk of harm. He stated that he would be returning without a passport and even if he had a passport it would be clear he had left illegally. He would therefore be subject to questioning and detention as there would be a suspicion that he left illegally due to LTTE connections. Once they discovered his background he could be beaten and detained. He referred to the 26 Sri Lankans returned from the UK who had been questioned and detained on their return. I put it to him that this case had been publicised and that after questioning all 26 returnees had been released and returned home. He stated that he had left illegally by boat and this put him at greater risk.
85. I then discussed the information he had given to earlier Reviewers and concerns raised by earlier Reviewers that his story had changed over time and that he had added details to strengthen his claims.
86. We discussed various inconsistencies in the account of events given to the RSA officer, Reviewer I and Reviewer 2. He disputed some of the statements he is alleged to have made and stated that the meaning ascribed to some of his statements was misinterpreted. He also told me that he had been told by the organisers of his travel not to mention any contact with the LTTE and as he was only [age] years old at the time and had no idea about Australia's policy in relation to the LTTE he did not say anything. It was only after he received legal assistance that he felt confident telling the full story. He pointed out that he was very scared when he first arrived and did not want to put himself at risk of return to Sri Lanka.
87. I pointed out that despite his fears he had stated that he feared the Karuna Group when he first arrived but omitted his fear of the LTTE and the fact that he had lived in hiding for a period of time. It made no sense that he told part of the story but not the full story. Further it did not seem to be consistent with his claim that he had been warned not to say anything which could put him at risk if he was returned to Sri Lanka. He reiterated that his agent had told him not to mention the LTTE. I put it to him that the other Reviewers considered that he had fabricated some parts of his story to strengthen his refugee claims and had not given a consistent account of events. He stated that he only became confident enough to tell the full story when he was provided with legal advice.
88. At the end of the interview I summarised my understanding of his claims for refugee status. He claimed that he was a young Tamil male who was suspected of assisting the LTTE in 2007/2008. He left Sri Lanka illegally and did not have his passport and as a returning asylum seeker would be targeted for harm by Sri Lankan authorities and the Karuna Group upon his return.
89. He stated that he feared return to Sri Lanka and believed he would be tortured if he returned. He would live in constant fear if he returned and suffer hard times.
90. The claimant's agent made oral submissions on his behalf. She referred to the omissions in his first account but stated that once he told the full story he had been very consistent and had filled in the gaps. He was a young Tamil male and for that reason at greater risk of harm than his parents and sisters. She stated that he had been suspected of assisting members of the LTTE and would be at risk due to this imputed political opinion if he returned. She stated that there was increasing evidence of atrocities during the civil conflict and that the Sri Lankan government is not dealing honestly with the past and current human rights failure in relation to their treatment of the Tamils.
91. She referred to the 26 returnees from the UK who had been detained but later released after questioning. She stated that they had been released after a significant campaign and period of public scrutiny. She submitted that without such scrutiny their situation may have been quite different. She also submitted that there was some information indicating that getting through the airport was a risky and dangerous experience for young Tamils particularly those suspected of LTTE involvement.
92. Following the interview I received a request from Amnesty International to delay making a recommendation until they had provided me with an updated submission on the situation. The claimant also requested that I delay making a recommendation until I had received that information.
93. On 23 December 2011 I received a country information report prepared on behalf of the claimant by Amnesty International Australia. (the Amnesty report)
94. That Amnesty report addressed the following matters in some detail;
· Continuation in the post conflict era of wartime security measures and human rights abuses. Despite the civil conflict against the LTTE having ended in May 2009 repressive security measures continue and serious human rights abuses persist.
· Arbitrary detention of Tamils suspected of being affiliated with the LTTE. Most Tamils who lived within LTTE controlled territory would have had some form of contact with the LTTE and would be at risk of arbitrary detention.
· Human rights abuses in detention. Tamils detained by government and paramilitary forces face torture, ill-treatment, enforced disappearance, extrajudicial killing and the violation of due process' and fair trials.
· Government backed paramilitary forces target Tamils suspected of being LTTE affiliates. Paramilitary organisations including the TMVP aka the Karuna group, operate with the complicity of the Sri Lankan government to commit human rights abuses against suspected LTTE affiliates and ordinary citizens.
· Torture and mistreatment of returned asylum seekers. Returned Tamil asylum seekers have been apprehended and tortured or disappeared upon their return to Sri Lanka, either directly on arrival at the airport or at a later stage.
· Lack of objective information about the conflict and human rights abuses.
· Persecution of dissent has resulted in self-censorship and a lack of information critical of the government about the conflict and human rights abuses.
· Lack of state protection. Continuation of sweeping counterterrorism measures and immunity for authorities and their proxies deny effective recourse to state protection against human rights abuses.
· Bribery and corruption is pervasive in Sri Lanka.
· The use of detainees and ex-detainees as informants.
Based on the Tribunal’s own assessment, the Tribunal accepts, with the exception that follows, that this is an accurate account of the evidence and claims up until that point in time. The Tribunal does note, however that in paragraph 31 in the above extract, the decision fails to indicate what the applicant stated in his interview with a Departmental official on
21 November 2009. The Tribunal has reviewed the interview, and notes the following from it of relevance.
The applicant refers to him being taken by the Karuna Group in April 2008. He was taken by three people at gunpoint. The applicant was told in a threatening manner that he should join the group. He was taken to their office in [City 1]. The applicant’s father arrived and he was threatened and told that he had to pay two lakhs for their release. The applicant was released and his father paid this amount within five days. The applicant provides evidence of his motorbike being taken. The applicant refers to police questioning him about issues that he did not have knowledge of and hitting him. These were the army, police and the Criminal Investigation Department (CID). They would go to shops and enquire about the applicant. This happened in 2009. People came to the applicant’s house three to five times looking for him before he came to Australia. At the time the applicant was at his sister’s home, and his mother conveyed this information to him. This was because the applicant was Tamil. The applicant refers to Apache wanting to kill Tamil boys. The applicant refers to his home being robbed and a gun being pointed at his head in August 2008. The applicant thinks that the culprits were from the Karuna group and then says because neighbours told the police, he has to say it was not the Karuna group. The applicant is asked if he ever was involved with the LTTE and says that at school sometimes the LTTE took them by force. This was around 2003 to 2004.
The Independent Merits Review decision-maker in her decision accepted most of the applicant’s substantive claims as to what he claims happened to him in Sri Lanka. In particular the Tribunal notes that she:
·found it unlikely given his age that the applicant had any direct contact with the LTTE before 2008.
·accepted, albeit not providing evidence of which initially, that in January 2008 the applicant was approached by the LTTE to buy telephone cards and other minor provisions for them on a regular basis. His involvement was minor but would have created fear and intimidation for the applicant.
·found that in April 2008 the applicant was abducted by members of the Karuna group and taken to that camp. His father found out about his whereabouts and attended and arranged release of the applicant.
·found that a potential reason for the applicant being detained by the Karuna group was because his father was reasonably prosperous and therefore it was for the purpose of extortion. The reviewer notes the applicant’s claims that he was taken because of his assistance to the LTTE.
·found that the applicant received notice in May 2008 to attend another Karuna group camp which he failed to attend due to fear of the outcome – either forced recruitment or disappearance.
·found that the applicant knew of others who had been abducted and disappeared.
·found that after the April 2008 incident he went to stay with his sister.
·accepted, albeit that the applicant has embellished, that he went to stay on the coast with a friend of his father who ran a fishing business because the applicant wanted to keep a low profile to not draw attention to himself during this period.
·found that in 2008 and early 2009 the applicant and his family would have had significant security concerns for the applicant during the continuing progress of the conflict, not accepting that the applicant was targeted for mistreatment by the LTTE, the Karuna group for the Sri Lankan Army at that time. The application for an issuance of a Sri Lankan passport indicates that he was not of any serious adverse interest to authorities at the time that he was granted the passport in June 2008.
·accepted that in 2009 at the end of the conflict and immediately following the defeat of the LTTE that the applicant would have been of interest given the intention by authorities to screen everyone with an LTTE connection, no matter how minor this environment is it is understandable that there was a fear for the applicant’s safety such as to have resulted in his departure from Sri Lanka.
In terms of substantive findings for protection the reviewer does not consider that the applicant’s minor association with the LTTE in 2008 would put him at a risk of harm in Sri Lanka now (in 2012) or in the reasonably foreseeable future. Information indicates that the LTTE at that point in time did not have an active role or power or influence.
The reviewer does not accept that the applicant faces requisite harm because he is a young Tamil male from the east of Sri Lanka given country information.
The reviewer does not accept that, particularly given the issuing of the applicant’s passport in June 2008, authorities in Sri Lanka had any adverse interest in him at that time.
It is accepted that the applicant’s minor association with the LTTE might have become known to the Karuna group or the army. It is accepted that the applicant would be questioned at the airport particularly in relation to his legal departure from Sri Lanka. After a short period the applicant would be released and would return to his family in [City 1] in safety and security. This seems to be the experience of a number of recent returnees documented by British and Canadian authorities. There is reference to independent information of returnees being monitored, but no information to suggest that returnees from Australia are subject to monitoring.
The reviewer determines that there is some risk of torture and mistreatment during questioning of the applicant and there is also a risk of arbitrary attention in harsh conditions for an unspecified period of time.
The reviewer determines, albeit considering it not highly likely there is a greater than remote chance that on his return to [City 1] that he will come to the attention of the paramilitary group that abducted him in April 2008 and that they may engage further mistreatment on the basis of his previous contact and his illegal departure from Sri Lanka. Country information is referred to which indicates that paramilitary groups are still operating in the [City 1] area and in the east of Sri Lanka and that Sri Lankan authorities have delegated some security tasks to these groups and they operate with impunity. Independent information indicates that abductions and disappearances still take place, albeit in much lower numbers than during the conflict.
Albeit that the reviewer has some doubt she finds that the applicant may face a real chance of persecution on return because of his membership of a particular social group of young Tamil males from the east who has departed illegally or for an imputed political opinion, that is, as an LTTE sympathiser or affiliate. She finds that the applicant may be at risk from Sri Lankan authorities or from paramilitary groups associated with authorities.
Temporary protection visa application – delegate’s consideration
The Tribunal notes the following evidence of relevance given by the applicant in the interview with the delegate held on 15 September 2017 in respect of the temporary protection visa application made on 12 February 2016. The applicant refers to being caught by the Karuna group in April or May 2008. They threatened the applicant because they said he was helping the LTTE. The applicant refers to being released after his father came. The applicant refers to assisting the LTTE from the end of 2007 until January/February 2008. They demanded that the applicant buy goods for them. The applicant indicates that the LTTE found out that the Karuna group had caught the applicant and enquired about it. The applicant refers to being sent a letter by the Karuna group. When this happened the applicant’s father took him to stay with his friend in a fishing area. After that the applicant indicates that the Karuna group informed the army that the applicant was a supporter of the LTTE. The applicant indicates that the applicant’s father said that armed forces came to his home and checked the house. The applicant indicates that he only assumes that the Karuna group informed the army because of the fact that the army came to the applicant’s home.
The applicant refers to travelling to Colombo to the office to get his passport. A friend of the applicant’s father provided assistance in obtaining the passport. The applicant was asked if he was of adverse interest how it was that he was able to get a passport. The applicant indicates that this was because he was assisted by his father’s friend. The applicant does not know what his friend did to get the passport.
The applicant refers to two of his friends being kidnapped as they were said to have been supporting the LTTE. Their whereabouts are not known today.
It is put to the applicant that he has provided low-level assistance to the LTTE and why it is he would be of adverse interest eight years since the war has ended. The applicant responds that it does not matter that this time period has passed as the Karuna group and the army knew about the applicant’s assistance. The applicant fears for his life and that he will be shot. The delegate puts that it is undermining of his claims that he was able to obtain a passport without problems. The applicant responds again that he was assisted in obtaining the passport. The delegate in the interview refers to some inconsistencies in evidence.
At the conclusion of the interview, the applicant indicates that he spoke to his mother last week and she said that armed forces in the area had come to his home and enquired about his whereabouts. It happened two months and one-and-a-half years previously as well. The applicant indicates that the Karuna group is operating in some areas.
The applicant’s migration agent makes submissions which include that the applicant will be imputed with greater links to the LTTE as compared to a quicker returnee because he has been in Australia for so long. In relation to the Karuna group it is submitted that there is a real chance that one of the people who question the applicant ([Mr A]) will recognise the applicant and report him to authorities. The applicant should be given the benefit of the doubt.
The delegate in her decision made the following factual findings:
Findings
In summary, I accept the following about the applicant:
· He is a Sri Lankan Tamil from [City 1], in the eastern province of Sri Lanka.
· He assisted the LTTE for approximately three months buying goods for them and then delivering it to a pre-determined destination.
· He was the victim of extortion by the Karuna Group and was questioned about his assistance to the LTTE but was released after one day.
· He faced harassment in the form of SLA roundups and the forced use of his motorbike because of the security situation in Sri Lanka during the civil war and the immediate aftermath, however the applicant was not specifically targeted.
· He departed Sri Lanka illegally by sea.
I do not accept the following about the applicant:
· His family was robbed by members of the Karuna Group however this was not politically motivated.
· He was of interest to the Karuna Group, SLA and CID because of his assistance to the LTTE and as a result of this interest spent a period of time in hiding.
· He received a letter from the Karuna Group demanding that he report to their ‘Head Office.’
· His family is still facing adverse attention and questioning from the SLA whilst he has been in Australia.
In terms of substantive findings, it is considered whether the applicant’s Tamil ethnicity would of itself lead to an imputed association with the LTTE. It is concluded that considered overall the fact of being a Tamil in Sri Lanka is not a reason for the applicant to be imputed with an LTTE connection.
It is indicated that the applicant’s assistance to the LTTE is limited and he does not claim to have been involved in any separatist activities. On that basis, given independent information, the applicant would not have a profile of any interest with authorities. Reference is made to rehabilitation of LTTE members. It is determined that there is no longer any systematic program to intern or rehabilitate any Tamil suspected of any level of LTTE involvement, as was the case from 2009 up until the applicant’s departure from Sri Lanka. It is determined that there is a negligible chance of the applicant being detained under the Prevention of Terrorism Act. After reference to further independent information, it is concluded that the applicant does not have a profile of interest to Sri Lankan authorities.
Consideration is given for protection on the basis of the applicant being a Tamil from the former LTTE control area in the east. After referring to country information, it is concluded that whilst Tamils from the north and east may face a degree of discrimination and harassment, and do not face the same opportunities, the level of discrimination and harassment would not amount to serious harm.
An assessment is made of the applicant suffering requisite harm as a result of being a failed asylum seeker who departed illegally. After consideration of country information it is concluded that there is not a real chance of requisite harm on these grounds.
Consideration is had to the complementary protection criteria with the conclusion being reached that there is not a real risk of significant harm on this basis.
The applicant provided the following Statutory Declaration to the Tribunal dated 29 March 2022 (not corrected for spelling or grammar):
THAT:
1. I write this statement in support of my application to the Administrative Appeals Tribunal appealing the decision of the delegate of the Department of Home Affairs to refuse my application for a Temporary Protection visa. I continue to rely on the evidence I have previously provided.
My current circumstances
1. I feel safe in Australia. I am currently working [in] Sydney. I live with my wife in [a suburb].
2. My wife is originally from [Country 2] but she is an Australian citizen now. We were married in 2020. We have a home and I am helping to pay the mortgage, and we are trying to start a family. Just last week, we lost a child which has been hard. My wife was 5 months’ pregnant and she had a miscarriage. My wife and I have been a big comfort to each other. She is worried about what will happen to her if I go back to Sri Lanka which is also stressful for me. The loss of the baby makes it more [stressful].
3. When I do interviews with lots of questions, I am reminded of all the old memories which is really stressful and bad for me. I know I have to speak about everything and it is important but without knowing what will happen next I do not sleep well and I have no peace of mind. I have been here in Australia for more than 12 years. The IMR decision maker made a decision that I am a refugee. A different decision maker then decided differently and it is hard for me to understand why I am still going through this process with so much uncertainty. I know that with all this time I do not remember everything. I have provided all the details that my memory allows but over time I may have forgotten details about what happened in Sri Lanka.
The current situation for my family
4. My parents and my two older sisters are still in my hometown of [City 1]. My parents tell me not to return to Sri Lanka. Every two years the army come to [my home area] and go from house to house to check on the people inside and on their voter IDs. My parents feel afraid every time the army visits them. My parents told me that the last two times they came around, in 2019 and 2021, the army asked where I was and told my parents that they are waiting for me to return.
5. I continue to worry about my family and their safety in Sri Lanka but know there is nothing I can do right now. My parents have told the army that they don’t know where I am and am not in contact with me. They are scared if I return that the army might kill me. Lots of Tamil people who helped the LTTE like me have been taken away and disappeared.
The delegate’s decision
6. There were many things that the delegate did accept about my case. For example, the delegate accepted that I assisted the LTTE by supplying them with goods. The delegate also accepted that I was detained by members of the Karuna Group and that while I was detained I was questioned about my interactions with the LTTE. The delegate accepted that I departed Sri Lanka illegally by sea.
7. Unfortunately the delegate did not accept that my involvement with the LTTE made me a person of interest to the authorities. I don’t accept what the delegate said about this. I left Sri Lanka because of the problems I faced from the authorities. One of the reasons the delegate did not accept that I was of interest to the authorities was because the Karuna Group released me. As I have said previously, while I was detained my father came and argued with the Karuna Group members to request that I be released. They eventually agreed to let me go free when my father offered to pay them money. If my father had not come they would have transferred me to another place and I would have disappeared like other people I know. I still had problems from the Karuna Group even after I was released.
8. The delegate did not accept that I received a letter from the Karuna Group demanding that I report to their head office. I don’t know why I received the letter, or if the people at the head office even knew that I had been abducted by other members of the Karuna Group. The letter did not give a reason why I had to report to the head office. I knew someone who was an LTTE supporter who received a similar letter. They reported to the Karuna Group and never returned. The letter really frightened me and I did not go to the head office.
9. The delegate raised concerns that I was able to travel to Colombo and obtain a passport while I was in hiding, and said that this meant I was not of adverse interest to the authorities. I was able to obtain my passport because my father paid an agent extra money to help me. To get my passport I was hidden on a night train and only stayed in Colombo a single day to limit the risk that I would run into police who would check my ID. In the end I did not use my passport to leave Sri Lanka. I needed to get a police clearance in order to get a visa to leave Sri Lanka. It was not safe for me to contact the police. I was in hiding from them.
10. The authorities will have a record of my involvement with the LTTE. The Karuna Group knew about my involvement with the LTTE. The Karuna Group shared that information with the army and the CID, so they know about it too. It does not matter to the authorities whether I was made to help the LTTE or whether I chose to help them, they do not care and my involvement will still be on the record.
My ongoing fears of returning to Sri Lanka
11. I cannot return to Sri Lanka. If I am returned to Sri Lanka the police will catch me at the airport, interrogate me about where I am from, and get the information from the army in my home area. They will check my records and see that I helped the LTTE, and because of this the authorities will torture me or kill me. I have heard of someone who was tortured by the authorities when he was returned to Sri Lanka because they thought he was involved with the LTTE. I think that happened in around 2017.
12. I also fear that if I am returned to Sri Lanka, I will be arrested and detained because I left Sri Lanka illegally. Even if I am not given a jail sentence, I fear that I will be tortured while in the custody of the police or while in prison.
13. Even if I leave the airport the authorities will know I am back in Sri Lanka and because I was involved with the LTTE and have been hiding they will catch me and torture me. The fact that I have been in Australia so long certainly increases the suspicions that the authorities will have towards me.
14. I do not believe there are people or friends who can give me proper safety in Sri Lanka. Most people in my hometown are scared to help and I do not trust the police and other agencies. My parents cannot protect me. I also cannot imagine what will happen to me if I go back without my wife. It makes me very upset and worried.
15. I will not be safe anywhere in Sri Lanka. If I make it out of the airport, I do not believe that I can live in another part of Sri Lanka alone. I will have to give my ID and register my address with the police. This will alert the authorities that I am back and living in Sri Lanka where I will be harassed or detained and tortured. The authorities cannot protect me because it is the Sri Lankan authorities that will harm me.
16. For these reasons, I seek protection in Australia.
17. I have prepared this Statutory Declaration by telephone with my representatives from Refugee Legal in Melbourne. This statement has been read back to me in the Tamil language by a telephone interpreter from the Translating and Interpreting Service.
At the same time the applicant provided to the Tribunal a letter dated 18 May 2008 from Thamil Makkal Viduthalai Pulikal TMVP, signed by [name], which stated that the applicant was requested to attend its office on 20 May 2008 to discuss something. The letter noted that it was the third letter sent to the applicant and suitable actions would be taken for failure to attend.
Recent submission on behalf of applicant
Provided by the applicant’s migration agent dated 30 March 2022 was a submission on behalf of the applicant. Relevantly, the submission indicates that the applicant meets the protection criteria on the basis of his imputed political opinion in support of the LTTE. This is on account of his past involvement with the LTTE supplying goods to them and his Tamil ethnicity. It is on account of his origins from [City 1], Eastern Province, his asylum claims in Australia and his illegal departure. It is on account of his extended residence in Australia where he could be perceived to be part of the Tamil diaspora.
Protection criteria are also submitted to be met on account of the applicant’s membership of the particular social groups of: people who have fled Sri Lanka illegally; and/or people who have sought asylum in Australia. It is also claimed that the applicant meets protection criteria on account of his Tamil ethnicity.
It is submitted that country information referred to was relevant to the situation regarding the Tamil diaspora, actual or perceived former LTTE members and Tamil separatists. It is submitted that of extreme importance is the fact that ethnic and secular tension within the country is increasing. It is indicated that this risk will increase over time.
Information in the DFAT report extracted below is referred to regarding stability decreasing as a result of the election of Gotabaya Rajapaksa as President in November 2019. Submissions are made as to the increasing use of ethnic and religious scapegoating as a political tool and the use of state power to persecute perceived critics of separatists.
A 2021 report is referred to of the United Nations Office of the Commissioner for Human Rights which is said to illustrate the possibility of Sri Lanka returning to intercommunal violence with marginalisation of Tamils.
It is submitted that intelligence could have been gathered in relation to the applicant in the post conflict period after the applicant departed Sri Lanka. The applicant’s long period in Australia is likely to arouse suspicion of the applicant. There is a likelihood that the applicant will become a person of interest to the authorities given his previous interrogation about his LTTE links.
The DFAT report is referenced in terms of authorities remaining concerned about re-emergence of the LTTE. Sophisticated intelligence mechanisms are referred to. A quote from The Human Rights Activist is referred to indicating there is an interest in security forces looking for former LTTE members, some with an activist profile but not all. It is indicated that random Tamils are subject to intimidation and this was more prevalent in the north and east.
The 2020 US Department of State report on human rights practices in Sri Lanka is referred to, indicating that Tamils reported that security forces regularly monitored and harassed former or suspected LTTE members and that the government has enforced a crackdown on the freedoms of those perceived to be associated with the LTTE.
Submissions are made that the Prevention of Terrorism Act is increasingly being used arbitrarily and abusively against Tamils with a reference to a 2022 report of Human Rights Watch. Reference is made to the discussion of the Prevention of Terrorism Act in the DFAT report.
It is submitted that information in the DFAT report demonstrates that authorities continue to monitor and interrogate Tamil communities in the [City 1] area on suspicions of support for the LTTE.
A reference is made to a 2022 report of the United Nations Human Rights Council indicating continued surveillance and harassment by security forces, particularly in the north-east.
Submissions are made with respect to illegal departure and treatment of returnees. DFAT information is referred to in relation to this in terms of the applicant being charged for offences of departing the country unlawfully. The applicant will be referred as a result to the police at the airport where he will be detained, interviewed and charged. It is submitted that the applicant may be taken to prison from the airport where he could be detained for months. A 2016 report in The Guardian newspaper is referred to which makes reference to asylum seekers spending weeks, even months in jail.
It is submitted that the applicant faces a real risk of mistreatment and torture while in custody at the airport or in prison. It is submitted that the risk is illustrated by reports of others who, on return to Sri Lanka, were identified as having departed illegally and subsequently detained and tortured by authorities. A 2010 report by the Catholic Church’s Edmund Rice Centre is referred to.
A 2011 report by Amnesty International makes reference to asylum seekers on return being tortured. A 2015 report in the Guardian makes reference to passengers being tortured and brutalised while in the custody of Sri Lankan forces. Reference is made to an October 2016 report of the Sri Lankan Human Rights Commission which reported on the prevalence and routine nature of the use of torture on those in police detention, regardless of the reason for the detention or its location.
It is submitted that this report is corroborated by recent sources which are referred to including information in the DFAT report.
It is submitted that the country information means that the applicant faces a real risk of serious or significant harm as a result of his likely treatment by Sri Lankan authorities on account of his profile and membership of the particular social group referred to.
Independent information sourced by the Tribunal
The 2021 DFAT report on Sri Lanka provides the following information:
RECENT HISTORY
…
2.2 A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the Liberation Tigers of Tamil Eelam (LTTE, commonly known as the Tamil Tigers), formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007-09, culminating in the military defeat of the LTTE in May 2009. The UN and human rights organisations documented serious violations in the final stages of the war when Mahinda Rajapaksa was President, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people. Civil society groups and NGOs have criticised the Rajapaksas for enabling and covering up alleged war crimes and atrocities against civilians.
2.3 In 2015, Maithripala Sirisena, who defected from the Mahinda Rajapaksa Government to a rival political grouping, was elected President. Sirisena promised a new era of “clean” government, free of corruption, and embarked upon a path of reconciliation with the Tamil minority that appeared to make some progress. His government faced a constitutional crisis when he briefly appointed Mahinda Rajapaksa as his Prime Minister in a move that was not approved by parliament.
2.4 On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009 (see 2019 Easter Sunday Terrorist Attacks).
2.5 In November 2019, Gotabaya Rajapaksa was sworn in as Sri Lanka’s President, choosing his elder brother Mahinda Rajapaksa, a former two-term President, as his Prime Minister. The UN Office of the High Commissioner for Human Rights (OHCHR), in its report of January 2021, said: ‘Sri Lanka seemed to be on a new path towards advancing reconciliation, accountability and human rights. The developments since November 2019, however, have reversed that direction and, instead, threaten a return to patterns of discrimination and widespread violations of human rights experienced in past decades’ (see Political System).[1]
[1] DFAT, Country Information Report – Sri Lanka, 23 December 2021, p. 8
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POLITICAL SYSTEM
2.29 Sri Lanka is a democracy with a mixed parliamentary and presidential form of government. The president is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. President Rajapaksa is also the current Minister of Defence. International and domestic election observers deemed the last parliamentary election, held in 2020, to be mostly credible, although some incidents of voter intimidation were reported.
2.30 In August 2020, the Sri Lanka People's Freedom Alliance (SLPFA), a coalition under President Gotabaya Rajapaksa (which includes his own party, the Sri Lanka People's Front (SLPP)), won a two-thirds majority in the Sri Lankan Parliament led by Prime Minister Mahinda Rajapaksa.
2.31 On 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution. The amendment reversed some measures introduced by the previous government, largely dismantling pro-transparency and accountability reforms in the 19th Amendment, as well as enhanced executive control over the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concern that ‘the amendment has fundamentally eroded the independence of key commissions and institutions, including the Human Rights Commission of Sri Lanka (HRCSL), the Election Commission, the National Police Commission and the judiciary in terms of procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials.’ The amendment also allowed dual citizens to enter Parliament.
2.32 In July 2021, Basil Rajapaksa, a dual-Sri Lankan-US citizen, was sworn in as Sri Lanka’s Minister of Finance, becoming the fourth Rajapaksa brother and fifth member of the first family to enter the Cabinet. The move further consolidated the family’s control over the machinery of government. The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability (see Recent History).
2.33 Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20thAmendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears. Presidential elections are next scheduled to be held in 2024. In July 2021, President Rajapaksa stated his intention to run for a second term in office.
Reconciliation
2.34 The report of the Office of the UN High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL), released in September 2015, found that government and LTTE forces likely committed grave violations, possibly amounting to war crimes and crimes against humanity, between 2002 and 2011. In response, the Sri Lankan Government of Maithripala Sirisena committed to implementing a range of truth, justice and reconciliation measures under a UN Human Rights Council (HRC) resolution (Resolution 30/1) adopted in October 2015. The then-Government of Sri Lanka co-sponsored these resolutions.
2.35 In 2015, the then- Government approved the formation of four transitional justice and reconciliation mechanisms, in line with Sri Lanka’s HRC commitments: (1) an Office on Missing Persons (OMP); (2) an Office for Reparations (OfR); (3) a Truth, Justice, Reconciliation and Non-Recurrence Commission; and (4) a Judicial Mechanism with a special counsel to investigate allegations of violations of human rights and international humanitarian law during the war.
2.36 In 2015, an Office for National Unity and Reconciliation (ONUR) was established and the Government appointed former President Chandrika Bandaranaike Kumaratunga as chair. She left the position in November 2019 and was not replaced. In-country sources do not regard ONUR as having fulfilled its mandate of promoting reconciliation in 2021.
2.37 The OMP was formally established in September 2017 with seven commissioners including two Tamils and one Muslim. The OMP was the first permanent and independent body to address the issue of missing persons in Sri Lanka. The OMP is tasked with determining the status of all missing persons in Sri Lanka and clarifying the circumstances under which they disappeared. Its mandate includes cases that occurred before, during and after the war, including periods of violent political disturbance in the 1970s and 1980s. While some optimism occasioned the OMP’s establishment and initial operations, local sources regarded it as compromised in 2021; the 20th Amendment permitted the Government to appoint commissioners implicated in historical abuses, such as former Inspector General of Police (IGP) Jayantha Wickramaratne. Ahimsa Wickrematunge, daughter of slain journalist Lasantha Wickrematunge said of Wickramaratne that, as IGP in 2009, Wickramaratne had ‘derailed’ investigations into her father’s murder. As at November 2019, the Government was paying Interim Relief (worth LKR6,000 per month) to 153 families of missing or disappeared persons up. Family members who possessed either a Certificate of Absence (CoA) or a Certificate of Death (CoD) which stated that the person has been missing or had been disappeared for over one year were entitled to this payment. However, in September 2021, sources advised that the payment of Interim Relief had ceased, along with the issuance of Certificates of Absence.
2.38 The lead investigator in a number of ‘emblematic cases’ involving high-profile disappearances and other serious human rights violations where some progress has been made, Inspector Nishantha Silva of the Police Criminal Investigation Department, fled Sri Lanka to Switzerland after the Presidential election in 2019, fearing reprisals. The Government has now issued two warrants for Silva’s arrest, including one for murder, and is reportedly seeking his extradition from Switzerland. Other former CID officers, such as former Director Shani Abeyesakara, have been targeted by the Government for their role in high-profile cases.
2.39 The OfR was established by legislation passed by parliament on 10 October 2018 with commissioners from a range of ethnic and professional backgrounds. The OfR has been given a mandate to provide reparations to persons affected by conflict, not only in the north and east, but also in the south, and in connection to the Marxist insurrections of the 1970s and 1980s. Local sources claimed in 2021 that the OfR’s work had come to ‘a standstill’. However, the Government of Sri Lanka stated in September 2021 that the Office continues to function, settling a total of around 5,000 claims (with more than 10,000 remaining) for a total of LKR323.6 million (AUD2.2 million). This amounts, as HRW notes, to approximately USD500 per missing person. In August 2021, Sri Lanka’s Cabinet approved the National Reparations Policies and Guidelines. The document, which is publicly available, was formulated within the legal framework set out by the Office of Reparations Act and covers both collective and individual reparations. However, at the time of publication, details on practical implementation of the policy were still evolving.
2.40 The Government withdrew its co-sponsorship of Resolution 30/1 in February 2020, announcing instead, a policy of pursuing reconciliation through domestic processes. In March 2021, the UN Human Rights Council, following a report by UN High Commissioner for Human Rights, Michelle Bachelet, adopted resolution 46/1, deciding ‘to strengthen the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.’ A statement delivered by the Foreign Minister (Peiris) during the Human Rights Council’s 48th Regular Session in September 2021 noted the Government’s rejection of the proposal for any external initiatives established by Resolution 46/1 while domestic processes were underway. Local and international sources suggest that the Sri Lankan Government is concerned about this OHCHR evidence gathering process, and are seeking to stifle and suppress critics with knowledge of historical abuses that would be of use to the OHCHR. Sources claim senior figures principally fear the exercise of universal jurisdiction by other states with regard to such abuses.
2.41 In her January 2021 report, Bachelet said: ‘Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgement of past crimes’ (see also Media and Civil society organisations and government critics). In 2021, there has been little progress on so-called ‘emblematic cases’ of historical abuses related to the civil war. In one high-profile case, the recently retired Chief of the Defence Staff (head of the Sri Lankan military), Admiral Ravindra Wijegunaratne, was remanded in custody on 28 November 2018 for allegedly threatening a witness and attempting to remove the lead police investigator in a case involving the abduction and murder of 11 Tamil youths by Navy personnel in Colombo in 2008 and 2009. As of 2021, he is yet to face trial. The bodies of the 11 men, who came from wealthy families and were allegedly abducted for ransom, have never been found. The current Chief of the Defence Staff and Chief of Army, General Shavendra Silva, is banned from travelling to the United States due to accusations of civil war-era war crimes.
2.42 DFAT assesses that progress on accountability for war-era violations is unlikely in the near-term. DFAT further assesses that Sri Lankan journalists, investigators, activists and former police officers probing historical abuses face a high risk of official harassment and a moderate risk of violence.[2]
[2] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 12–15
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SECURITY SITUATION
2.48 The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks (see also 2019 Easter Sunday Terrorist attacks and Aftermath of Anti-Muslim Violence).
2.49 The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena.
2.50 The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka. See also Muslims with regard to the treatment received by Muslims in Sri Lanka following the 2019 Easter Sunday terrorist attacks.
2.51 The incidence of homicide has fallen sharply in recent years and is now comparable with other South Asian countries. The United Nations Office on Drugs and Crime estimated a murder rate of 2,421 per 100,000 people in 2018, the last year for which data is available. A number of local sources told DFAT of substantial gang violence in Jaffna (Northern Province), including random sword attacks allegedly carried out by Jaffna-based motorcycle gang the Aava Gang. A number of chiefly Tamil sources have suggested the Aava gang was enabled by Sri Lankan military intelligence but DFAT cannot verify this.
2.52 Elections have historically been volatile periods in Sri Lanka; however, independent election monitors found no significant security problems with the running of the 2019 Presidential and 2020 parliamentary elections, even amid COVID-19 restrictions for the 2020 election.
2.53 States of Emergency have also been in place for much of Sri Lanka’s recent history, including throughout the war and for four months after the 2019 Easter Sunday terrorist attacks, and have been used as a tool to extend executive and military control. The most recent State of Emergency, declared on 30 August 2021 reportedly to control rapidly rising food prices, sparked concerns in some quarters. Media reports state that the recent declaration lapsed in early November 2021 with little fanfare.
Security situation in the north and east
2.54 The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations.
2.55 The military maintains a significant presence in the north. Military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province (see Economic conditions in the north and east). The Sri Lankan military comprises approximately 350,000 active and reserve service members; 280,000 Army, 50,000 Navy and 30,000 Air Force. Approximately 160,000 – 200,000 joined between 2006 and 2009. Retirement is permissible after 22 years of service. Much of the work currently done by the military includes: construction of roads, hospitals and houses; the renovation of dams; hospitality (such as running resorts or other tourism activities); and growing food (dairy farming, rice and vegetable cultivation).[3]
[3] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 16–17
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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.
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.[4]
[4] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 18–20
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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 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 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-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 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.
Societal discrimination
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.[5]
[5] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 24–28
…
The Prevention of Terrorism Act (PTA)
4.20 The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.
4.21 DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.
4.22 The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.
4.23 The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.
4.24 In 2015, President Sirisena committed to repeal and replace the PTA with improved counter-terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.
4.25 In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.
4.26 In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.[6]
[6] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 41–42
…
TREATMENT OF RETURNEES
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Offences under the Immigrants and Emigrants Act
5.21 The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.
5.22 Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.
5.23 While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
5.24 The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.
5.25 The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.
5.26 DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.
Conditions for Returnees
5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.
5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.
5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[7]
[7] DFAT, Country Information Report – Sri Lanka, 23 December 2021, pp. 47–49
Slightly more recent relevant information is contained in a report prepared by the Country of Origin Information Services Section (COISS) of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka – extracts of which follow (underlining added):
Tamils
Mistreatment, monitoring and harassment of Tamils in the north and east has increased since the November 2019 presidential election. Reports of monitoring, surveillance, intimidation and harassment of Tamils in day-to-day life by security forces in the north and east of the country have increased since the election of Gotabaya Rajapaksa as president in November 2019,[8] and include a number of reported assaults and arrests and the alleged torture of Tamil civilians.[9] In at least one reported case in 2021, this has resulted in the death of a Tamil civilian in police custody.[10] In January 2022, a Tamil fisherman and activist who had campaigned against military encroachment in the north, was found dead; local politicians and community members in Jaffna alleged he was murdered by the Sri Lankan Navy and called for an inquiry.[11] Communities in both the north and east have reported that monitoring is undertaken by military intelligence and the police Criminal Investigation Department (CID), though in many cases officers dress in plain clothes and do not identify themselves.[12] In the east, community informants – including neighbours and business owners – also reportedly undertake monitoring on behalf of the authorities.[13] A January 2020 UK Home Office fact-finding mission found that while employment opportunities in the north of Sri Lanka and access to housing and land remain limited, opportunities had nevertheless increased prior to the onset of the COVID-19 pandemic.[14] In December 2021, DFAT assessed that ordinary Tamils living in the north and east are at low risk of official harassment and that physical violence against those being monitored is not common.[15]
[8] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.19, 20220218122156; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, pp.11,49, 20200123162928; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652
[9] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, pp.7–8, 20220303152645; ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.5, 20220218110132; ‘Sri Lanka military’s latest assault weapon: Barbed wire wrapped palm frond’, Journalists for Democracy in Sri Lanka, 25 January 2022, 20220203171722; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020–2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24–27, 20210909092512; ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association’, United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, p.10, 20200702160949; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, pp.11,49, 20200123162928; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.22, 20210401122412; ‘Tamil youth hospitalised following Sri Lankan army assault in Mannar’, Tamil Guardian, 25 August 2020, 20200828165229; ‘Sri Lankan police arrest ten Tamils in Jaffna’, Tamil Guardian, 11 August 2020, 20200812105606; ‘Falsely arrested and tortured disabled Tamil man submits complaint at Human Rights Commission’, Tamil Guardian, 03 June 2020, 20200604080654
[10] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.31, 20220218122156; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.33, 20210909092512; ‘Tamil youth was ‘tied to a tree’ and attacked before being ‘beaten to death’’, Tamil Guardian, 05 June 2021, 20210607115206; ‘Tamil youth beaten to death by Sri Lankan Intelligence officials’, Tamil Guardian, 03 June 2021, 20210604102211
[11] ‘Sri Lanka: Family seeks impartial investigation into killing of Tamil fisherman’, Journalists for Democracy in Sri Lanka, 14 January 2022, 20220203172035; ‘Anger in Jaffna after leading Tamil protestor killed by Sri Lankan navy’, Tamil Guardian, 12 January 2022, 20220124113539
[12] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.19, 20211223094818
[13] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
[14] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928
[15] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 20, 20211223094818
Tamils with certain profiles – such as political activists and journalists – are more likely to attract the attention of authorities. Civil society groups report ongoing harassment and intimidation of family members of individuals who disappeared during the war.[16] Individuals and groups seeking to commemorate the end of the war and fallen LTTE combatants have experienced security forces surveillance, have been stopped from marking these occasions, and in some instances have been arrested – including under the Prevention of Terrorism Act (PTA)[17] – while authorities have proscribed hundreds of Tamil individuals and Tamil organisations, including several diaspora organisations.[18] Despite attention turning to rights violations against the Muslim community in the wake of the 2019 Easter Sunday bombings, a July 2021 report stated that the majority of reported violations continued to be against Tamil Sri Lankans.[19] Tamils maintain they suffer discrimination in areas such as access to university education, government employment, housing and health services;[20] however, a number of sources state that they are not targeted solely on account of their ethnicity.[21] In December 2021, DFAT assessed that while Tamils are under-represented in public sector employment, even in the north and east, this is largely due to language constraints and disrupted education as a result of the war, rather than official discrimination.[22]
[16] ‘Human Rights in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, 21 December 2021, 20211222090819; ‘Heeding Victims’ Voices: The Struggle of Tamil Families of the Disappeared in Sri Lanka’, Dharsha Jegatheeswaran, Just Security, 03 March 2021, 20211126104053
[17] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.27, 20220218122156; ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.39, 20211223094818; ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, p.3223, 20210909092512; ‘Sri Lanka army soldiers attack Tamil journalist covering commemoration for civil war dead’, Committee to Protect Journalists (CPJ), New York, 02 December 2021, 20211203112236; ‘Sri Lankan security forces block Sencholai massacre commemoration in Mullaitivu’, Tamil Guardian, 14 August 2021, 20210817153024; ‘Sri Lankan troops break up Tamil remembrance of civil war dead’, Aljazeera, 29 November 2021, 20211130153802; ‘Sri Lankan police threatens to quarantine Tamil families of the disappeared in Batticaloa’, Tamil Guardian, 10 December 2020, 20201211100748; ‘Jaffna Uni student arrested and further crackdown on Karthikai festival’, Tamil Guardian, 29 November 2020, 20201130112301; ‘Sri Lankan police interrogate Tamils over Maaveerar Naal press conference’, Tamil Guardian, 06 December 2020, 20201208164636; Tamil; ‘Abandoned Promises? Preserving Human Rights and Pursuing Accountability in Gota’s Sri Lanka’, Sri Lanka Campaign for Peace and Justice, February 2020, 20200330123213; ‘Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association’, United Nations Human Rights Council, 05 May 2020, p.13, 20200622112923; ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928
[18] ‘UN High Commissioner raises concerns of harassment of Tamils and Muslims in Sri Lanka’, Tamil Guardian, 21 June 2021, 20210622103318; ‘Tamil organisations speak out against Sri Lanka’s ban’, Tamil Guardian, 04 April 2021, 20210406172318; ‘Human rights priority countries: ministerial statement for January to June 2021’, United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[19] ‘Repression of Dissent in Sri Lanka: 1st January–31st March 2021’, INFORM Human Rights Documentation Centre, July 2021, p. 15, 20210826101133; Also see: ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, p.21, 20200702160949
[20] ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.28, 20210401122412; ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[21] E.g. ‘Repression of Dissent in Sri Lanka: 1st–31st May 2020', INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 10, 22, 20200702160949; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.12, 20200123162928; ‘Country Policy and Information Note Sri Lanka: Tamil Separatism’, UK Home Office, May 2020, p.9, 20200527172009
[22] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p. 19, 20211223094818
A significant military presence remains in the north and east of the country. While security checkpoints on major roads in the north and east were removed in 2015,[23] some were re-established in the aftermath of the 2019 Easter Sunday bombings and continue to monitor and restrict population movements.[24] Some of this has been associated with the military-led response to the COVID-19 pandemic amid accusations that this has been more strictly policed in minority dominated areas.[25] Government figures show that, by October 2021, around 92 per cent of private land occupied by the military during or following the war had been returned to its owners[26] but displacement of Tamil civilians remains a concern.[27] Although most civilians displaced by the war have resettled, those still displaced mostly live in Jaffna, Kilinochchi, Mannar, and Batticaloa Districts in the north and east, and are unable to return home for reasons that include the presence of land mines and restrictions designating their homes as part of military high security zones.[28] There have also been longstanding reports of the destruction of property before it is handed back and the harassment of individuals who have protested against continuing military occupation.[29] Objections have also been raised that military involvement in sectors of Sri Lanka’s economy challenges the ability of civilians to make a living.[30]
[23] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[24] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘Freedom in the World 2021 – Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Fear returns to Sri Lanka after bombings’, Human Rights Watch, 10 May 2019, 20190513142002; ‘Sri Lankan military harass and block Tamil journalists travelling to Mullaitivu despite having permits’, Tamil Guardian, 22 May 2021, 20210524151145; ‘Army fires at tractor illegally transporting sand for failing to stop at checkpoint’, Colombo Page, 22 April 2021, 20210423124946; ‘Human rights priority countries: ministerial statement for January to June 2021’, United Kingdom Foreign, Commonwealth ＆ Development Office, 23 November 2021, 20211125085659
[25] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘Sri Lanka: Experts dismayed by regressive steps, call for renewed UN scrutiny and efforts to ensure accountability’, OHCHR, 05 February 2021, 20210208205940; ‘No more lockdowns, but checkpoints persist in Mullaitivu’, Tamil Guardian, 17 November 2021, 20211119091121 ; ‘Old Ghosts in New Garb: Sri Lanka’s Return to Fear’, Amnesty International, 17 February 2021, e.g. p.52, 20210218125037
[26] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[27] ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.12, 20210203162131; ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.20, 20210401122412; ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[28] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.46, 20211223094818; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.20, 20210401122412
[29] ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, United Nations Human Rights Council, 08 February 2019, p.8, 20190311120409
[30] ‘Sri Lanka’s militarisation continues with army involvement in milk production’, Tamil Guardian, 13 December 2020, 20201215150506; DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.11, 20211223094818
Civil society groups are concerned that the government is seeking to suppress Tamil identity and culture, especially in the north and east. In February 2020 the Sri Lankan government broke with recent practice and stopped the singing of the national anthem in Tamil at Independence Day celebrations,[31] while the Rajapaksa government has permitted the construction of Buddhist shrines in the predominantly minority Northern and Eastern provinces.[32] In June 2020 a task force was appointed to ‘manage archaeological heritage’ in the Eastern Province whose make-up was entirely Sinhalese and included a number of serving and former military officers among its membership.[33] Minority communities fear that efforts to identify sites of Buddhist archaeological significance are part of a push to change the demographics of the region.[34] Land disputes between the government and minority communities are increasing; between January and November 2021, OHCHR recorded 45 reports of such disputes.[35] In September 2020, 358 acres of land claimed by Tamil farmers in Trincomalee District was taken over by the government after the area was identified as a Buddhist archaeological site.[36] In January 2021 the Mullivaikal Memorial at the University of Jaffna commemorating the deaths of Tamils who died in the closing stages of the war was destroyed, with Sri Lanka security forces preventing students from impeding the demolition.[37] The University later said the monument would be rebuilt.[38] In May 2021, a similar memorial plaque was vandalised in the northern Mullaitivu district, but the army denied involvement in the destruction.[39]
[31] ‘Sri Lanka scraps Tamil national anthem at Independence Day’, Associated Press (AP), 04 February 2020, 20200205170238
[32] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645; ‘Report of the Special Rapporteur on freedom of religion or belief A/HRC/40/58/Add.1’, United Nations Human Rights Council, 28 February 2020, p.8, 20200306152353
[33] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645; ‘Sri Lanka’s slide into authoritarianism’, Sri Lanka Campaign for Peace and Justice, 10 June 2020, 20200612151317; ‘Sri Lankan Presidential Task Forces are “grounded in Sinhala-Buddhist nationalist ethos” and signal deepening militarisation – PEARL’, Tamil Guardian, 4 June 2020, 20200605073146
[34] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[35] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[36] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.5, 20220303152645
[37] ‘Erasing Tamil Legacy in Sri Lanka’, Jurist, 02 February 2021, 20210609140642; ‘Sri Lanka erasing memories of massacres through monument demolition - C.V. Wigneswaran’, Tamil Guardian, 09 January 2021, 20210111134912
[38] ‘Sri Lanka: Tamil war monument to be rebuilt after hunger strike’, British Broadcasting Corporation (BBC), 11 January 2021, 20210112115515
[39] ‘Tamils’ war memorial in Sri Lanka’s Mullaitivu found vandalised’, Hindu, The, 13 May 2021, 20210521122112
In March 2021, the United Nations Human Rights Council passed a resolution condemning Sri Lanka for its failure to provide justice and accountability to victims of crimes committed during, and in the aftermath, of Sri Lanka’s civil war. The resolution establishes an accountability process to collect, analyse, and preserve evidence of international crimes committed in Sri Lanka for use in future prosecutions.[40] It follows President Rajapaksa’s decision in 2019 to withdraw from commitments to promote reconciliation and accountability made to the United Nations by the previous Sirisena government.[41] These commitments included the establishment of four ‘transitional justice mechanisms’: an Office on Missing Persons, an Office for Reparations, a truth and reconciliation commission and a tribunal to investigate and try civil war era crimes.[42] While the Sirisena government made progress on the first two, President Rajapaksa has also been accused of undermining this; for instance, through the appointment of close allies to oversee each organisation.[43] The government’s commitment to a domestic mechanism for reconciliation and accountability has been questioned.[44] Moves to amend the constitution to devolve more power to the Tamil and Muslim dominated north and east have also been shelved.[45] President Rajapaksa has also followed through with an election commitment to protect from prosecution or release military officers accused of civil war era crimes – including, in March 2020, a soldier sentenced to death for the murder of eight Tamil civilians.[46] In August 2021 Sri Lanka’s Attorney General said he would not pursue charges against former Navy Commander Wasantha Karannagoda relating to his alleged involvement in the abduction and murder of 11 Tamil youths in 2008 and 2009.[47] [48]
[40] ‘Sri Lanka: Landmark UN Resolution Promotes Justice’, Human Rights Watch (HRW), 25 March 2021, 20210329104943
[41] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[42] ‘Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4’, Verite Research, 01 March 2019, 20190318141458
[43] ‘New Appointments in Sri Lanka Torpedo what left of the Transitional Justice Mechanisms – Yasmin Sooka’, Sri Lanka Brief, 01 June 2021, 20210602114655
[44] ‘Human Rights and Democracy: 2020 Foreign, Commonwealth & Development Office report’, United Kingdom Foreign, Commonwealth ＆ Development Office, 08 July 2021, 20210715104548; ‘Sri Lanka faces renewed pressure over war crime accountability’, Nikkei Asian Review, 10 February 2021, 20210211145015
[45] ‘A Dangerous Sea Change in Sri Lanka’, International Crisis Group (ICG), 29 January 2020, 20200615164541; ‘Sri Lanka: Resolution 30/1 Implementation Monitor Statistical and Analytical Review No. 4’, Verite Research, 01 March 2019, 20190318141458; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, 20200221140652
[46] ‘Sri Lanka frees soldier who killed 8 Tamils’, Hindu, The, 27 March 2020, 20200330121709
[47] ‘Will not proceed with charges against Karannagoda, AG informs court’, Colombo Page, 04 August 2021, 20210805114734; ‘Sri Lanka: Authorities falter on accountability in ‘Navy 11’ case’, Amnesty International, 04 August 2021, 20210805112632
[48] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp.1–5
…
POLITICAL OPINION
Tamil political party supporters
Tamil parties are generally able to operate freely and contest elections, although there have been increasing reports of the monitoring and harassment of hard-line parties. August 2020 parliamentary elections saw a fragmenting of the Tamil vote, with an increase in votes for both government aligned parties[49] and a corresponding growth in support for hard-line Tamil parties seeking greater autonomy for the country’s north-east. [50] The Tamil National Alliance (TNA) remains the largest single Tamil party, but saw its share of seats drop from 16 in the last parliament to 10.[51] While widely considered to be a moderate party, in December 2020, Public Security Minister Sarath Weerasekara said that a failure to ban the TNA following the end of Sri Lanka’s civil war had been a mistake, and accused the party of encouraging the resurgence of the LTTE.[52] On 6 August 2020, Sri Lankan police broke up a gathering outside a Jaffna election office where TNA members were engaged in an internal party dispute over preferential votes.[53] However, in general there have been few reports of political violence against party members in recent years.[54] There is some limited freedom to express Tamil nationalist ideas;[55] however, more hard-line Tamil parties, including Tamil National People’s Front (TNPF) members involved in planned Remembrance Day and Martyrs Day activities in 2020, have reported recent harassment on the part of Sri Lankan authorities.[56] More generally, civil society organisations state that systemic discrimination negatively affects Tamils’ political participation.[57] [58]
[49] ‘Sri Lanka’s 2020 Parliamentary Election Results – Analysis’, Eurasia Review, 18 August 2020, 20200818104748; ‘Rajapaksa Rule’, Foreign Policy, 14 August 2020, 20200817165533; ‘Incident report - bomb blast. (LTTE, EPDP, Devananda). Cable CL 38062.’, CX11714; ‘The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups’, Canada: Immigration and Refugee Board of Canada (IRB), 17 February 2012, CX288326
[50] ‘Sri Lanka’s 2020 Parliamentary Election Results – Analysis’, Eurasia Review, 18 August 2020, 20200818104748
[51] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.18, 20211223094818; ‘Non-career lawmakers secure political authority’, Daily Mirror (Sri Lanka), 13 August 2020, 20200813135432
[52] ‘Failure to proscribe TNA after the war was a mistake: Sarath Weerasekara’, Daily Mirror (Sri Lanka), 04 December 2020, 20201204142424
[53] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount’, Tamil Guardian, 06 August 2020, 20200807130249; ‘Internal strife within ITAK takes disturbing turn’, Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[54] ‘Sri Lankan police attack Tamils in Jaffna as frustration mounts over recount’, Tamil Guardian, 06 August 2020, 20200807130249; ‘Internal strife within ITAK takes disturbing turn’, Daily Mirror (Sri Lanka), 29 August 2020, 20200902130420
[55] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.77, 20210601113225
[56] ‘Tamil political party repeatedly harassed by Sri Lankan police’, Tamil Guardian, 19 February 2020, 20200221135103; ‘Sri Lanka cites COVID-19 to order TNPF leaders into isolation ahead of Mullivaikkal Remembrance Day’, Tamil Guardian, 17 May 2020, 20200518074536; ‘Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations’, Tamil Guardian, 27 November 2020, 20201130114324
[57] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827
[58] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 - Common Claims – Sri Lanka, pp. 9–10
…
Former LTTE members
Those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. Authorities distinguish between so-called ‘low profile’ and ‘high profile’ former LTTE members when assessing their potential security risk.[59] ’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.[60] ‘High-profile’ former LTTE members include individuals who held senior positions in the LTTE’s military wing and civilian administration, and those suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.[61] According to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report, low-profile LTTE members who come to the attention of the Sri Lankan authorities – particularly if they are suspected of having a combat role during the war – would likely be detained for questioning and may be sent for rehabilitation.[62] Following their release, a low-profile former LTTE member may be monitored but would not generally be prosecuted.[63] The number of high-profile former LTTE members living in Sri Lanka is assessed to be small and the majority have already come to the attention of authorities.[64] Any remaining high-profile former LTTE members who came to the attention of the authorities would likely be arrested, detained and prosecuted, and, once they had completed their sentences, would likely be subjected to some form of rehabilitation and continued monitoring.[65]
[59] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.35, 20191104135244
[60] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[61] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[62] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[63] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.26, 20211223094818
[64] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[65]‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.7, 20220303152645; ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–26, 20211223094818
Sri Lankan authorities may monitor returning former Liberation Tigers of Tamil Eelam (LTTE) members. The LTTE no longer exists as an organised force in Sri Lanka,[66] and only a few incidents involving former LTTE members have been recorded since the end of the war.[67] For example, in December 2020 a Tamil family, including a woman alleged to be a former LTTE cadre, was stopped while travelling from Kandy to Jaffna in possession of what police said was an explosive, while in July 2020 there was a failed attempt by a former LTTE cadre to carry out a suicide bombing.[68] Nevertheless, the government is sensitive to the potential re-emergence of the LTTE,[69] and former LTTE members may be monitored.[70] Northern Province sources allege that security services’ intimidation of ex-LTTE members has increased since President Rajapaksa’s Sri Lanka Podujana Peramuna (SLPP) swept local government elections in February 2018,[71] while there were reports following the 2019 Easter Sunday bombings that Sri Lankan security forces sought to co-opt ex-LTTE members as informants.[72] The extent of monitoring typically depends on an individual’s seniority within the LTTE; ongoing involvement with politically-sensitive issues, including protests relating to disappeared persons; and links to the Tamil diaspora, particularly elements considered radical by the government.[73] For example, in June 2020 a prominent Norway-based activist was reportedly detained at Colombo’s airport when seeking to leave Sri Lanka – he was released after questioning.[74] Defence Secretary Kamal Gunaratne claimed in August 2020 that remnants of the LTTE were attempting to recruit new supporters and vowed the government would not permit room for separatism.[75]
[66] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[67] E.g. ‘Ex-LTTE cadre, wife and sister arrested with firearms, explosives’, Colombo Page, 13 October 2019, 20191014130858; ‘An Accidental Bomb Blast Identified an Active LTTE Intelligent Agent’, Asian Tribune, 07 July 2020, 20200709151217; ‘Tamil family arrested by Sri Lankan police’, Tamil Guardian, 08 December 2020, 20201209152104; ‘Sri Lankan intelligence arrest two Tamils for allegedly manufacturing firearms’, Tamil Guardian, 22 October 2020, 20201023103006
[68] ‘Tamil family arrested by Sri Lankan police’, Tamil Guardian, 08 December 2020, 20201209152104; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.74, 20210601113225
[69] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[70] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.19, 49, 20211223094818 ; ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.16, 20200123162928
[71] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.15, 20200123162928
[72] ‘Sri Lankan military orders former LTTE cadres to become informants’, Tamil Guardian, 1 May 2019, 20190710121751
[73] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–27, 20211223094818 ; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225
[74] ‘Key LTTE activist in Norway - Nadaraja Sethuparan arrested at BIA’, Asian Tribune, 23 June 2020, 20200624105850
[75] ‘Sri Lankan Defence Secretary claims ‘need to eliminate separatist ideology’ in North-East and Tamil diaspora’, Tamil Guardian, 17 August 2020, 20200818105547
Individuals advocating more broadly for Tamil separatism may also attract the attention of Sri Lankan authorities.The majority of available sources indicate that those who hold a ‘significant role’ in Tamil separatist activities: e.g. through holding leadership positions in Tamil diaspora groups, particularly those deemed to hold radical views; those formerly part of the LTTE, particularly in high-profile roles; those suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood would likely be of particular interest to the Sri Lankan authorities.[76] However, a May 2021 UK Upper Tribunal decision ruled that lower profile individuals active in the diaspora who express a belief in Tamil separatism may also attract attention,[77] and that Sri Lankan authorities draw no material distinction between violent separatism, as espoused by the LTTE, and non-violent advocacy for that end.[78] Individuals seeking to commemorate the end of the war and LTTE combatants killed during it have reported security forces surveillance, have been prevented from doing so, and in some cases have faced arrest – including under PTA.[79] For example, Martyrs Day commemorations (marked in honour of Tamil fighters killed during the war) were held in 2019, following the change of government, although there were incidents of harassment by local authorities, along with the arrest of some individuals involved in preparations.[80] However, commemorations were banned in 2020, with police citing a prohibition on gatherings due to COVID-19.[81] Some commemorations went ahead in spite of the ban, and there were a number of reports of these being disrupted or of those responsible being arrested under the PTA.[82] Authorities have arrested at least 70 people under the PTA for sharing commemorative social media posts containing LTTE images or Tamil nationalist iconography.[83]
[76] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, pp.25–27, 20211223094818; ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.119–120, 20210601113225
[77] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, e.g. pp.133–134, 142–143, 20210601113225
[78] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.76, 20210601113225
[79] ‘Sri Lanka maintains detention of Tamils commemorating Mullivaikkal’, Tamil Guardian, 29 July 2021, 20210730104553; ‘Arrests in Jaffna as Sri Lankan police block Thileepan commemorations’, Tamil Guardian, 15 September 2020, 20200916075319; ‘Sri Lankan police crackdown on rememberance of Thileepan’, Tamil Guardian, 16 September 2020, 20200921124107; ‘Repression of Dissent in Sri Lanka: 1st – 31st May 2020’, INFORM Human Rights Documentation Centre, 29 June 2020, pp.3, 13, 20200702160949; ‘Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka’, OHCHR, 18 February 2020, p.7, 20200221140652; ‘Good Governance allows the Martyrs Day – ‘Maveerar Naal’ celebrations on the sly’, Asian Tribune, 26 November 2017, CXC90406618275; ‘Thousands attend Maaveerar Naal commemorations at destroyed Thuyilum Illam in Kilinochchi’, Tamil Guardian, 27 November 2017, CXC90406620312; ‘Martyrs Day’ events end in N-E’, Ceylon Today, 28 November 2017, CXC90406620309; ‘LTTE’s martyrs remembered at Valvettithurai’, Valvettithurai.org, 21 November 2017, CISEDB50AD7706; ‘Defying Confusing Magisterial Orders Prabhakaran’s Birthday Celebrated Widely’, Colombo Telegraph, 27 November 2018, CXBB8A1DA39486; ‘Mahaveer Naal celebrated without any major incidents in the North’, Asian Tribune, 28 November 2017, CXC9046618423; ‘Sri Lankan regime backing away from conflict resolution vows’, Asia Times, 5 December 2017, CXC90406618789
[80] ‘Tamil nation commemorates Maaveerar Naal 2019’, Tamil Guardian, 27 November 2019, 20191128160424; ‘Trouble brews in post-election Sri Lanka’, Aljazeera, 08 December 2019, 20191209095947
[81] ‘Sri Lanka: 2020 Heroes’ day commemorations are banned in North and East’, Sri Lanka Brief, 21 November 2020, 20201126120248
[82] ‘Sri Lankan police enter TNPF offices in Jaffna to stop Maaveerar Naal commemorations’, Tamil Guardian, 27 November 2020, 20201130114324; ‘Priest arrested for organizing LTTE Heroes’ Day commemorations’, Colombo Page, 28 November 2020, 20201130113318; ‘Maaveerar Naal marked by Tamil politicians across the North-East’, Tamil Guardian, 27 November 2020, 20201130113709
[83] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
In March 2021, the Rajapaksa government announced it would establish new rehabilitation centres to ‘de-radicalise’ individuals promoting extremist ideologies. The plan, part of regulations enacted under the PTA, reportedly gives the government the power to arrest and transfer people to a rehabilitation centre for up to two years.[84] An extraordinary gazette dated 12 March 2021 said that this will apply to individuals suspected of holding ‘radical’ or ‘extremist’ views or who cause or plan acts of violence or religious, racial, or communal disharmony.[85] Authorities will be able to choose rehabilitation in lieu of prosecution,[86] and in May 2021, a close Rajapaksa ally was appointed as ‘rehabilitation facilitator’ for the north and east.[87] A Supreme Court ruling in early August 2021 temporarily suspended the plan while it considers arguments against it.[88] Critics, including the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 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.[89]
[84] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; ‘What is behind the anti-Muslim measures in Sri Lanka?’, Aljazeera, 12 April 2021, 20210413125122
[85] ‘Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis’, Eurasia Review, 15 March 2021, 20210316115940
[86] ‘Sri Lanka To Set Up Rehabilitation Centers For Extremists – Analysis’, Eurasia Review, 15 March 2021, 20210316115940
[87] ‘Rajapaksa ally appointed as rehabilitation facilitator for North-East of Sri Lanka’, Tamil Guardian, 05 May 2021, 20210506220746
[88] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645; ‘Supreme Court suspends presidential order for de-radicalization of extremists’, Colombo Page, 05 August 2021, 20210806143527
[89] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
The Prevention of Terrorism Act (PTA) has been used to arrest hundreds of mostly Muslim Sri Lankans as part of investigations into the 2019 Easter Sunday bombings, although most have now been released. Prior to the Easter Sunday bombings, government statistics indicated that the majority of individuals held under the PTA were Tamils detained in many cases for years in connection with serious security offences.[90] Since the Easter Sunday bombings, hundreds of Muslims have been arrested under the PTA, some without evidence.[91] Government data indicate that, as of 2 December 2021, 333 people were detained under the PTA, of whom 16 were convicted, 11 were under appeal and the remaining were detained as suspects.[92] Eighty-one PTA detainees have been released since June 2021.[93] The Human Rights Commission of Sri Lanka recorded 109 arrests under the PTA in 2021.[94]
[90] ‘Sri Lankan Minister claims all pending pre-2016 PTA cases ‘to be concluded in next three months’, Tamil Guardian, 15 August 2021, 20210819124012; Country Information Request CI181005093018339 – Current status of PTA in Sri Lanka’, Department of Foreign Affairs and Trade, 5 November 2018, CXBB8A1DA37923; ‘UN Special Rapporteur (Ben Emmerson) on human rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017, p.2, CISEDB50AD5239; ‘PTA suspended pending passage of new Counter Terrorism Law’, Island, The, 8 February 2017, CXC90406620371; ‘Human rights and counter terrorism: UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism concludes visit to Sri Lanka, Preliminary findings of the visit to Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 14 July 2017, CXC90406610453; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5, CIS7B83941158; ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’, UN Human Rights Council, 23 July 2018, p.7, CIS7B839419490; ‘Police arrest 2289 over Easter Sunday terror attacks – Police Spokesman SP Ruwan Gunasekara’, The Sunday Reader, 3 June 2019, 20190711142139; ‘Over 2,280 suspected arrested since Easter Sunday terror attacks’, Daily News, 5 June 2019, 20190710120316; ‘Brother of Suicide Bomber Arrested’, Daily News, 10 May 2019, 20190510123043; ‘Govt urged to review ‘security reforms’ as 60 suspects taken in under PTA’ The Island, 25 April 2019, 20190508133730; ‘Official list of detainees under PTA’, Ceylon Today, 30 July 2017, CXC90406612037; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.13, 20210203162131
[91] ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.6, 20220209162013
[92] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[93] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.10, 20220303152645
[94] ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013
Torture and ill-treatment of detainees has been most closely associated with detention under the PTA but can also occur during general police investigations. The systemic use of torture by police is well-documented, and is particularly associated with those arrested and detained under the PTA.[95] Reports indicate that ill-treatment and torture by the police also occurs in non-PTA cases in order to extract confessions or elicit evidence against the accused, and has resulted in deaths.[96] While the risk of torture has decreased since the end of the war, DFAT assesses that it is still used, including as a routine tool of policing.[97] Multiple local sources have told DFAT that police routinely mistreat suspects during criminal investigations, including using torture to extract confessions.[98] DFAT states that torture, where it occurs, is not confined to a particular geographic region or ethnic group, but is a nationwide problem which affects all communities; however, it is more likely to affect poor and marginalised groups, such as members of criminal groups and LGBTI individuals.[99] DFAT assesses that, while Sri Lankans face a low risk of torture overall, those detained face a moderate risk of torture, particularly if they are poor, associated with criminal elements, or are perceived to challenge the government.[100] A number of human rights groups claim that Tamils have been disproportionately affected and police are generally not held accountable.[101] Tamil asylum seekers continue to make periodic claims of torture on account of their ethnicity and accusations of ties to the LTTE.[102] DFAT states that few reports of torture are investigated or verified within Sri Lanka, making it difficult to determine the exact prevalence of torture.[103] In recent years, the Human Rights Commission of Sri Lanka (HRCSL) has carried out routine visits to detention sites; however, in its December 2021 report, DFAT was not able to confirm if these visits continue.[104] Local sources have told DFAT that, since the passage of the 20th Amendment to the Constitution, the HRCSL is no longer truly independent and much less effective in its anti-torture role.[105]
[95] ‘BTI 2022 Country Report - Sri Lanka’, Bertelsmann Stiftung, 23 February 2022, p.14, 20220224093201; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.10, 20210203162131; ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.6, 20210401122412
[96] ‘Country Reports on Human Rights Practices for 2020 - Sri Lanka’, US Department of State, 30 March 2021, p.6, 20210401122412; ‘Promotion reconciliation, accountability and human rights in Sri Lanka: Report of the Office of the High Commissioner for Human Rights’, OHCHR, 27 January 2021, p.10, 20210203162131’
[97] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[98] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[99] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.40, 20211223094818
[100] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[101] ‘Freedom in the World 2021 - Sri Lanka’, Freedom House, 03 March 2021, 20210304102827; ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, p.507, NGED867A63
[102] ‘Sri Lanka: Torture and Sexual Violence by Security Forces 2020–2021’, Yasmin Sooka and Frances Harrison, International Truth and Justice Project, September 2021, pp.24–27, 20210909092512
[103] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[104] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
[105] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.41, 20211223094818
The government has introduced a bill to amend the PTA which critics say is ineffective and does not adequately address human rights concerns. In January 2022, the government gazetted a bill to amend the PTA.[106] The United Nations High Commissioner for Human Rights and civil society groups have criticised the bill, calling for the PTA to be repealed and a moratorium on its use in the interim.[107] They said the proposed amendments failed to address aspects of the PTA which have enabled human rights abuses and the targeting of minorities, critics and journalists.[108] These include: a vague, overly broad offence of terrorism; the admissibility of confessions despite evidence of torture of PTA detainees; a lack of due process safeguards at the time of arrest; the use of arbitrary arrest and prolonged detention, and a lack of judicial scrutiny.[109]
[106] ‘Constitutionality of PTA amendment bill challenged in SC’, Daily Mirror (Sri Lanka), 14 February 2022, 20220218114502; ‘“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act’, Human Rights Watch (HRW), 07 February 2022, p.1, 20220209162013
[107] ‘Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights’, United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.9, 20220303152645; ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.3, 20220218110132; ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
[108] ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
[109] ‘Sri Lanka: End the use of and repeal the draconian PTA’, Amnesty International, 17 February 2022, p.3, 20220218110132; ‘Civil Society statement on proposed amendments to Prevention of Terrorism Act’, Daily FT, 08 February 2022, 20220216170455
Fear of harm from paramilitary groups or gangs
Paramilitary groups have disbanded although some gang activity continues in the north. At the conclusion of the civil war, military intelligence and security personnel, sometimes allegedly working together with paramilitary groups, were responsible for the detention of civilians accused of having LTTE connections.[110] Although paramilitaries are no longer active, there are reports that former members of Tamil paramilitary groups are engaged in criminal activities.[111] Since mid-to-late 2017, there have been periodic reports of violent attacks in Jaffna and the Northern Province committed by members of the so-called ‘Aava’ (or ‘Ava’) gang,[112] while there have also been reports of substantial gang violence more broadly in the north.[113] Some Tamil sources say that the Aava gang is enabled by Sri Lanka military intelligence, but DFAT has not been able to verify this.[114] Several former paramilitary leaders are involved in mainstream politics. Following Gotabaya Rajapaksa’s election as president in November 2019, former paramilitary leader Douglas Devananda was appointed fisheries minister; another former paramilitary leader, Pillayan, was elected in August 2020 parliamentary elections despite being in remand custody over the killing of a political opponent, and charges against him were dropped in January 2021.[115] Karuna Amman, former leader of the paramilitary Karuna Group, and later the Tamil party Tamil Makkal Viduthalai Pulikal (TMVP), is now a member of the Sri Lanka Freedom Party (SLFP), part of the government’s ruling coalition.[116] Overall, incidents of extra-judicial killing, disappearances and abductions, including incidents of violence involving former LTTE members, have decreased considerably since the end of the civil war.[117] [118]
…
Complementary protection
Failed asylum seekers who departed illegally
Failed asylum seekers who depart Sri Lanka irregularly by boat are generally considered to have committed an offence under the Immigrants and Emigrants Act. Under the Act, Sri Lankan citizens must only leave Sri Lanka from approved ports of departure using a valid Sri Lankan passport.[119] On arrival at the airport in Colombo, returnees are interviewed by Sri Lankan Immigration; depending on their circumstances of their departure and their history, other agencies such as the Criminal Investigations Department (CID), the Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI) may also conduct interviews.[120] Returnees who departed Sri Lanka illegally will be referred to the Criminal Investigations Department (CID) at the airport and charged accordingly.[121] Once charged, returnees are taken to Negombo Magistrate’s Court where they are typically bailed and released.[122] The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances.[123]
Returnees who illegally departed Sri Lanka are fined. Although it is theoretically possible for those convicted of illegal departure to face a custodial sentence, in practice, according to local sources, a fine is imposed, typically LKR 50,000 - 200,000 (AUD350-1400).[124] Those who are unable to pay the fine may pay in instalments, but if still unable, may be imprisoned for 14 days.[125] Fines may be issued to act as a deterrent towards joining boat ventures in the future.[126] Children over the age of 12 can be charged with breaking the Immigration and Emigrants Act, as long as they were 12 or over at the time of the offence.[127] DFAT is not aware of any returnees in 2021 being detained for matters other than illegal departure, although the number of returnees was reduced due to COVID-19.[128] DFAT is also not aware of any returnees being mistreated at the airport.[129]
Organisers and facilitators of people smuggling ventures face criminal prosecution. Persons who departed illegally are interviewed by authorities at the airport upon arrival in Sri Lanka; and that information can be used to identify captains or organisers of people smuggling ventures.[130] Facilitators and organisers of irregular migration from Sri Lanka, including captains and their crew, may be charged with an offence under section 45 C of the Immigrants and Emigrants Act.[131]They are typically refused bail.[132] Those found guilty normally receive prison sentences of between one and three years depending on the extent of their involvement, with sentences usually closer to three years.[133] Individuals prosecuted are typically limited to on-board crew, including those skippering and operating asylum-seeking vessels.[134] However, authorities have also prosecuted high level syndicate leaders linked to people smuggling ventures.[135]
Sri Lankan authorities collect and maintain intelligence on returnees, including through the use of ‘stop’ and ‘watch’ electronic databases accessible at Colombo airport. Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department and sometimes the Terrorism Investigation Division process returnees upon arrival at Colombo airport.[136] Those with a former LTTE connection are likely to be questioned, although sources indicate this would depend on the case.[137] These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters.[138] Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents.[139] Where there are outstanding criminal warrants, criminal procedures will apply.[140] ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport.[141] Those who appear on this list will reportedly be detained at the airport.[142] ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.[143] A May 2021 UK Upper Tribunal decision found that additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on one of these lists.[144] [145]
…
[110] ‘Written statement* submitted by ASSOCIATION CULTURELLE DES TAMOULS EN FRANCE, a non-governmental organization in special consultative status’, Association Culturelle Des Tamouls En France, United Nations Human Rights Council, 25 February 2022, p.2, 20220303165142; ‘Country Reports on Human Rights Practices for 2015 – Sri Lanka’, US Department of State, 13 April 2015, p.7, OGD95BE926320
[111] ‘Focus Sri Lanka’, State Secretariat for Migration, Switzerland, 29 July 2021, p.8, 20220304153758
[112] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘We will not allow Aava group to raise its head: Law & Order Minister’, Lanka Business Online, 17 November 2017, CXC90406617954; ‘Sri Lanka police arrest six members, including leader of criminal Ava gang’, Colombo Page, 7 August 2017, CXC90406611722
[113] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818; ‘North in the grip of armed gangs again’, Sunday Times (Sri Lanka), 11 July 2021, 20220304162027
[114] ‘Sri Lankan police arrest Tamil youth over alleged gang affiliation’, Tamil Guardian, 12 October 2021, 20211013101949; ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[115] ‘Jailing Activists and Pardoning Murderers: Monitoring Ten Issues of Concern in Sri Lanka in 2021’, Sri Lanka Campaign for Peace and Justice, February 2022, p.13, 20220218122156; ‘Sri Lanka’s interim cabinet under new President sworn-in’, Colombo Page, 22 November 2019, 20191231122548; ‘Four members of Rajapaksa family find place in Sri Lanka cabinet’, Aljazeera, 12 August 2020, 20200813134733; ‘Court allows remanded MP-elect Pillayan to attend sessions of new parliament’, Colombo Page, 18 August 2020, 20200819210740
[116] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.25, 20211223094818
[117] ‘DFAT Country Information Report - Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.17, 20211223094818
[118] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 13–19
[119] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Immigrants and Emigrants Act (Sri Lanka), No. 20 of 1948 (1 November 1949), CISBE8E6BE638
[120] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[121] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[122] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[123] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[124] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[125] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[126] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[127] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.48, 20211223094818
[128] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[129] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[130] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘Country Information Request No. LKA15302 and LKA15586: Treatment of suspected people smugglers’, Department of Foreign Affairs and Trade, 1 January 2014, CX317331
[131] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[132] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[133] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 04 November 2019, p.68, 20191104135244
[134] ‘Asylum seekers transferred at sea by Australia to face court in Sri Lanka’, Guardian (Unlimited) (UK), 20 February 2015, CXBD6A0DE1686
[135] ‘The risky ride to nowhere’, Sunday Observer, 10 April 2016, CX6A26A6E4697
[136] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818; ‘LKA200301.E Sri Lanka: Treatment by authorities of returnees to Sri Lanka, including failed refugee claimants and family members of persons who have left Sri Lanka and claimed refugee status (2017–August 2020)’, Immigration and Refugee Board of Canada, 04 August 2020, 20201019173203
[137] ‘Report of a Home Office fact-finding mission to Sri Lanka’, UK Home Office, 20 January 2020, p.18, 20200123162928
[138] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[139] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.47, 20211223094818
[140] ‘Country Policy and Information Note Sri Lanka: Tamil Separatism’, UK Home Office, May 2020, p.73, 20200527172009
[141] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[142] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, p.119, 20210601113225; ‘Country Policy and Information Note. Sri Lanka – Tamil Separatism’, Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[143] ‘DFAT Country Information Report – Sri Lanka’, Department of Foreign Affairs and Trade, 23 December 2021, p.24, 20211223094818
[144] ‘KK RS (ANONYMITY DIRECTION MADE) AND SECRETARY OF STATE FOR THE HOME DEPARTMENT’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, pp.118–119, 20210601113225; ‘Country Policy and Information Note. Sri Lanka – Tamil Separatism’, Version 7.0, UK Home Office, 17 June 2021, p.8, 20210624114752
[145] Country of Origin Information Services Section of the Department of Home Affairs dated 10 March 2022 – Common Claims – Sri Lanka, pp 22–24
Hearing, credibility, post-hearing submission, findings, and assessment
117. The 2012 positive determination that the applicant was owed protection was on the ground of a less than highly likely, but not remote chance, that members of the Karuna group with whom he had adverse encounters in his local area could inflict requisite harm on the applicant on return. This included on the basis of independent information that paramilitary groups still operated in the area. Current independent information indicates that paramilitary groups have now disbanded. Additionally, more than 13 years have passed since the events in question. The Tribunal is not satisfied that on return to Sri Lanka today the applicant would be remembered or, even if so, targeted by past members of the Karuna group as a result of what occurred in the late 2000s.
118. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on his past low-level assistance to the LTTE and adverse interactions with the Karuna group.
119. The Tribunal also considers cumulatively whether the applicant faces harm based on his past low-level assistance to the LTTE and adverse interaction with the Karuna group combined with the fact that the applicant is Tamil, a young Tamil male, from the East, having lived in Australia for many years, having sought asylum in Australia and as a result of returning to Sri Lanka as a failed asylum seeker. The Tribunal does not consider, including in the light of recent independent information, that the applicant faces requisite harm on these grounds considered cumulatively. The Tribunal does not consider that as a Tamil the applicant would be imputed by authorities of a degree of support for the LTTE that would cause adverse interest in him.
120. The Tribunal turns to claims of requisite harm as a result of the process the applicant will go through in terms of being charged for having left Sri Lanka unlawfully, which the Tribunal accepts will happen.
121. The applicant’s representative has argued that the 2019 independent information that detention on remand only occurs for around 24 hours may not necessarily still be the case, and provides reports from 2015 and from February 2019 of detention on remand continuing. Reference is made to sources indicating deliberate harm suffered by those arrested on return to Sri Lanka.
122. The Tribunal considers that if it were the case that individuals in detention on remand waiting for a magistrate were now in detention for more extensive periods than clearly the case in 2019 that there would be authoritative independent evidence of this, including having been noted in the most recent DFAT report.
123. The Tribunal considers the if the applicant were detained on return on remand waiting to see a magistrate it would only be for a matter of days.
124. The weight of independent information before the Tribunal does not, in the Tribunal’s view support a claim that there is a real chance that the applicant would be deliberately harmed be it in detention on remand. The Tribunal considers that the weight of independent evidence indicates that a real risk of serious or significant harm exists where there is specific suspicion of high level LTTE activity or participation in post-conflict separatist activity thus resulting in intense questioning. It is during this process of intense questioning that there exists a real chance of serious of significant harm by authorities. The Tribunal does not consider that there would be this level of suspicion directed towards the applicant.
125. The Tribunal considers the applicant on return to Sri Lanka will be subject to a law of general application which would be applied in a non-discriminatory manner. The fact of the applicant being charged and being on remand in detention for a few days before being brought before a magistrate and later facing non-discriminatory treatment would be the consequence of the law of general application and therefore not meet protection criteria.
126. In terms of complementary protection, harsh prison conditions would not meet relevant defined categories of significant harm because there would be no intentionality by anyone to harm the applicant. The Tribunal is not otherwise satisfied that there is a real chance that the applicant would deliberately be harmed during the process of arrest or any short period in remand.
127. Given these findings the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of what will happen to him as a result of being charged for leaving Sri Lanka unlawfully.
Consideration of referral for Ministerial intervention
128.
The Tribunal considers whether it should recommend Ministerial intervention pursuant to
s 417 of the Act. The Tribunal has taken note of the Minister’s guidelines on Ministerial powers in determining whether to make a recommendation.
129. The guidelines include the following criteria as to the use of intervention powers:
·where there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
·where there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
130. Submissions are extracted above in relation to a referral for Ministerial intervention. The Tribunal largely agrees with those submissions. The Tribunal accepts that the applicant is in a genuine relationship with his wife, an Australian citizen. The Tribunal is satisfied that the applicant’s wife recently suffered a miscarriage. Evidence of the marriage and a stillbirth have been provided. The Tribunal accepts that the applicant financially supports his wife and the payment of their home mortgage through his employment.
131. The Tribunal considers very significant emotional and financial consequences for the applicant’s wife, if the applicant is forced to return Sri Lanka. The emotional consequences to the applicant’s wife are significantly exacerbated by her having recently miscarried her child and being deprived of the support of her husband during this very difficult time.
132. The Tribunal therefore considers that this is a matter in which there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm, and continuing hardship to the applicant’s wife and the family unit between the applicant and his wife.
133. Therefore, this is a matter which the Tribunal recommends should be referred for Ministerial intervention under s 417 of the Act with the recommendation that the Minister intervene to allow the applicant to remain in Australia.
Conclusion
134. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
135. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
136. For the reasons indicated, the Tribunal considers that the matter should be referred for consideration for Ministerial intervention pursuant to s 417 of the Act.
DECISION
137. The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…
< ditedVersion.docx>
[157] Ibid 7, [32]
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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