1727092 (Refugee)
[2022] AATA 5063
•18 November 2022
1727092 (Refugee) [2022] AATA 5063 (18 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Maria Psihogios (MARN: 0533033)
CASE NUMBER: 1727092
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Justin Meyer
DATE:18 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 18 November 2022 at 2:16pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – LTTE intelligence operative member – implicated in murder of two STF officers – persecution from Special Taskforce of the Sri Lankan police (STF) and Karuna Group – family members’ links to LTTE – arrest warrant issued – active in the Tamil diaspora in Australia – creative content related to political opinion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 20 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 17 June 2016. The delegate refused to grant the visa on the basis that he was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act, nor were complementary protection criteria met under s.36(2)(aa) of the Act .
The applicant appeared before the Tribunal on 2 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant arrived in Australia as an illegal maritime arrival [in] September 2009 and had a positive assessment in Protection Obligations Evaluation (POE). He subsequently applied for this visa.
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.
11. 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.
Mandatory considerations
CONSIDERATION OF Claims and evidence
12. The issues in this case are whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm.
13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
14. The applicant's identity is established as a [age]-year-old male, as evidenced by a Sri Lankan passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.
Claims
15. In his protection visa application to the department, the applicant made these claims:
[Per his application for a Protection Obligation Evaluation (POE) the applicant provided the following written claims in a statement dated 9 December 2011 (in summary)]:
I left Sri Lanka to escape being beaten and killed by members of the special forces unit of the Special Taskforce of the Sri Lankan police (STF) and Karuna Group as they suspected me of being involved with the LTTE and associated with several killings
In December 2006 I was with friends when we were requested to provide known LTTE members with our motorcycles which we did to avoid being shot
The following day ten to fifteen members of the STF and Karuna Group came to my house and severely beat me before taking me to their camp. I remained there for five day whilst continually beaten and interrogated as to my connection with the LTTE
After being released [in] December 2006 my mother told me that the motorcycles were taken by the LTTE members to [Town 1] where two STF members were killed. I was told as a condition of my release to report to the camp every week
[In] December 2006 I heard my friend's body was located in [a] Forest and he had been shot in the head. I visited a Muslim man close to my home and he took me to Colombo and I organised to travel to [Country 1] as a student so I could flee Sri Lanka
During my time in [Country 1] the STF and Karuna Group came to my house in search of me and my cousin was killed by gunshot to the head.
Whilst in [Country 1] there were Sinhalese men living nearby who were spreading rumours of my involvement with the LTTE as the primary reason I would not return to Sri Lanka
[In] May 2009 I went back to Sri Lanka when forced by the [Country 1] authorities and I was scared of what may occur on re-entry. Due to the student visa in my passport I was not held for questioning by the authorities
I returned to my village in July 2009 and a day after arriving members of the STF and Karuna Group came to my house and forced my mother back out of the doorway at which point I escaped out the back of my house
My friend [then] took me to [Town 2] and a passport was organised for me to travel to [Country 2] where I travelled [in] July 2009
Whilst in detention in [Country 2] the Sri Lankan High Commission came and took photo/video of us. I believe upon returning to Sri Lanka I will be questioned by the authorities because of this as well as being a Tamil male.
16. Per his application for this Safe Haven Enterprise Visa (SHEV) application the applicant claimed as follows:
·He reiterated his previous claims made in his POE application and provided a written statement with his SHEV application dated 17 June 2016.
·Claims to fear harm/mistreatment covering but not limited to the following Sir Lankan authorities: Sri Lankan police, the CID, Karuna Group, STF, paramilitary groups and other political groups
·Claims that this is for the principal reasons for fearing persecution: race as a Tamil male; Imputed political opinion (LTTE); membership of particular social group (returned failed Sri Lankan asylum seeker).
·When he was in [Country 2] the Sri Lankan High Commission came and took photos and videos of them and he is afraid that he will be questioned at the airport.
·Sometime in 2015, his mother informed him that approximately four unidentified men attended their home and questioned her about him. They told her that they were aware that he was involved in pro-LTTE Tamil groups overseas which had condemned the current government.
·On the 11 September 2017, the applicant's former representative provided additional information for consideration which outlined the following:
·The applicant's brother in laws name is [Mr A], and he had a brother named '[Mr B]' who was head of intelligence for the [District 1] division of the LTTE.
·This individual left Sri Lanka in 2010 where he lived in India until his return back to Sri Lanka in April 2017.
·The applicant's brother-in-law contacted the applicant in Australia and asked him to help arrange [Mr B]'s return to Sri Lanka, despite him being one of the most wanted people in Sri Lanka.
·The applicant agreed to help because he was in Australia and the Sri Lankan government could not get to him, which he did by arranging a driver to transport [Mr B] from Mannar to [District 1]. The applicant used a friend [to] do [this].
·[Mr B] visited the applicant's family during this time and stayed for one night at his family home. The applicant has lost touched with [Mr B] since then.
·After this the CID visited his house and threatened his mother with a gun and asked for the applicant and [Mr A], she told them that he was living abroad and [Mr A] was at work. They came back again a few days later and threatened her again.
·[In] June 2017 [this friend] was shot in the applicant's home village.
·[In] June 2017 [Mr A] was killed and the authorities declared it an accident.
·On 11 September 2016, the applicant's representative provided further written claims on behalf of the applicant that included the following
·He has worked for [a named organisation] in Australia and has come into contact with many Tamil refugees.
·Since he has started working in this field he has become more aware about what the Sri Lankan government does to the Tamil people and he has started to voice out about these thigs. He has participated in Tamil campaigns in Australia including one in Melbourne in 2014.
·In 2015 he helped the UNHCR get around 600 signatures from people wanting justice for the Tamil people.
·He has organised events for [Tamils] every year.
·He has made [social media] videos where he has spoken out against the Sri Lankan government. One has gone viral and he has received a lot of hate from particular people.
·He has written and made videos about Tamil Eelam and two have been blocked by the Sri Lankan government.
·One of his friends was deported back to Sri Lanka from Australia in 2017, and this individual has gone around and spread things about what the applicant has done in Australia and that he has worked previously for the LTTE.
·The applicant provided still-images of his videos and his attendance at Tamil rallies, and in one image he is shown holding the Tamil Tigers flag.
17. The applicant provided a warrant for his arrest that purports to have been issued by the criminal division of the [District 1] police [in] February 2007 and a copy of a photograph purporting to be the body of the applicant's deceased brother-in-law, [Mr A] at his funeral.
18. On 13 September 2017 the applicant was interviewed in respect of his SHEV application where he made the following additional claims:
He is unsure if either of the passports he used to depart and enter Sri Lanka previously were genuine or not but he obtained them through irregular means.
His father was abducted and killed by the government in 1986 but he does not know the circumstances in which he died.
His home village is dominated by armed groups and they would often attempt to get him to work for them including TELO and EPDP.
When he lived in Colombo he would often have to show his identity but did not have any problems because he would just go to school then go home.
His mother remains living in their village but feels unsafe.
That he believes he is still wanted in connection for the murder of two STF officers and Karuna group members in 2006 and believes that a warrant is out for his arrest.
That he had no involvement in the murder.
That his two friends who were arrested and released with him were later killed.
That many of his relatives were involved in the LTTE.
That his family is wealthy in Sri Lanka and own several properties and land.
That when he left the country in 2006 he was not a murder suspect because his case had not gone to the courts.
That they did not detain him when he returned in 2009 but they later tried to apprehend him at his home and tried to shoot him but he managed to escape.
That he was willing to help the former intelligence Commander named [Mr B] because he is family and that is their culture.
That he is not sure what happened to him and has not spoken to him since, but the authorities would suspect that [Mr B] had shared information about the movement with him.
That it is not the same [Mr B] which country information reports was killed in 2009.
That he has been to many pro-Tamil events in Australia, and there is a photo of him holding a Tamil tiger flag. This was given to him by a friend and is not available online.
That people in the Sinhalese community in Australia treat him with suspicion and he has arguments with people online about his music and videos.
His friend [who] returned home went to the CIUF and told them about his activities in Australia, including collecting signatures for the UNHCR against the Sri Lankan government's involvement in war crimes.
He was photographed and had his details taken by Sri Lankan officials when he was in detention in [Country 2].
19. The applicant provided a verbal submission during the SHEV interview as summarised below:
Aspects of the applicant's claims were accepted by another departmental officer in 2012, and if different findings were made by a decision-maker of the same equal standing causes several questions in a judicial review environment.
It would be procedurally unfair if another decision-maker was given the case and refused without interviewing the applicant.
The applicant's claims have been consistent since arrival.
When he departed in 2006 there was no court summons as he was only a suspect,
Other clients have also obtained travel documents with the assistance of Tamil politicians and travelled by plane.
The [Country 1] government deported him without creating a drama so he did not come to the attention of the authorities.
The activities that the applicant has done in Australia have been done after the applicant was accepted as a refugee.
The applicant has been very active in the Tamil diaspora in Australia and these are the kinds of people the Sri Lankan government will be interested in.
[A named Tamil organisation] in [Australia] has confirmed that he has been active in the community and organised [events].
DFAT reports that former paramilitary groups are part of the Sri Lankan police force.
DFAT reports that Tamils are returned by the Australian government in large groups therefore the applicant might be delayed and spent longer in detention increasing his chances of experiencing harm upon return.
The applicant could be targeted as a wealthy Tamil if he returns.
All of his claims should be considered under the complementary protection grounds.
The decision-maker should consider the applicant's abnormal behaviour at interview is attributed to him not coping therefore he could be at risk of harm due to his mental health condition.
20. On 19 October 2017 the applicant provided a letter addressed to the delegate which outlined the following:
He has faced many hardships in his life and grew up in a war zone and his father was killed.
He did not have the chance of a good education and lived in fear every day.
His mother cannot even walk due to the injuries she sustained in the war.
If he is deported to Sri Lanka he does not know what the authorities will do to him.
He has been a Good Samaritan since he has been in Australia and helped out in the community.
21. The applicant also provided copies of several documents including an arrest warrant for the applicant purporting to have been issued in 2007 and a photo of his deceased brother-in -law. On 21 September 2017 the applicant's representative provided further copies of these documents including and a cash receipt made out to the Sri Lankan Magistrates Court, issued in 2007.
22. In a statutory declaration of 2nd April 2022 the applicant declared:
I refer to and rely on the contents of my Entry Interview and my POE Application in 2011 and my SHEV Application in 2016 and I seek to withdraw several of my previous claims for protection.
I have provided incorrect information previously to the Department about not being involved with the LTTE. I did not speak out of fear of the consequences of talking about my true involvement with the LTTE.
When I first arrived in Australia, I was told by the Tamil people on Christmas Island to not say anything about my LTTE involvement. They said "this country will send us back, not give us protection and might even put us in jail and label us as terrorists." To this day that is the same thing I still hear from people I am in contact with from Christmas Island. Many Tamils are still afraid to talk about their involvement in the LTTE. I am only talking about it now because I need to: I do not want to provide any false or misleading statements to the Tribunal as I remain afraid of returning to Sri Lanka and cannot face my application being refused. There is an outstanding Arrest Warrant against me in Sri Lanka and an ongoing case against me filed by the Terro1ist Investigation Division in the [District 1] Magistrates Court, Case No.[deleted]. I was joined to this case [in] September 2009 after I had fled the country. I have never been involved in fighting, have never killed anyone and have never committed any war crimes. I worked in the intelligence sector for the LTTE until I was detained by the Sri Lankan authorities, interrogated and tortured.
I worked an intelligence operative with the LTTE to defend and protect my people. I believed and continue to believe in Tamil independence and Tamil rights.
The information I have given about my identity, family and background remains true and correct. The information I have given about what happened to relatives and my friends who were suspected of being involved in the LTTE remains true and correct. This includes the death of my cousin [and] my friend [Friend A]. The information I have given about my activities in Australia in support of Tamil rights and independence remains true and correct. I am active in the Tamil community and known as [an] artist [creating] political [content] in support of Tamil rights.
I have not done these activities to strengthen my case but because of my beliefs about Tamil rights and because I believe in Tamil independence.
I am [age] years old. I was born in [village], [District 1], Sri Lanka on [date. From as early as I could remember my hometown was a war zone. It was normal for me to see soldiers from the Special Task Force (STF) roam the streets and invade Tamil homes to do routine checks. At that time, the soldiers were not the only threat to us - there were many different groups active in our area. Even within Tamil society there were groups that threatened Tamil individuals that supported the LTTE. Some of these groups were TEL0, the EPDP and Rasi - these groups were funded by the government. Jihad was another group active at this time as well. All these groups were not friendly with each other. Each group had different beliefs and for the Tamil groups a different ideology of what freedom for Tamils should look like and so there was constant clashes which always resorted to violence.
I was only [age] years old when I lost my dad - [name deleted]. He was taken by the Sri Lankan Military and never seeh again. Given he did not return for weeks, then months, then years, this could only mean that he was dead. I know he would have contacted us if he was safe so we would not worry.
When I was young, I was not aware of how my dad died. My mother hid the truth from me, as she wanted to protect me in every way to push me away from becoming a LTTE supporter or even a member Hke my dad. But later I learned that my dad was an active member. My dad was [an occupation], he worked at [a health facility] in [District 1]. Taking advantage of his access to several medical supplies, my dad aided the LTTE by providing them with medical and pharmaceutical supplies.
Several of my relatives were in the LTTE.
These are my closest family links.
My mother [had] [sisters] and [brothers]. On my mother's side, the following were in the LTTE:
Her [brother] [named] - held a political position in the LTTE;
Her [sister's] son [named] - his LTTE name was ''[deleted]"; he held a political position in the LTTE;
Her grandmother's sister's daughter's son - [Mr C] who was a [certain rank] and [a member] of [District 1] Intelligence for the LTTE;
Her third [sister's] [daughter] - who was an LTTE cadre
My father [had] [sisters] and [brothers]. On my father's side his [brother]- LTTE name "[deleted]" was in the LTTE navy.
When I was young and growing up my mother did not let me spend time with my own relatives but encouraged me to be family with my Muslim neighbours. She was worried that my relatives would influence me to become an LTTE supporter or member.
Even though we are not Muslim, my mother is open minded and she tried very hard to make me understand that all religions - no matter their beliefs, are one. But to me what she believed in was not reality. I had a mind of my own and saw and experienced the fear every day of what it was like to live as a Tamil person and being the only male in my household in [village]. Unlike my aunties or my neighbours my mother was a working woman - she had an office job. I remember days when my mum was just runni g late from work but I feared the worst while I waited for her to appear at the gates of our house. I would peak down the street carefully looking at each woman wearing a saree hoping it was my mother. My mother had to pass the military training camp every day to get to work. The army camp was huge, and followed a road for almost 2km. This was the same road my mother walked to and from work and why I was so scared for her safety.
Fears like this is what powered my dislike for the Sri Lankan authorities. Why were we being punished in our own motherland? It was difficult for my family and relatives to live a normal life. No woman or man could step out of the house alone safely.
Innocent people were being targeted and killed every day. People were disappearing like it was nothing. During my early teenage years, I started to rebel against my mum. I started to do boxing and physically built myself up. I started to act on what I believed and what I should fight for. I had heard rumours about how my dad truly died and that I was part of a family who not only supported the LTTE but was part of it. My [cousins] and my uncles were active members of the LTTE group, some held titles which were very high up.
In 2003, I had just finished my [exams] and was working for my uncle making [products]. During this time I was invited to meet one of my cousins, [Mr C]. My cousin [Mr C] was known as [rank deleted][C]. He [worked with] the Head of the LTTE's Security Intelligence Service. [Mr C] was [a member] of the [District 1] Intelligence Unit for the LTTE.
One day I was walking home when 2 men on a motorbike approached me. I recognised one man - [Mr D] from the markets, but at the time the other man - [Mr E] was a total stranger to me. They said they needed to talk to me, that they were from a big place and that they worked with [Mr C]. I understood straight away what this was about. They wanted me to meet them the following week. They told me not to tell anyone anything, to act normal, to wear normal clothes and meet them at a [location].
The day the meeting was scheduled I met up with my childhood friend [Friend A] and told him that I was going to see someone important. [Friend A] and I shared the same beliefs and I knew my secrets were safe with him. I had to make sure someone knew what was happening, because anything could happen during these times and I did not want to disappear like my dad and put my mum through the trauma of not knowing what happened to me.
I went to the [location] and met up with [Mr D] and [Mr E]. They told me they were Tamil Tigers Intelligence Officers who worked under my cousin [Mr C]. They said they wanted to recruit me, that they were recruiting many young intelligence officers at this time around my district and that [Mr C] strongly wanted me to come in during this time. They called [Mr C] on their phone and I got to speak to him for the very first time. [Mr C] talked about my dad, he encouraged me further to join the movement and convinced me that it was time for me to contribute in some way just like my father had. I was told to meet them again on the following day and be ready to travel to Kokatisollai to start my training to become an intelligence officer.
That night I remember sitting at the dining table wondering what my mother's future was going to be like. I knew the following night at this time she would be distraught about what had happened to me. The thought of her pain sickened me but the thought of not doing anything for my people also made me angry. The next day I travelled to the [location] and when I got there I was told to change my clothes into some grubby ones and then we all got onto one of the tractors and left the area.
We travelled until we reached a private property at Kokatisollai. There were about 10- 15 boys there already, all aged a little older than me to their early teens. From there we got on to a truck and travelled for approximately 3 hours. We arrived at [Camp 1], which was literally in the middle of the forest surrounded by mountains. You could not even see the sky it was completely covered. The LTTE officers took down all our details, about our families, how many siblings we had etc. We were assigned numbers and then queued up to have our heads shaved.
At that camp I was trained under [two named persons]. The training continued for several months - approximately 3-4 months. There were 3 sections, physical training, commander training and intelligence training. The practical section involved basic physical training, the commander training involved doing several different scenario movements and learning to use weapons and the intelligence training was based on how we should handle ourselves while investigating, and how we investigated and monitored movements to gather intelligence.
One day during my training months, I got an opportunity to personally meet my cousin [Mr C]. We talked about a lot of things that day. It felt like a family reunion and I learnt about how all my relatives who were in the LTTE were doing and what they were doing for the movement. [Mr C] also told me why they were training many young boys from my area at that particular time. He told me that time was crucial, because a 'Cease Fire' was declared by both the LTTE and the Government authorities. Each side could freely travel in and out of the areas that were not in their control but on one condition - that they were not armed. [Mr C] explained to me it was critical to take advantage of this situation. He said that the ceasefire was good in one way, but the downside was that many spies had entered LTTE territory. So, the LTTE needed to build a group of intelligence in the areas where the government had authority, to not only spy but mainly to strengthen the LTTE connection within these areas. He said he had heard things and believed problems would arise after the peace talks ended and he wanted to be ready if major fighting broke out again.
One of the last topics we covered in training involved the use of our cyanide capsules. We were instructed that if we were ever found in a situation where we were going to be caught then the first action would be.to kill our opponents, the second action would be for us to kill ourselves with cyanide. Because I was in the general population intelligence group I did not carry a cyanide capsule.
At the point that my training was complete the LTTE flag was lowered for me and the other trainees, we sang the LTTE song and I was given the name "[deleted]".
When my training was finished at [Camp 1] the first assignment the LTTE briefed me on, was to monitor 5 people who were known to roam around in my area. There were 3 units of LTTE intelligence - the first being military intelligence, then general population intelligence which was the group I was assigned to and the third group was the group of intelligence operatives that infiltrated the army and military' s ranks to gather intelligence for the LTTE.
As part of my assignment, I was told to take note of anyone I thought was suspicious, if someone knew too much information about the Tamil Tigers - to observe them, find out their movements, follow them, find out who their circle was. I was told to be aware of people who constantly entered and exited the STF camp near my home and take note of any Muslim business owners who were particularly close to Tamil business owners because they potentially could be TEL0 members. Anyone I thought was suspicious I needed to monitor their movements. I needed to keep track of everything and write it down - where they went, who they met or went with, what day and time this event was and then report it all back to my commanding Intelligence [Mr D], when he contacted me.
When I returned home to [village] I was faced with a very angry mother. She cried so much and did not feed or talk to me for a full week. I had called her previously when I first started my training to let her know I was alright, but she was still very upset with me. She had told people that I had gone to Colombo to study at that time. I started my work for the LTTE straight away. I moved around from place to place. I observed and collected information about people in our community who I thought could potentially be selling information about the Tamil Tigers' movements, personnel etc to the government authorities. There was one group, TEL0 Varathan, who partnered up with the STF and started to target Tamil people. This group accused many innocent Tamil civilians of being LTTE members and the STF believed them and kidnapped these people to be tortured, imprisoned or killed. Most of my findings that I was reporting back at that time was on members from this group. This was because this group became a dominant presence in my area.
In August 2003 while I was away, an LTTE member killed a member from TEL0 Varathan. In revenge TEL0 Varathan started targeting Tamil boys no matter if they truly did or did not have a connection to the LTTE.
While I gathered intelligence in my area, I started to assist with delivering packages. I would pick up a package from one place and then drop it off at another place. I was even instructed to keep some of the packages with me sometimes. Whenever I had to hold onto a package, after whoever picked it up, I had to keep note of exactly what time this person picked up the package and then had to report it back to [Mr D].
In April 2004, these tasks came to a halt when Kamna executed [Mr C] and some of his officers. This incident changed everything. There was a new fear, an uncertainty about who we should trust and what future we had. I did not hear from [Mr D] or anyone in the LTTE for almost 3 months. I started to lose hope. I heard a lot about how the Kamna group was growing in power and they started to target the LTTE minorities.
At this time my mother kept pushing me to leave the country, she wanted me to get away from all of this and to concentrate on a career to have a better life.
I did not know what to do at this point, until I got a call from [Mr D] and he told me to stay low and that it would be good idea to relocate. So, I moved to Colombo in December 2004 and attended [College] to learn English.
While studying my English course I also did some small tasks for [Mr D]. [Mr D] instructed me to do a few errands from a [business]. [This business] was a wholesale business in distributing [products] in Colombo. During my time there I heard that this store was under [a] former Parliamentary MP. I would meet people here transporting goods from [District 1] and I would take them to Vellawatha.
At the end of 2005 I finished my English course and returned to [District 1]. I resumed working with my uncle making [products] and taking care of my mum. [Mr D] warned me about the Kamna group, which area they hung out in and who some of the members were. He wanted me to observe them and report on anything suspicious. While I worked for my uncle and went to deliver [products] to the shops in town, I was given packages to deliver as well. I later found out that these packages contained money. The money that I was moving around was for LTTE members who were at their posts. This was a method the LTTE used to transport money between [District 1] and other towns or cities like Colombo for the members' expenses and to purchase goods. When I delivered it to a shop in [District 1], that shop's branch in Colombo would release the amount I gave locally to our men there.
I also started to aid in hiding LTTE cadres at my uncle's factory. Some of these cadres stayed there for a couple of days before they got moved again. I knew that what I was doing was very risky, especially since Kamna had become our enemy. They were once our own people but then betrayed us. They knew everything about the LTTE, how we moved, how we got things done. The Kamna members were still targeting Tamil Tiger members and killing people off like it was nothing. Their biggest target was to kill off the younger generation of the Tamil Tigers, but they were also killing their families. They were trying to make us fear them and disable the Tamil Tigers. They killed many innocent people. I knew some of these people from school, they were my seniors. I started to worry about what I was doing. I heard how these guys' family members were either dead or on the run. It made me worry about my own mum and relatives.
[In] December 2006, [Mr D] and I met a transporter in Kattankudy. This person had come from Colombo. The meeting was to organise an agreement between us and his company to take goods to Colombo. As to what these goods were, I did not know. On our way back, [Mr D] got a call. He told the person on the other line where we were and 4 men on 2 motorbikes came. I had never seen any of these men. They went off to the side to have a private conversation with [Mr D]. I don't know what they talked about. Then [Mr D] told me he was going to drop me back off in [village] and borrow my motorbike. When he dropped me off, he said he would return my bike in a couple of hours. This was the last time I saw and talked to [Mr D]. He did not come back that night. I tried calling the last number he was using to call me from, but the call did not evening.The following morning, I was woken up by 10-15 men entering my house. Most of them were in plain clothes. I believed these people were from the Kamna group and the ones in uniform were STF. I was still in bed when they came in and started to grab me. They were all yelling. I was scared and in a panic. I could not make out what they were saying. They punched me and hit me several times and then tied my hands behind my back. They forced me to kneel and swore at me in Sinhalese saying "you fucker", "you dog" and several other insults. They yelled "where were you last night?", "who were you with?". I yelled saying "no-where" and that "I was home". I said it again and again but they kept yelling "you lying dog" and then dragged me outside into a truck. They took me to an STF camp which was about 1km away from my house. They kept me in a dark room for 5 days. The officers kept questioning me about where I was on the night of [date] December, and I kept telling them that I was home. They said I was lying and that I was the one who killed their men. I said I did not know what they were talking about and that I did not kill anyone. They did not believe me and kept questioning me. The second day was when I found out why they thought I was involved. They asked me 'if I was home then how was my motorbike found in [Town 1]'. I could not answer that at first. When I remained silent they continued to punch me in my abdominc;1.l area. I kept saying I didn't know and they kept hitting me. They hit my face, my chin with a thick stick and crushed my fingers. I could not stand the torture and I made up a story that my bike was taken but they did not believe me. They continued to torture me and kept me in that room. I kept saying that the bike was taken from me, that I didn't travel to [Town 1] and that I was home and that they could even ask my neighbours.
The fourth day they took me outside the room I was being held in. I could barely walk. They pointed out my mum to me, who I saw was in the compound near another building crying and talking to an officer there. The men next to me threatened me that if I did not tell them the truth then they would hurt my mother. They threatened me with many things about my mother. I begged them not to do anything to her. When they returned me to the room I then told them that I had given motorbike to a man named [Mr D]. I knew I had just sold out my senior officer but I could not take the chance that anything would happen to my mum or the torture continue. Then they questioned me about [Mr D]. They asked me if he was LTTE and I said yes. They wanted me to describe him, how they looked, what he was wearing. Another officer came in - I think a superior and listened to what I said while another guy wrote down what I was saying. They told me to sign a paper and that this was my statement.The next day I was released. I believe I was released for two reasons. The first, which I did not know at that time but found out later, was that my mother was arranging for a bribe to be paid. I also think that the information I gave may have contributed to my release. However I was released on condition that I would have to visit the STF camp weekly and sign off and also report to them of any LTTE activities occurring in my area. When I was released, my mum was waiting for me outside the camp. She was so scared and worried about me and told me that she had been waiting for me outside the camp for days now. Later my mum told me she had sought help from [a] Parliamentary MP. This man had a huge political influence in the Eastern Province. My mum personally knew the MP through her work and my uncle was also business partners with [Mr F], who was a family member and the right hand for the same MP. They had arranged to pay a bribe of [amount] Lks ($[amount] in 2006) for my release from the STF camp at this time.
When we got home that same day, my mum told me what had happened five days before hand - the day I gave my motorbike to [Mr D]. On that day several STF and Karuna group members had been shot dead, in [Town 1] and my motorbike had been found at the scene. I knew this involved [Mr D] and those men, but why this happened I am not sure, but I was sure something had gone wrong. My mum told me that my friends [Friend A] and [another friend] had also been arrested, but were released the day before. I was not 100% sure why they had been arrested but I knew [Friend A] owned a [store] in [Town 1] and the location may have had some possible implication in their arrest.
I was in a bad state. I was in so much pain, my elbow had been dislocated, my front tooth was broken, and it had pierced the inside of my mouth. I was bruised all over my body, but I did not go hospital because I was too scared. The village doctor came and gave me some medication to help me feel better. I was scared first of the STF and secondly I had betrayed my LTTE brothers. If either side found out the truth I would be dead. My mother said that she wanted me to leave the country now, that this was it. She said she was preparing my passport - I believe this was a false passport with my name and my photo because I never gave my birth certificate or official documents to obtain it. I was in danger and she wanted me to leave Sri Lanka. I thought this might be a good idea as well. I felt like I had betrayed the LTTE and I needed to get away from the STF's reach.
[In] December 2006, while I was waiting to leave Sri Lanka, I learnt of my friend [Friend A] being found dead in the forest [and] my other friend [was] missing. I could not believe [Friend A] was dead. I could not believe what was happening. As soon as the news reached my mum, she was in hysterics. That night we went and stayed at [Mr F]'s place and they arranged for me to travel to Colombo the next day. [Mr F] and I got to Colombo and we stayed at [suburb]. [Mr F] organised everything and made sure I passed through the Sri Lankan Immigration without being stopped. At the time I thought it was [Mr F] who had arranged these plans but I later learned that this was all done with [the MP]'s influence.
[In] December 2006 I left Sri Lanka and travelled to [Country 1].
I stayed in [Country 1] for over two years. Even though I had a student visa I did not keep up my studies and began working to support myself. But I did not have the right to work in [Country 1] and then I got into trouble with the [Country 1] authorities who discovered me working. I knew that I would have to eventually return to Sri Lanka. I did not have the option to go anywhere else. I returned to Sri Lanka [in] May 2009. I left [Country 1] voluntarily as I did not want to be deported to Sri Lanka or have my right to travel affected. Before I travelled to Sri Lanka I contacted [Mr F] through my uncle, letting him know I had to come back and he again ensured I passed through the Sri Lankan Immigration without a problem.
After I returned I stayed at my friend, [Friend B]'s house in [Town 2] for approximately 2 months. I did not want to immediately return to [village] because I was scared. I returned after about 2 months to see my village and my mum. I also thought the end of the war might have changed things as well. I arrived in my village in the middle of the night. For the next few days I laid low and did not leave my house. But I wanted to go and see what had changed and how the situation was in my area, especially because the LTTE was no longer active and so I thought there would not be a heavy military presence there. However it was the opposite. The military was still heavily active and present, and the Muslim and Sinhalese areas were in full celebration at the defeat of the LTTE. After this outing I did not leave my home to go anywhere.
[In] July 2009, men dressed in plain clothes forced their way into my house. I heard my mum's dogs go crazy outside and then I heard a few yells before I saw the men at the end of the hallway, where my mum was trying to block them. I quickly headed for the back door and jumped the back fence and ran to one ofmy friend's '-[my friend]'s house close by. I am not sure who informed the authorities of my return but any number of informants including for Kamna could have done so at the time. I was known to the authorities and fled in 2006 when I had been detained and released on condition of reporting so I feared my life was still in danger even though the war had ended.
As soon as we could, I left the area and [my friend] helped me get back to [Friend B]'s house in [Town 2]. I knew I could not stay in the country. I paid [Friend B] 100,000 rupees and he organised another passport for me to leave and travel to [Country 2]. Again, this passport was not obtained with my documents and it was not in my name.
[In] July 2009 as soon as the arrangements were made I left Sri Lanka for the last time.
I have explained why, when I first arrived in Australia I did not talk about my LTTE involvement.
When my claims were accepted in 2011 by the Australian government I thought I would not need to disclose my true LTTE involvement. I had also been found to be a refugee by the UNHCR in [Country 2] and relied on these claims.
I provided the same claims in 2016 but when my SHEV was refused in 2017 I began to get very worried.
The delegate had refused my claims and even though I had provided the legal documents showing there was a case against me in Sri Lanka he found that these documents were not genuine.
I say that these documents are genuine.
I knew about these charges against me in 2009 while I was in [Country 2] because my mother informed me of these charges at the time, but when I arrived in Australia I did not talk about these charges because that would have required that I talk about my involvement with the LTTE and I was afraid to do so at that time.
By 2017 I wanted to talk about the charges against me to support my SHEV application but I was still afraid to talk about my full involvement with the LTTE.
I attach to my Declaration a copy of the documents that I have obtained regarding the legal case that exists against me in Sri Lanka. I have the documents as they were sent to me in 2017 from Sri Lanka in my possession and I will provide these to the Tribunal to sight at my hearing.
From the documents and name alone I do not know who [Mr G] alias [deleted] is. I know that he would have been a member of the LTTE and if I saw his face I may know who he was, but the.name alone does not tell me anything.
The documents were sent to me by a lawyer[in] September 2017. I engaged him to attend the court and find out what was happening with the case and he sent me a copy of the court file and his correspondence.
From his correspondence dated 18 September 2017, it states that:
" ...As per the case record I knew that one LTTE intelligent member namely [Mr G] was arrested and produced before the Magistrate court of [District 1] on [date] August 2007 under the case No. [deleted] and he was remanded by the Learned Magistrate (still he is under TID investigation).
When the matter came up before the court on [date] Septbmer 2009, as usual the TID officers requested to extend the remand of the suspect [Mr G] and filed a further report and stated that one [applicant name] had facilitated to the above LTTE suspect and he assisted the LTTE association as intelligence.
And the TID informed to court that [the applicant] is a wanted person and he must be arrested and investigated by them. The court also issued the arrest warrant against him as well.
In the above circumstances [the applicant] can be arrested by the Sri Lankan authorities at any time according to the Court order ..."
From the English Translation of a court document titled "Informations to the Magistrate" it states that on [date].09.2009 "the officer of T.I.D filed motion to call the case in open court". The document states:
" ...Further report is being filed, according to that [name deleted] [name deleted] states that, in the above case it had been revealed on investigations that another suspect namely [the applicant] is campaigning against Sri Lanka along with the Tamil Diaspora. Further he requested to issue an open warrant for the said suspect. "
The Open Warrant of Arrest against me was issued on that day by the Court.
The particulars of the alleged offence or reason for issue of the warrant in accordance · with the English Translation is "in connection with participated of Terrorist Activities".
From the English Translation of the court document titled "To the Magistrate" it states:
Reference the Original B Report dated [date].08.2007. It has been disclosed that the suspect being a member of LTTE 's Intelligence Unit has supported the Tamil persons to join the LTTE Movement and has given his support to LTTE activities.
At the investigation made to this suspect. Some informations about [the applicant] were disclosed. [The applicant] is native place of [village], [District 1] and he was a supporter of LTTE in the period of 2006. Now he is abroad but he is still facilitating to the LTTE in several ways, especially he raising fund from the LTTE supporters in Europe countries to re build the LTTE unit. Further [the applicant] is having connection with former LTTE members and passing the messages between them.
Further when this Suspect [the applicant] was in [District 1] he visited Vanni area and collected information from LTTE Movement and the said information were sent to LTTE members in abroad. Presently he is in abroad, and doing the same thing against Sri Lanka.
Therefore a request is made to detain this suspect and to hold investigation, as it is required to take into custody, the suspect [the applicant] and to hold investigations. "
I am afraid to return to Sri Lanka. I am afraid I will be arrested by the Sri Lankan military and security authorities on return, detained and interrogated in relation to these offences and tortured in custody. I will not receive a fair trial given the seriousness of these offences. I do not know how long I will remain in custody or if I can survive the conditions in prison.
Evaluation of the applicant’s evidence in the hearing
23. The applicant said that he came from the eastern part of Sri Lanka.
24. He is from a Tamil family. His mother is in Sri Lanka along with his brothers. His father has died. In Australia he has a wife.
25. The applicant said that he had defied his mother’s wishes and this was because the government had killed his father. He hated them for this. He said there was discrimination against Tamils.
26. He said he was angry with the government. He was close to his cousin and knew him well. However he rarely spent time alone with his cousin because his cousin was high up in the LTTE. He said that the [District 1] region was always under government control.
27. The applicant said that he started by giving information to the LTTE. Names and details were given to them to follow up. The people were Tamil speaking and also Muslims. I asked why the applicant was spying on his own people. He said they were dangerous people who were paid to work against Tamils. I asked whether the applicant followed the people around by foot or by vehicle. He said he was following their whereabouts and trying to spot them by motorbike. He was in training when he was [age] years old and this took up to five months. He said he did physical training but was not good at sharpshooting. He worked in intelligence.
28. He did not tell his mother any of this - he just disappeared.
29. The training took place in a town four hours’ drive away from his home.
30. He also worked in a [factory]. He later started working for senior officers. For example, they gave him a parcel which may have had weapons inside. He was going to a certain place to take it to a particular spot. He also carried money around in parcels. He was not told that it was money. He managed to do this for a while without getting caught. He would travel around on his company motorbike and there would be labels on the bike indicating that [products] were stored.
31. He was first caught in December 2009. The Sri Lankan Special Task Force arrived with approximately 10 to 15 personnel and they were shouting and caused him physical harm. They tied his hands and brandished a gun against his forehead.
32. He was not aggressive towards them. They asked him where he was the previous night. He said that he was in his house. He did not know what they were talking about. He suspected something was wrong. He said he had “thought we got caught”. He believed the senior officers and intelligence officers had got caught for some reason.
33. He found out later what the army were talking about from his mother, five days after his release from the camp. His mother said that Tamil Tigers had used his motorbike to kill Special Task Force (Sri Lanka) (STF) members and Kurana members.
34. He had given his personal motorbike to his senior officer the day before the incident. He was asked to do this. He had done this two or three times before. He does not know what happened in this incident. He wanted to find out but had no contact with the members after leaving the country.
35. He was mixed up in these killings and he was disturbed, because he was then in danger. I asked if this was more than he bargained for and he said he was over his head. Morally it was wrong to take another’s blood but it was part of protecting his people. They were defending themselves and protecting the people.
36. He had anger towards the government. However, in Australia his thoughts changed and he wanted to be peaceful.
37. I asked whether the applicant was taken away and questioned, to which he replied ‘yes’. He went in a truck to an STF camp which was near his house. He was placed in a darkened room. He was given time to sleep. He was beaten and asked questions. They asked him whether he is connected to the LTTE. They asked him if he knew who had borrowed his bike. He told them that he did not know. He told them that he was at home. They did not believe this.
38. On the second day they took him out and showed his mother. His mother was at that place. They asked him to tell the truth. He told them that he knew who they were and that they were Tamil Tigers. He said they took the motorbike and he admitted it.
39. I asked what else they wanted to know. They wanted to know who the supporters were in the area. He said that 80% of the villages supported the Tigers.
40. I asked why they let him go, to which he said he had told them on his release that he would show the people who were supporters of the Tamil Tigers. His mother bribed them to get his release. She paid [amount] lakhs. His mother holds land and his father was “well settled”. His father had held employment. The applicant is an only child. He said he was guilty and he was a Tamil Tiger. He did not know how serious things were until he got caught. He understood it was a threat to his life. He said the only way for him was to leave the country. He had no other way out but to kill himself or return to the Tamil Tigers.
41. I asked if the applicant was a suspect as far as the security forces were concerned to which he replied no, not for murder. I asked the applicant if he was an accessory to a crime to which he said he had given them the motorbike.
42. I asked if there was any reason why anyone would accuse him or imprison him over this. I noted that being a suspect is different from having proof. He said that there was a court case pending for him.
43. I asked if the security forces ever locked up anybody for the killings in question. The applicant said that some of the men who had been working with him had been caught but he was not sure which.
44. He said that being a suspect is different from there being proof, but there is a court case pending for him. Even if he waited 50 years, they still had a case.
45. He had needed to escape Sri Lanka or get involved further with the LTTE. He had no ‘guidelines’ for the LTTE so he decided to leave the country. He said he had no contacts from LTTE members. He was tortured and not mentally fit to find a solution.
46. He decided to leave Sri Lanka yet had no options. He went to [Country 1] because the person who released him arranged that journey. His name is [deleted], an MP who is a business partner of his ‘uncle’.
47. The [named] group is very well connected. The applicant’s mother and uncle arranged it.
48. The documents were arranged. He had to wait days before he could depart. This was in 2006.
49. The applicant did not have a passport but this was arranged within days. His uncle gave him the passport.
50. The passport was under his real name for his first name, but the last name used was not his name. He could remember that his paternal grandfather’s name was used. I asked why to which the applicant said he did not know. He said the agent did it.
51. I asked whether the authorities would now be ‘off the scent’ and unaware that he had left the country. The applicant said “maybe.”
52. There was no issue going through customs in Australia or [Country 1]. He applied for a student visa while in [Country 1]. One of his uncle’s family friends advised him to. He did not study though. He was working under a student visa and was deported as a result. This took two years.
53. He had no other way. He could not get a passport even to go to [Country 2]. The Ministry [took] his passport because he had been working as a student which was illegal. He tried the UNHCR but they had no facilities in [Country 1].
54. I asked why he did not try to go to another country under his passport. Australia and other countries would not allow him to apply for a visa.
55. After two years he had to depart and was sent back to Sri Lanka. He had no difficulty returning to as the Uncle ([Mr F]) had arranged an agent and they asked him to go to a particular counter and was released. A bribe would have been made.
56. Uncle [F] had helped him and his mother since his father’s death and risked trouble by doing this but he was with the [named] group which helped.
57. He eventually went to his mother’s house and then stayed two to three days. STF troops came to the house and knocked on the door. They kicked at the door. They tried to shoot him but he ran away from the back of the house. Two or three shots were fired. He escaped into a small back lane. They did not find him – he was good at disappearing, jumping and running. He went to his friend’s house for a day.
58. He then went 400 km away in [Town 2] and stayed at another friend’s house, for weeks.
59. He then went to [Country 2]. [Friend B] (a friend in [Country 1]) arranged another passport for him. It had a different false name. [Friend B]’s father was a human smuggler who had contacts in Sri Lanka.
60. I asked about photographic recognition of his passport and the applicant said Sri Lanka did not have this yet.
61. Once in [Country 2] he had to pay money to be released from detention. He managed to work in [Country 2].
62. The Tamil Tigers stopped being listed as a terrorist organisation. This enabled him to tell Australian immigration about his involvement. He had always wanted to but could not.
63. He had incorrectly told the department that the Tamil Tigers had stolen his motorbike. He had told a lie because he was scared.
64. A person who worked with the applicant was in the LTTE and made a statements against the applicant after he was caught. The Sri Lankan Terrorism Investigation Division (TID) has taken action against him in court, as evidenced by court documents. It said the applicant was responsible for collecting funds for LTTE from overseas. This is untrue.
65. I asked why this person was making false allegations. The TID want to sheet home the blame on someone. Stories are made up in an attempt to ‘solve’ the case. He does not know who the declarant is, but people use false names.
(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.
…
High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General,
Promoting reconciliation, accountability and human rights in Sri Lanka, paragraphs 45 and 46
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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Statutory Construction
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Natural Justice
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Procedural Fairness
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Remedies
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