1726392 (Refugee)

1726392 (Refugee) [2023] AATA 990 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Shamili KUGATHAS (MARN: 1798225)
CASE NUMBER: 1726392

COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Sean Baker
DATE OF ORAL DECISION:  15 February 2023
DATE OF WRITTEN STATEMENT:         21 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 February 2023 at 9:47am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – political opinion – Liberation Tigers of Tamil Eelam (LTTE) worker – advocating for Tamil rights – pro-Tamil separatist – organisations proscribed by the Sri Lankan government – continued surveillance of Tamils – physical assault – torture – Tamil political activity in Australia – fear of detention – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 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 25 January 2016. The delegate refused to grant the visa on the basis that they did not accept that there was a real chance the applicant would be persecuted, nor a real risk he would suffer significant harm if he was returned to Sri Lanka.
The applicant appeared before the Tribunal on 15 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 15 February 2023.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Certificate
On the Department file is a certificate notifying the Tribunal that s. 438(2)(b) applies to several documents.
I have carefully considered and accept that this information was given in confidence by another party, that there was a request and reasonable expectation for confidentiality. As such I have not disclosed this information to the applicant.
Having reviewed the information I have concluded that it is not relevant to the review and therefore did not put the information or the gist of the information to the applicant under s. 424A/AA.
Vulnerability
I was very aware that the applicants have experienced significant trauma in Sri Lanka. I have had regard to the [Welfare Service 1] letters and other medical information on the Department file. The Tribunal identified the applicants as vulnerable applicants. Working under the Tribunal Guidelines on Vulnerable Persons, I listed these matters for hearing as soon as they were constituted to me, mindful of the already long delay before the applicants were provided with some degree of certainty. I made reasonable adjustments to the hearing in line with our guidelines, including having the hearing combined so that the applicants could support each other, allowing them to give evidence concurrently, taking breaks whenever they needed, creating an open, reassuring, informal and supportive environment as far as possible.
The applicants demonstrated their ability to engage in the hearing and capacity by reacting appropriately to questions, seeking clarification, and making follow on comments. I assessed that the applicant had capacity to give evidence and engage in the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant would be persecuted if returned to Sri Lanka, or a real risk he would suffer significant harm if he was removed from Australia to Sri Lanka. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Having regard to the applicant’s narrative and the evidence before me including the applicant’s Sr Lankan ID card and birth certificate, I accept that the applicant is who he claims to be and is a national of Sri Lanka, which is his receiving country.
Claims and evidence
The applicant has provided claims in his statements and applications dated 2012, 2016, 2017 and February 2023. In these documents he has presented a consistent narrative of his life and what happened to him in Sri Lanka and his life in Australia since. The exception to this is his involvement with the LTTE which I address below.
The applicant was born in [City 1]. He attended school until [grade] and then he left school to join the LTTE. He was trained and then worked for the LTTE. In 2000 he was moved to the [named] division of the LTTE as his village was strategically important. He was trained at [a named town]. He was situated at the [named] checkpoint in [City 1] which was on the border between the LTTE controlled and army-controlled areas and he monitored who entered and left the LTTE controlled area. He would also use village paths to pass into the army-controlled area and monitor the army camps in the area. He would also monitor other areas including checkpoints and other army-controlled areas. He did this work until the ceasefire in 2002.
The delegate accepted that the applicant had trained and worked for the LTTE between 1989 and 2002, despite the applicant disclosing this late in the process. I have considered the late disclosure and accept that the applicant has provided cogent reasons why he did not disclose this information earlier. I have also placed significant weight on the medical evidence, including the letter from the applicant’s doctor, [Doctor A], dated 29 April 2022 which notes scars which in their opinion are consistent with gunshot injuries. I have also had regard to country information in considering these claims. Tamils from [City 1] were often recruited to the LTTE. I also note my findings below about the applicant’s genuine beliefs about the Sri Lankan government, the treatment of Tamils and Tamil independence which I find comes from their personal experiences in Sri Lanka. Having spoken with the applicant about this period at the hearing I accept that the applicant was trained and worked for the LTTE in this period.
During the ceasefire he moved back to his family home and worked on the family rice farm. He did however continue to monitor the Sri Lankan armed forces.
In 2006 he was asked to work as [an occupation 1] and [an occupation 2] in [Town 1] at the LTTE [agency]. He was asked to monitor Sinhalese and Muslim contractors to see if the Army had sent spies.
He was assigned to work with SLMM (the Sri Lankan Monitoring Mission) by the LTTE in around 2007. He was asked to be a spy and provide information on persons who visited the SLMM. The applicant had his photograph taken with other SLMM workers and it was through this photo that the Sri Lankan authorities were aware he had worked for SLMM.
I note that the delegate found the applicant to be elusive in his comments about this period. I did not find this to be the case. I found the applicant’s ability to provide detail and context about this period helpful. I note as above the medical evidence. I note also that his claims are consistent with available country information about renewed involvement of Tamil persons from his area in the conflict in support of the LTTE and consistent with my findings below about the applicant’s genuine beliefs about the Sri Lankan government, the treatment of Tamils and Tamil independence. I accept that the applicant worked in these roles to assist the LTTE as he has claimed.
In 2008 the conflict intensified and SLMM closed their offices. The applicant was required to travel to [City 1] and spy in the army-controlled areas. Before he was able to do so he had to move to other areas with his family. They were displaced and eventually ended up in [Camp 1] IDP camp in [City 1] in April 2009.
During this time the applicant’s wife worked for the TRO. I have had regard to her credible evidence on this as well as photographic evidence of same and accept that she worked in this period for the TRO.
The applicant told me around this time that two of his siblings were killed during bomb attacks by the Sri Lankan military at this time.
At the camp people were told to declare their LTTE involvement. The applicant did not immediately do so but was questioned by the CID in June 2009 and admitted he worked for SLMM. He was persistently questioned about the activities of LTTE members and their involvement with SLMM. The authorities believed and suspected he had worked for the LTTE, but he did not admit this. The applicant was interrogated all night and beaten and tortured for hours.
The applicant was forced to report to the CID officers twice a day and was continually beaten and tortured by Singhalese officers. He was threatened with being sent to [prison].
His wife was also questioned by the CID about her involvement with the TRO.
The delegate found that the applicant had been questioned at the camp but did not accept that he was continually interrogated, beaten or tortured. I find this conclusion curious, given the finding that the applicant had had some involvement with the LTTE even if limited on the delegate’s view, and the country information that beatings and other torture at camps including [Camp 1] at this time were routine. The delegate, in my view, has misapplied country information that the Sri Lankan authorities would follow a process in relation to moving those suspected of LTTE links and trat such persons in a defined way. It is vital to remember the context of the immediate post-war aftermath and that the authorities were not consistent in their approaches to detainees suspected of LTTE involvement. The applicant has been consistent in his claims about his treatment at the camp, including torture. Considering information on the presentation of persons who have been subjected to torture, and having regard to the numerous medical reports, including most recently the counselling support letter for the applicant from [Welfare Service 1] dated 31 January 2023 noting that based on a psychological assessment the applicant was exposed to extreme traumatic events, I accept the applicant’s testimony of his treatment at the camp, including beating, interrogations, and torture.
In August 2009 the applicant’s wife became seriously unwell and she was taken to [City 1] hospital. She was assisted to escape from the hospital by relatives.
The applicant escaped the camp with the help of his cousin. The applicant and his wife were reunited in [a location in] [City 1] where they stayed for a few weeks. They eventually went to [City 2] where his wife’s sister lived.
In January 2010, his wife was abducted by the Karuna group. His wife escaped around midnight and went to her sister’s friend’s place in [Town 2]. They stayed with this person until they departed for [Country 1].
The CID have been contacting the applicant’s parents and making regular visits to their home.
I accept that the applicant was able to escape the camp as described. I accept that he and his wife moved around and were eventually able to leave Sri Lanka.
I have considered the concerns raised by the delegate in relation to the applicant’s passport, but I accept the applicant’s explanations for how and why he was able to acquire his passport.
In Australia the applicant has actively participated in events commemorating the LTTE and Tamil independence including Martyrs Day on November 27^th, Heroes’ Day celebrations, May 18th Remembrance Day, Kittu Remembrance Day, Black July, and Thileepan, Remembrance Day and Tamil Patriot Day. He provided copies of photographs at these events, and I have also seen and accept that photographs of the applicant at these events have been posted to [social media]. He states that he has a strong political opinion against the Sri Lankan Government and that he is a witness to the bomb blasts deliberately carried out by the Sri Lankan forces at the end of the war which killed thousands of Tamils including his relatives. He states that he believes the Sri Lankan Government committed genocide and war crimes and he strongly believes in the importance of attaining a Separatist Tamil State (Tamil Eelam). He goes on to state that as a Tamil living abroad, he feels a sense of social responsibility to create awareness about the genocide that happened to our race and the war crimes and human rights violations committed by the Sri Lankan Authorities.
At the hearing the applicant described his involvement in detail including the work he does [and decorating for the various events and commemorations. He also spoke about his attendance at protests and rallies against the Sri Lankan government. I have seen pictures of both his and his wife’s attendance at memorialisation events as well as their attendance at rallies and protests – in most of these the applicant and his wife are distinguishable and are wearing t-shirts with slogans and/or holding banners.
The applicant confirmed that the [social media] account which had been provided to me was an account shared between himself and his wife. That account, as evidenced by printouts, has been restricted. The applicant and his wife gave evidence that the account is often restricted each year during commemorations when they have posted commemorative LTTE posts on their [social media] page. They noted that they were not provided with information from [social media] around why or who had requested their account be restricted. They speculated that they were being monitored by authorities in Sri Lanka. I have had regard to the [social media] printouts provided, I observe that they include re-posts but also original posts of events which the couple have attended as well as advertisements for people to attend these events, as well as re-posts of commemorations in the North of Sri Lanka, commentary on the situation in Sri Lanka and other posts. The posts span 2018 to the present day.
I have had regard to the letter from the Tamil Coordinating Committee (TCC) of January 2023 which confirms the evidence of the applicant about his activities in Australia. The letter notes that the couple have consistently attended commemoration events since 2014. Significantly as well as doing the [work], set up and decoration work, the letter states that the applicant also [conducts specific tasks recognising] the LTTE. The letter notes that the applicant has attended various public protests and rallies in Sydney organised to expose and create awareness of the Genocide and War crimes committed by the Sri-Lankan Government against the Tamil ethnicity. The letter concludes that they have strong positive sentiments towards the Tamil struggle for independence and are well known among the community for possessing pro-Tamil Eelam sentiments and political opinion against the Sri-Lankan oppressive regime.
The letter from the NSW coordinator of the Tamil Refugee Council (TRC) dated September 2022 also states that the applicant and his wife have been involved, and significantly, notes that ‘On many occasions our events and demonstrations have been disrupted or monitored by Sri Lankan Government supporters. I am certain that Sri Lankan security agencies are monitoring our activities.’
I have also had regard to information that the TRO and the TCC were listed as proscribed terrorist organisations on 1 August 2022 by the Sri Lankan government under UNSCR 1373, the TRO being proscribed ostensibly for the ‘time to time funding for terrorism’ and the TCC for ‘Terrorism related activities and time to time funding for terrorism’ (although it is noted that the gazette refers to the TCC a.k.a TCC [in Country 2] and provides a [Country 2] address.[1]
[1] [Sources deleted.]
I have also considered the expert evidence provided in KK and RS,[2] a decision of the UK Upper Tribunal (Immigration and Asylum Chamber) in May 2021 of Dr Smith, set out in more detail below, that proscription demonstrates a perception by the Sri Lankan government that an organisation is a front organisation for the LTTE and there is the potential for enhanced interest in a person associated with a proscribed organisation.[3]
[2] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021
[3] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [40]

I have also had regard to the information before me that the applicant’s wife has provided two videos, she was asked to make by the TRC in which she spoke of her experiences in Sri Lanka and how the Sri Lankan regime continues to commit human rights abuses against Tamils. These monologues have been published on the TRCs [social media] page and have been viewed hundreds of times. She is also asked to speak at rallies and protests and translates materials for these events and I accept this.
It is very clear that the applicant and his wife have a genuine and continuing commitment to memorialising the people killed in the war, including their relatives, to memorialising the LTTE, to an independent Tamil State, and to holding the Sri Lankan government to account for the offences committed during the war and in particular at the end of the war in 2009, when, in their view, the Sri Lankan government committed atrocities and crimes against the Tamil population, including civilians. These views come from their personal experiences and are long held and have continued for a long period of time during their years in Australia. I find that they have been active and committed members of several Tamil organisations, including one organisation which has a connection to a proscribed organisation, and others which are pro-Tamil independence and critical of the Sri Lankan government. Their involvement goes beyond mere attendance and includes significant assistance to these organisations over a long period of time.
Having regard to their evidence of their long time involvement in these activities, having regard to the support letters from the Tamil organisations, which I accept, and to their evidence at hearing which simply and powerfully demonstrated their personal experiences of the death of relatives and civilians at the end of the war, their trauma, and their desire for Tamil independence and the Sri Lankan government being brought to account, I find that their activities in Australia have been taken because of their genuine political beliefs and views on these matters. I find that the conduct engaged in by the applicants was engaged in for these reasons and not for the sole or even partly for the purpose of strengthening their claims to be refugees: I find s. 5J(6) has no application in this case.
These claims were supported by the submission provided by their representative, which set out clearly why it was submitted that the applicant and his wife possess a profile that did and will continue to make them of adverse interest to the Sri-Lankan Authorities and that if returned, as a consequence of their actual and imputed political opinions, both would be investigated by state security apparatus such as the CID, TID, Sri-Lankan Army and face a real chance of persecution by those same authorities during such investigations. The submission also highlighted that the applicants had both already been recognised as a person to whom Australia has protection obligations under the Refugees Convention, at their first instance through a Protection Obligations Evaluation Outcome on 5 Aril 2012. The decision maker found that both the applicant and his wife had a profile which would attract the adverse attention of the Sri-Lankan Authorities due to their imputed political profile. The submission noted the UK Upper Tribunal decision of KK and RS, referred to above and the UK Home Office guidance. The submission summarised the current situation in Sri Lanka. The submission dealt with the applicant and his wife’s mental health.
At the hearing, as noted above, the applicant and his wife gave evidence consistent with their claims.
Country information
I have had regard to country information from a range of sources. I have had regard to the most recent DFAT Country Information Report, but I note that the report is now over a year old and predates significant changes in Sri Lanka including the economic crisis, the fleeing of the former President and change of President. I will address these matters below.
I note also that I have had regard to the UNHCR Eligibility Guidelines of 2012.[4] Whilst these guidelines are over 10 years old, they are useful to consider the profiles of people who may be in likely need of international protection depending on their individual circumstances at that time and how, and whether, these have changed over the intervening years. I have had regard specifically to the sections on risk profiles of persons suspected of certain links with the LTTE including former LTTE combatants or ‘cadres’ and persons with family links to LTTE combatants.[5]
[4] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: [accessed 17 February 2023].
[5] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: [accessed 17 February 2023], pp. 26 – 28.
The DFAT Country Information report for Sri Lanka is helpful in setting out the situation in late 2021, although as above some caution must be observed given more recent events. The report relevantly notes that:
- Prime Minister Mahinda Rajapaksa’s earlier presidency (2005 to 2015) was marked by allegations of corruption and human rights violations including alleged war crimes against the Tamils. 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.
- The Sri Lankan government exercises effective control over the entire country, including Tamil-populated areas.
- Since 1987, Tamil has become an official language and English is, in practice, a lingua franca between communities. Tamils comprise most of the population in the Northern Province.
- DFAT assess that non-Muslim Sri Lankans including Tamils, face a low risk of official or societal discrimination based on ethnicity or caste, including in their ability to access employment or housing.
- According to the 2012 census, Tamils are the second largest ethnic group in Sri Lanka (15.3%). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA).
- Many Tamils, particularly in the North and East, reported being monitored, harassed, arrested, or detained by security forces during the war. LTTE members and supports were almost all Tamil. 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 war, missing persons, land release and memorialisation events. DFAT asses that surveillance of Tamils in the North and East continues, with surveillance of those associated with politically sensitive issues. DFAT also assess the physical violence against those being monitored is not uncommon, and that ordinary Tamils living in the North and East of Sri Lanka are at low risk of official harassment.
- 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. The Sri Lankan government arrested several Tamils in 2021 under the Prevention of Terrorism Act for alleged LTTE-supportive behaviour. In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department for allegedly promoting the LTTE. In its May 2021, the UK Upper Tribunal found that the present Sri Lankan government possessed a determination to prevent any form of resurgent separatism.
- Former LTTE members face no legal barriers to participating in public life, including politics. However, high-profile former LTTE members face the highest risk of monitoring, arrest, detention, or prosecution, regardless of whether they performed a combat or civilian role during the war. Low-profile former LTTE members may come to the attention of Sri Lankan authorities especially if they are suspected of having a combat role during the war. These individuals are likely to be detained and may be sent for rehabilitation. DFAT assesses that while Tamils with actual or imputed LTTE links may be monitored, those that are not politically active, are generally able to lead their lives without concern for their security because of their past association with the LTTE.
- Whilst the use of torture may have decreased since the end of the war, it is still used, including as a routine tool of policing, and multiple domestic and international sources consider it to be common.[6]
The Office of the United Nations High Commissioner for Human Rights reported on the Human Rights situation in Sri Lanka in October 2022, and I have found this report very helpful for setting out the current situation in Sri Lanka.
The report in its broadest sets out that Sri Lanka is experiencing an unprecedented economic crisis and is now at a critical juncture in its political life, bringing into sharp focus the indivisibility of human rights. Since March 2022, Sri Lankans from all communities and walks of life, in particular young people, have come together in a broad-based protest movement to demand a change of Government and to call for accountability and deeper reforms. Meanwhile, victims of past human rights violations continue to wait for truth, justice, and redress.[7]
[7] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5.
From this broader context, the report also details that whilst the government has claimed a de facto moratorium on the use of the Prevention of Terrorism Act, three student leaders were detained under the Act in August 2022, whilst some detainees charged under the Act have been released others remain detained. Whilst the government de listed several entities and individuals under counter terrorism legislation, a number were added, including, as above, the TRO and TCC.[8] The report notes the accelerating militarization of civilian government functions was undermining democratic institutions in Sri Lanka, and a lack of security sector reforms and demilitarization, particularly in the north and east, and particularly that although the war ended in 2009, the military presence continues to be significant in terms of personnel, checkpoints and the involvement of the military in drug law enforcement, agriculture and development activities. [9]
[8] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5, p. 5.
[9] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5, p. 6.
The report details that their Office continues to receive reports of surveillance, intimidation and harassment of persons including those involve in memorialisation initiatives by the intelligence services, military, and police, particularly in the North and East, and that former LTTE cadres are subject to ‘intensive surveillance.’[10]
[10] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5, p. 7.
Lastly the report goes on to note that the government has not provided a credible roadmap on transitional justice towards accountability and reconciliation.[11]
[11] OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka, 4 October 2022, A/HRC/51/5, p. 9.
As noted above, the UK Upper Tribunal decision of KK and RS,[12] is most helpful, providing as it does reasonably recent information from a range of recognised, named experts in the field and focusing specifically on a central concern in this case, the activities of the applicants whilst in Australia. The judgment considers the expert opinion of three experts, copious evidence, and analyses this evidence to come to the following views. Having read the decision, weighed the evidence and considered the analysis, I found this to be helpful.
[12] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021
As I have noted is consistent across other sources, the Upper Tribunal states that the government of Sri Lanka is authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka which has as its ultimate goal the establishment of Tamil Eelam, and the government draws no material distinction between violent means of doing so or non-violent advocacy for that result.[13]
[13] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [536].
While Tamil diaspora are viewed with a generally adverse mindset, the government does not view the entire cohort as holding separatist views or being politically active. However:
Sur place activities on behalf of an organisation proscribed under the 2012 UN Regulations is a relatively significant risk factor in the assessment of an individual’s profile, although its existence or absence is not determinative of risk. Proscription will entail a higher degree of adverse interest in an organisation and, by extension, in individuals known or perceived to be associated with it. In respect of organisations which have never been proscribed and the organisation that remains de-proscribed, it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not at the level applicable to proscribed groups.[14]
[14] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [536].
The government continues to operate an extensive intelligence-gathering regime in the United Kingdom which utilises information acquired through the infiltration of diaspora organisations, the photographing and videoing of demonstrations, and the monitoring of the Internet and unencrypted social media.[15]
[15] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [536].
The government operates a general electronic database which stores all relevant information on an individual, the stop list and watch list are derived from this database.[16]
[16] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [536].
Those deemed to have undertaken a significant role in Tamil separatism (as that is understood by the government of Sri Lanka) will face questioning and detention at the airport or place of residence, and this significant role is to be measured y way of the nature of the diaspora organisation, whether that organisation has been proscribed, the type, extent, and duration of activities an individual has undertaken, their history in Sri Lanka and relevant family connections.[17]
[17] KK and RS, Sri Lanka CG [2021] UKUT 00130 (IAC), 27 May 2021 at [536].
I have also had regard to news items which have described the economic crisis,[18] the subsequent political crisis and flight of Rajapaksa, and that while there have been protests across the country there have been fewer in the north.[19] I have also noted the country information provided in submissions and I have had regard to the information the applicant reported at the hearing, that an Indian politician from Tamil Nadu, Mr Nedumaran, claimed in February 2023 that Prabhakaran, the founder and leader of the LTTE was alive and would return soon to announce his plans for Tamil Eelam.[20] I note that Prabhakaran was declared dead by the government of Sri Lanka in May 2009 at the end of the civil war. This information is relevant however as the applicant claimed that this news had led to increased arrests of Tamil activists.
[18] 'Sri Lanka Multi-Dimensional Crisis Situation Report No. 2', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 05 August 2022, p.2; 'Sri Lanka Teeters on the Brink', United States Institute of Peace, 27 July 2022, p.3; 'The hope and fear of the Sri Lankan protest
[19] 'Tamils in Jaffna launch signature campaign demanding arrest of Gotabaya Rajapaksa', Tamil Guardian, 07 August 2022; 'Protests across North-East condemning recent arrests in the South', Tamil Guardian, 31 July 2022; 'In Sri Lanka, the Military Still Runs the Show', Viruben Nandakumar, Foreign Policy, 04 August 2022; ''We have orders to shoot' - Sri Lankan police threaten Tamils gathering in Mullaitivu', Tamil Guardian, 12 May 2022,
[20] NDTV, "LTTE Chief Prabhakaran Will Make Appearance Soon": Tamil Leader's Shocker, NDTV 13 February 2023.
Is there a real chance the applicant will be persecuted if he is returned to Sri Lanka?
I have accepted above that the applicant was involved with the LTTE from his training with them after he left school until the end of the war in 2009. I accept that he and his wife were detained at the [Camp 1] IDP camp and that at that camp, because of his suspected LTTE involvement he was detained, questioned and tortured. I accept that he escaped the camp and was able to remain in hiding and was then able to depart Sri Lanka with his wife.
I accept that the applicant has been involved with memorialisation activities, protests and gatherings which are and would be perceived by the government of Sri Lanka to be pro-LTTE and in pursuit of a separate Tamil state. I accept that the applicant has been involved in a range of activities for the TCC and TRC as described above, and I note and accept the information from the NSW coordinator of the TRC who states that their activities have been disrupted and filmed by Sri Lankan government supporters and his view that security agencies are monitoring their activities. I accept that the TCC is a proscribed organisation as above.
I accept that the applicant’s profile would be heightened because his wife worked for the TRO, which has been proscribed by the Sri Lankan government, and because of her videos posted on the TRC [social media] page which is public and have been viewed hundreds of times, and her work with the TRC. I find that this increases the applicant’s risk of being detained and questioned about his wife.
I accept that, with his wife, the applicant has posted to a [social media] account consistently about memorialisation events, comments on the situation in Sri Lanka, and that on several occasions the account has been blocked for a period. I accept the applicant’s speculation that this would be based on complaints from the government of Sri Lanka or their agents as being plausible given the country information.
I accept that the activities the applicant has undertaken in Australia are founded in his long held, genuine belief in a separate Tamil state and an abiding desire to have the Sri Lankan authorities held to account for the treatment of LTTE and Tamil civilians during the war.
If the applicant was returned to Sri Lanka now or in the reasonably foreseeable future, there is more than a remote chance he would be questioned and detained by the Sri Lankan authorities for the following reasons. This is because, cumulatively, the applicant has a profile that would be of interest and concern to the authorities, and because I consider that the applicant, as he stated at the hearing, would continue his political activities in Sri Lanka.

It is clear to me that the applicant has engaged in activities in Australia which may place him on the stop or watch lists, including more than mere involvement in protests and memorialisation, but an active role in organising and a prominent position in protests. This is exacerbated by his [social media] posting which I accept has come to the attention of the Sri Lankan authorities. These activities are the applicant’s genuinely held views. I consider that these views can be characterised as pro-Tamil statehood views and as views contrary to the Sri Lankan government or imputed as such by the authorities.
If the applicant were returned to Sri Lanka now, it is to an environment of heightened tension given the economic and political crisis, in which the Sri Lankan security forces have shown themselves willing to use force. It is an environment of crisis where it is reasonable to consider that security forces will be focused on maintaining the unitary Sri Lankan state.
I find that if he is returned there is a real chance the applicant would be stopped and detained on arrival at the airport. There is more than a remote chance that the applicant, and his wife, have been placed on the stop and watch list based on their past activities in Sri Lanka, including the applicants work for the LTTE and his wife’s work for the TRO, combined with their activities in Australia, including for a proscribed organisation, and their posting to [social media] including the removal of their posts and blocks on their account. There is more than a remote chance that the applicant could be detained for a significant period under the PTA, which I find is still being used by the authorities to detain persons of interest.
I have had regard to information from DFAT and other credible sources that torture, whilst not sanctioned by the Sri Lankan government, is still routinely employed by the authorities in questioning of persons of concern to those authorities and is considered common. The period a person spends in detention may also increase the chance of them being tortured. If the applicant were to be detained under the PTA, which I find is not far-fetched, I find that he would be detained for a significant period given the several risk factors of his profile, which would lead the authorities to seek further information about his past in Sri Lanka, his activities in Australia and his knowledge as a member of her family unit of his wife’s activities. During this detention, I find that there is more than a remote chance, given the country information on its prevalence, that the applicant would be subjected to torture. I note his past experiences of torture and other harm and his mental health state now, and I find that even conduct which may not amount to torture may differentially affect the applicant such as to amount to serious harm.
Further, even if the applicant were not detained for a significant period and did not suffer serious harm, I find that on returning to his home area in the North, he, and his wife, would continue to attend and assist in organising memorialisation activities, and would work to seek to hold the Sri Lankan authorities to account. On the country information, this would lead to further monitoring, harassment, questioning and detention where again there would be the chance, not remote, of serious harm being inflicted on the applicant.
I find that the applicant has a well-founded fear of persecution based on his actual or imputed political opinion, being his pro Tamil separatist and anti-Sri Lankan government opinion, his ethnicity as a Tamil and his membership of his wife’s family group. I find, as above, that there is a real chance of the applicant being persecuted for one or more of these reasons if he is returned to Sri Lanka in the reasonably foreseeable future. Such reasons are the essential and significant reason for the persecution. As above, the Sri Lankan authorities remain vigilant and intolerant of any hint of the re-emergence of the LTTE or any activities suggestive of a separate Tamil state, and those authorities view violent opposition and non-violent political opinion such as that the applicant and his wife have expressed in Australia to be equivalent. Such persecution would involve serious harm to the applicant, as described above. The persecution would be systematic and discriminatory because it would be carried out against the applicant because of his views and beliefs and would be targeted at him.
The real chance relates to all areas, given that Sri Lanka is a unitary state, and the intelligence, military and police apparatus are present in all areas of Sri Lanka. The applicant would be required to provide a forward address when he arrived and would be unable to relocate without the authorities becoming aware.
Effective protection is not available because the feared persecution emanates form the state. The state is not willing to offer such protection to the applicant.
There may be steps that the applicant could take to modify his behaviour to avoid some of the harm amounting to a real chance of persecution. But such steps, such as not advocating for a separate Tamil state or not seeking restitution and reckoning from the government for what occurred at the end of the war, would be only a partial avoidance of harm, I find there would still be a real chance for all the reasons described above. Further, such steps would I find, conflict with a characteristic that is fundamental to the applicant’s identity or conscience, because I have accepted that his political views are genuinely held.
For all of these reasons I find that the applicant is a refugee as he holds a well-founded fear of persecution if he is returned to Sri Lanka now or in the reasonably foreseeable future.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a)of the Migration Act.
Sean Baker
Member

Attachment - 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.
…

movement', Isaac Chotiner, New Yorker, The, 22 July 2022.

[2023] AATA 990

21 February 2023

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